Lecture
U.S. Tort Law
Intentional Harms to Persons and Property
I.
General Information: Tort law as distinguished from other legal concepts
Tort = Latin “torquere” = to twist, wrestle aside.
A. Tort Law = a private wrong or injury (not contracts!) which allows
recovery for damages.
Two broad categories:
1. “Intentional Harm”/ “Intentional Wrong”
a) Does this mean there must be “bad” or “evil” intent?
NO !
b) Just have to have “a desire to bring about an immediate
result”
2. Negligence – failure to do something which a “reasonable
person”, guided by the usual factors which regulate “human
affairs” would do or not do.
II.
Must have some sort of “Duty” = in Negligence/Tort Law = “LEGAL
obligation to conform to a particular standard of conduct toward another.
1. For example, at Common Law, “No Duty to Rescue!” (a great
legal topic at dinner parties! Try it!)
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POSSIBLE “ACTIONS IN TORT”
III.
Assault and Battery –
A. Common Law concept of Assault – “intent to inflict harm on another
person and put them in fear of injury”
1. VERBAL threat of harm
- OR 2. Non-contact physical threat
Important! – personal hostility is NOT necessary !
B. Common Law concept of Battery – “intentional, harmful, unprivileged
contact with another person.”
1. “Intentional” – desire to bring about an immediate result
2. “Harmful” – person injured (physically or mentally)
3. “Unprivileged” – no legal (child disciplined) or personal
permission (S&M)
IV.
Self-defense of Person or Property –
A. Of Person – Right of Self-Defense = not liable (legally responsible) if:
1. Other person intended to harm him/her (or person has reasonable
fear of such a threat)
2. Defensive act not likely to cause death
3. Prevention of harm only possible by “fighting back”
4. Can only use “reasonable means” to stop attack.
B. Of Property – at Common Law, may be a form of “self-defense”
1. Can use reasonable means to “expel” intruder
2. Can use non-deadly mechanical devices to protect propery
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V.
Illegal Confinement – confinement by:
1. Physical barriers
-or2. Force
-or3. Threat of Force
Important: No evil intent necessary!
VI.
Words or Acts Causing Mental or Emotional Distress –
1. General rule = no damages unless also physical injury/criminal
2. “Common Carriers” = higher duty (level or care necessary)
VII.
Intentional Interference with Property –
A. Trespass – “one who intentionally and without consent enters the land of
another.”
No harm need be done!
B. Damage resulting from trespass – money ($) damages
C. Trespass by mistake vs. Accidental trespass –
1. Trespass by mistake – even if you enter land thinking it was
yours = trespass!
2. Accidental Trespass – completely accidental and nonintentional
D. Conversion –
1. Take someone else’s property
2. Alter (change), Destroy, Use it without permission, Refuse to
return property.
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E. Adverse Possession of property – (Not Torts, but Property Law = can
make other person property your own! (real estate = land, house, etc.)
1.
2.
3.
4.
VIII.
Open
Hostile
Continuous
Adverse
Malpractice – Legal and Medical, also considered a “tort”
A. Legal malpractice – negligent or incomplete work
B. Medical malpractice - problem area = some states cap (limit top amount)
awards, other states allow evidence of “collateral sources” of payment
(insurance, workers compensation, etc.)
C. Others – architects, accountants, and other professionals held now to
stricter levels of liability and responsibility.
IX.
Defamation of Character –
A. Libel – “publication” in written or printed form which “ridicules, scorns
or lowers the respect and confidence of other people”.
1. Publication = intentionally or carelessly showing item to 3rd
Party. (Can be hand written note, does not need to be an
“official” printed publication like a newspaper!)
2. Can be TV/Radio if read from a script !
B. Slander – Spoken word = more narrow “cause of action” (legal basis to
bring a law suit). Limited at Common Law to the following type of
statements:
1. suggest someone is guilty of a criminal offense
2. “
“ has a “loathsome” disease
3. “
“ engages in improper business/professional
activity.
4. the “unchastity” of a women
If not 1 of these 4, then the plaintiff must prove “special damages” = $ or
material loss.
Important: One who repeats slander is also liable !!!!
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C. Defenses to Libel/Slander –
1. Truth – Common Law “truth is the perfect defense”!
2. Consent –
3. Privilege –
a. Public Officials – performing public function
“exempt” (not limited by the rule)
b. Husband and Wife – what is said between them is
not considered a statement to a 3rd person. (in
Common Law = “one person”)
c. “fair comment” = opinion (as long as no
“alternative motive” (other motive)
X.
NEGLIGENCE – “careless or reckless” rather than an intentional harm.
Failure to use the care that a reasonable person would use in the same
circumstances.
A. REMEMBER – a duty must exist! = Common Law or Statute
B. Contributory Negligence – if the Plaintiff is guilty of any negligence
which contributes to his/her own injury = NO CLAIM
1. Traditional Common Law Standard
2. Rule significantly limited the number of injured persons who
could claim damages
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C. Comparative Negligence – if the Plaintiff is guilty of any negligence
which contributes to his/her own injury = decrease in the amount of
money if the Plaintiff is also negligent. (nearly every US State and Fed)
$100,000 Damages
60% - Defendant negligent
40% - Plaintiff negligent
$60,000 awarded by court to the Plaintiff
BUT !!!
If 60% Plaintiff / 40% Defendant = NO Damages Awarded !!!
Adoption of this standard by most jurisdictions is seen as one reason why
more tort claims are brought now than 20 years ago when Contributory
Negligence was the general rule.
ELEMENTS IN DETERMINING NEGLIGENCE:
D. Doctrine of Last Clear Chance – if one negligently exposes oneself to
danger, recovery is still possible IF the other person saw them and could
have avoided injuring them.
E. Negligence claims in automobile accidents – Question is: “Was the
driver acting in a “prudent” (vernünftig) manner based on the
conditions?”
F. Gross negligence – the intentional failure to perform a duty with reckless
disregard of the consequences
G. Willful and Intentional Wrong – to perform/not perform an action that is
known to cause injury
H. Foreseeability – only responsible of what “naturally” results from the
negligent act.
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XI.
Negligence Claims: Trespassers, Licensees, and Invitees.
A. Trespassers – general = no duty to protect, even if unsafe conditions
Exceptions:
1. Discovery of Trespasser
2. Frequent trespass
3. “Attractive Nuisance” - children
B. Licensees – person who comes onto property for their own purposes, but
with the owners consent (example – dinner guest)
1. Duty = “reasonable care” by owner
2. Only if owner is aware of dangerous conditions that put guest in
danger.
3. Duty is to warn of known dangers
C. Invitees – a person who:
1. Enters property by invitation (expressed or implied)
2. Entry connected with owners business
3. Mutual benefit (possible) to both, or just owner
Duty = affirmative (active) duty to protect
1. Not just known dangers, but also those discoverable with
reasonable care
2. Once a building is open to the public = anyone with a
legitimate reason for entering = business visitor
3. NO DUTY – if just “loitering” (hanging around) or to
get out of the rain
XII.
Negligent Claims Against Persons Supplying Property for Use of Others –
A. Manufacturers and Sellers of Merchandise = duty of “reasonable care”
B. Strict Liability – if “inherently dangerous item or defective
1. Even if manufacturer was not negligent
2. Even if injured person has no dealings or legal relationship with
manufacturer.
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XIII.
TORT DAMAGES –
A. Injured Party:
1.
2.
3.
4.
“Out of pocket” expenses
Pain and Suffering
Permanent injury / disability
Punitive Damages – for “willful, wanton, or malicious” conduct.
a. A few states prohibit the award of punitive damages
b. majority of states require clear and convincing
evidence.
c. minority of states do not allow them.
B. 3rd Person:
1. Loss of Consortium a. husband could recover against 3rd
party
b. Recover for wife’s “services and
companionship”
(Now – 19 states, women can recover)
c. loss of Love, Companionship,
Sexual Relations, Affection
2. Emotional Pain and Suffering – example, relative witnesses
death of a loved one.
3. Wrongful Death - loss of support
XIV. Most Tort Claims taken on a “Contingency Fee” basis:
1. Lawyer not paid for any of his work in or out of court if his or
her client does not win.
2. BUT if they do win the case (or “settle the case” = agree to
damage payment before trial) attorney takes a percentage
(usually around 1/3 of judgment or settlement)
3. Salary surveys have revealed that the compensation of personal
injury plaintiff attorneys is not significantly different than other
practicing attorneys.
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PUTTING THE THEORY INTO ACTION !
1. Your best friend is riding his bike. You want to scare him. You jump out from
behind a parked car with a knife (it adds to the “scare” factor!). He, perhaps not
surprisingly, crashes the bike. He sues you for?
2. Your best friend is riding his bike. You see a bee flying around, which then lands
on his back, you run up behind him and hit the bee with a rolled-up newspaper, he
crashes his bike. He sues you for?
3. Your friend is riding his bike. You see a bee flying around, which then lands on
his back, you run up behind him and hit the bee with a rolled-up newspaper. He
sees you out of the corner of his eye. Fearing he will crash, he swings his elbow
backwards, and hits you in the nose, breaking it. He still crashes his bike. You
sue him for?
4. Your best friend is riding his bike. You send him into a fenced parking lot to find
a place to park his bike. Lunchtime comes and you lock up the parking lot, your
friend is still inside. He sues you for?
5. Your best friend is riding his bike. He is late for his lecture, so decides to take the
tram/light rail. A little old lady standing on the platform, seeing him running for
the train, sticks her cane in the door to hold the door for him. The train driver
becomes very upset, gets out of the train, and yells at her for several minutes!
The little old lady sues the train driver for?
6. Your best friend is riding his bike. He parks the bike by mistake on your
neighbors land. Your neighbor sues him for?
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7. Your best friend is riding his bike. He crashes onto your neighbors land after you
hit him with the rolled-up newspaper. Your neighbor sues him for?
8. Your best friend is riding a bike. YOUR BIKE! You did not give him permission
to ride it. He says he just wanted to borrow it. You sue him for?
9. Your (former) best friend is riding his bike. Hold up a sign saying, “My best
friend is a thief, suffers from various loathsome diseases AND drinks Altbier.”
Your neighbor sees the sign. Your friend sues you for?
10. Your (former) best friend is riding his bike. As he rides by, you yell at him, “You
are a thief, you suffer from various loathsome diseases AND drink Altbier, you,
you #@% !!!!!!”. Your neighbor hears you. Your friend sues you for?
11. Your (former) best friend is riding his bike. Your neighbor points him out to her
husband and says, “see that young man on the bike, he is a thief, suffers from
various loathsome diseases AND drinks Altbier!”
“No, really?!?! Responds the husband, “He drinks Altbier !” Your best friend
sues the wife for?
12. Your “best friend” is riding a bike. He borrowed it from you (“to err is human, to
forgive divine”). You never service the bike, so the breaks are not working. He
crashes. He sues you for?
13. Your “best friend” is riding a bike. He borrowed it from you. On the way to drop
off the bike, you notice the brakes are not working properly, but lend your friend
the bike anyway. He crashes. He sues you for?
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14. Your “best friend” is riding a bike. He borrowed it from you. Your are beginning
to hate your “best friend” since he has brought several law suits against you lately
(a very “litigious” person, your friend!) – AND he still drinks Altbier! You
loosen the brake cable on the bike, and hand it to him with a smile. (“Revenge is
a dish best served cold!”) He crashes (you laugh!). He sues you for?
15. Your new best friend is riding her bike. She is coming to your house to celebrate
the 4th of July. As part of the “fun” you and your friend start shooting off your
old Civil War Cannon, as you do, on your property. Your new best friend is
smoking a cigar, and decides to light the fuse of the cannon with the cigar while it
is still in her mouth ! As she is leaning over the cannon, the cannon chamber
explodes and your friend is hurt. She sues you for?
16. Your (former) new best friend rides her bike back home after the cannon incident.
Her husband faints when he sees that his wife looks like a character from a Bugs
Bunny cartoon. He decides that he is going to be sleeping on the couch from now
on! She use to be soooo pretty (and had the unique ability to clean the windows
with her face)He sues you for?
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