Torts

Prima Facie Negligence

Negligence requires a duty owed to the plaintiff, breach of the applicable standard of care, actual and proximate causation, and legally cognizable damages.

General Duty and Foreseeable Plaintiffs

A person generally owes a duty of reasonable care to foreseeable plaintiffs who may be harmed by the person's conduct. Under the majority approach, a plaintiff outside the foreseeable zone of risk may be owed no duty; some jurisdictions treat remoteness primarily as a proximate-cause issue.

Reasonable-Person Standard

An adult ordinarily must act as a reasonably prudent person under similar circumstances. Physical disabilities are taken into account; mental deficiencies, inexperience, and intoxication ordinarily are not. A professional must exercise the knowledge and skill of a reasonably competent member of the profession.

Children

A child generally must act with the care of a reasonable child of similar age, intelligence, and experience. A child engaged in a dangerous activity normally undertaken only by adults is held to the adult standard.

Breach

Breach occurs when the defendant's conduct falls below the applicable standard of care. The factfinder may weigh the foreseeable probability and severity of harm against the burden and social utility of precautions.

Actual Cause - But For

Conduct is an actual cause when the harm would not have occurred but for the conduct. The plaintiff must show that the defendant's negligence more likely than not caused the injury, unless a burden-shifting doctrine applies.

Multiple Sufficient Causes

When two independently sufficient forces combine and each alone would have caused the harm, each may be treated as an actual cause. Courts may describe the inquiry as whether the conduct was a substantial factor or as whether it was independently sufficient.

Alternative Liability

When all possible tortfeasors are before the court, each acted negligently, and only one caused the injury but the plaintiff cannot identify which one, the burden may shift to each defendant to prove that the defendant was not the cause.

Proximate Cause

Proximate cause limits liability to harms that result from the risks that made the defendant's conduct negligent. The precise manner or extent of injury need not be foreseeable, but the general type of harm and class of plaintiff ordinarily must be within the scope of the risk.

Intervening and Superseding Causes

An intervening event does not cut off liability when it is a foreseeable consequence of the defendant's negligence. Negligent medical treatment, rescue efforts, reactions to danger, and ordinary subsequent accidents are generally foreseeable. An extraordinary, unforeseeable intervening act may be superseding.

Criminal or Intentional Intervening Acts

A criminal or intentional act is more likely to be superseding, but it does not cut off liability when the defendant's negligence increased the foreseeable risk of that very misconduct, such as negligent security or leaving a vulnerable person exposed.

Eggshell Plaintiff

A defendant takes the plaintiff as found and is liable for the full extent of harm even when the plaintiff's unusual susceptibility makes the injury unexpectedly severe, so long as some physical harm of the general type was foreseeable.

Damages

Negligence requires actual harm. A plaintiff may recover compensatory damages for past and future economic loss and noneconomic harm proven with reasonable certainty. Punitive damages ordinarily require conduct more culpable than ordinary negligence.

Comparative and Contributory Fault

Under pure comparative fault, the plaintiff's damages are reduced by the plaintiff's percentage of responsibility. Under modified comparative fault, recovery is barred when the plaintiff reaches the jurisdiction's specified threshold. Under traditional contributory negligence, any contributing negligence bars recovery subject to limited exceptions.

Respondeat Superior

An employer is vicariously liable for an employee’s tort committed within the scope of employment. Conduct is within scope when it is of the kind employed to perform, occurs substantially within authorized time and space, and is motivated at least partly to serve the employer.

Employee Versus Independent Contractor

Employee status turns principally on the employer’s right to control the manner and means of work. Relevant factors include supervision, skill, tools, method of payment, duration, right to discharge, and whether the work is part of the employer’s regular business. Labels and tax treatment are relevant but not controlling.

Detour, Frolic, and Commute

A minor deviation for personal purposes is a detour within the scope of employment; a substantial abandonment of the employer’s business is a frolic outside scope. Ordinary commuting is generally outside scope unless the employee is on a special errand or the travel itself serves the employer.

Intentional Torts by Employee

An employer is ordinarily not vicariously liable for an employee’s intentional tort unless the conduct was authorized, motivated to serve the employer, naturally incident to the employment, or foreseeable because the employment creates friction or invites the conduct.

Independent Contractors

A principal is generally not vicariously liable for an independent contractor’s negligence. Exceptions include inherently dangerous work, nondelegable duties, negligent selection or supervision, apparent agency, and duties imposed by statute or arising from premises held open to the public.

Partnership and Joint Venture

A partnership is liable for a partner’s tort committed in the ordinary course of partnership business or with partnership authority. Joint venturers may be vicariously liable for one another’s torts within the venture when they share a common purpose, financial interest, and right of control.

Negligent Hiring, Supervision, and Entrustment

A person may be directly liable for negligently selecting, retaining, supervising, or entrusting an instrumentality to another when the person knew or should have known of the actor’s incompetence or dangerous propensity and the risk caused the plaintiff’s harm.

Affirmative Duties

A person generally has no duty to rescue or protect another from third-party harm absent a special relationship, creation of the peril, voluntary undertaking, contractual or statutory duty, or control over the risk. A person who begins assistance must use reasonable care and may not leave the victim worse off.

Duty to Control Third Persons

A person with a special relationship to a dangerous actor or foreseeable victim may have a duty to use reasonable care to control the actor or protect the victim when the person has the ability and opportunity to do so.

Common Carriers and Innkeepers

Common carriers and innkeepers owe passengers and guests a heightened duty of care under traditional law, though modern jurisdictions may apply reasonable care under the circumstances. They also have duties to protect against foreseeable misconduct and provide reasonable assistance.

Land Possessor - Trespassers

A land possessor generally owes an undiscovered trespasser no duty except to refrain from willful, wanton, or reckless injury. For known or anticipated trespassers, the possessor must warn of or make safe concealed, highly dangerous artificial conditions known to the possessor.

Attractive Nuisance

A land possessor may be liable to a child trespasser for an artificial condition when children are likely to trespass, the condition poses an unreasonable risk of death or serious harm, the child because of youth does not appreciate the risk, the burden of eliminating the danger is slight compared with the risk, and the possessor fails to use reasonable care.

Land Possessor - Licensees

A licensee enters with permission for the licensee’s own purpose. The possessor must warn of concealed dangerous conditions known to the possessor and use reasonable care in active operations, but traditionally has no duty to inspect for unknown defects.

Land Possessor - Invitees

An invitee enters for a purpose connected with the possessor’s business or as a member of the public on land held open to the public. The possessor must reasonably inspect, discover, warn of, and make safe dangerous conditions, and use reasonable care in activities.

Modern Premises Rule

Many jurisdictions replace entrant categories with a general duty of reasonable care to lawful entrants, while retaining limited duties to flagrant trespassers. Foreseeability, purpose of entry, and burden of precautions remain relevant.

Duties of Lessors and Vendors

A lessor may be liable for undisclosed latent defects known at transfer, common areas, negligent repairs, public-use premises, and covenanted repairs after notice. A vendor must disclose concealed dangerous conditions known to the vendor until the buyer has a reasonable opportunity to discover and remedy them.

Negligence Per Se

Violation of a safety statute may establish breach when the plaintiff belongs to the protected class and suffered the type of harm the statute was designed to prevent. The violation must be unexcused and causally connected to the injury. Jurisdictions vary on whether violation is conclusive or merely evidence of negligence.

Excuse for Statutory Violation

A statutory violation may be excused when compliance was impossible, more dangerous, reasonably beyond the actor’s ability, caused by an emergency not of the actor’s making, or the actor exercised reasonable care in attempting compliance.

Res Ipsa Loquitur

Negligence may be inferred when the event ordinarily does not occur without negligence, the likely causes were within the defendant’s responsibility or sufficiently eliminated, and the injury was not due to the plaintiff’s voluntary conduct. The doctrine permits but ordinarily does not compel an inference and does not shift the ultimate burden of proof.

Negligent Infliction - Zone of Danger

A plaintiff within the zone of physical danger may recover for serious emotional distress caused by the defendant’s negligence, often when the distress produces physical symptoms. Jurisdictional requirements vary.

Negligent Infliction - Bystander

A bystander may recover for severe emotional distress from contemporaneously perceiving serious injury to a close relative when the plaintiff was near the event and the relationship and perception requirements are satisfied.

Pure Comparative Negligence

Under pure comparative negligence, the plaintiff’s damages are reduced by the plaintiff’s percentage of fault regardless of how great that percentage is.

Modified Comparative Negligence

Under modified comparative negligence, the plaintiff’s damages are reduced by fault but recovery is barred when the plaintiff’s fault reaches or exceeds the jurisdiction’s threshold, commonly 50 or 51 percent.

Contributory Negligence

Under traditional contributory negligence, a plaintiff whose negligence is an actual and proximate cause of injury is barred from recovery, subject to exceptions such as the defendant’s last clear chance and certain intentional, reckless, or statutory-duty claims.

Assumption of Risk

Express assumption of risk bars or limits recovery when a valid agreement clearly covers the risk and does not violate public policy. Implied assumption requires actual knowledge and voluntary acceptance of a known risk and is commonly integrated into comparative-fault analysis.

Contribution

Contribution allows one jointly liable tortfeasor who pays more than a fair share to recover the excess from other responsible tortfeasors. The amount is allocated according to comparative responsibility or equal shares under governing law, and generally requires common liability to the plaintiff.

Indemnity

Indemnity shifts the entire loss from one tortfeasor to another when required by contract, statute, vicarious liability, or a significant difference between passive and active responsibility recognized by law.

Professional Standard of Care

A professional must exercise the knowledge, skill, and care ordinarily possessed by reasonably competent members of the profession in similar circumstances. Expert testimony is generally required unless negligence is within common understanding.

Medical Informed Consent

A physician must disclose material risks, alternatives, and consequences that a reasonable patient would consider significant, subject to emergency and therapeutic exceptions. The plaintiff must show that adequate disclosure would have changed the decision and avoided the injury.

Custom

Industry custom is relevant evidence of reasonable care but ordinarily is not conclusive. Compliance with custom does not excuse an unreasonable practice, and departure does not establish negligence when the custom itself is unsafe or inapplicable.

Pure Economic Loss

A negligence plaintiff generally may not recover purely economic loss unaccompanied by personal injury or property damage absent a special relationship, negligent misrepresentation, professional duty, or another recognized exception.

Joint and Several Liability

When multiple tortfeasors cause an indivisible injury, each may be liable for the entire judgment under joint-and-several liability, subject to contribution and statutory modification. The plaintiff may obtain only one full recovery.

Apportionment of Divisible Harm

When distinct harms or a reasonable basis for division exists, each defendant is liable only for the portion caused. A defendant seeking apportionment may bear the burden of showing a reasonable basis to divide an otherwise indivisible injury.

Survival Action

A survival statute preserves a claim the decedent could have brought had the decedent lived. Recoverable damages generally concern the decedent’s losses before death and pass to the estate, subject to the statute.

Wrongful Death

A wrongful-death action compensates designated beneficiaries for losses caused by the decedent’s death, such as support, services, companionship, and funeral expenses. Defenses that would have reduced or barred the decedent’s claim generally affect recovery.

Intent

Intent for an intentional tort exists when the actor acts with the purpose of causing the consequence or with substantial certainty that it will occur. Intent may transfer among victims and among battery, assault, false imprisonment, trespass to land, and trespass to chattels.

Battery

Battery is an intentional act causing harmful or offensive contact with the plaintiff’s person. Contact with an object closely connected to the person suffices, and the plaintiff need not be aware at the time.

Assault

Assault is an intentional act causing reasonable apprehension of imminent harmful or offensive contact. Apprehension means anticipation, not fear; words alone usually are insufficient unless circumstances make the threat imminent and apparently capable of execution.

False Imprisonment

False imprisonment is an intentional act confining the plaintiff to a bounded area without lawful privilege, when the plaintiff knows of the confinement or is harmed by it. Confinement may result from force, threats, barriers, asserted legal authority, or failure to provide a promised means of escape.

Intentional Infliction of Emotional Distress

Intentional infliction of emotional distress requires extreme and outrageous conduct, intent or recklessness, actual and proximate causation, and severe emotional distress. Conduct exploiting a known vulnerability, repeated harassment, or abuse of authority may be outrageous when an isolated insult would not be.

Trespass to Land

Trespass to land is an intentional physical invasion of another’s real property. The actor need only intend the entry or cause the object to enter, not intend wrongdoing or know the land belongs to another. Nominal damages are available without proof of actual loss.

Trespass to Chattels

Trespass to chattels is intentional interference with another’s possession of personal property causing actual damage, dispossession, loss of use, or injury to the possessor. Damages generally equal the actual harm.

Conversion

Conversion is intentional exercise of dominion or control over another’s personal property so serious that the actor must pay its full value. Seriousness depends on extent and duration of control, intent, good faith, harm, and inconvenience.

Consent

Actual consent may be express or implied from conduct, custom, or circumstances. Apparent consent exists when the defendant reasonably interprets the plaintiff’s conduct as permission. Consent is ineffective when exceeded, obtained through material fraud or duress, or given by a person lacking capacity, subject to emergency and protective doctrines.

Self-Defense in Tort

A person may use reasonably proportionate force when reasonably believing it necessary to prevent imminent harmful or offensive contact. Reasonable mistake is generally permitted, but an initial aggressor must ordinarily withdraw or face disproportionate escalation before claiming the privilege.

Defense of Others in Tort

A person may use reasonable force to protect another when reasonably believing the other is entitled to self-defense. Under the modern rule, a reasonable mistake about the need for protection does not destroy the privilege.

Defense of Property

A possessor may use reasonable nondeadly force to prevent or terminate intrusion after requesting departure when feasible. Deadly force or force likely to cause serious bodily harm may not be used solely to protect property.

Recapture of Chattels

A person wrongfully dispossessed of chattels may use timely, reasonable, nondeadly force to recapture from the wrongdoer after demand when feasible. The privilege generally does not permit force against an innocent possessor, though peaceful recovery and legal process remain available.

Public and Private Necessity

Public necessity is a complete privilege for reasonable interference with property to avert an imminent public disaster. Private necessity privileges entry or interference to protect a limited number of persons or property, but the actor must pay for actual damage and the owner generally may not expel the actor while the necessity continues.

Strict Products Liability

A commercial supplier is strictly liable for physical harm caused by a product sold in a defective condition unreasonably dangerous when the defect existed when the product left the defendant’s control and reached the user without substantial change. The plaintiff must prove defect, actual and proximate causation, and damages.

Manufacturing Defect

A product has a manufacturing defect when it departs from its intended design despite proper preparation and marketing. The plaintiff ordinarily proves the particular unit differed from other properly made units and the deviation caused harm.

Design Defect

A product has a design defect when the design’s foreseeable risks make it not reasonably safe. Jurisdictions use consumer-expectation, risk-utility, or reasonable-alternative-design approaches. Under the alternative-design approach, the plaintiff must show a feasible safer design that would have reduced or avoided the harm without defeating the product’s utility.

Failure to Warn

A product is defective for inadequate warnings when foreseeable risks could have been reduced by reasonable instructions or warnings and omission makes the product not reasonably safe. There is generally no duty to warn of obvious or commonly known risks, and the warning must be adequate in content, prominence, and communication.

Products Defendants and Plaintiffs

Strict products liability extends to commercial sellers and distributors in the chain of distribution, not ordinarily to casual sellers or service providers. Foreseeable users, consumers, and bystanders may recover for covered physical injury and property damage.

Products Defenses

Comparative responsibility may reduce recovery. Knowing and voluntary encounter with a known defect may bar or reduce recovery. Unforeseeable misuse or substantial alteration may defeat causation, while foreseeable misuse must be considered in design and warning. Disclaimers generally do not eliminate strict liability for personal injury.

Abnormally Dangerous Activities

A person conducting an abnormally dangerous activity is strictly liable for the kind of harm that makes the activity abnormally dangerous. Courts consider high and unavoidable risk, likelihood of serious harm, uncommon usage, inappropriateness to the location, and whether social value is outweighed by danger.

Animals

An owner is strictly liable for harm caused by a wild animal characteristic of the species. For domestic animals, strict liability generally requires actual or constructive knowledge of the animal’s dangerous propensity, and liability extends to harm resulting from that propensity.

Private Nuisance

Private nuisance is a substantial and unreasonable interference with another’s use and enjoyment of land. The interference may be intentional and unreasonable, negligent, reckless, or abnormally dangerous. Sensitivity beyond that of an ordinary person generally does not establish substantial interference.

Public Nuisance

Public nuisance is an unreasonable interference with a right common to the public. A private plaintiff may recover only by showing special injury different in kind from that suffered by the general public.

Nuisance Remedies

Damages compensate past or permanent injury. An injunction depends on inadequacy of damages and a balance of hardships and public interests, though deliberate wrongdoing weighs against the defendant. A court may condition relief or award permanent damages in appropriate cases.

Defamation

Defamation requires a false defamatory statement of fact concerning the plaintiff, publication to a third person, fault, and damages. A statement is defamatory if it tends to harm reputation; pure opinion is protected when it cannot reasonably be understood to assert provably false facts.

Publication and Fault in Defamation

Publication requires intentional or negligent communication to at least one third person. A private plaintiff concerning a private matter generally need prove the fault required by state law; constitutional rules require at least negligence for a private plaintiff on a public concern and actual malice for a public official or public figure.

Defamation Damages

Libel and categories of slander per se traditionally permit presumed damages under state law, but constitutional limits may require proof of actual malice for presumed or punitive damages when the speech concerns a matter of public concern. Other slander generally requires special pecuniary loss.

Defamation Privileges

Statements in judicial, legislative, and certain executive proceedings are absolutely privileged when within the proceeding’s scope. A qualified privilege protects statements made in good faith to protect a legitimate interest or shared interest, but is lost through actual malice, excessive publication, or abuse.

Appropriation

Appropriation of name or likeness is unauthorized use of the plaintiff’s identity for the defendant’s commercial advantage. Newsworthy and public-interest uses are generally protected, while advertising and merchandising uses commonly create liability.

Intrusion Upon Seclusion

Intrusion requires intentional intrusion, physical or otherwise, into a private place, conversation, or matter in a manner highly offensive to a reasonable person. Publication is not required.

False Light

False light requires widespread publicity placing the plaintiff in a false position highly offensive to a reasonable person, with the constitutionally required level of fault. Many jurisdictions do not recognize the tort.

Public Disclosure of Private Facts

Public disclosure requires widespread publicity of private truthful facts that would be highly offensive to a reasonable person and are not of legitimate public concern. Truth is not a defense because truth is part of the claim, but newsworthiness is.

Fraudulent Misrepresentation

Fraud requires a material misrepresentation of present or past fact, knowledge or reckless disregard of falsity, intent to induce reliance, justifiable reliance, actual and proximate causation, and pecuniary loss. Concealment or nondisclosure may qualify when a duty to disclose exists.

Negligent Misrepresentation

A person in a business or professional transaction may be liable for supplying false information without reasonable care for the guidance of a limited group the person intends or knows will rely, when justifiable reliance causes pecuniary loss. Liability is narrower than ordinary negligence to avoid unlimited economic-loss exposure.

Interference with Contract

Intentional interference with contract requires a valid contract, defendant’s knowledge, intentional and improper inducement or causation of breach or disruption, and damages. Interference may be privileged when protecting a legitimate interest through proper means.

Interference with Prospective Economic Advantage

Interference with a prospective business relationship requires a reasonable economic expectancy, defendant’s knowledge, intentional and independently wrongful or improper interference, causation, and damages. Competition may be privileged when conducted through lawful means.

Parental Discipline

A parent or person in the parent’s position may use reasonable force for discipline and control. The privilege depends on the child’s age, conduct, the force used, and the purpose; excessive or malicious force is not privileged.

Incomplete Privilege

A person acting under a qualified privilege may remain liable for actual property damage even though the entry or interference itself is privileged, as with private necessity. The scope of liability depends on the privilege and harm caused.

Economic Loss in Products Liability

Strict products liability generally does not permit recovery for purely economic loss consisting only of damage to the defective product or disappointed commercial expectations. Contract and warranty remedies ordinarily govern those losses.