Chapter 4: Torts

Elements of Torts:

1) Duty: The defendant owed the plaintiff a duty to act like a reasonable person

• a reasonable person would consider:

  • the burden of taking precautions

  • the likelihood of harm

  • seriousness of the harm

• if the burden is low and the likelihood of seriousness is high, then a reasonable person would take that precaution

• if the burden is high and there is only a small risk of non-serious harm, then a reasonable person would not take that precaution

2) Breach: the defendant’s conduct violated that duty

• not act reasonably

3) Causation: The defendant’s conduct caused the plaintiff harm and the harm was foreseeable

4) Damages: the plaintiff suffered actual damages

Basis of Tort Law:

• civil wrong… for which a remedy may be obtained, usually in the form of damages: a breach of a duty that the law imposes on persons who stand in a particular relation to one another. Breach of a legal duty that causes harm or injury

• plaintiff - sues the defendant for damages

• tortfeasor - one who commits tort

NEGLIGENT TORTS

Causation and Proximate Cause

• Causation: The defendant’s conduct caused the plaintiff harm

• cause in fact = actual cause

• requires that the defendant’s negligent conduct was the actual cause

  • “but for” test: but for defendant’s negligence, plaintiff not injured

  • aka RES IPSA LOQUITOR

  • i.e. building in disrepair and not fixed: debris falling on passerby’s head and causing severe injury

Cause in Fact and Legal Proximation Cause

• cause in fact - determined by “but for” test: but for the action, the result wouldn’t have happened

  • does not apply in either contributory or comparative negligence cases because the cause of the plaintiff’s injury was not in the defendant’s executive control (the plaintiff controlled part of what caused their injury)

• proximate - determined by law as the primary cause of the injury

  • if injuries were foreseeable —> defendant should have reasonably anticipated resulted injuries

Foreseeability: asks whether a person could or should reasonably have predicted an outcome from a breach of duty

• Palsgraf v Long Island Railroad (1928)

  • Precedent for foreseeability. The plaintiff suffered damages after a decorative scale fell on her head allegedly because of an explosion due to worker negligence on the other side of the track. The court determined that workers did not have a duty of care to the plaintiff then, and there was no proximate cause.

  • If the plaintiff sued under Res Ipsa Loquitor, she would have won —> scales should not randomly fall

    • but if LIRR had maintained its structure (scale), the plaintiff would not have suffered damages due to fallen debris

• Gulf Refining Co v Williams Spoiled Food

  • The plaintiff was injured after a 9-year-old gasoline container delivered by the defendant exploded while trying to remove the cap. The explosion occurred as a spark caused by a warm thread on the cap ignited. The court determined foreseeability as the container was already not in presentable condition —> A reasonable person would anticipate damages and the defendant should have taken care of the product (duty to protect)

Acceleration Theory: if the defendant causes the victim to die sooner than the victim, otherwise would have died, the defendant is held liable for the death

• If X poisons Z, and then Y shoots Z after the poisoning, Y is held liable for Z’s death.

Defenses to Negligent Torts

1. Contributory Negligence: The plaintiff contributed to the injury → barred from compensation

2. Comparative Negligence: The plaintiff contributes to injury → compensation reduced 

3. Assumption of Risk: The plaintiff knew the risk but still pursued action (waivers, etc) → damages denied

4. Illegality: The plaintiff engaged in illegal activities (trespassing, etc) → damages denied

Duty to Business Invitee: business owes a duty to their customers — protection for individuals who step into business establishments

• Eshoo v. City of Chicago: Precedent for duty to protect. The plaintiff’s father urinated on railroad tracks. No present sign that indicated the danger of electrocution (English or otherwise). The defendant was held liable for no warning signs.

• Anjou v. Boston Elevated Railroad Company: The first time circumstantial evidence was used in a court case. The plaintiff slipped on a banana on the floor and suffered damages. The banana was found to be extremely old (black and hard to remove from the floor). The defendant was held liable for breaching the duty to business invitees.

Duty To Rescue: a person creates a hazardous situation, another person falls into peril because of the situation. The creator of the hazard may not have been a negligent tort foreseer, but they have a duty to rescue the individual in peril

• rescuer must act with reasonable care, and can be held liable for injuries caused by a reckless rescue attempt

Danger Invites Rescue: principle one has, through their negligence, endangered the safety of another can be held liable for injuries sustained by a third person

• Good Samaritan Laws - generally provide basic legal protection for those who assist a person who is injured or in danger. These laws protect the “good Samaritan” from the liability of unintended consequences that occur when saving from injury or death

Negligence Per Se: lack of action under legal duty (statute or common law)

• Osborne v McMasters: Example of negligence per se. The defendant sold an unlabeled bottle at a drugstore to a consumer. The consumer ingested the contents and died from poisoning. The defendant was held liable because of a lack of label/warning. 

Slander Per Se: statements that are so inherently defamatory and libelous, that damage to a plaintiff’s reputation will be presumed, and the need to prove damages is unnecessary

• publication requirement — stated as a fact

4 types of statements

1. Crime: charging the plaintiff with having committed a crime or crime of moral turpitude

2. Loathsome Disease: the plaintiff suffers from disease (STD, leprosy)

3. Chastity: the plaintiff is unchaste and engaged in sexual conduct

4. Profession: the plaintiff acted improperly or conducted misconduct in regard to trade, occupation, reputation, or business

Dram Shop Laws: don’t serve alcohol to minors or severely intoxicated people; the establishment will be held at least partially liable for consequences that patrons suffer (car crash damages, etc)

Social Host Liability: The host of a party is liable for persons involved during and after the event (car crash damages, etc)

Attractive Nuisance: only applies to minors, the landowner is liable if persons get injured from observing an object on the land that is likely to attract attention 

INTENTIONAL TORTS

Assault: reasonable apprehension that battery (harm) will occur

• arousal of apprehension is enough to justify compensation

Battery: completion/contact of assault

Assault and Battery Defenses:

1. Consent: The other party agreed

2. Self-defense: there was real and apparent danger, so the plaintiff may use reasonable force to prevent harmful contact

3. Defense of Others: protect others in real or apparent danger

4. Defense of Property: Stand Your Ground laws

False Imprisonment: intentional imprisonment without justification; detention without consent, and unlawful.

• Shopkeeper’s privilege: (common law) reasonable detainment. must call the police immediately, and cannot physically touch or berate the accused. cannot force compliance —> accused can leave if they’d like at any point.

• Intentional Infliction of Emotional Distress: unreasonable, outrageous, extreme with severe psychological effects

Intentional Tort Defenses:

1. Police Conduct: police are privileged to apply reasonable force to effect a lawful arrest

2. Self-Defense: The person assaulted may use reasonable force proportionate to the threat

3. Voluntary (mutual) Contact: the plaintiff voluntarily agreed to engage in combat— no excessive or unreasonable force

4. Provocation: words alone, do not justify

Common Law

1. Trespass to Land: aka intentional interference with or on property → entry on land owned by another person

   1. Lack of plaintiff consent

   2. interference with possessory interest

   3. defendant’s intention

2. Trespass to Chattel (personal property): unlawful taking of property or use

   1. Basic elements: lack of plaintiff’s consent to trespass, interference or intermeddling with possessory interest, and intentionality of defendant’s actions

   2. actual damage is not necessarily a required element

      1. not enough ruling: delivery of the package by drone → potential damages → fallen package, broken drone, etc.

         1. protection in airspace above drone

Lien: right to hold someone’s property if there is debt related to that particular property. ownership right to title

Appropriation: use of a likeness of a person without permission

Tortious Interference: wrongful interference in a contractual relationship; offer, acceptance, consideration, capacity, legality

• Elements:

  1. a contract existed and is valid

     • offer

     • acceptance

     • consideration (once the loan is funded → exchange of perceived value

     • legality (legal purposes)

     • capacity (ability to enter into a contract)

  2. interfere was intentional

     • want to breach a legal binding

  3. 3rd party had knowledge

  4. hard/damage/breach was caused

  5. except bonafide competitive behavior

     • advertisement caused party to willingly back out of the contract

Tortious Interference in Business Relationships: Consider the following example. Z knows of X and Y’s manufacturing contracts. Z needs to prove a justifiable reason to interfere in the prospective contract (bonafide, non-predatory competitive behavior). If X or Y willingly leaves the contract, Z is accused.

Conversion: trespass to chattel with 3rd party involvement (like selling)

Disparagement: economically injurious falsehoods about another person’s product or property

Trade Libel: intentional disparagement in publication

STRICT LIABILITY TORTS

1. Dangerous Animals: “property” not a “pet”

   1. dog bite when clearly owned by someone = immediate damages

2. Dangerous Explosives: injury in process of building/developing (implode)

   1. fireworks, bombs, etc.

3. Product Liability: product used the way it is intended

Defenses to Strict Liability Torts:

1. ignoring clear warning labels

2. no clear causation

3. misuse of product

Duty to Warn: The product supplied is dangerous → the danger is known by the manufacturer, the danger is present when the product is used appropriately as intended and the danger is not obvious to the user

• Labels on cigarettes, medicine, etc

• When the duty to warn arises, the manufacturer who has provided a warning may still be liable for harm if the warning provided is inadequate

  • Lessen the burden and mitigate damages

Product Liability: imposed on a manufacturer or seller that introduces into commerce a good that is unreasonably dangerous

• defects can occur in shipping and handling

• misuse of the product bars recovery

• did not adhere to an industry-wide standard

• needs to be reasonably manufactured

1. Macpherson v Buick Motor Company

   • Macpherson was injured from a Buick automobile that was made with defective wood tires

   • Buick dealer owns the vehicle, and should have inspected for the defect but did not → Buick Company is held liable and has a duty of care because the dealership is not the final destination of the car (anticipation of consumer utilization)

   • privity of contract: dealer and Buick

   • warning of probable danger by the company for duty to inspect and finalize the product

Risk v Utility: The risks of using the product are outweighed by the usefulness of the current users/design

• Ford Pinto Case: a roadside crash test where 20mi/hr car exploded upon impact due to the flawed location of the gas tank → because the flaw was not fixed, the plaintiff burned to death