Introduction to Torts

Torts: civil wrong (usually in the form of damages), breach of duty that can cause harm/injury

• w/ proximate cause and a foreseeable situational outcome

• remedy may be obtained

3 Types of Torts: negligent, intentional, civil liabilities

Tortfeasor: one who commits a tort; the defendant

4 Elements of Torts

1. Duty: a legal obligation owed to another

2. Breach: failure to meet duty (by reasonable person test)

   1. Reasonable Person Test: How likely is a certain harm to occur? How serious would the harm be if it did occur? What is the burden involved in avoiding the harm?

3. Causation: defendant’s conduct caused plaintiff’s harm

   1. “but-for” test: but for defendant’s negligence, plaintiff wouldn’t have been harmed → also known as Res Ipsa Loquitur

   2. proximate cause

4. Damages: plaintiff’s actual, physical harm suffered from the defendant’s breach of duty

Negligent Torts

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

• Palsgraf v Long Island Railroad: Precedent for foreseeability. Plaintiff suffered damages after a decorative scale fell on her head allegedly because of an explosion which happened due to worker negligence on the other side of the track. Court determined that workers did not have duty to the plaintiff at that time, and there was no proximate cause.

Acceleration Theory: if defendant causes 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 for Negligence

1. Contributory Negligence: plaintiff contributed to injury, barred from compensation

2. Comparative Negligence: plaintiff contributes to injury, compensation reduced 

3. Assumption of Risk: plaintiff knew risk but still pursued action (waivers, etc)

4. Illegality: plaintiff engaged in illegal activities (trespassing, etc)

Duty to Business Invitees: any business must ensure safety to the people welcomed inside property for commercial purposes

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

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

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

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

Slander Per Se: information untrue but conveyed as fact, no need to prove damage / harm

1. accusations of crime

2. accusations of loathsome diseases

3. accusations of chastity

4. accusations of profession

Danger Invites Rescue: if A is in danger, if B is hurt in the process of rescuing A, A is liable.

• Good Samaritan Laws

• Reasonable care should be practiced

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

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

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

Intentional Torts

Assault and Battery

• Assault: reasonable apprehension that battery will occur

• Battery: completion / contact of assault

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

• Shopkeeper’s privilege: reasonable detainment. must call police immediately, 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

Defenses to Intentional Torts

1. Police Conduct: reasonable force to effect a lawful arrest is allowed

2. Self-defense: reasonable force proportionate to threat

3. Voluntary (mutual) combat: similar to assumption of risk, plaintiff had agreed to enter combat. no excessive or unreasonable force.

Defenses to Assault and Battery

1. consent

2. self-defense

3. defense of others

4. defense of property (stand your ground laws)

Provocation: words do NOT justify assault and/or battery

Trespass to Land: intentional interference with or on property

1. Lack of plaintiff consent

2. interference with possessory interest

3. defendant’s intention

Trespass to Chattel: taking of property unlawfully or unwarranted use

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

1. enforceable contract between 2 parties

2. 3rd party induces one of the relevant parties to break the contract

3. 3rd party interference is to advance self-interest (not bona fide competitive behavior). must prove intent

Tortious Interference in Business Relationships: Consider the following example. Z knows of X and Ys manufacturing contracts. Z needs to prove 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

• wild animals (dogs biting)

• Product Liability: defendant is liable if plaintiff proves product is defective, regardless of intent

• explosive, fireworks, bombs

• damages can range from profit loss to emotional damage

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

• cigarettes, medicine, etc

Product Liability

• defects can occur in shipping and handling

• misuse of the product bars recovery

• did not adhere to industry wide standard

• needs to be reasonably manufactured

Defenses to Strict Liability Torts

1. ignoring clear warning labels

2. no clear causation

3. misuse of product