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Introduction to Torts
Tort law generally encompasses situations where an individual’s conduct causes harm to another. Torts are specific causes of action against individuals when a recognized statutory or common law right is violated. It is distinct from civil actions involving contract or family law. This chapter explores tort law and specific causes of action in tort. Specifically, it explains the three categories of tort — intentional torts, negligence, and strict liability torts — and the elements necessary for establishing liability under each. Lastly, it explains the types of damages available to plaintiff’s injured by a defendant’s tortious conduct and the defenses available to a defendant. For further written and video explanation, discussion and practice questions, see Tort Law (Intro)
What are “Torts”?
A tort, in the legal context, means a “wrong”. More specifically, it is a civil wrong, as apposed to a breach of contract or other civil action. For further written and video explanation, discussion and practice questions, see What are "torts"?
What are the Types of Torts?
There are three broad categories of tort, as follows: Intentional Torts - Intentional torts, as the name implies, are characterized by the mental intent of the tortfeasor. The tortfeasor undertakes an activity with either the desire to bring about an intended result or with the knowledge that the result is “substantially certain”. When the action results in an identifiable harm or loss to a third party, it constitutes an intentional tort. Negligence - Negligence is conduct by an individual that drops below a reasonable standard of care and causes harm to another person. Succinctly, an individual has a duty to act reasonably when interacting with others. When that individual fails to act reasonably and thereby causes harm to others, that individual is negligent. Strict Liability - Strict liability subjects an individual to liability for activity that causes harm to another without regard for her intent or the standard of care she shows in carrying out that activity. That is, simply undertaking the activity that results in harm is sufficient to make the actor liable. The injured party is not required to demonstrate the actor’s intent or the level of care they exercised in undertaking the activity. For further written and video explanation, discussion and practice questions, see What are the types of torts?
What are International Torts?
Intentional torts are marked by the actors purpose behind their actions and their appreciation of the likely or probable results of those actions. There are many intentional statutory and common law torts. For further written and video explanation, discussion and practice questions, see What are "Intentional Torts"?
What is “Assault and Battery”?
Two commonly recognized intentional torts are “assault” and “battery”. Assault - Acting to place another person in immediate apprehension of a harmful or offensive physical contact. There are several elements to this tort. First, the individual must intentionally act and the action cannot be unconscious or inadvertent. Second, the individual witnessing the act must sense or apprehend immediate contact. Apprehension is more than fear. While the individual may also be scared, fear or intimidation is not required; rather, she only need be aware that a touching is likely to ensue. The apprehension of the touching is judged by a reasonable person standard. That is, would a reasonable person believe that physical contact is imminent. Lastly, the contact must be harmful or offensive. Offensiveness is judged based upon a reasonable person in the individual’s situation. Battery - A battery is an illegal touching of another. The touching is harmful or offensive and done without justification and without the consent of the person touched. A battery often accompanies an assault. For further written and video explanation, discussion and practice questions, see Assault and Battery?
What is “Intentional Infliction of Emotional Distress
The intentional infliction of mental distress upon another is a form of battery to the emotions. Like a battery, it is caused by intentional conduct that carries a strong probability of causing mental distress to the person at whom it is directed. Generally, the conduct must be very extreme or outrageous in nature to result in emotional distress. To recover for this tort, the plaintiff must demonstrate that the intentional conduct actually caused her mental distress that manifests itself physically. For further written and video explanation, discussion and practice questions, see Intentional Infliction of Emotions Distress?
What is “Invasion of Privacy”?
Invasion of privacy is comprised of three principle types of invasion of personal interest: Use of Name or Likeness - Individuals have a property interest in their name and physical image. As such, appropriating an individual’s name or likeness for business use without her consent violates her property rights. Invade Physical Solitude - Individuals have an expectation of privacy in their home and within other personal spaces. Viewing or monitoring such places is an invasion on the individual’s physical solitude. Disclosure of Private Information - Disclosure of highly-objectionable, private information about someone may be an invasion of that person’s privacy. Generally, the information must be obtained by an individual who owes a duty of confidentiality to the individual whose rights are violated. In some cases, the information must be obtained without the person’s consent. For further written and video explanation, discussion and practice questions, see Invasion of Privacy?
What is “False Imprisonment”?
False imprisonment is the wrongful detention of a person without that person’s consent. The detention does not have to involve physical force. It can involve a threat of physical force or the apprehension of harm for failure to remain in a specific location. The key aspect is that the detained individual must reasonably believe that she cannot leave the detention without unjust repercussions. For further written and video explanation, discussion and practice questions, see False Imprisonment?
What is “Malicious Prosecution”?
Malicious prosecution is wrongfully subjecting someone to the prosecutorial process. This tort often arises from causing someone to be arrested or formally charged through intentional false swearing or malevolent pretenses. For further written and video explanation, discussion and practice questions, see Malicious Prosecution?
What is “Trespass”?
The tort of trespass is similar to the crime of trespass. It involves physically entering onto someone else’s land without consent or remaining there after being asked to leave (consent is revoked). The difference between the civil action and the criminal charge is that a tort requires the existence of damages to be actionable. For further written and video explanation, discussion and practice questions, see Trespass?
What is “Conversion”?
Conversion is a civil cause of action for taking another person’s property without her consent. It entails the wrongful exercise of dominion (power) and control over the personal (non-land) resources of someone else. In doing so, a person violates the owner’s lawful right to exclude others from her resources. The deprivation may be temporary or permanent, but it must constitute a serious invasion of the owner’s legal rights. For further written and video explanation, discussion and practice questions, see Conversion?
What is “Defamation”?
Defamation is the publication of an untrue statement about another that subjects that individual’s character or reputation to contempt or ridicule. “Publication” simply means that the untruthful statement was told or made known to at least one other person. There are three general types of defamation: Slander - Slander is spoken or oral defamation. Libel - Libel is recorded defamation (i.e., written) or defamation over the television or radio. Disparagement - Disparagement is defamation of another person’s trade or business prowess, product, or service. For further written and video explanation, discussion and practice questions, see Defamation?
Defenses to Defamation Claims
There are several recognized defenses to a defamation claim. First, if the allegedly defamatory statement is true, it is an absolute defense. Second, a communication may be privileged under the law and specifically exempted from defamation actions. For further written and video explanation, discussion and practice questions, see Defenses to Defamation?
Defamation and the 1st Amendment
Special rules apply to defamation of celebrities and public figures and defamation by the news media. The media is not liable for the defamatory untruths they print unless the plaintiff can prove the untruths were published with “malice” (evil intent that is the deliberate intent to injure) or with “reckless disregard for the truth.” Likewise, for a celebrity or public figure to recover for defamation, she must demonstrate that the defendant defamed her with malice or with reckless disregard for the truth. For further written and video explanation, discussion and practice questions, see Defamation and 1st Amendment Considerations?
What is “Fraud”?
Fraud is the intentional misrepresentation of a material fact that is justifiably relied upon by someone to his or her injury. The false statement inducing the other party’s misunderstanding must regard a material fact about the prospective transaction. Fraud often involves intentional misrepresentations regarding ownership of property or one’s financial status. For further written and video explanation, discussion and practice questions, see Fraud?
What is “Intentional Interference with Contractual or Economic Relations?”
This is a tort based in common law rather than statute. There are several categories of conduct that may violate common law rights of individuals: Disparagement - This is an untrue statement about someone’s business acumen, product, or service. This tort may be addressed as defamation; however, some states lack a statute or common law protecting commercial rights against defamatory statements. Interference with Contractual Relations - This tort occurs when a non-party to a contract knowingly induces a party to the contract to fail to honor or breach the agreement. Interference with Perspective Advantage - This cause of action entails a situation in which there is a business relationship between the plaintiff and a third party. The defendant then acts in a way intended to disrupt the relationship. This conduct is done not for personal advantage but with the purpose of harming the plaintiff. The plaintiff may bring an action to recover the losses or damages sustained. Wrongful Appropriation of Business Interests - This tort arises when a fiduciary breaches the duty of loyalty and appropriates someone else’s intellectual property rights, such as patent, trademark, copyright, trade secret, or good will. For further written and video explanation, discussion and practice questions, see Intentional Interference with Contractual Relations?
What is “Negligence”?
Negligence is unreasonable behavior that causes injury to another person or business. Five elements make up a claim for negligence: existence of a duty of care owed by the defendant to the plaintiff; unreasonable behavior by the defendant that breaches the duty of care; causation in fact; proximate causation; and an actual injury. For further written and video explanation, discussion and practice questions, see What is "Negligence"?
Negligence – the Duty of Care
The first element of a negligence tort is establishing the nature and extent of the defendant’s duty to the plaintiff. A duty generally arises pursuant one’s conduct or activity, such as assuming a position of authority, control, or other special relationship with someone. Any form of activity in the presence of or otherwise affecting a third party gives rise to a duty of care. A special relationship between individuals may include: parent-child, doctor-patient, attorney-client, etc. The extent of a person’s duty to others is based upon the nature (or genesis) of that duty. Once the nature of the duty is determined, the individual owing the duty must use reasonable care and skill in her actions. That is, an individual must act reasonably in a given situation (based upon the nature of the duty owed) to avoid causing harm to those to whom she owes a duty. The greater the risk or potential harm to others, the greater the level of care required to meet the duty owed. For further written and video explanation, discussion and practice questions, see Negligence - A Duty of Care?
Negligence – Breach of Duty of Care
Negligence entails unreasonable behavior that breaches the duty of care that the defendant owes to the Plaintiff. This standard is known as the “reasonable person” standard. Whether conduct is unreasonable is a mixed question of law and fact. The duty of care exists under the law, but the determination of what is reasonable may be unreasonable in another situation. In determining whether conduct is unreasonable, a court will consider “the likelihood that the defendant’s conduct will injure others, taken with the seriousness of the injury if it happens, and balanced against the interest which he must sacrifice to avoid the risk.” Notably, the reasonable person standard of care is an objective standard based upon the nature of the relationship and the subjective characteristics of the plaintiff. Several other standards apply to the determination of whether breach of duty of care arises; for example: Inaction as Unreasonable Behavior; Gross Negligence, Reckless & Wanton Behavior; Res Ipsa Loquitur & Negligence Per Se. For further information on these concepts, and further written and video explanation, discussion and practice questions, see Negligence - Breach of Duty of Care?
Negligence – Proximate Causation
Proximate causation means that the harm suffered by the defendant was reasonably foreseeable as a result of the plaintiff’s conduct. More specifically, for the type of injury to be foreseeable, the plaintiff must be one whom the defendant could reasonably expect to be injured by a negligence act. Further, the injury must be caused directly by the defendant’s negligence. The relationship between the defendant’s actions and the harm caused cannot be too far removed or tenuous. This may be the case when an unexpected intervening actor or occurrence is involved in bringing about the harm. It would breach the “chain of causation” necessary for finding a defendant negligent. This determination is left for the jury to decide. For further written and video explanation, discussion and practice questions, see Causation?
Negligence – Cause in Fact
In a negligence action, the defendant’s conduct must have caused the injury to the plaintiff. Causation in fact presents the question, “but for” the act of the defendant, would the injury have occurred? This is the broadest aspect of causation, as any number of causes together could have contributed to the injury. The jury must determine whether the defendant’s conduct is a “substantial, material factor in bringing about the injury”. If there are multiple defendants, each individual defendant can be held jointly and severally liable for the collective actions of the group. For further written and video explanation, discussion and practice questions, see Cause-in-Fact
Common Defenses to Negligence Actions
Jurisdictions commonly recognize three principle defenses to negligence actions. Contributory Negligence - This doctrine bars a plaintiff from recovering in a negligence action if her own fault contributed to the injury “in any degree, however slight.” Comparative Negligence - Comparative negligence compares the degree of fault assessable against the defendant with that assessable against the plaintiff. The jury is left to access the percentage of negligence between the parties. Pure Comparative Negligence - In a pure comparative negligence jurisdiction, the plaintiff can only recover the percentage of damages not attributable to her own fault. Modified Comparative Negligence - In a modified comparative negligence state, the plaintiff cannot recover if her negligence is greater than (or “as great as” in some jurisdictions) the negligence of the defendant. Assumption of the Risk - Assumption of the risk arises when the plaintiff knowingly and willfully undertakes an activity made dangerous by the negligence of another. That is, the plaintiff identifies a potentially harmful situation brought about by the defendant’s conduct, understands the risk associated with the situation, and proceeds to voluntarily expose herself to this risk of harm. This is a defense against any harm suffered by the plaintiff as a result of this exposure. In some situations, the parties can contractually acknowledge certain risks in a given activity. This may have the effect of assuming the risk of any harm suffered as a result of those risks. For further written and video explanation, discussion and practice questions, see What are common defenses to negligence actions?
What is “Strict Liability?”
Strict liability concerns an individual’s legal liability for injury-causing behavior that is neither intentional nor negligent. Basically, an individual will be liable for any harm resulting to a third party from a course of conduct to which strict liability applies. Injuries caused while working with explosives, dangerous animals, product design or manufacturing, and serving alcohol to the public are strict liability torts in most states. For further written and video explanation, discussion and practice questions, see What is "Strict Liability"?
Examples of Strict Liability Causes of Action
Most states recognize similar types of conduct as subject to strict liability: Ultrahazardous Activity - Courts may impose strict liability in tort for types of activities they call ultrahazardous. This may include activities such as working with explosives, wild animals, or extreme sports. Dram Shop Acts - These laws make sellers of alcoholic beverages directly to customers on the seller’s premises liable for harm caused as a result of the consumer becoming intoxicated. Common Carriers - Carriers of cargo on behalf of others may be strictly liable to the owner for any harm suffered by the cargo. Risk of loss, however, may be shifted back on the owner via contract. For further written and video explanation, discussion and practice questions, see Strict Liability Causes of Action - Examples
What is “Strict Product Liability”?
Strict products liability involves the commercial sale of defective products. In most states, any retail, wholesale, or manufacturer who sells an unreasonably dangerous, defective product that causes injury to a user of the product is strictly liable. This applies to commercial sellers who normally sell products like the one causing injury or who place them in the stream of commerce, such as suppliers of defective parts and companies that assemble a defective product. There are two kinds of defects for purposes of strict product liability: Production Defects - A production defect occurs when products are not manufactured to a manufacturer’s own standards. Consumers of the defective product are later injured as a result of this variation from the manufacturer’s standards. Design Defects - A design defect occurs when a product is manufactured according to the manufacturer’s standards but is an unsafe design. The product injures a user due to its unsafe design. If either of these defects makes the product unreasonably dangerous if used as intended, any seller of the product (from manufacturer to retailer) may be liable for an injury caused by the defective product. Strict products liability is useful in protecting individual consumers who suffer personal injury or property damage. For further written and video explanation, discussion and practice questions, see Strict Products Liability
Defenses to Strict Product Liability
The following defenses affect liability in a strict product liability case. Contributory and Comparative Negligence - These are generally not defenses to strict products liability actions; though, the negligence of the plaintiff may be used to reduce damage awards. Assumption of the Risk - If a plaintiff knowingly undertakes a dangerous activity to which strict liability applies, she may be barred from recovering from the defendant for harms suffered. Individuals may contractually acknowledge their assumption of any risks in a given activity. In most jurisdictions, however, assumption of the risk may constitute a defense. Misuse of a Product - Strict product liability depends upon an individual use the product as intended by the manufacturer or in an otherwise reasonable manner. This means that the defendant may avoid liability if the injury to the plaintiff was the result of using the product in a manner that is not intended or is cautioned against. For further written and video explanation, discussion and practice questions, see What defenses exist to strict product liability actions?
What are “Compensatory Damages”?
Tort plaintiffs may generally recover compensatory damages for injuries or losses suffered as a result of the tortious conduct. As the name implies, these damages are used to compensate the plaintiff for an injury suffered and to make the plaintiff whole again. Compensatory damages may include financial loss, pain and suffering, decreased life expectancy, loss of enjoyment, and loss of life or limb. Calculation of damage awards are made by the jury. For further written and video explanation, discussion and practice questions, see What are compensatory damages?
What are “Punitive Damages”?
Punitive damages are used to punish defendants for committing intentional torts and for negligent behavior considered “gross” or “willful and wanton.” The key consideration in the award of punitive damages is the defendant’s motive. Usually, a defendant’s motive must be malicious, fraudulent, or evil. Punitive damages are also awarded for dangerously negligent or reckless conduct that shows a conscious disregard for the interests of others. For further written and video explanation, discussion and practice questions, see What are punitive damages?
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