Torts

Chapter 6

Basis of Tort Law

• What is a Tort?– A tort is a civil injury designed to provide a

remedy (damages) for injury to a protected interest.

Basis of Tort Law

• Damages Available in Tort Actions. –Compensatory: reimburse plaintiff

for actual losses.–Special: quantifiable losses, such as

medical expenses, lost wages, and benefits.

Basis of Tort Law

• Damages Available in Tort Actions. –General: non-monetary, such as pain

and suffering, reputation.–Punitive: punish the wrongdoer.

Torts: An Introduction

• Civil vs. Criminal Wrong– A tort is a “civil” wrong punishable by paying

damages to the injured party.– A tort is not a “criminal” wrong resulting in

paying a fine to the government and/or being imprisoned.

Torts: An Introduction

• Civil vs. Criminal Wrong– Some torts may also serve as the basis for

separate criminal prosecution by the state.– Burden of Proof is different:

• “beyond a reasonable doubt” for crimes• “preponderance of evidence” for torts

Torts: An Introduction

• Tort vs. Contract– The duty that is violated by the tortfeasor must

exist as a matter of law, not as a consequence of any agreement between the tortfeasor and the injured party.

Intentional Torts:

• A tort intentionally or knowingly committed. It can be to a person or to property.

Intentional Torts

• Tortfeasor (person committing the tort) must “intend” to commit the act:–He intended the consequences of his act; or

–He knew with substantial certainty that certain consequences would result.

Intentional Torts Against Persons

• Transferred Intent.– Intent of tortfeasor is transferred when he intends to

harm person “A” but unintentionally harms person “B” as well.

Intentional Torts: Assault

– An intentional act that creates a reasonable apprehension of immediate harmful contact.

– For example, pointing a gun at someone.

Intentional Torts: Battery

– An intentional harmful or offensive contact.– For example, getting hit by the bullet.

Intentional Torts: False Imprisonment

– The intentional confinement or restraint of another person’s activities without justification.

– Restraint may occur through the use of physical barriers, physical restraint, or threats of physical force.

Intentional Torts: Infliction of Emotional Distress

– An intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another.

– Parodies of public figures protected

Intentional Torts: Defamation• Defamation is anything published or

publicly spoken that injures another’s character, reputation, or good name.

• Libel is defamation that is written.• Slander is defamation in oral form. • Truth is normally an absolute defense

against any claim of defamation.• Public figure has to prove actual malice.

Intentional Torts: Privacy

• Invasion of Privacy– Four acts generally qualify as improperly

infringing on another’s privacy:

Intentional Torts: Privacy• Appropriation: use of a person’s name or likeness

without permission.• Intrusion in an individual’s affairs where the

person has a reasonable expectation of privacy. • Public disclosure of private facts that an ordinary

person would find objectionable.• Publication of information that places a person in

a false light.

Intentional Torts: Fraud• Actionable fraud consists of the following

elements:– A misstatement of a material fact– Made knowingly or with reckless disregard for

the truth– With intention to deceive another – With justifiably reliance by a reasonable person

Intentional Torts: Fraud

Mere puffery, or “sales talk,” is not fraud because such claims involve opinions, not facts, and therefore cannot be justifiably relied upon by a reasonable person.

Intentional Torts: Tortious Interference

Intentional interference with a contractual relationship–Must be a contract between two parties–Third party must know the contract exists–Third party must intentionally cause a breach of that contract

Intentional Torts: Tortious Interference

Intentional Interference with a business relationship

- Must be some sort of predatory behavior

Bona Fide competitive behavior is a defense to tortious interference

Intentional Torts: TrespassEntry onto another person’s land without permission. It may be:

• On land• Above land• Below surface

It also may involve personal property,

such as a website

Intentional Torts: Conversion

• Wrongfully taking or retaining another’s property and placing it in service of another.

Negligence

• Tortfeasor does not intend the consequences of the act or believes they will occur.

• Actor’s conduct merely creates a foreseeable risk of injury.

Negligence: Basic Principles• Elements of Negligence:

– Duty of care to act as a reasonable person under similar circumstances

– Breach of Duty– Proximate Cause– Of Damages to the Plaintiff.

Duty

• No duty to stop and render aid• Duty to aid if you were involved in accident• In your actions, act as a reasonable person

would act

Duty of Landowners

• Trespassers –Duty not to intentionally or recklessly

cause them harm.

Duty of Landowners

• Licensees - social guests and other persons not on the premises for any business purpose–Duty to warn of any known dangers

Duty of Landowners

• Invitees - persons who come onto premises for business purposes, including retail and other establishments–Duty to warn of known dangers and those

dangers owner should know about

Negligence• Causation.

– Courts ask two questions: • Was the defendant’s action the causation in fact

of plaintiff’s injury, and • Was it the proximate cause of plaintiff’s injury .

Negligence• Causation in Fact.

– Did the injury occur because of the Defendant’s act, or would the injury have occurred anyway?

– Usually determined by the “but for” test, i.e., but for the Defendant’s act the injury would not have occurred.

Negligence• Proximate Cause.

– When the causal connection between the act and injury is strong enough to impose liability.

– CASE 6.2 PALSGRAF V. LONG ISLAND RAILROAD CO. (1928).

Defenses to Negligence

• Assumption of Risk• Superseding Cause

Negligence: Damages• Tort law recognizes two categories of

damages: – Compensatory damages - Designed to

reimburse actual value of the plaintiff’s injury or loss

– Punitive damages - Designed to punish the tortfeasor and to deter similar conduct in the future.

Contributory and Comparative Negligence

• Contributory Negligence– Any negligence on the part of the plaintiff that

contributed to the injury is an absolute bar to the recovery of damages.

– It does not matter how insignificant the plaintiff’s own negligence is compared to that of the defendant.

Contributory and Comparative Negligence

• Comparative Negligence– Once it is established that negligence of both

parties caused the damages, the court must apportion negligence among the parties on a percentage basis.

Defenses to Negligence

• Comparative Negligence.– Comparative negligence computes liability of

Plaintiff and Defendant and apportions damages.

– Pure Comparative Negligence States: allows Plaintiff to recover even if his liability is greater than that of Defendant.

Defenses to Negligence• Comparative Negligence.

– Modified Comparative Negligence States: percent of damages Plaintiff causes herself are subtracted from the total award.

– 50 Percent Rule: Plaintiff recovers only if liability is less than 50%.

– 51 Percent Rule: Plaintiff recovers nothing if liability is greater than 50% (Texas).

Torts

Chapter 6