Tort Law - Comprehensive Notes

Overview
Tort law provides remedies for civil wrongs that cause harm to persons or property. It aims to
compensate victims, deter wrongful conduct, and allocate losses fairly in society.

Categories of Torts

Intentional Torts
Defendant intended the act and its consequences (or knew consequences were substantially certain)

Negligence
Defendant failed to exercise reasonable care, causing harm

Strict Liability
Defendant liable regardless of intent or negligence for certain activities

Intentional Torts Against Persons

Battery
Definition: Intentional harmful or offensive contact with another person
Elements: Intent, harmful/offensive contact, causation

Contact: Direct or indirect (throwing object)

Consent: Valid defense if freely given within scope

Assault
Definition: Intentional act creating reasonable apprehension of imminent harmful/offensive contact
Elements: Intent, apprehension of contact, imminence
Apprehension vs. Fear: Apprehension of contact, not necessarily fear

Words Alone: Generally insufficient without accompanying acts

False Imprisonment
Definition: Intentional confinement within boundaries fixed by defendant

Elements: Intent, confinement, consciousness of confinement or harm

Confinement: Physical barriers, threats, assertions of authority

Shopkeeper's Privilege: Reasonable detention for suspected shoplifting

Intentional Infliction of Emotional Distress

 Definition: Intentional or reckless extreme and outrageous conduct causing severe emotional
distress

Elements: Extreme conduct, intent/recklessness, severe distress, causation

Extreme and Outrageous: Exceeds bounds of decency tolerated in civilized society

Special Relationships: Lower threshold for common carriers, innkeepers

Trespass to Land
Definition: Intentional entry onto land in possession of another
Elements: Intent to enter, entry onto land, possession by another

Entry: Above or below surface, causing objects to enter

Privilege: Necessity, consent, legal authority

Conversion
Definition: Intentional exercise of dominion and control over chattel belonging to another

Elements: Intent to control, dominion and control, chattel of another, interference with rights
Serious Interference: Duration, extent, harm caused

Remedy: Forced sale - defendant pays full value

Trespass to Chattels
Definition: Intentional interference with chattel in possession of another

Elements: Intent to interfere, interference with chattel, possession by another

Intermeddling: Physical contact with chattel

Dispossession: Depriving another of possession

Defenses to Intentional Torts

Consent
Express: Explicitly given

Implied: Inferred from conduct or circumstances

Scope: Must stay within bounds of consent

Capacity: Must have ability to consent

Self-Defense
Requirements: Reasonable belief of imminent harm, proportionate response

Deadly Force: Only to prevent death or serious bodily harm

Retreat: No duty to retreat in most jurisdictions
 Initial Aggressor: Generally cannot claim self-defense

Defense of Others
Requirements: Reasonable belief that defended person could use force

Relationship: No special relationship required in most jurisdictions

Mistake: Some jurisdictions allow reasonable mistake

Defense of Property
Reasonable Force: Can use reasonable force to protect property

Deadly Force: Generally not permitted to protect property alone

Mechanical Devices: Strict limitations on use

Necessity
Private Necessity: May interfere with another's property to protect self from harm

Public Necessity: May interfere to protect public from harm

Compensation: May still owe compensation for harm caused

Negligence

Elements of Negligence
1. Duty: Legal obligation to conform to standard of care

2. Breach: Failure to meet standard of care

3. Causation: Factual and proximate cause

4. Damages: Actual harm or injury

Duty of Care

General Standard

Reasonable Person: Objective standard of care

Factors: Age, experience, profession, emergency circumstances

Physical Characteristics: Considered (blindness, disability)

Mental Characteristics: Generally not considered

Special Duty Rules

No General Duty to Rescue: Exception for special relationships

Undertaking: Duty to use reasonable care once rescue begun

Special Relationships: Common carrier-passenger, innkeeper-guest, parent-child

 Landowner Duties: Varies by status of entrant

Standard of Care

Professional Standard

Professionals: Must exercise skill and knowledge of profession

Medical Malpractice: Must follow accepted medical practice

Custom: Relevant but not determinative

Specialists: Higher standard than general practitioners

Children

Age: Children held to standard of child of like age, intelligence, experience

Adult Activities: May be held to adult standard for inherently dangerous activities

Breach of Duty

Negligence per Se

Requirements: Violation of statute, plaintiff in protected class, harm of type statute intended to
prevent

Effect: Establishes breach (or creates presumption depending on jurisdiction)

Defenses: Compliance impossible, more dangerous than violation

Res Ipsa Loquitur

Requirements: Accident type that usually results from negligence, exclusive control by defendant, no
plaintiff contribution
Effect: Permits inference of negligence

Application: Medical malpractice, product malfunctions

Causation

Factual Causation (Cause in Fact)

But-For Test: Harm would not have occurred but for defendant's conduct

Substantial Factor Test: When multiple causes, defendant's conduct was substantial factor

Alternative Causation: Burden shifts when multiple defendants and unclear which caused harm

Proximate Causation (Legal Cause)

Foreseeability: Harm must be foreseeable type and manner

Direct Cause: No intervening causes breaking causal chain

 Superseding Cause: Unforeseeable intervening cause that breaks chain
Eggshell Plaintiff: Take victim as you find them

Damages

Economic Damages

Medical Expenses: Past and future medical costs

Lost Wages: Past and future income loss

Property Damage: Repair or replacement costs

Non-Economic Damages

Pain and Suffering: Physical pain and mental anguish

Loss of Consortium: Loss of companionship, services

Emotional Distress: Mental suffering

Punitive Damages

Requirements: Willful, wanton, or reckless conduct

Purpose: Punishment and deterrence

Constitutional Limits: Due process limits on excessive awards

Defenses to Negligence

Contributory Negligence
Rule: Complete bar to recovery if plaintiff contributed to harm

Criticism: Harsh all-or-nothing rule

Last Clear Chance: Exception allowing recovery despite contributory negligence

Comparative Negligence

Pure Comparative Negligence

Plaintiff's recovery reduced by percentage of fault

Can recover even if more than 50% at fault

Modified Comparative Negligence

50% Rule: No recovery if plaintiff 50% or more at fault

51% Rule: No recovery if plaintiff 51% or more at fault

Assumption of Risk
 Express: Contractual agreement to assume risk
Implied: Plaintiff voluntarily encounters known risk

Primary: No duty owed because risk assumed

Secondary: Affirmative defense to established negligence claim

Strict Liability

Abnormally Dangerous Activities

Requirements: High degree of risk, risk cannot be eliminated by reasonable care, activity not
common
Examples: Blasting, storing explosives, keeping wild animals

Defenses: Assumption of risk, plaintiff's abnormal sensitivity

Product Liability

Theories of Liability

1. Negligence: Manufacturer failed to use reasonable care

2. Strict Liability: Defective product unreasonably dangerous

3. Warranty: Breach of express or implied warranties

Types of Defects

Manufacturing Defects: Product differs from intended design

Design Defects: Product designed in dangerous way

Warning Defects: Inadequate instructions or warnings

Defenses

Comparative Fault: Reduces but doesn't eliminate liability

Assumption of Risk: Voluntary encounter with known danger

Product Misuse: Unforeseeable misuse may bar recovery

Specific Tort Issues

Premises Liability

Status of Entrant

Invitee: Duty of reasonable care, duty to inspect and warn/repair

Licensee: Duty to warn of known dangers

Trespasser: No duty except to avoid willful/wanton harm

Modern Trend

Many jurisdictions moving toward single standard of reasonable care

Consider status as factor in determining reasonableness

Vicarious Liability

Respondeat Superior

Requirements: Employee acting within scope of employment

Scope: Acts authorized or incidental to authorized acts

Frolic vs. Detour: Substantial departure from employment duties

Independent Contractors

General Rule: No vicarious liability

Exceptions: Non-delegable duties, inherently dangerous work

Emotional Distress

Negligent Infliction

Zone of Danger: Plaintiff in zone of physical danger

Bystander Recovery: Close family member, present at scene, shock from direct observation

Special Duty: Increased duty in special relationships

Intentional Infliction

Extreme and Outrageous Conduct: Exceeds bounds tolerated in civilized society

Severe Emotional Distress: More than reasonable person could endure

Third Party Recovery: If directed at family member or defendant knew third party present

Privacy Torts

Intrusion Upon Seclusion

Highly offensive intrusion into private affairs

Reasonable expectation of privacy required

Public Disclosure of Private Facts

Publication of private facts offensive to reasonable person

Not protected by First Amendment if not newsworthy

False Light
 Publication placing person in false light offensive to reasonable person
Similar to defamation but focuses on privacy

Commercial Appropriation

Use of name or likeness for commercial purposes without consent

Right of publicity protects economic interests in identity

Defamation

Elements

Defamatory Statement: Tends to harm reputation

Publication: Communication to third party

Identification: Statement reasonably understood as referring to plaintiff

Damages: Harm to reputation

Constitutional Constraints

Public Officials: Actual malice standard (knowledge of falsity or reckless disregard)

Public Figures: Actual malice standard

Private Figures: Negligence standard for matters of public concern

Defenses

Truth: Complete defense

Privilege: Absolute (judicial proceedings) or qualified (good faith)

Opinion: Pure opinion generally protected

Economic Torts

Interference with Contract

Elements: Valid contract, defendant's knowledge, intentional interference, damages

Justification: Competition, protection of own interests

Prospective Advantage: Similar tort for prospective business relations

Fraud/Misrepresentation
Elements: False statement of material fact, knowledge of falsity, intent to deceive, justifiable reliance,
damages

Negligent Misrepresentation: Negligent false statement in commercial setting

Innocent Misrepresentation: Strict liability in some circumstances
This comprehensive overview covers the major principles and doctrines of tort law essential for
understanding civil liability and remedies for wrongful conduct.