Tort Law

A tort is a civil wrong that causes a person loss or harm, and results in legal liability for the person who commits the tortious act. Tort law is made up of strict liability torts, negligent torts, and intentional torts.

Elements of a Tort

To establish a prima facie case for intentional tort liability, one must have proof of an act by defendant, intent and causation.

Act

An act is a volitional movement on the defendant’s part.

Intent

The defendant acts with intent if he acts with purpose of causing the consequence of his act or he acts knowing with substantial certainty that consequences will occur.

A person may be liable for unintended injuries if they intended to bring about such ‘basis of the tort’ consequences.

Intentional Torts – Transferred Intent

Intent will transfer when a person intends to commit an intentional tort against one person but commits either a different tort, or the same tort against a different person. Intent also transfers if a different tort is committed against a different person.

Causation

The causation requirement will be satisfied where the conduct of the defendant is a substantial factor in bringing about the injury.

Strict Liability

A case for strict liability requires:

an absolute duty to make the plaintiff’s person or property safe;
breach;
actual and proximate causation of plaintiff’s injury; and
damages to person or property

The situations in which strict liability is usually imposed involve dangerous activities, animals and defective or dangerous goods.

Negligence

Negligence is the commission of an act or the failure to act without wrongful intent. This act falls below the minimum degree of ordinary care. A prime facie case of negligence consists of the following:

Duty
Breach
Causation (including both actual and proximate cause)
Damages

Duty – Failure to Act, Unforeseeable Plaintiffs, & Conduct of Third Parties

Duty

A duty of care is owed to all foreseeable persons who may foreseeably be injured by defendant’s failure to act as a reasonable person of ordinary prudence under the circumstances.

Foreseeability

Unforeseeable plaintiffs are those to whom injury occurs when the defendant breaches a duty to a plaintiff but also injures a second plaintiff. The majority view is that the defendant is liable only to those plaintiffs who are within the zone of foreseeable harm. The minority view is that a duty is owed to everyone (foreseeable or not) who is harmed due to the breach.

Rescuers

Rescuers are foreseeable plaintiffs but emergency professionals such as police and firefighters are excluded as risks are inherent to their job.

Prenatal Injuries

A duty of care is owed to a fetus, hence prenatal injuries are actionable.

Special Relationship

A special relationship between a psychotherapist and patient can impose an affirmative duty on a doctor to act to protect a third party.

Intended Beneficiary

A third party for whose economic benefit a legal or business transaction is made (e.g. a will) is owed a duty of care if the defendant can foresee harm to that party if a transaction is done negligently.

Standard of Care

Reasonably Prudent Person

The standard of care is of a reasonably prudent person under the circumstances. The standard is objective.

The defendant is assumed to have average mental abilities and the same knowledge as an average member of the community.

Mental Disability

A mentally disabled person is held to the standard of someone of ordinary intelligence and knowledge, and individual mental handicaps are not considered.

Intoxication

An intoxicated individual is held to the same standard as a sober individual, unless intoxication was involuntary.

Children

A child’s standard of care is that of a reasonable child of similar age, education, intelligence, and experience. However, a child engaged in any high-risk adult activity is held to the same standard as an adult.

Professionals

A person who is a professional is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing in similar communities. For example, doctors have a duty to provide a patient with enough information, so they can make an informed consent about treatment options.

Medical Specialists

A specialist may be held liable to a higher, national standard of care while general practitioners will be held to the ‘same or similar locale’ standard.

Negligence Per Se

The violation of a statute establishes negligence and establishes the standard of care. There needs to be a criminal or regulatory statute that has been violated by the defendant. In addition, the plaintiff must be in the class of people intended to be protected by the statute and the harm should of the type that the statute was intended to protect against. Lastly, the plaintiff’s injuries should be proximately caused by the defendant’s violation of the statute.

Custom

Evidence of a custom in an industry is admissible as evidence to establish standard of care, but such evidence is not conclusive.

Common Carriers and Innkeepers

Common carriers and innkeepers are required to exercise a high degree of care toward their passengers and guests, i.e. liable for slight negligence.

Res Ipsa Loquitur

This stands for ‘the thing speaks for itself.’ Res ipsa is circumstantial evidence of negligence that does not change the standard of care.

The doctrine is used in a scenario when there are no direct facts, but there is an event that ordinarily does not occur absent negligence on part of the defendant. Res ipsa does not apply in a scenario where there is direct evidence of the cause.

For res ipsa to apply, the plaintiff must prove that such negligence was caused by an agent or instrumentality of the defendant who is under exclusive control. The accident must not have occurred due to any contributory negligence on part of the plaintiff.

Res ipsa is used in medical malpractice scenarios and products liability cases to hold defendants jointly and severally liable.

Causation

But-For Causation

If the plaintiff’s injury would not have occurred but for the defendant’s breach, then the action is a factual cause of the harm. The ‘but-for’ test will not work if there are multiple tortfeasors, multiple causes, or a plaintiff would have died even without proper medical attention.

Substantial Factor Test

This is used when the but-for test does not work. This test involves examining whether the D’s conduct was a substantial factor in causing the plaintiff’s harm. If two or more defendants are each a factual cause, then the defendant’s are jointly and severally liable, especially if both acted as per a common plan or design.

Alternate Causes

Plaintiff must prove that the harm has been caused to him by one of them, and the burden of proof then shifts to the defendants, and each must show that his negligence is not the actual cause.

Proximate Cause

This rule requires that the plaintiff suffer a foreseeable harm that is not too remote and is within the risk created by the defendant’s conduct.

Limitations on Liability

Remote or Unforeseeable Causes

These are superseding causes that break the chain of causation such as acts of God, acts of nature, and intentional torts of third parties. Negligent intervening acts are regarded as foreseeable such as medical malpractice.

Owners and Occupiers

A landowner owes no duty to an undiscovered trespasser. Once a trespasser is discovered an owner is under a duty to exercise ordinary care to warn the trespasser of, or to make safe, artificial conditions known to the landowner that involve a risk of death or serious bodily harm that the trespasser is unlikely to discover.

Negligent Infliction of Emotional Distress

A physical symptom (shocks, ulcers) from the distress is required. The plaintiff must be within the ‘zone of danger’ of the threatened physical impact such that he or she feared for his or her own safety because of the defendant’s negligence.

Economic Loss

A plaintiff suffering only economic loss without related personal injury or property damage cannot recover such loss through a negligence action.

Egg-shell Rule

The extent of damages need not be foreseeable, as you take a victim as they come with any pre-existing medical conditions.

Liability for Acts of Others

Employees and other Agents

An employer is liable for the tortious conduct of an employee that is within the scope of employment, especially conduct from which the employer benefits or profits, or that authorized by the employer. Employers are liable for detours (minor and permissible detours) but not for frolic (substantial deviations).

Independent Contractors

A person hiring an independent contractor remains vicariously liable for inherently dangerous activities, non-delegable duties that arise out of a relationship with a specific plaintiff or public, or duties that arise from keeping a premises safe for the public.

Defenses

Contributory Negligence

The defense of contributory negligence acts as a complete bar to recovery and occurs when a plaintiff fails to exercise reasonable care for his or her own safety, and contributes to injury.

The plaintiff may mitigate the legal consequences of contributory negligence if it can be proven that the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so. A plaintiff who is in helpless peril is a case where the defendant knew or should have known of the plaintiff’s situation.

However, a defendant can also be held liable if he or she has actual knowledge of an inattentive plaintiff who can escape from a peril but is oblivious.

Pure Comparative Negligence

Some jurisdictions have adopted the doctrine of pure comparative negligence, where the plaintiff’s damages are reduced by a portion of fault of the plaintiff. Thus, if damages are at $50,000 and the plaintiff’s fault is at 80%, then the plaintiff recovers $10,000.

Modified or Partial Comparative Fault

Jurisdictions also apply modified or partial comparative fault, where if the plaintiff is less at fault than the defendant, then the plaintiff’s recovery is reduced by his percentage of fault. But, if the plaintiff is more at fault, then the recovery is barred. If both are equally at fault, then a plaintiff will recover 50% of damages.

Assumption of Risk

A party can disclaim liability for negligence due to exculpatory provisions in contracts. A disclaimer of liability by a contract negates the defendant’s duty of care to the plaintiff. However, exclusions will not be possible for fraud, duress, or if there is a bargaining inequality between the parties. In addition, exculpatory provisions will not be applicable for common carriers, innkeepers, and employers. Exclusions will also not be upheld if they violate public policy.

A plaintiff’s voluntary consent to encountering a specific, known risk will be an affirmative defense that will bar recovery. The voluntary assumption of risk must also be unreasonable.

In a contributory negligence jurisdiction, assumption of risk bars recovery.

In a comparative-fault jurisdiction, assumption of risk will simply reduce recovery.