1. ELEMENTS OF TORTS 8/30/2009

2. Tort  A wrongful injury; it’s a private or civil wrong which is not a breach of contract  Its some action or conduct by the defendant which results from a breach of a legal duty owed by the defendant to the plaintiff, which proximately causes injury or damage to the plaintiff  Torts may be intentional, negligent or without fault (strict liability)

3. Role of Tort Law  All tort claims are civil matters in which the plaintiff is seeking monetary compensation from the defendant,  One act may result in both a criminal case and a tort case but the end results are very different for each

4. 3 types of Torts 1. Negligence based torts –unintentional but legally careless conduct 2. Intentional Torts – require that the defendant desired to cause the consequence of his act or recognizes that the consequences are substantially certain to result from his act 3. Strict Liability – legal doctrine that holds a manufacturer or a seller liable for all the defects and injuries caused by his products regardless of the degree of care that he exercised

5. Negligence Based Torts  Injured party must show the four following elements to prove negligence: 1. Duty – must show that the wrongdoer owed a duty to the injured party 2. Breach – must show that the duty of care was breached through some act or omission (failure to act) on the part of the wrongdoer 3. Causation – must show a casual connection between the wrongdoer’s negligent conduct and the resulting harm to the injured party 4. Damages – must show that the injured party suffered actual harm or damages

6. Duty of Care  The standard of care one legally owes to another under a certain set of circumstances  A duty of care is owed to all foreseeable plaintiffs  The extent of the duty is determined by the applicable standard of care  The standard of care is usually measured against the hypothetical reasonable person - which is the degree of care a reasonable and prudent person would exercise under the circumstances.  The reasonable person standard is an objective standard – a defendants mental deficiencies and inexperience are not taken into account (i.e. stupidity is no excuse) However, the “reasonable person” is considered to have the same physical characteristics as the defendant (but one is expected to know one’s physical handicaps and exercise the care of a person with such knowledge – e.g., a blind person should not fly a plane)

7. Duty of Care  A professional or someone with special occupational skills is required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities. Specialists are held to a national standard of care.  Children are held to the standard of a child of like age, education, intelligence, and experience. This is a subjective test. Rule is that a child under four is usually without the ability to be negligent  Common carriers (i.e. bus drivers) and innkeepers are held to a very high degree of care – they are liable for even the slightest negligence – however, the plaintiff must be a passenger or guest in order for the higher standard to apply

8. Breach of Duty  Where the defendant’s conduct has fallen short of that level required by the applicable standard of care owed to the plaintiff, she has breached her duty  Whether the duty of care is breached in an individual case is a question for the trier of fact (jury, judge)  In some cases, the very occurrence of an event may tend to establish a breach of duty. This is known as the doctrine of res ipsa loquitur (the thing speaks for itself)

9. Res Ipsa Loquitur  Requires the plaintiff to show that: 1.the accident causing the injury is a type that would not normally occur unless someone was negligent, and 2.The negligence is attributable to defendant (i.e. this type of accident ordinarily happens because of the negligence of someone in defendant’s position) This is often shown by evidence that the instrumentality causing the injury was in the exclusive control of defendant)

10. Causation  Once negligent conduct is shown (a breach of the standard of care to a foreseeable plaintiff), plaintiff must show that the conduct was the cause of his injury.  For liability to attach, plaintiff must show both actual cause and proximate cause.  Actual cause – before defendant’s conduct can be considered a proximate cause of plaintiff’s injury, it must first be a cause in fact of the injury. –“But for” test – an act or omission is the cause in fact of an injury when the injury would not have occurred but for the act

11. Causation  Proximate cause – in addition to being a cause in fact, the defendant’s conduct must also be the proximate cause of the injury.  Even though the conduct actually caused the plaintiff’s injury, it might not be deemed to be the proximate cause  The doctrine of proximate causation is a limitation of liability and deals with limiting the consequences for unforeseeable or unusual consequences of one’s acts  Generally, a defendant is liable for all harmful results that are the normal incidents caused by his acts. This is called the foreseeability test.

12. Causation  Intervening cause – an independent cause occurring between the original negligent act or omission and the ultimate injury.  If the intervening act is a foreseeable event, then its likely that liability for the injury will attach to the original wrongdoer (example: subsequent medical malpractice)  If the intervening act was unforeseeable, then the intervening cause relieves the original wrongdoer (tortfeasor) of liability for the ultimate injury

13. Defenses to Negligence  Assumption of Risk – plaintiff may be denied recovery if she assumed the risk of any damage caused by defendant’s act.  Plaintiff must have known of the risk and voluntarily proceeded in the face of the risk.  Comparative negligence – compares the degree of fault attributable to a defendant and a plaintiff in a negligence suit and reduces damages accordingly (i.e. if plaintiff is 10% at fault then her damages are reduced by 10%)

14. Intentional Torts To The Person  Intentional Torts – require that the defendant desired to cause the consequence of his act or recognizes that the consequences are substantially certain to result from his act.  Everyone is capable of intent. Young children and persons who are mentally incompetent will be liable for their intentional torts.

15. Intentional Torts To The Person  Assault – an intentional act by the defendant creating a reasonable apprehension in plaintiff of the immediate or harmful or offensive contact to plaintiff’s person –Don’t confuse apprehension with fear or intimidation (e.g. a weakling can cause apprehension and thus assault a bully) –Words alone are not sufficient. In order for the defendant to be liable the words must be coupled with conduct (e.g. shaking your fist at someone while saying you’d like to punch them) –Plaintiff must be apprehensive that she is going to become the victim of an immediate battery.

16. Intentional Torts To The Person  Battery – an intentional harmful or offensive contact to the plaintiff’s person without consent –Harmfulness and offensiveness are judged by a reasonable person standard –Plaintiff’s person includes anything connected to the plaintiff (i.e. clothes, hat, purse)  You can have an assault without a battery or a battery without an assault – they are two separate and distinct tortious act although most people consider them to go together

17. Intentional Torts To The Person  False imprisonment – an intentional act or omission on the part of the defendant that confines or restrains the plaintiff to a bounded area. –Sufficient acts of restraint include physical barriers, physical force, threats of force, failure to release and invalid use of legal authority –It is irrelevant how short the time of the confinement is –Plaintiff must know of the confinement or be harmed by it –For an area to be bounded, freedom of movement must be limited in all directions – there must be no reasonable means of escape known to plaintiff

18. Intentional Torts To The Person  Infliction of emotional distress – an intentional act by the defendant amounting to extreme and outrageous conduct leading to severe emotional distress in the plaintiff –Extreme and outrageous conduct is conduct that exceeds the bounds of decency

19. Intentional Torts To The Person  Invasion of privacy - this tort includes four types of wrongs: 1.appropriation of plaintiff’s picture or name – must show the unauthorized use of plaintiff’s picture or name for defendant’s commercial advantage 2.intrusion upon plaintiff’s affairs or seclusion – the act of prying or intruding must be objectionable by a reasonable person and the thing into which there is an intrusion must be private 3.publication of facts placing plaintiff in false light – where one attributes to plaintiff a view he does not hold or action he did not take 4.public disclosure of private facts about plaintiff – must be the public disclosure of private information (matters of public record are not sufficient)

20. Defamation  Defamation – the publication of material injurious to a person’s good name and reputation –Publication means communication of the defamation to someone other than the plaintiff. –Slander – spoken defamation –Libel – written or printed publication of defamatory language, includes pictures and radio and television broadcasts –Defamation can involve damage to the good name of a business – therefore companies need to be careful about what they say about competitors and their products

21. Defamation Defenses  Truth and privilege are defenses to an action for defamation.  If the statement that caused the harm to a person’s reputation is in fact the truth it may be a complete defense to the tort of defamation  Absolute privilege – can never be lost -defendant may be protected by an absolute privilege for the following: remarks made during judicial proceedings, by legislators in debate, by federal executive officials and between spouses  Qualified (conditional) privilege – can be lost through abuse – a speaker may have a qualified privilege if the statement was published in good faith and with proper motives  Constitutional privilege – the First Amendment to the Constitution guarantees freedom of speech and freedom of press. This protects members of the press who publish opinion material about public officials, public figures, or persons of legitimate public interest. This privilege is lost if the statement is made with actual malice (reckless disregard for the truth)