Introduction. Today we look at the world of "torts."
II. Working Definition. First let's establish a working definition of what a tort is. A "tort" is wrongful conduct by one
person that causes injury to another.
A. Examples.
1. Gomer is preparing to set in a chair. As a joke, Barney Fife pulls the chair back just as Gomer is
getting ready to sit down - This is a tort.
2. Aunt Bee is very angry at Claire for stealing her boyfriend. To keep Claire from seeing him
again, Aunt Bee locks her up in a room. Claire tries to get out, but can't - This is also a tort.
III. Tort Law vs. Criminal Law. First of all torts and criminal incidents are both wrongful acts.
A. Primary Distinction. The primary distinction between tort and criminal law is that criminal law is
considered a wrong against the state. A tort is a action where one person brings a suit against
another party.
1. Compensation. Under a criminal action the injured party does not get compensated, while under
a tort action that is one of the primary reasons for bringing the suit.
IV. Kinds of Torts. There are three kinds of torts. We will look at each kind individually, but let me first list them:
A. The first tort is "intentional torts."
B. The second tort is "negligence."
C. The third tort is a tort in which the defendant's conduct is neither intentional or careless. BUT the
defendant is made "strictly liable" because of the nature of the activity.
V. Intentional Torts. The text states that an Intentional torts arise from an act that the defendant consciously desired
to perform, either in order to harm another or knowing with substantial certainty that injury to another could result.
A. Simpler Version. A much simpler version is this, "in order to prove that an intentional tort was
committed, the plaintiff must show:
1. That the defendant acted with the intent to cause harm and actual harm resulted. Note, the harm
does not have to be to the person who the defendant intended to harm. It could be to anyone
else.
2. Let's look at some intentional torts.
B. ASSAULT. Assault is the intentional causing of an apprehension of harmful or offensive contact.
1. Explanation. In other words, the defendant has committed an assault if he intentionally caused
the plaintiff to think that he (the plaintiff) will be subjected to harmful or offensive contact.
a. Example. Otis Campbell goes to Floyd's barber shop and tell Floyd he needs a drink.
Floyd tell Otis he doesn't have one and to get out of his barber shop. Otis takes a swing
at Floyd, but misses. This is an assault.
C. Battery. Battery is just one step above assault. It is the intentional infliction of a harmful or offensive
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bodily contact.
1. Difference Betw. Assault and Battery. Notice the difference between assault and battery. With
assault, no contact occurs; only the threat of contact. To have a battery, you must make contact.
a. Example. In the prior example, Otis took a swing at Floyd, but he missed. If Otis had
made contact, then this would have been a "battery."
D. Defenses to Assault and Battery. There are several defenses to assault and battery. The text lists four of
the more common ones (i.e. Consent, Self-Defense, Defense to others and Defense to Property).
1. Consent. A defendant will not be liable for a tort act if the plaintiff consent to the act. Consent
may be expressed or implied from prior conduct.
2. Self-Defense. When a person has reasonable grounds to believe that he is being or is about to be
attacked, he may use such force as is reasonably necessary for protection against the potential
injury.
3. Defense to Others. This merely deals with the situation where you are coming to the aid of
another individual.
4. Defense of Property. The general rule is that a person may use reasonable force to prevent the
commission of a tort against their property.
E. False Imprisonment. False imprisonment is defined as the intentional confinement or restraint of another
person without justification.
1. What Constitutes Confinement. There are several ways in which confinement may be
accomplished.
a. You can confine by using physical barriers.
b. You can confine by using "physical restraint."
c. You can confine by using "threats of physical force."
2. Examples.
a. Aunt Bee was fooling around with Otis Campbell. Otis' wife wasn't pleased. To get
even, Otis' wife locked Aunt Bee in the "Root Cellar." Aunt Bee had no means of
escaping. This is False Imprisonment.
3. False Imprisonment and Shoplifting. WHAT ABOUT SHOPLIFTING.
a. Question - If an employee in Penny's thought that I had taken something without paying
for it, can they detain me and ask me questions?
b. If they search me and find nothing, is this a case of false imprisonment?
(1) Answer. It depends!!! It depends on whether the employee probable cause that
I was shoplifting.
(2) Even with probable cause, the detention must be conducted in a reasonable
manner and only for a reasonable length of time.
F. Intentional Infliction of Mental Distress.
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1. Introduction. This tort is used when the others can't be used.
2. Definition. The text defines this tort as "an intentional act that amounts to extreme and
outrageous conduct resulting in severe emotional distress to another."
3. This is one of the more difficult torts to prove because you not only have to prove that the
defendant had the intent to commit the act, but you also have to prove that the act was extreme or
outrageous.
G. Defamation. A person's interest in his reputation is protected by a tort action called defamation.
1. Proof for Defamation. An individual has a case for defamation if he can show:
a. Defamatory Statement. There was a false and defamatory statement concerning him;
b. Publication. The statement was communicated to a third party;
c. Fault. The statement was either intentionally made or negligently made; and
d. Special Harm. Some special harm resulted.
2. Slander. If a statement is merely spoken it is called slander.
3. Libel. If the statement is written, it is called libel.
H. Defenses to Defamation. There are several defense to defamation. They can be broken into two
categories called absolute defenses or privileges.
1. Absolute. Truth is an absolute defense. But the statement must be 100% truthful.
2. Public Figure. Public figures include officials and employees who exercise substantial
governmental power, and generally in persons in the public limelight.
3. Privileges. The following are recognized as privileges;
a. Statements made in Judicial Proceedings
b. Statements made in Legislative Proceedings
c. Statements made by government official in the course of their jobs.
I. Invasion of Privacy. Invasion of privacy primary deals with the right to be left alone. There are four
different acts which qualify as an invasion of privacy.
1. Appropriation. The first act is called appropriation. Under this act a plaintiff can sue if his name
or picture has been appropriated by another for his financial benefit.
2. Intrusion. The second act is called intrusion. This is the intrusion upon an individual's right of
seclusion.
a. The text list a couple of good examples. I.E. invading someone's home or illegally
searching someone's briefcase.
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3. False Light. The third act is publication of information that places a person in a false light. The
plaintiff can sue if he is placed before the public eye in a false light, and this false light would be
highly offensive to a reasonable person.
a. Example. Mayor Pike is a war hero. Gomer makes a movie about Mayor Pike's life.
The movie contains a false romance between Mayor Pike and Aunt Bee. This is
invasion of privacy.
4. Publicity of Private Life. The fourth act is the public disclosure of private facts about an
individual that an ordinary person would find objectionable.
a. Example. Guber owes Floyd money for prior hair cuts. Floyd is mad because Guber
hasn't paid him. Floyd puts a poster in the window of his store stating that Guber owes
him money and has not paid him. This is invasion of privacy.
J. Misrepresentation. The text state that misrepresentation involves the use of fraud and deceit for
personal gain.
1. Elements for Misrepresentation. The elements for misrepresentation are listed on page
63 and they include:
a. A misrepresentation of fact or condition with knowledge that it is false or
reckless disregard for the truth.
b. Intent to induce another to rely on the misrepresentation.
c. Justifiable reliance by the plaintiff
d. Damages to the plaintiff stemming from the reliance.
2. The representation is normally made in words.
3. When a statement of opinion is made, look to see who is making the statement.
a. You usually rely on an opinion when it is made in a professional capacity by
someone with superior knowledge in that area. For example a lawyer or doctor's
statements.
4. More than "Puffing" Is Required. Mere trade talk is not considered misrepresentation.
(1) Example Dealers says "This is the best little two-door car you=re gonna find for
the money anywhere." This is puffing.
V. PROPERTY TORTS. Three kinds: (1) Trespass to land and personal property, (2) conversion and (3) nuisance
A. Trespass to Land. A trespass to land can occur when a person enters the land of another or causes
something or another person to enter that land.
1. Example of Trespass. The text lists some goods examples of trespass including (1) walking or
driving on the land , (2) shooting across the land with a gun,
and (3) throwing rocks onto the
land.
2. Right and Duties of Trespassers. A couple of additional points about trespass.
a. A guest in a home is not a trespasser. If you ask the guest to leave and he refuses, then
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he is trespassing.
b. Damages. A trespasser is liable for any damages he causes to the property.
c. No Liability of Owner. Generally, a trespasser can not sue the landowner for injuries he
incurred on the land. Notice, I said generally; there are some exceptions such as:
(1) Attractive Nuisance Doctrine. This doctrine imposed liability upon landowners
who maintained a condition which induced children onto the land.
3. Defenses to Trespass to Land. Some of the more common defenses to trespass is (1) consent and
(2) wrongful possession of land.
VI. Trespass to Personal Property. Trespass to personal property involves the interference with a person's right to
possess his or her property .
VII. Conversion. Conversion occurs when a party substantially interferes with the rightful owner's possession of
property.
A. Intent. Conversion is an intentional tort. The intent does not have to include a desire to harm the rightful
owner's interest.
1. Innocent Mistake. An innocent mistake as to ownership of the goods may still be conversion.
B. Damages. Whoever suffers a conversion is generally entitled to recover the reasonable value of the lost
goods.
E. Example. Spock lends Kurt his car in order for Kurt to sell it. Which of these is conversion:
1. Kurt drives the car 10 miles.
This would not be conversion because it is not substantial.
2. Kurt drives the car 2,000 miles. This would be conversion because of the substantial amount of
miles driven.
3. Kurt drove the car 5 miles and another car ran into him and demolished Spock's car. This is
conversion because Spock's car was totally destroyed and Kurt intended to drive it.
VIII. Nuisance. A nuisance is an improper activity that interferes with another's enjoyment or use of her property.
A. Two Types of Nuisances. Nuisances are divided into two types:
1. Public Nuisance. The first type is a public nuisance. A "public nuisance" is an interference with
a "right common to the general public."
2. Private Nuisance. The second type of nuisance is a "private nuisance." A private nuisance is an
unreasonable interference with the owner's use and enjoyment of his land.
C. Remedies. Two of the most common remedies for a nuisance are damages or have the nuisance stopped
by obtaining an injunction.
IX. NEGLIGENCE
A. Introduction. The key distinction between negligence and the intentional torts is the actor's mental state.
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1. With "intentional torts" the actor intends to cause the act.
2. With negligence, the actor has no intent to cause an act, but through his unreasonable conduct
the act did in fact occur.
B. Elements of Negligence. There are four element to negligence. I will make only general COMMENTS
about each element.
1. The defendant owed a duty of care to the plaintiff. This is a duty requiring the defendant to
conduct himself according to certain standards so as to avoid unreasonable risks to others.
2. The defendant breached that duty.
3. The plaintiff suffered injuries.
4. The defendant's breach of duty caused the plaintiff's injury.
a. Causation. Causation has two primary parts.
(1) Causation in Fact. First there must be causation in fact. If an injury would
not have occurred without the defendant's act, then there is causation in
fact.
(A) But For Test. The "but for" test is applied.
(B) Example. Earnest T. dug a hole. Howard stepped in the hole and
broke his leg. But for Earnest T's hole, Howard would not have
broken his leg.
(2) Proximate Cause. If causation in fact is found, then you must find
proximate cause
(A) Proximate cause deals with the extent of defendant's liability.
(B) Major Question. The major question is whether a negligent
defendant's responsibility should extend to consequences that could
in no way have been anticipated.
(I) Foreseeability. Foreseeability is the current test. Under this
test, the duty of care extends to a victim who is located
within a foreseeable zone of danger.
8 Example. Al Bundy negligently runs Marcie off the road. Floyd
sees Marcie and attempts to help her. When Floyd pulls Marcie out
of the car, he severely injuries her back. It is foreseeable that a
third party would lend assistance and could danger Marcie,
therefore Al would be liable.
(3) Superseding Intervening Forces. The defendant will attempt to show that
some act has intervened after his action and that the second act caused the injury.
This is "superseding intervening forces." This doctrine is close kin to
proximate cause.
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(A) Example. Floyd sprayed a toxic chemical in Andy's hair thinking it was
hair tonic. Andy needs medical assistance, therefore Barney puts Andy
in the squad car and drives off to the hospital. On the way, lightning
strikes the left front tire and blows the tire out. Andy suffers two broken
legs. Is Floyd liable for the broken legs?
Answer. First of all "but for" Floyd's mistake, Andy would have never
had to go to the hospital, but (1) such an accident was foreseeable and
(2) there was a superseding intervening force
X. DEFENSES TO NEGLIGENCE. An individual who is negligent may not have to pay damages if he has a
defense. The following are recognized defenses to negligence.
A. Assumption of Risk. The first defense is "assumption of the risk." A plaintiff is said to have assumed
the risk of certain harm if he has voluntarily consented to his chance that the harm will occur.
1. Requirements for this Defense. The text lists two requirement of this defense: (1) knowledge of
the risk and (2) voluntary assumption of the risk.
a. Example. Andy likes to watch bronco riding. He goes to the rodeo and tells the operator
that he wants to ride a bronco. The operator tells Andy that this is dangerous and he
could be hurt. Andy say "let's do!!" Andy signs release forms. Andy is subsequently
thrown from the bronco and breaks a leg. The owner may assert the defense.
b. Example. What happens if Andy just wanted to ride an ordinary horse and the owner
said this horse is fine for riding purposes. When Andy gets on the horse throws him.
Answer. No assumption of risk. A plaintiff does not assume a risk different
from or greater than the risk normally carried by the activity.
B. Contributory Negligence.
1. Introduction. This defense is loved by defendants, particularly insurance companies.
2. Definition. The essence of this defense is that a plaintiff who does not take reasonable care to
protect his own safety is negligent. If the plaintiff's negligence contributes to his injuries then
the plaintiff CAN NOT RECOVER ANYTHING.
3. KEY COMMENT. Contributory negligence is not a defense to intentional torts or strict
liability.
C. Comparative Negligence. Contributory negligence is an "all or nothing" system. In contrast, the
comparative negligence system rejects the all or nothing approach.
1. Definition. Under comparative negligence, liability is divided between the plaintiff and
defendant in proportion to their relative fault.
2. Example. Plaintiff suffers damages of $100,000. A jury finds that plaintiff was 30% negligent
and that Defendant was 70% negligent. Plaintiff will recover $70,000 (i.e. $100,000 minus 30%
x $100,000).
D. Last Clear Chance. This is a defense to contributory negligence.
1. Definition. The general impact of this rule is: "If just before the accident, the defendant has an
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opportunity to prevent the harm, and the plaintiff does not have such an opportunity, the doctrine
swipes out the effect of the plaintiff's contributory negligence
