Definition of a Tort

A civil wrong (other than a breach of contract) that causes injury or other loss for which our legal system deems it just to provide a remedy such as damages.  Injury or loss can be to the person (a personal tort), to movable property (a personal property tort), or to land and anything attached to the land (a real property tort).

Definition of a Remedy

(1) The means by which a right is enforced or the violation of a right is prevented, compensated for or otherwise redressed.

(2) To correct.

Standard of Proof

How believable or convincing a version of a fact must be before a trier of facts (usually a jury) can accept it as true.

The Difference between Negligence and Intentional Torts.

Negligence - The failure to use reasonable care that an ordinary, prudent person would have used in a similar situation, resulting in injury or other loss.  The heart of a plaintiff's case is that the defendant created an unreasonable risk of harm by their carelessness. 

Intentional Tort - A tort in which a person desired to bring about the result or knew with substantial certainty that the result would follow from what the person did or did not do.  The heart of the plaintiff's case is to show that the defendant wanted (desired) the harm to result or knew that there was substantial certainty of harm based on what the defendant did or failed to do.

Definition of Strict Liability

 Responsibility for harm even if one did not intend the harm and used reasonable care to try to prevent the harm.  Responsibility for the harm whether or not the person causing the harm was at fault or engaged in moral impropriety.  Also called absolute liability and liability without fault.  If the defendant engages in a certain kind of conduct that causes harm, liability will result regardless of intent or negligence.

EXAMPLE:  Abnormally dangerous activity (i.e., blasting)

Definition of Proximate Cause

A cause that is legally sufficient to impose liability for the results of one's wrongful act or omission. There are two components of proximate cause:

(1) Actual Cause - which answers the question of who was the cause in fact of the harm or other loss.

(2) Legal Cause - which answers the question of whether the harm or other loss was a foreseeable consequence of the original risk

Definition of Actual Cause

Cause in fact.  Causation established either by the But-For Test or by the Substantial-Factor Test.  

But-For Test: can it be said that an event (e.g. the injury) would not have occurred without the act or omission of the party?  

Substantial-Factor Test: Can it be said that the party's acts or omission had a significant or important role in bringing about the event?

But-For Test

 Would the event (e.g., the injury) have happened without the act or omission of the party?  But for the act or omission, would the event have occurred?  Used to establish actual cause when there is only one alleged cause of an event in question.

EXAMPLE:  George fires his gun at Bill.  Bill's left arm is paralyzed.  But for the gunshot wound, Bill's arm would not have been paralyzed.  Therefore, George's act of firing the gun was the actual cause of the paralysis.

Substantial Factor Test

Did the party have a significant or important role in bringing about the event (e.g., the injury)?  Used primarily to establish actual cause when there more than one causal entity is alleged.

EXAMPLE: Ajax Manufacturing Co. and Winthrop, Inc., pour chemicals into a stream.  After they do so, the stream is so polluted it is no longer suitable for fishing.  (1) The dumping by Ajax had a significant role (i.e., was a substantial factor in making the river unusable.  Therefore, Ajax was an actual cause of this event.  (2) The dumping by Winthrop had a significant role (i.e., was a substantial factor in making the river unusable.  Therefore, Winthrop was an actual cause of this event. 

Difference between Objective and Subjective Standards

Subjective Standard - a standard that measures something by what a particular person actually knew, felt. or did.  

Objective Standard - a standard that measures something by comparing (a) what a person actually knew, felt, or did with (b) what a reasonable person would have known, felt, or done under the same circumstances.

Reasonable Person

Someone who uses ordinary prudence under the circumstances to avoid injury or other loss.  Also called ordinary, prudent person.  (Called reasonable man in older cases).

Definition of the Tort of Battery

An unpermitted and intentional harmful or offensive physical contact with a person.

ELEMENTS:

(1) Act

(2) Intent to cause (a) an imminent contact with the plaintiff's person or (b) an apprehension of such contact

(3) Contact that is harmful or offensive

(4) Causation of the harmful or offensive contact

Definition of Intent for Battery

The desire (a) to bring about an imminent contact or an apprehension of such contact or, (b) the knowledge with substantial certainty that an imminent contact (or its apprehension) will result from what one does or fails to do.  

Definition of Transferred-Intent

The defendant may be liable for certain torts committed against the plaintiff even if the defendant intended to commit a different tort against the plaintiff (unintended tort) and even if the defendant intended to commit the tort against a different person (unintended plaintiff).  Does not apply to all torts.

Transferred-Intent for Battery

It is no defense to argue that the person hit is not the one the defendant intended to hit.

EXAMPLE:  Helen fires a gun at Paul.  She misses Paul, but strikes Rich, whom she did not see.  Helen has battered Rich.  Under the transferred-intent rule, her intent to hit Paul is transferred to Rich.

Definition of Thin-Skull Rule

If the general nature or type of harm was a foreseeable consequence of the original risk, the defendant will be liable for the harm even if the extent of the harm was not foreseeable.  Also called eggshell-skull rule.

Throwing a hard object at someone's back creates a risk of injuring that person's back.  It is no defense for the wrongdoer to argue that he or she never anticipated the type or extent of the particular back injury that would result.

Definition of the Tort of Assault

An apprehension of an imminent harmful or offensive contact resulting from the defendant's intent to cause this apprehension or the contact itself.

ELEMENTS:

(1) Act

(2) Intent to cause (a) an apprehension of an imminent harmful or offensive contact or (b) the imminent harmful or offensive contact itself

(3) Apprehension of an imminent harmful or offensive contact with the plaintiff's person

(4) Causation of the apprehension

Definition of Apprehension

An understanding, awareness, anticipation, belief, or knowledge of something.  It is not the equivalent of fear, although fear qualifies as apprehension.  

EXAMPLES: (1) Greg (a 300-pound wrestler) swings his fist at Martha (a seventy-year-old petite widow) because she called him a "bum" at a match.  Terrified, Martha ducks just in time to avoid the punch.  (2) Later, Martha raises her newspaper to strike Greg in the stomach.  Laughing, Greg steps back to avoid her swing.  Greg and Martha have assaulted each other.  Both had awareness - an apprehension - of a harmful or offensive contact.  Martha was afraid; Greg was not.  But fear or intimidation is not required.

Define Imminent Threat

Immediate in the sense of no significant or undue delay.  Near at hand; about to occur.

Define Conditional Threat

A communicated intent to do something dangerous or unwanted in the future if a specified event occurs.

Imminent Threat:  Immediate in the sense of no significant delay.

Conditional Threat:  A communicated intent to do something dangerous or unwanted in the future if a specified event occurs.

The apprehension of contact must be of an imminent harmful or offensive contact.  A future or conditional threat is not enough. Furthermore, the defendant must have the apparent present ability to carry out the threat. If the defendant points a toy gun at the plaintiff and threatens to shoot, there is no imminent apprehension if the plaintiff knows that the gun is a toy that is incapable of firing anything.

Difference between Cyberstalking and Cyberbullying

Cyberstalking:  The use the Internet or other electronic means to repeatedly embarrass, humiliate, Threaten, or otherwise harass someone.  Also called cyberharassment.

Cyberbullying:  The use the Internet or other electronic means to repeatedly embarrass, humiliate, Threaten, or otherwise harass a minor.  Also called cyberharassment.

If the victim is a minor = cyberbullying

Definition of False Imprisonment

The intentional confinement within fixed boundaries of someone who is conscious of the confinement or who is harmed by it.

ELEMENTS:

(1) An act that completely confines the plaintiff within fixed boundaries set by the defendant.

(2) Intent to confine plaintiff or a third party

(3) Causation of the confinement

(4) The plaintiff was either conscious of the confinement or suffered actual harm by it

Definition of False Arrest

An arrest for which the person taking someone into custody has no privilege.

Definition of Respondeat Superior

Literally, "let the master answer."   An employer is responsible for the wrongs committed by an employee within the scope of employment.

Concept of Official Immunity

Official Immunity:  Government employees are not personally liable for torts or other wrongdoing they commit within the scope of their employment.  

A separate question is whether the government employer of a peace officer will be liable for false arrest under respondeat superior.  The answer will depend on whether the government has waived its sovereign immunity and thereby given its consent to be sued for this type of claim.

Definition of Malicious Prosecution

Instigating legal proceedings without probable cause and with malice, or with improper purpose, when the proceedings terminate in favor of the accused.  

ELEMENTS:

(1) Instigation of criminal proceedings

(2) Without probable cause

(3) With malice (improper purpose for malicious prosecution)

(4) The criminal proceedings terminate in favor of the accused

Most states require the victory to be on the merits and not be a procedural/technical victory

Definition of Probable Cause

(1) A reasonable belief that a specific crime has been committed and that the accused committed the crime

(2) A reasonable belief that good grounds exist to bring civil proceedings against someone

Definition of Intentional Infliction of Emotional Distress (IIED)

Intentionally causing severe emotional distress by an act of extreme or outrageous conduct.  Also called the tort of outrage.

ELEMENTS:

(1) An act of extreme or outrageous conduct

(2) Intent to cause severe emotional distress

(3) Severe emotional distress is suffered

(4) Defendant is the cause of this distress

Definition of Actual Malice

Knowledge that a statement of fact is false, or recklessness as to its truth or falsity.  Also called constitutional malice.

Distinguish between Intentional Infliction of Emotional Distress (IIED) and Negligent Infliction of Emotional Distress (NIED)

IIED:  Intentionally causing severe emotional distress by an act of extreme or outrageous conduct.  

NIED:  carelessly causing someone to suffer emotional distress.  Not caused intentionally or recklessly.  Not all states recognize this tort. The traditional rule is that NIED results from a physical injury.  Today, however, most courts allow NIED claims if the emotional distress was foreseeable to the defendant because the plaintiff was in the zone of danger and if the plaintiff suffered substantial physical symptoms as a result of the distress (e.g., PTSD).  Zone of Danger = the area within which injury or other loss to the plaintiff is foreseeable.

Difference between Conversion and Trespass to Chattels

Conversion:  An intentional interference with another's personal property, consisting of an exercise of dominion over it (more serious).

Trespass to Chattels:  An intentional interference with another's personal property, consisting of dispossession or intermeddling (more minor).

The distinction is the degree interference involved.

Definition of Exercising Dominion Over Something

The exertion of substantial or extensive control over a chattel that is inconsistent with the right of another to control it.  

To take a chattel away and possess it (actually or constructively); to wrongfully appropriate another's property for one's self

Definition of Dispossession

(1) Taking physical control of a chattel without exercising dominion over it.

(2) Depriving someone possession or occupancy of property

An interference that takes place without consent and deprives the victim of possession or causes harm or damage to the chattel.

Definition of Intermeddling

Making physical contact with, and causing damage or harm to, a chattel without exercising dominion over it.  An interference that takes place without consent and deprives the victim of possession or causes harm or damage to the chattel.

Definition of the Tort of Conversion

An intentional interference with another's personal property, consisting of an exercise of dominion over it.

ELEMENTS:

(1) Personal property (chattel)

(2) The plaintiff is in possession of the chattel or is entitled to immediate possession

(3) Intent to exercise dominion over the chattel (a serious interference)

(4) Dominion

(5) Causation of the dominion

Definition of the Tort of Trespass to Chattels

An intentional interference with another's personal property, consisting of dispossession or intermeddling.

ELEMENTS:

(1) Personal property

(2) The plaintiff is in possession of personal property or entitled to immediate possession

(3) Intent to dispossess or intermeddle

(4) Dispossession or intermeddling

(5) Causation of the dispossession or intermeddling

(1) The extent and duration of the defendant's exercise of control over the chattel. The more substantial and lengthy the interference, the more likely it will constitute conversion.

(2) Whether the defendant intended to assert a right in the chattel that was inconsistent with the plaintiff's right of control.  The assertion of such a right builds a stronger case for conversion.

(3) Whether the defendant acted in good faith or bad faith when interfering with the chattel. Depriving someone of a chattel for an extended period is an exercise of dominion, even if (a) it was due to an honest mistake, (b) no harm was done to the chattel, and (c) it was eventually returned.

(4) Whether the interference caused any harm or damage to the chattel.  The more damage or harm, the greater the likelihood that the interference was a conversion. 

(5) Whether the plaintiff suffered any inconvenience or expense as a result of the interference.  The more inconvenience or expense, the greater the likelihood that the interference was a conversion.

Definition of Mistake

An unintentional act, omission, or error

Definition of Bona Fide Purchaser (BFP)

One who has purchased property for value without notice of defects in the title of seller or of any claims against the property by others.  Also called good faith purchaser, innocent purchaser.

Intent for Conversion

(A) The desire to exercise dominion over personal property that is inconsistent with another's right to control it, or (B) the knowledge with substantial certainty that this will result from what one does or fails to do.

Intent for Trespass to Chattels

(A) The desire to intermeddle with or dispossess another of personal property, or (B) the knowledge with substantial certainty that this will result from what one does or fails to do.

Explain Strict Liability

Responsibility for harm even if one did not intend the harm and used reasonable care to try and prevent it. Responsibility for harm regardless of blameworthiness or fault. For some activities blameworthiness or fault is irrelevant. As a matter of social policy, the law says that certain designated activities that cause harm will result in liability regardless of whether the defendant acted innocently, intentionally, or negligently. The same is true for harm that results from certain conditions that exist on the defendant's land.

Strict Liability for Wild Animals

A wild animal is an animal in the state of nature, e.g., lion, bear, monkey, wolf.  In most states, an owner (or keeper) of a wild animal will be strictly liable for any harm it causes whether or not the owner knew of the animal's dangerous propensities, irrespective of how well trained the animal may have been, and regardless of how much care the owner took to prevent harm to others by the animal.

ELEMENTS OF STRICT LIABILITY FOR WILD ANIMALS:

(1) Keeping a wild animal

(2) Harm caused by the wild animal

Strict Liability for Domestic Animals

A domestic animal is an animal that has been domesticated or habituated to live among humans, e.g., horse, dog, cat.  An animal that is "by custom devoted to the service of mankind at the time and in the place in which it is kept." Restatement of Torts. 

ELEMENTS OF STRICT LIABILITY FOR OWNERS OR KEEPERS OF DOMESTIC ANIMALS:

(1) The owner has reason to know the animal has a specific propensity to cause harm, and

(2) The harm caused by the animal was due to that specific propensity

Definition of Dangerous Propensity

A tendency to cause damage or harm as shown by prior acts or omissions that caused damage or harm.

A tort that imposes liability for harm caused by abnormally dangerous conditions or activities regardless of whether the person causing the harm acted intentionally, negligently, or innocently.  The abnormal conditions or activities are so unusual or non-natural that they create a substantial likelihood of causing great harm.

ELEMENTS OF SLADCA:

(1) Existence of abnormally dangerous condition or activity

(2) Knowledge of the condition or activity

(3) Causation

(4) Damages

Rylands v. Fletcher, L.R. 3 H.L. 330 (1868)

The case holding that if defendants know they are engaging in a non-natural or abnormal use of land that creates an increased danger to persons or property, they will be strictly liable for harm caused by this use.  

How is Abnormal or Non-Natural Activity Determined?

The determination of what is abnormal or non-natural will depend on the environment. The following examples have been found to be abnormally dangerous:

(1) Storing large quantities of flammable liquids in an urban area

(2) Blasting in a residential area

(3) Extensive pile driving

(4) Allowing emissions of noxious gasses from a factory in a residential area

The activity or condition must be unusual for the area and present a serious threat of harm. The following are examples of cases that were not found to be abnormally dangerous because they did not meet both criteria:

(1) Electric wiring in a business

(2) Gasoline stored at a gas station underground

(3) A small amount of dynamite stored in a factory

(4) An oil well dug in a Texas oil field

Proximate Cause In Depth for SLADCA

A cause that is legally sufficient to impose liability for the results of one's wrongful act or omission.  There are two components to proximate cause:

(A) Actual Cause: the defendant was the cause in fact of the harm or other loss suffered by the plaintiff, as determined by one of these two tests:

(1) But for the defendant's conduct, the harm or other loss would not have occurred (used when there is only one alleged cause).

(2) The defendant was a substantial factor in producing the harm or other loss suffered by the plaintiff (used when there is more than one alleged causal entity)

(B) Legal Cause: the harm or loss was the foreseeable consequence of the original risk created by the defendant. To establish legal cause for SLADCA, two requirements must be met:

(1) the harm suffered by the plaintiff's person or property must be within the type of harm that was initially foreseeable, and

(2) the plaintiff's person or property must be in the group or class of people who were foreseeably at risk because of the abnormally dangerous condition or activity.

Definition of Contributory Negligence

The failure of plaintiffs to take reasonable precautions for their own protection, helping to cause their own injury or other loss.  Contributory negligence will not defeat liability in strict liability torts.  Not to be confused with assumption of the risk.

Definition of Assumption of the Risk

The knowing and voluntary acceptance of the danger or risk of being harmed by someone's negligence. Not to be confused with contributory negligence.

Assumption of the risk is a defense to strict liability torts. To avoid permitting a defendant to use this defense as an unfair weapon against a plaintiff, the defendant must establish that the plaintiff's assumption of the risk was unreasonable. A plaintiff has the right to the reasonable use and enjoyment of his or her property. A defendant cannot encircle the plaintiff's land with a dangerous condition or activity and then assert assumption of the risk when the plaintiff uses his or her land and is injured because of the condition or activity. The defendant must show that this use was unreasonable, and courts are reluctant to make such a finding when the defendant has prevented the plaintiff from making ordinary and reasonable use of his or her property.

Definition of Negligence

The failure to use reasonable care that an ordinary prudent person would have used in a similar situation, resulting in harm or other loss. Injury or other loss caused by the failure to use reasonable care.

ELEMENTS:

(1) Duty

(2) Breach of Duty - unreasonable conduct that endangers someone to whom you owe a duty of care

(3) Proximate Cause

(4) Damages

Define Breach of Duty

Unreasonable conduct endangering someone to whom you owe a duty of care

Difference between Gross Negligence and Ordinary Negligence

Gross Negligence: The failure to use even a small amount of care to avoid foreseeable harm.

Ordinary Negligence: Conduct that is unreasonable but not gross or reckless.

Definition of Recklessness

Consciously taking a risk in failing to exercise due care but without intending the consequences; wantonly disregarding a risk but neither desiring the consequences of the risk nor having substantially certain knowledge of the consequences.

Definition of Duty

(1) An obligation to conform to a standard of conduct prescribed by law

(2) In negligence cases, the obligation to use reasonable care to avoid the foreseeable risk of causing injury or other loss to the person or property of another

Definition of Risk

The chance or danger that a loss or misfortune will occur. The danger of an unwanted (and usually unintended) result.

Comparative Standards in Establishing Breach of Duty

Step 1: State the injury or loss the plaintiff claims to have suffered because of the defendant

Step 2: Identify the specific acts or omissions of the defendant about which the plaintiff is complaining

Step 3: Turn back the clock in your mind to the time just before the acts or omissions identified in Step 2 occurred.  Ask yourself what a reasonable person would have dome under the same or similar circumstances at that time (You answer this question by (a) using common sense of what a reasonable person would have done and (b) what court opinions have said what a reasonable person would have done).

Step 4: Compare the specific acts and omissions of the defendant identified in Step 2 with what you said a reasonable person would do in Step 3.

Step 5: Reach a conclusion

a.) If comparison in Step 4 is same or substantially similar = no breach of duty

b.) If comparison in Step 4 is substantially different or opposite = breach of duty 

Definition of Products Liability

A general term that covers five causes of action for harm caused by products: 

(1) Negligence

(2) Breach of Express Warranty

(3) Breach of Implied Warranty of Fitness for a Particular Purpose

(4) Breach of Implied Warranty of Merchantibility

(5) Strict Liability in Tort

Different Categories of Defects in Products 

(1) Manufacturing Defect - The product does not conform to its design. When the product left the control of the manufacturer, it was not in the condition the manufacturer intended it to be in. Something went wrong in the manufacturing process, making the product dangerous. The defective product was different from the other products. 

(2) Design Defect - The product conforms to the design, but the design is defective. When the product left the control of the manufacturer, it was in the condition the manufacturer intended it to be in, but something went wrong at the planning stage, making the product dangerous. The defective product is exactly like all the others, but something is wrong with all of them because of the very design of the product.

(3) Warning Defect - There are no effective instructions on the packaging or in the literature accompanying the product covering (a) proper use of the product or (b) warnings of possible side effects of its use. When a product cannot be made safe for all foreseeable uses, there is a duty to provide effective warnings and instructions. The absence of such instructions and warnings is a defect that makes the product dangerous. The design of the product is otherwise reasonable and there are no manufacturing flaws in it, but the consumer should have been given more information about the product.

Difference between a Lessee and a Lessor

Lessee - a person who rents or leases property from another. A tenant.

Lessor - A person who rents or leases property to another. A landlord.

The Difference between a Bailee and Bailor

Bailment - the delivery of personal property by one person (the bailor) to another (the bailee) under an express or implied contract whereby the property will be redelivered when the purpose of the contract (i.e., storage, shipment) is completed.

Bailor - One who delivers property to another under a contract of bailment. The one who delivers.

Bailee - One to whom property is entrusted under a contract of bailment. The one who receives for bailment.