1.  protecting people and property from unjust injury by providing legally enforcable rights
2. compensation to victims by holding tortfeasor responsible
3. Encouraging minimal standards or social conduct among society's members
4. deterring tortious conduct
5. allocating losses among different pariticpants in the social arena 

A wrongful injury to a person or his or her property for which the victim receives a remedy in the form of damages.

damages usually in form of money

1. Intentional Torts: must have intent
2. Negligence: (no intent) violation of reasonable person test
3. Strict Liability: no intent required, liable no matter what

criminal

• designed to punish
• proof beyond a reasonable doubt
• societal interests
• cirminal rules of procedure apply

Tort

• designed to compensate victims
• preponderance of evidence
• protect individual interests
• civil rules of procedure apply

Steps of Litigation

Complaint

answer

discovery

pretiral motion

trial  (can be mediation or arbitration)

appeal

Mediation

• non-binding

Arbitration

• binding 

ISSUE=find the issue from the facts

RULE=rule is the law (statutes, common law, case or DTPA)

APPLICATION=apply the rule of law to the facts of case

CONCLUSION=state the tort committed, if the lawsuit will be successful, be persuasive

failure of an ordinary, reasonable person to exercise due care in a given set of circumstances

1. DUTY
2. BREACH OF DUTY
3. CAUSATION (but-for & froeseeability)
4. HARM/DAMAGES

have to have all 4 to be negligence

• obligation to do or not do something
• duty of reasonable care=the responibility to act reasonable to avoid injuring another
• Was it foreseeable to defendant that they could have harmed the plaintiff

Could the defendant reasonably have anticipated that their conduct would directly hamr the plaintiff

• if yes, plaintiff in defendant's scope of duty

(scope of duty=persons who reasonably & foreseeably could be injured by tortfeasor's actions)

Special relationships (no negligence)

• employer/employee
• innkeeper/guest
• parent/child
• teahcer/student

Voluntary Undertaking

once someone steps in to help (good samartian), they have duty to not cause more harm to the victim

plaintiff has burden of proof to prove the breach of duty by defendant (use evidence) 

the burden goes to the plaintiff to prove breach

• preponderance of evidence: means the greater weight & degree of credible evidence
• prima facie case: plaintiff met burden of proof=cause of action; now defenses can be made

• Actual cause (but-for cause):if the tortfeasor had not caused the action then the plaintiff would not have been injured; 
• the factual/actual cause of the plaintiff's injuries were from the defendant's actions 
• Legal cause (foreseeability): was the plaintiff's injury a reasonably foreseeable consequence of the repondent's conduct?
• tortfeasor is liable for all foreseeable consequences of their negligence

anything that occurs after the tortfeasor's negligent act that contributes towards the plaintiff's injuries

• becomes superceding when intervening cause trumphs the tortfeasor's negligence from being actual cause of plaintiff's injury

• Compensatory: money for actual loss/injury
• non-economic: money for pain & suffering
• economic: medical expenses & loss of income 
• No nominal damages in negligence because have to prove actual loss
• punitive: extra money, designed to punish
• physical harm to property: compensated at fair market value or cost to repair

"the thing speaks for itself"

when plaintiff cannot gain access to information pertaining to the tortfeasor's conduct

• tortfeasor's negligence presumed & burden shifted to tortfeasor to disprove negligence

Principal has liability for tortious actions of another person (the agent)

• ex.=employers and employees are principals and agents
• must be within the scope of employment

1. Trespassers: no duty of care owned to protect trespasser
2. Licensees: (landowner's consent to be on the land) duty owed=warn/correct dangerous conditions on land, but doesn't have to inspect unknown threats
3. Invitees: (buisness invitee) 

• highest duty of care=responsibility to warn of any dangers and inspect & repair unknown risks on property

• mental anguish caused by trotfeasor; breach of duty by tortfeasor to avoid causing emotional harm
• impact rule: requires some physical contact or impact to victim
• physical manifestations rule: physical symptoms + mental suffering=emotional distress
• TEXAS DOESN"T FOLLOW THIS CAUSE OF ACTION

tortfeasor liable to bystander who witnesses negligent injury to someone else if:

• bystander near scene of incident
• bystander suffers shock from seeing incident
• bystander must show he & victim are related 

• conduct that is automatically negligent as matter of the law because it violates statute or ordinance
• to meet burden of proof, plaintiff only needs to prove defendant violated the law, statute or ordinance
• Texas allows defendant to argue comparative negligence of plaintiff

Judge: all questions of law, determines if tortfeasor owed duty of care to plaintiff

Jury: all questions of fact, determine if facts line up with what a reasonable person would do

plaintiff's own negligence contributed to their injuries

• assumption of risk: usually plaintiff signs a contract for dangerous activity, made aware of dangers (can't be used in TEXAS)
• Last Clear Chance Doctrine: defendant had last chance to avoid injury even though plaintiff's fault
• Can't use in TEXAS

Determining the amount of fault of all parties (including plaintiff) in causing injuries

• determing % of negligence by plaintiff and defendants (by the trier of fact, usually jury)

proportionate Responsibility: jury decides % responsibility (claimant, defendant, settling party & responsible 3rd party)

• amount of recovery: 50/50 fault (plaintiff can't recover if >50% at fault)
• amount of liability: defendant only liable to plaintiff for the % of damages equal to defendant's % responsibility
• defendant is jointly/severally liable to all damages if >50% at fault
• Responsible 3rd party (RTP): defendant can name RTP who isn't being sued by plaintiff
• jury can apportion responsbility to RTP without them being added as a party

time frame form when tort occurred to when plaintiff can file cause of action

most torts=2 years

defamation=1 year

trespass=2 years

fraud=4 years

breach of contract=4 years

• after S.O.L. runs out, claim is barred

1. action

2. intent (state of mind)

3. injurious behavior

intent & action must be together (simultaneous)

• intentional torts can be crimes, can bring criminal charges & civil charges

Assault: ATTEMPT to make harmful offensive contact with another person WITHOUT consent

• act=places victim in fear of their safety & threat=imminent threat of contect
• attempted battery

Battery: (completed assault) tortfeasor's intentional, unconsented touching of another person in offensive manner

1. confinement without captive's consent
2. tortfeasor's intent to confine victim
3. confinement for an long period of time
4. no reasonable means of escape

• confinement=restriction of movement, person's awareness of fear of the restriction & person's nonconsent to the restriction
• locked room or car

the right of owner to stop & detain suspected shoplifter for reasonable period of time if they believe the person was stealing/attempting to steal 

Applies in Texas

the deliberate withholding, hiding or destruction of evidence relevant to a legal proceeding 

NOT IN TEXAS

1. outrageous conduct by tortfeasor
2. conduct intended to cause severe mental anguish in the victim
3. the victim suffers severe mental anguish

Outrageous conduct=must suffer real mental injury as a result of the tortfeasor's actions (physical symptoms not required)

knowingly making a material false statement to entice the victim to give something of value up to he tortfeasor

- fraudulent misrepresentation

• unreasonable intrusion= (illegal search of personal belongings or intentional eavesdropping)
• public disclosure of private facts=tortfeasor publicizes details of plaintiff's private life without consent
• false light=tortfeasor puts plaintiffs in public in false light in an offensive way
• appropriation=value of plaintiff's name or picture is used by tortfeasor for money

libel=written false statement

slander=spoken false statement

• false about a person
• communication is to third person
• harm to victim or repuation in community

• intentionally enter land without consent
• actions that interfere with the landowner's exclusive right to use the land
• unauthorized entry upon another person's land

any act that deprives an owner of personal property withou that owner's consent and converts the property to the tortfeasor's own use

- actual deprivation of possession in necessary for conversion

defense to intentional tort

1. use of reasonable force
2. to counter an attacking or offensive force
3. necessary to prevent bodily injury, offensive contact or confinement

defense to persons: use reasonable force to defend or protect a 3rd party from injury when the 3rd party is threatened by attacking force

defense of property: you can only use the degree of force necessary to protect the property (no deadly force)

(can use degree of force to protect others even stangers)

occurs when victim of an intnetional tort voluntarily agrees to the tortfeasors' actions

-victim must understand consequences

- must be informed consent (not implied)

Mistake: good faith belief (based on wrong information) that one is justified in committing an intentional tort under circumstances

Privilege: legal justificiaiton to engage in otherwise tortious conduct in order to accomplish a compelling social goal

Necessity: tortfeasor is facs with having to choose between lesser of 2 evils

• TDTPA is Consumer Protection Law

• consumer=individual or business (<$25 mil) who seeks or acquires by puchase or lease, any goods or services

  - if given for free NOT a consumer

  -no privity of contract

1. False misleading & decedptive acts
2. Unconscionable Acts
3. Breaches of Warranty

TX bus. & Comm. code 17.50

-false, misleading or deceptive acts in the conduct of any trade or commcers are declared unlawful

- use or employment by any person of a false, misleading or deceptive act in conduct of any trade declared unlawful

RELIANCE REQUIRED (consumer must rely on false act)

most common violations

representing that goods or services  are ofa particular standard, quality, or grade that do not actual have those qualities or standards 

TX bus. & Comm. code 17.50

-an act or practi which to a consumer's detriment takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree

NO RELIANCE

a cause that was a sbustanial factor in bringing about the damages, if any, and without which the damages would not have occurred. 

(can be >1 cause)

- but for test, easier burden of proof

• simple violation: amount of economic damages found by trier of fact 
• Knowing violation: economic damages + mental anguish + 3x economic damages (treble damages) awarded by trier of fact
• knowing: actual awareness of falsity
• intentional violation: knowing damages + 3x mental anguish
• intentionally: actual awarness of deception + specific intent that consumer relies on lies 

must provide 60 days written motice before filing including:

• reasonable detail of consumer's complaint
• amount of economic damages
• damages for mental anguish
• expenses & attorneys fees

during 60 days defedant can make offer of settlement (no recovery of attorneys' fees)

tortfeasor is held responsible regardless of intent & regardless if their conduct=negligence

• limited to abnormally dangerous activities, animals, & manufactured products
• plaintiff need only show strict liability of tortfeasor

activity (done inappropriately) creates high risk or substantial injury to a person/property

• examples: crop dusting, disposal of hazardous waste, storage of flammable liquid in cities
• defenses: public utilities w/ electricity or natural gas are protected (not held liable)

when large group of people are injured as a result of single tort

- defective drug on the market

(not class action lawsuit)

• strict liability for wild animals as pets
• domestic animals: owner may be held strictly liable for animals exhibiting vicous tendencies & hurt someone
• Defenses: comparative negligence (provocation), consent, self-defense & defense to others

liability from the use of a defective product 

• businesses manufacturing and selling defective products are in the best financial position to bear the expenses incurred by the innocent user
• purchaser of defective product & foreseeable user of product
• plaintiff can sue mutiple people= manufacturer, wholesaler, retailer

_{private nuisance}

coming to the nuisance defense

public nuisance

nuisances per se

when someone uses their land is such a way as to unreasonably and substantially interfere with another person's use and enjoyment of their land

• examples: ground vibration, pollution of water on soil drop destrcution, flodding, excessive clutter (hoarder), unwanted excavation, health hazards & unwanted association with neighboring uses (strip club next to house)

land use that injures the public at large rather than just one person

• interferes with peaceably assemble in public areas, right ot public streets & sidewalks
• examples: gambling, prostitution, failing tocomply with health code provisions, unrestrained or vicious animals
• coming to nuisance is NOT a defense 

violating public nuisance statutes/ordinances 

• violation of statute=automatic liability

can be both private & public

greater number adversly affected=more likely it will be deemed public & private

monetary damages: moen yfor injuries without causing loss of business (defendant)

equitable remedies: TRO-temporary stopping of nuisance until hearing & permanent-plaintiff wins, nuisance has to stop forever

• Survival: allow lawsuits to be brought by relative of a deceased person for pain & suffering deceased had
• wrongful death: allow lawsuits to be brought by dependents (spouse, parents & children) of a deceased person against the person who cause the death
• damages (loss of lifetime earnings & loss of consortium-love & intangible) awarded to dependents if negligence found

absolute defenses against a plaintiff's tort claims

- sovereign immunity

- public immunity

- young children immunity

- family immunity

- workers' compensation

government's freedom from being sued

• examples: fire, police, or ambulance services

persons performing properietary functions NOT immune

• business-like activities in the private sector: water, sewer, natural gas

legislators & judges have absolute immunity from tort liability

(executive branch does NOT)

minors under the age of 7 are immune from intentional torts 

• children not mentally or emotionally capable of intentionally committing tort

Spousal: makes one spouse immune from being sued by the other

NOT IN TEXAS

Family immunity: limits suits between parents and kids

• given that alleged acts of negligence involving parental authority
• auto accident tort not under this

grants the employer immune

- if employee is injured or killed as a result of incident occurring during scope of employment

- regardless of employer fault

to punish the tortfeasor & to act as a deterant to society to discourage engaging in this conduct

• factors to consider: nature of the wrong, character of the conduct involved, degree of culpability of wrongdoer, situation & sensibilities of parties, extent of conduct that offends public & NET WORTH of defendent
• limitation on $$ recovery
• NOT exceed 2x economic damages + noneconomic damages (>$750,000) or $200,000

exemplary damages given

• tortfeasor at time of action involves extreme degree of risk & has actual & subjective awareness of the risk involved proceeds with potential harm to others indfference to the rights, safety, or welfare of others
• carelessness leads to recklessness
• burden of proof-clear & convincing evidence