Select Page

Torts
Rutgers University, Newark School of Law
Perry, Twila L.

WHAT IS A TORT?
·         A civil wrong committed by one person against another
·         It can and usually does arise outside of any agreement between parties
·         A tort is a civil redress. The primary concern of tort law has been whether one whose actions harm another should be required to pay compensation for the harm done.

UNDERLYING POLICIES OF TORT LAW
Deterrence: The more you make the person pay, the more care they will take in the future. Posner-economic view is if cost of prevention is higher than benefit to society-society is better off, in economic terms, to forego accident prevention.
Compensation: Tort law has to compensate people for their loss, there is no other options. Companies can spread loss.
Corrective Justice: Courts try to “right” a wrong.
4.       Punishment: (only in some cases)
5.       Avoid violence/chaos
6.       Administer Tort System efficiently: keep court costs down

THREE TYPES OF TORTS:
·         Negligence: the failure to exercise reasonable care under the circumstances
·         Strict Liability: liability without fault
·         Intentional Harm/Tort- R defines intent to mean that D desires or is substantially certain the elements of the tort will occur. s

NEGLIGENCE


Definitions
Negligence is the Ordinary or Reasonable Care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence Itis conduct which falls below the standard of care established by the law for the protection of persons against unreasonable risk of harm. It is the failure to Use ordinary or reasonable care. 
It is the inadvertent or unintentional failure to exercise that care which a RPP would exercise; conduct which violates certain legal standards of due care. Neg. constitutes recovery in a tort action if it is the proximate cause of injury to the π.
The tort of “negligence” occurs when D’s conduct imposes an unreasonable risk upon another, which results in injury to that other. The negligent tortfeasor’s mental state is irrelevant.


HOW TO ESTABLISH A PRIMA FACIE CASE AND RECOVER FOR NEGLIGENCE ALL ELEMENTS MUST BE PROVEN BY A PREPONDERANCE OF EVIDENCE.
To establish a prima facie case of negligence, you must show that there was a duty to the π, a breach of that duty, and that the breach was the actual and proximate cause of the injury. Negligence may occur by a volitional act or by a willful and affirmative omission to act.

Act or Omission
Establish the relationship by first finding the affirmative act or actionable omission (when there is a duty a person failed to act on).
Duty/ Standard of Care
A legally recognized relationship. The duty can be either or both
a) duty to act as an ordinary, prudent, reasonable person under the same or similar circumstances (objective test) in order to take precautions against creating unreasonable foreseeable risks of injury to others under that circumstances (e.g. emergency). Ask what is the duty? what is the standard of care?
b) some special duty imposed by case law or statute that arises
·         No duty is imposed on a person to take precautions against events that cannot be reasonably foreseen.
·         Good Samaritan: no duty to help others, unless created by statute, if you volunteer you can’t leave a person worse off or if you have a special relationship w/ the person (i.e. friend, family).
·         Professionals: held to the standard of care exercised by similar professionals in the same or in similar communities.
Breach of Duty
Failure to meet the standard of care under the circumstances or a failure by D to conform his conduct to this standard. (This element can be thought of as “carelessness.”)
Cause in Fact
“BUT FOR” test; Defendant’s conduct is the physical and scientific cause of the plaintiff’s injury.
Proximate Cause
Foreseeability Test v. Directness Test to establish that proximate cause of the ¶’s harm was sufficiently close in the causal link between ∆’s act of negligence and the harm suffered by ¶.
Injury
The plaintiff suffered a cognizable injury. Actual damage: Actual damage suffered by P. (Compare this to most intentional torts, such as trespass, where P can recover nominal damages even without actual injury.)
DUTY: WAS THERE A DUTY TO ACT?


DUTY →Special Relationship → Duty of care → Reasonableness 
Duty: General Duty: arises when a person is involved in any activity, he is under a legal duty to act as would an ordinary, prudent, reasonable person under the same or similar circumstances (objective test) in order to take precautions against creating unreasonable foreseeable risks of injury to others under that circumstances (e.g. emergency). Misfeasance: (Duty) ACT; Nonfeasance: Omission. 
Misfeasance: Active misconduct that working positive injury to others. The person is worse off as a result of the wrongful act, a duty is normally found.
Nonfeasance: Passive inaction, the person is no worse off; his position is the same, he is simply deprived of protection which had been afforded him, would’ve benefited him; so, normally no duty is found. It is not always easy to distinguish mis from non.


STANDARD OF CARE/DUE CARE: REASONABLE PERSON STANDARD

The standard of care is the measure of duty owed by the defendant and is key in establishing breach of duty. It is the level of conduct demanded of a person so as to avoid liability for negligence.



REASONABLE PERSON STANDARD
This is the most common standard; it requires the defendant to act as would a reasonably prudent person in the same or similar circumstances. Failure to do so constitute a breach of duty, abiding by the standard is protection from negligence. 
Objectivity: this standard is objective. It looks at the defendant’s conduct comparing it to the external standard of a reasonable person, not the person’s own judgment. Why an objective standard? a) a truly subjective standard would be difficult to employ, there are too many gradations in ability & intellect b) members of the community should be able to expect a certain level of behavior from those around them.
Characteristics: The reasonable person is not a real person or a jury member but a mythical person who represents the community norms with average knowledge and is not infallible (perfect).

MODIFICATIONS TO RPS: added through the circumstances.
Emergencies:  The reasonableness is based on whether in light of the emergency, the defendant acted as a reasonable person. If ∆ is confronted with an emergency, and is forced to act w/ little time for reflection, ∆ must merely behave as a reasonable person would if confronted with the same emergency, not a reasonable person with plenty of time to think. The standard of care includes the circumstances under which the person was acting, the jury can take into account if the person was acting in an emergency. An emergency does not exculpate defendants from liability; the jury can still conclude that a reasonable person would’ve taken more care in an emergency. The emergency doctrine is not available if the defendant’s conduct helped to create the emergency. 
Physical Conditions are considered: Because they are easily measured and perceived as tangible, the defendant’s own physical qualities may be taken into account by the jury in the breach of determination. A person is expected to know his physical handicaps and is under a duty to exercise the care of a person with such knowledge. A blind person will be compared to a reasonable blind person in the same or similar circumstances. Again a physical condition does not exonerate the defendant. A reasonable blind person may still use greater care.
Exception: Hammontree v. Jenner: if the condition is involuntarily, no negligence. Defendant had an epileptic seizure while driving. Rule: A sudden illness which renders a driver unconscious will not be grounds for an action in negligence or strict liability, UNLESS he has constructive notice or actual notice of onset of illness. Here, ∆ was on meds and in MD’s care and hadn’t seizure in years. ∆ had been tested by MD and DMV and strict liability could not apply b/c different from products liability where manufacturer should bear cost of product that is put into commerce w/o being tested.
Voluntary Intoxication is not considered: A voluntarily drunk person will be held to the Reasonable sober person.
Mental Conditions (Insanity) are not considered: Mental illness does not relieve actor from liability. In majority of jurisdictions an insane person will be held to the rps. Mental disability is ignored because mental disability is too difficult to measure and easily feigned. Rationale is to encourage guardians to better supervise the insane. A minority of jurisdictions oppose this rule as unfair, outmoded and prejudiced because of medical advances in the understanding of mental illness. 
Superior Abilities, Skills or Knowledge (Stupidity is not considered): Above-average person held to a higher standard and below average person held to a RPP standard. The standard of care will not be changed for ordinary persons with superior skills. The standard of care requires only a minimum of attention, perception, memory, knowledge and judgment in order to recognize a risk. Those having more than the minimum are expected to use it. A person of superior knowledge is required to use that knowledge. 
Professionals: A person who is a professional or has special skills (e.g. doctor, lawyer, airplane mechanic etc.) is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing in similar communities. Profession generates an objective standard.
Locality Rule: e.g. country dr. vs. city doctor; modern view is a uniform nat’l standard
The professional must also use superior judgment, skill, and knowledge as he actually possesses. Thus, a specialist might be held liable where a general practitioner would not.
Gender Bias in the Reasonable Person Standard: Changing reasonable man to reasonable person does not get rid of the sexism in the standard. Leslie Bender says that there are different perceptions and experiences of men and women that get lost in a generic RPS. The system is inherently sexist even if the RPS has changed to RPP. There is no resolution on what would be a replacement, then again it isn’t the word—it’s the system.
Child Standard of Care: Their conduct is compared to the conduct of children the same age, experience, education and intelligence under like circumstances. It is more subjective standard. Many jurisdictions have concluded that children engaging in inherently dangerous activity, they are held to regular adult standard (For example: under age driving). In some states, under 7 is mostly conclusive presumption for non-negligence; under 14 is rebuttable presumption for non-negligence.  
Environment Standard: A person is required to act as a RPP in the environment he/she is in.
Speci

ysical harm to him, is subject to liability.” Soldano v. O’Daniels where bartender interfered with third party’s efforts to make an emergency call to help injured. Court limited this rule to an emergency telephone call in a public portion of a business establishment.
Ø       No liability to Doctors who render aid: Rationale: it will encourage rather than discourage doctors to help injured victims. 

4. Contract & Gratuitous Promises: A special relationship exists unless it is a utility to prevent crushing liability—the courts establish the doctrine (non-foreseeable tenant is not privity with utility; contract is b/in LL and utility). Occasionally a duty arises from a contract (a lifeguard or babysitter). Where there is reliance or elements of consideration, a K relationship exists so as to legally impose a duty to act or prevent harm, in the past a lack of privity prevented suit but not today. There is debate about whether a gratuitous promise without more gives rise to a duty. Even where there is a contractual obligation to repair, courts are divided about whether breach of this contractual provision leading to personal injury gives rise to a tort duty.
Ø       Strauss v. Belle Realty Co.: The tenant was injured when the utility failed to provide electric service as required by its contract with the landlord. LC found that the utility was grossly negligent but dismissed the complaint because the utility did not owe a duty to the tenant in any compensable legal sense. The court affirmed the decision, holding that, in a system-wide power failure, permitting recovery to those in the tenant’s circumstances would violate the court’s responsibility to define an orbit of duty that placed controllable limits on liability. The court noted that, though the utility was grossly negligent, the utility’s behavior was not so consciously culpable as to fall into the category of conduct contemplated as reckless and wanton. In this case there was no privity; had ¶ fell in his apt the privity would give rise to a tort duty. In this case, the injury took place in the common area. RULE: Elec. Co. owed duty to landlord and not the tenant. POLICY: 1) To find for the tenant would allow unlimited liability for accidents during blackout–the LINE must be drawn here. 2) Injured parties should have own insurance. DISSENT: Public policy of limiting liability for utility co ignores public policy of compensation for those injured. The extensive liability could be paid a reduction of return on shareholder’s equity or by raising rates. Granting immunity places the total cost of the injury on the injured party. 
Ø       Moch v. Rensselaer Water Co.: P sued water co. b/c water pressure was not strong enough to prevent spread of fire to P’s bldg. P sued on grounds that D failed to fulfill its contract w/ the city. Rule: A 3rd party beneficiary is not able to recover for damages caused by a promisor’s failure to perform his contract. D’s action amounted merely to nonfeasance, not affirmative misfeasance. Cardozo says the question is with regard to how far D has acted. There are certain contexts where you have acted far enough that reliance is created – inaction begins to look like action. This is not the case here, though. Cardozo argues misfeasance v. nonfeasance. ¶ argues that once water started coming through, there was a duty to supply enough water. 

5. Statute: Sometimes a statute creates a duty to act. However the courts do not always find that this creates a private right of action.
Ø       Uhr v. East Greenbush Central School District: N.Y. Educ. Law §905(1) required school authorities in New York to examine students between eight and sixteen years of age for scoliosis at least once in each school year. Plaintiffs alleged that, as a result of defendant school district’s failure to comply with this screening requirement, plaintiffs’ daughter’s ailment was allowed to progress undetected. Defendant’s motion for summary judgment was granted and affirmed on appeal, the court having determined that the statute did not create a private right of action, and that plaintiffs had otherwise failed to state a claim for common law negligence. A private right of action was not consistent with the statutory scheme. Legislative intended to allow private action, they would have included in the statute and in this case, they had already included penalties but private action was not one of them.


OBLIGATIONS TO PROTECT 3RD PARTIES