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Rutgers University, Newark School of Law
Francione, Gary L.


TORT – wrongdoing (intentional or negligent)

Harm required – results in a wrong to another person (or entity) that the law recognizes as a legal harm

Injured person has a “cause of action” (claim against the person who committed the tort)

The harm can be physical or a threat of physical injury

The harm can be commercial or intangible (reputation)

CRIMINAL LAW (criminal suit) – vindicating public interest

TORT LAW (civil suit) – vindicating individual rights and redressing private harms


1. What conduct counts as tortious or wrongful?

2. Did the conduct cause the kind of harm the law will recognize?

3. What defenses can be raised against liability if the defendant has committed a tort?


Moral Responsibility – attempts to hold defendants liable for harms they wrongfully caused and no others

Social Policy (good for all) – provide a system of rules that, overall, work toward the good of society


Plaintiff is entitled to compensation for:

1. Lost wages or lost earning capacity

2. Medical expenses

3. Pain and suffering endured (including mental + emotional)

4. Any special or particularized damages that do not fit neatly within the other categories

Note: Can even collect for future losses if evidence demonstrates probability of such future losses

COLLATERAL SOURCE RULE (at least half the states modified or abolished this rule) – payments (such as insurance) are not relevant to the jury’s damages award against the defendant

ADDITUR – the judge has the power to add to a jury award that is impermissibly low

REMITTITUR – the judge’s power to reduce an excessively high award

United States – most litigation in the U.S. is that a losing party is not required to pay the winning party’s attorney fees as a line-item. Most lawyers get a percentage of the recovery of the plaintiff if they win.

PUNITIVE DAMAGES – provide a measure of added deference and punishment for the wrongdoer’s serious misconduct.

Virtually all states authorize punitive damages only when a tortfeasor has acted maliciously or willfully or wantonly in causing injury.


1. Compliant – document written by the plaintiff’s lawyer.

a. Copy is delivered to defendant by court official

2. Motion to Dismiss – “Take all the facts stated in the complaint as if they were proved; even so, they do not show a valid legal claim.”

a. Asking the judge to dismiss before it gets to developing proof or calling a jury

3. Answer (if motion to dismiss is denied or if no motion is asked for) – the defendant, within the allotted time, must file a paper taking a position on the complaint (usually disputes the factual claims of plaintiff).

4. Discovery – portion of the case in which both parties gather information about the underlying claims.

5. The Motion for Summary Judgment – occurs after the parties have gathered new facts during the process of discovery, is based on a developed set of facts…

NOTE: Summary Judgment will be granted if the moving party (almost always defendant) shows:

a. There is no real dispute about important facts

b. On the undisputed facts, the law compels judgment for the defendant

6. Pretrial Briefs and Motions in Limine – after case set for trial, the parties may want the judge to decide in advance to include/exclude certain types of evidence or to hold which particular legal rules will apply. The parties may file briefs/motions asking the judge to shape the trial in a particular way (keep out certain evidence on the grounds that it might prejudice the jury).

7. Selection of the Jury – prospective jurors are questioned by judge/lawyers to determine whether they are biased. May be eliminated as prospective jurors for the case.

8. Opening Statements – Plaintiff’s lawyer states the case (testimony the plaintiff will put on). Defendant’s lawyer makes a statement also.

9. Plaintiff’s Case – plaintiff’s lawyer calls the first witness. After each witness, the defendant’s lawyer can do a cross-examination. This shows how credible the witness might be.

10. The Motion for Directed Verdict – assert that the proof offered by the plaintiff is legally insufficient to warrant a jury’s verdict for the plaintiff (based on evidence produced in full at the trial).

11. Defendant’s Case – After the plaintiff’s witnesses have been questioned and cross-examined, the defendant’s lawyer calls defendant’s witnesses; they are then cross-examined by the plaintiff’s lawyer.

12. Objections to Evidence and Offers of Evidence – Parties can object… evidence that is not relevant to help prove any element involved in the case should be excluded by the judge, especially if the evidence is likely to mislead the jury or to be “prejudicial.”

13. Closing Arguments – Plaintiff’s lawyer, the defendant’s lawyer, then the plaintiff’s lawyer again in rebuttal makes closing arguments to win over the jury.

14. Proposed Jury Instructions and Objections to Them – Instructions are the trial judge’s statements of law to the jury. Must be accurate. Lawyers must object if they believe statements are inaccurate.

15. Jury Verdict – the jury reaches a verdict on the plaintiff’s claim, and when applicable decide on an appropriate remedy.

16. Motion J.N.O.V. (post-trial motion for judgment as a matter of law) – a virtual renewal of the motion for directed verdict. Asserts that the evidence is not legally sufficient to justify a jury verdict for the plaintiff.

NOTE: J.N.O.V. should be granted on the proof that would warrant the grant of a directed verdict motion.

17. The Motion for New Trial (not often granted)

a. If an error was made in trial, and there is possibility that the error influenced the jury, a new trial might be granted

b. If the verdict is against the weight of the evidence or because the damages award was unconscionably high (or unconscionably low)

18. Appeals – when a case has been resolved by a judge or jury, a party may ask a higher court to review the determination. Typically, state court systems have two levels of appeal:

a. Intermediate Appellate Court

b. State Supreme Court

When a court of appeals reverses a lower court’s decision, the case typically returns to the place it left off in the trial process.

RARE: It is unusual for tort cases to be resolved by the U.S. Supreme Court because tort law is generally state law for which state courts are generally considered the final arbiter.



Interest They Protect

Levels of Culpability (tort rules may impose liability for)

1. Physical injury to person or property

2. Dignitary and emotional harm

3. Economic harm

1. Wrongdoing (intent or malice)

2. Negligence (lack of reasonable care)

3. Even when defendant is guilty of no fault (strict liability)


BATTERY – intentional, unconsented to contact with another

NOTE: Battery – one of the so-called “trespassory torts”

(can be actionable even if plaintiff has no proven physical harm)

Trespassory torts include:

– Assault

– False imprisonment

– Some property torts

DAMAGES FOR BATTERY: (No need for physical harm)

– Nominal damages (trivial harm or offense)

– Economic damages (medical expenses and wage loss/earning capacity)

– Pain and suffering and emotional distress damages (can be recoverable for trespassory torts even without suffering physical harm; compensatory damages for bodily pain, humiliation, mental anguish, and other injuries)

– Punitive damages (against tortfeasor guilty of “malice” or wanton misconduct)

INTENT: (Restatement of Torts) Intent to produce a consequence is either a purpose to produce that consequence or knowledge that the consequence is substantially certain to result.

NEGLIGENCE: Conduct that creates an unreasonable risk of harm


a. Plaintiff must prove an ownership or a possessory interest in the land

b. Prove an intentional and tangible invasion

c. Prove intrusion or entry by defendant onto that land that harms the plaintiff’s interest in exclusive possession

NOTES: Right of landowner extends downward beneath surface and to at least a reasonable height above ground.

One situation in which intentional entry is not required is when entry is accidental (without fault) but later the defendant refuses to leave. This then becomes trespass to land.

Intentional entry is accomplished by personal entry or by intentionally causing an object to enter the land.

Intent need not be “to trespass.” It is enough that defendant intended to enter the land. There is no defense in stating that defendant believed that it was defendant’s own land, or believed that defendant had a right to be there.

TRESPASS: Invasion of the plaintiff’s interest in the exclusive possession of his land.

NUISANCE: Interference with plaintiff’s use of property and enjoyment of it (intrusion by noise, odor, light)


1. DAMAGES: cost of repair, compensatory damages for loss of use of the land, emotional distress, or annoyance caused by the trespass.

2. INJUNCTIVE RELIEF: Where damages are inadequate, as where trespasses are continuing or will be repeated, the plaintiff may be entitled to an injunction to stop the trespassing or to force a trespasser to leave or remove something placed on the plaintiff’s land.

NOTE: If trespass is deliberate or “malicious,” punitive damages can be awarded.

EXTENDED LIABILITY: Trespasser liable for damages directly caused by his trespass, even if he never intended harm and could not foresee that harm.


CONVERSION: (an intentional tort) the defendant must intend to exercise substantial dominion over the chattel. No requirement that the defendant be conscious of wrongdoing (so even if accidentally taken, still considered conversion)

CONVERSION: (factors of conversion that justify liability)

a. Extent and duration of control;

b. Defendant’s intent to assert a right to the property;

c. Defendant’s good faith;

d. Harm done; and

e. Expense or inconvenience caused

EXAMPLE: If a watch is stolen by A and sold to B, both can be tried for conversion! (but victim can only collect once)

NOTE: If Dubbs gets watch from A by tricking A into selling it to Dubbs (fraud for example) and B buys from Dubbs unknowingly of the situation between A and Dubbs, B is not a converter; only Dubbs is the converter. However, if B knows of the situation and buys the watch from Dubbs then B and Dubbs are both converters.

UNIFORM COMMERCIAL CODE: Regulates many commercial dealings among almost all states.

Provides that if goods are entrusted to the possession of a merchant who deals in goods of that kind, the merchant has the legal power to transfer all the rights of the “entrustor.”


1. DAMAGES: Measured by the value of the chattel at the time of conversion. Sometimes valued at highest market value within a reasonable time if fluctuating value of item such as a stock/commodity.

2. REPLEVIN: (“claim and delivery”) an actual return of the chattel itself.