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

Fall 2010

A civil wrong, other than a breach of contract, committed by one person against another, for which a remedy (usually damages) may be obtained.

Categories of Torts
1.       Intentional Torts: D desires to bring about a particular result.  The main ones are:
a.        Battery
b.       Assault
c.        False Imprisonment
d.       Intentional Infliction of Emotional Distress (IIED)
2.       Negligence:
a.        Failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation.
b.       D did not intend to bring about a certain result, but has acted carelessly.            
3.       Strict Liability:
a.        Does not depend on actual negligence or intent to harm; based on the breach of an absolute duty to make something safe.
b.       Not “absolute” liability: There are requirements beyond injury and there are defenses to strict liability
c.        D is held liable even though he did not intend to bring about the undesirable result, and he behaved with care. 
d.       General reasons for Strict Liability for product manufacturers:
i.      Businesses are for-profit and therefore should pay for injuries.
ii.      Need for victims to be compensated
iii.      # of potential victims (public policy)
iv.      Insurance companies will absorb the loss
e.        Two main named torts that apply strict liability:
i.      Abnormally dangerous activities (such as blasting)
ii.      Selling of a defective product which causes personal injury or property damage.

Goals of Tort System
·         Deterrence: encouraging people to act in a way that avoids hurting people
·         Avoid retribution and violence (retaliation)
·         Compensation for injury/harm
·         Corrective Justice: If you injure someone in a way for which you are morally culpable, it is only right that you should pay.
·         Administering the Tort System effectively – keep costs down.

Analyzing fact patterns
Review the fact pattern to spot each individual tort that has, or may have been, committed.  Then, for each one identified:
1.       Prima facie case: Say whether a prima facie case for that tort has been made.
2.       Defenses: Analyze what defenses and justifications D may be able to raise.
3.       Damages: Discuss what damages may be applicable:
a.        Punitive damages
b.       Damages for emotional distress
c.        Damages for loss of consortium
d.       Damages for unlikely and far-reaching consequences; and
e.        Damages for economic loss where there has been no personal injury or property damage.


Negligence refers to the accidental harm caused by conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm.  Negligent conduct may consist either of (1) and act or (2) an omission to act where there is a duty to act.

The tort of negligence occurs when D’s conduct imposes an unreasonable risk upon another, which results in injury to that other.

1.       Duty of reasonable care to the plaintiff
a.       Generally, one has the duty to act as a reasonable person would act under similar circumstances, so as to avoid unreasonable risk of harm to others.  This is called the reasonable person standard of care.
2.       Breach of that duty – failure to exercise that reasonable care
a.       Breach is a person’s failure to conform to the reasonable person standard of care, in a way that creates an unreasonable risk of harm to others.
3.       Causation – There must be a causal connection between the defendant’s act or omission and the plaintiff’s injuries.
a.        Cause-in-fact
b.       Proximate Cause
4.       Injury/Damages – resulting damages – usually physical harm to or at least the danger of physical harm
a.        The plaintiff has to suffer actual damages; without them, she can’t prevail.  (No nominal damages for negligence).

Distinguish between the tort of negligence and the concept of negligence as the breach of the standard of due care (2nd element of the tort).

Our negligence system usually focuses on the actor’s level of care in carrying out an activity, rather than on the social utility of the actor’s decision to engage in the activity at all. 

Three primary means of proving a negligence claim:
1)      Direct evidence
2)      Circumstantial evidence (res ipsa loquitur)
3)      Negligence per se

1.       See also the pages on Res Ipsa Loquitur, Actual & Proximate cause, Duty, Damages, and Major Defenses.

2.       Where D commits an affirmative act, and that act causes physical injury to P, this question is usually yes, because D has a duty of care not to hurt others by his actions.  The answer may be “NO” when:
a.        D’s alleged negligence consists of a failure to act rather than an affirmative action
b.       D’s act causes P mental distress but no physical injuries (see “Duty” section)
c.        D’s act causes P economic loss but no physical injuries. (see “Duty” section)

3.       Failure to act as a “reasonable person”: P must show that D’s conduct imposed an unreasonable risk of harm on P.  (See also Res Ipsa Loquitur)

4.       Actual Injury:
a.        Physical injury or bodily harm = YES. 
i.      Mental distress or economic harm can be tacked on to award for physical injury.
b.       No physical injury or bodily harm?  See “Duty” section

5.       Cause in Fact:
a.        Use “But-for” test: But for D’s negligence, P’s inju

onable person with those superior abilities.

Palsgraf v. Long Island Railroad Co. (page 425)
·         Exploding package
·         Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right.
·         The orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty.
·         Plaintiff must show a wrong to herself (i.e., a violation of her own right), and not merely a wrong to someone else, nor conduct “wrongful” because unsocial, but not “a wrong” to anyone.
·         The wrongdoer is the man who carries the bomb, not the one who explodes it without suspicion of the danger.
·         Negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the violation of a right.

Custom in a community or industry is relevant evidence of what the standard of care is – but it’s not conclusive, because the whole community or industry may be negligent.  Remember, a person’s duty of care is characterized as what the reasonable person would do in similar circumstances, so as to avoid unreasonable risk to others.  So custom is useful in determining exactly what it is that a reasonable person in similar circumstances would do.  This treatment applies equally whether the custom evidence is used offensively (i.e., evidence of D’s noncompliance with custom to show breach) or defensively (i.e., evidence of D’s compliance with custom to show a lack of breach).

·         Evidence as to custom is usually allowed as evidence of the presence or absence of reasonable care, but it is generally not conclusive.  (Trimarco v. Klein) (Note 3, page 72)
·         Custom may be evidence of reasonable care, but court can decide that custom is unreasonably dangerous.
·         Proof that others in D’s industry followed a certain precaution that D did not will be suggestive but not conclusive evidence that D was negligent.  It will show that D has the opportunity to learn about the alternative. (note 5, page 73)

Industry Standard: Although custom is admissible as evidence of a minimum standard of due care, it is not conclusive because an entire industry is capable of negligence.  The industry standard may be motivated by cost considerations and not by safety concerns; as such, the custom cannot control as a minimum standard of care.