Torts Outline

I. INTRODUCTION TO TORT LIABILITY
 
A. DEFINITIONS AND DISTINCTIONS
The body of law known as Torts is concerned with the allocation of losses resulting from the activities of people; it is an attempt to balance the utility of a particular type of conduct against the harm that it may cause, judged by the prevailing social and economic attitudes of the time. The word “tort” was introduced from the French into the English language after the Norman Conquest; it has its roots in the Latin word “tortus,” meaning twisted, and in French roughly corresponds to the English word “wrong.” In a broad sense, a tort is a wrong, and a tortious act or omission is a wrongful act or omission. While no one definition satisfactorily defines “torts” generally, a tort usually arises through conduct, in the form of an act or omission, affecting a legally protected interest in person or property (or both), usually done with a certain state of mind (e.g., intention, reckless disregard of the consequences, inadvertence, mistake), which causes damage.
1. Tort vs. Crime. A tort is distinguished from a crime in that the latter is a social harm defined and made punishable by the state. While the same act or omission may result in both a crime and a tort, a tort is a wrong to the individual, while a crime is a wrong against the public at large for which the state seeks redress. Torts may be committed by individuals, corporations, associations, and other entities. The party who commits a tort is commonly referred to as the tortfeasor.
2. Damages. If the elements of a tort are established by the plaintiff and if the defendant fails to raise an adequate defense, a court will award nominal damages if no injury has in fact been sustained, or damages in such amount as it deems reasonable to compensate the plaintiff for the loss suffered. No other special damages (i.e., damages not generally resulting from the tort but suffered by the plaintiff because of his particular circumstances, condition, etc.) need be shown for tort liability to attach to the defendant. However, when liability does attach to the defendant, any special damages caused to the plaintiff as a result of the defendant’s act or omission may also be recovered. Further, if it appears that the act or omission of the defendant that forms the basis of the liability was either motivated by an intention to injure or harm the plaintiff or constituted a willful and wanton, or gross, disregard of the consequences, the court may, in addition, award punitive (“exemplary”) damages against the defendant. (See more detailed discussion, infra, under Damages.)
3. The Policies of Tort Liability. Judicial opinions resolve controversies between two parties. Thus, the premises underlying tort law are seldom discussed in depth. There are several, sometimes conflicting, values involved:(i) Compensating individuals who have been injured;
(ii) Preserving individual choice; and
(iii) Determining the social cost-benefit of a given policy.
For example, should the legal system force all persons to be vaccinated for polio? Even if there is some chance that a few will die from the vaccination? Should individual choice be allowed if the benefit to society is greater than the cost of the loss of some individuals?
4. Objectives of the Tort System. There are many possible compensation systems: negligence; negligence plus liability insurance; strict liability; strict liability plus insurance, etc. Whatever system is employed, it should fulfill the following objectives:
(i) Be equitable (between those who receive benefits and those who bear the burden; among beneficiaries; among the cost-bearers);
(ii) Contribute to the wise allocation of human and economic resources;
(iii) Compensate promptly;
(iv) Be reliable;
(v) Distribute losses rather than leave them on single individuals;
(vi) Be efficient;
(vii) Deter risky conduct; and
(viii)Minimize fraud.
Each compensation system meets these objectives to some extent. For example, negligence law is founded on the notion of compensation based on fault. But fault is objective. Thus, the moral basis of liability is eroded. Objectification may be defended in that it reduces cost and the error in administering the system. Also, fault is supported by commonly shared values of people. Possibly the system deters risky conduct.
B. HISTORICAL DEVELOPMENT OF LIABILITY BASED ON FAULT
1. Origins. Historians have disagreed as to the origins of the law of torts. One theory holds that liability was originally grounded on actual intent or personal fault within a strong moral framework, moving gradually toward the formulation of standards of conduct that were less concerned with subjective fault and more concerned with evaluating the alleged tortfeasor’s conduct on the basis of an objective standard. The other and more generally accepted theory is that liability originally was not based upon the immoral conduct of the alleged tortfeasor but upon the causal connection between the conduct and the damage (i.e., a person was deemed to act at his own peril) and gradually evolved to a position where moral standards became the basis of liability. Today, while liability is generally recognized as being based on fault (e.g., where there is intent to injure another, or where there is a breach of a duty owed another), the “fault” is not necessarily moral fault on the part of the tortfeasor; i.e., no personal immorality is required; liability may stem from “social fault.” “Social fault” will be found where the consequences of the tortfeasor’s conduct are deemed by society to be so undesirable that the state of mind of the tortfeasor is immaterial (e.g., liability of the insane for injuries caused to others, strict liability on businesses for placing adulterated foods in the hands of human beings who then suffer food poisoning, etc.).
a. Early English law. In the common law courts of the 13th century, only two writs were available for redressing torts. These were the writ of trespass and the writ of trespass on the case.
1) Trespass. The writ of trespass provided relief for all direct and immediate forcible injuries to person or property. It covered unintentional as well as intentional injuries, required no proof of actual damages, and did not require fault on the part of the defendant (i.e., wrongful intent or negligence was not required).
2) Trespass on the case. The writ of trespass on the case provided relief for injuries that were intended but were either not forcible or not direct. Usually, the plaintiff was required to show actual damages and wrongful intent or negligence on the part of the defendant.
b. Present law. Today, tort liability generally falls into three classes:
1) Liability based on intent of the defendant;
2) Liability based on the negligence of the defendant;
3) Liability that attaches irrespective of the state of mind of the defendant; i.e., strict liability.
2. Case Development.
a. Intent or fault immaterial. The case of Anonymous (Kings Bench 1466), indicates that early English common law recognized liability for the consequences of one’s actions, notwithstanding that the consequences were unintended. The case cites the example of the person who accidentally drops a timber on his neighbor’s house while constructing his own home and states that such person would be liable for the damages caused notwithstanding that the “erection of [the tortfeasor’s] house was lawful and that the timber fell without [the tortfeasor’s] intent.” The case also states that a person defending himself from an assault will be liable for damages if he injures third parties while effecting his own defense against the attacker. Innocent intent was immaterial; the important criteria were direct, immediate, and forcible injury to person or property.
b. Intent or fault possibly material-
1.      In an action for trespass, damages are awarded for hurt or loss, not as a punishment for D’s felonious mind. Even though D claims the injury was an accident, he may be held liable.
2.       D would not be liable if he had been utterly without fault. For example, if P had run in front of D’s musket as it was firing, D would not be liable.
c. American evo