Torts Outline
I. Over View
Tort Law: a vehicle of legal redress for victims of physical injury or damage to tangible property.
Also on occasion provides compensation or other relief for:
· Emotional distress
· Impairment of reputation
· Non-tangible economic injuries
A. Three major types of liability
1. Negligence – fault based
2. Intentional Torts – fault based
3. Strict Liability – liability without fault
B. Reasons for Tort Law
1. Deterrence (idea that liability undermines the deterrent effect of torts)
2. Compensation (without liability insurance there would be less compensation, not many people have assets or assists are protected)
C. Kinds of Insurance:
1. Liability insurance (Car) (3rd party insurance- Madeline has liability insurance, she harms Henry, If Henry sues, Madeline goes to the insurance company who represents her and pays any damages the court awards Henry)
2. First party insurance (medical insurance, health insurance, life insurance) (medpay- 1st party insurance pays for injuries that occur to the policy holder whether or not someone is at fault)
3. Health Insurance
D. Defenses Based On The Conduct Of The Plaintiff
Contributory Negligence, Comparable Negligence, and Comparable Fault:
· A) Contributory Negligence: A plaintiffs herself is negligent and that negligence (even if small) contiubutes to the harm
o If proved this, historically, absolves the defendant of any and all responsibility
§ It can only be interposed in repose to a negligent claim
§ Bars Plaintiffs law suit
Contributory Negligence has been modified:
· Comparative negligence: No longer bars recovery of any kind
· Comparative Fault: Can be raised as a defense in negligence cases as well as other actions
o 1) Comparative Negligence:
§ Pure- If the court finds Plaintiff is 65% responsible then they can recover on 35% of the damages sustained
§ Modified- If the Plaintiff is more than 50% responsible for damages they can NOT recover however if they are less than 50% responsible they may recover (HOWEVER the damages awarded will be modified.
ú Some version of modified most common kind
o 2) Comparative Fault:
§ Comparative fault may be used to offset liability in reckless and strict liability cases as well as negligence case (in either a pure or modified form)
· Assumption of Risk Harder to prove than contributory negligence) (100% bar) – may be raised as a defense if:
o A) a person subjectively appreciated a danger
o B) voluntarily chose to confront it
o C) manifested a willingness to release the defendant from duty to exercise care or had no expectation of it
E. Strict and Absolute Liability
1. Strict Liability- Liability without fault. Fault liability (negligence, recklessness) is based on the foreseeability of harm and blameworthyness. If liability has been imposed even if one or both of these prerequisites have been dispensed with, it is STRICT LIABILITY
2. Absolute Liability – a strict liability case where a comparative fault or a assumption of risk defense may not be raised
F. Scope of Liability
· A) Scope of Liability
o Greater compensation and open to a wider class of folks if it is a tort based on intentional and reckless conduct (high rate of culpability) because if there defendant is highly blame worthy there is a reduced risk of appling liability that is disproportionate to the fault
· B) Punative Damages
o Not generally awarded for negligence HOWEVER is available for behavioir that both deviates from excepted standards of conduct but is also highly culpable (intentional torts, reckless behavior)
· C) Respondent Superior: Let the Master Answer or Look to the higher one up GENERAL RULE – employer MAY be held liable for the tortious conduct of there employee IF that conduct happened on the job and was within the scope of employment
o Employers is less readily held liable for the tort of an employee intentionally harmful act
§ Intentionally harmful act rarely found to be with in the scope of the employment required to hold the employer liable
· D) Insurance
o The nature of Defendants Tort may determine whether resulting losses will be covered by Defendants insurance
§ Most insurance contract include a clause excluding coverage for “expected” or “intended” harm
· E) Immunities
o Immunities such as spousal and government agencies draw are often deterimend by the kind tort
§ Spouses are barred from bringing claims of negligence – HOWEVER they may bring an Intentional tort (battery for domestic violence)
§ Federal Government – can bring a claim for negligence but not an intentional tort (battery, false imprisionment, deceit)
· F) Workers Compensation
o Worker comp is governed by statute verses the common law tort system
§ It offers compesation for on the job injuries even without the proof of negligence and bars employees from filing Tort claims against there employers (lower payouts than most tort claims)
ú HOWEVER an employee is not barred from bringing an intentional tort claim (anything short of intentional, recklessness, is usually covered by workers comp)
· G) Statute of Limitations
o Varies depending on the category of tortious behavior (negligent, reckless, intentional)
· H) Bankruptcy
o Debt tort may be discharged through Bankruptcy proceedings UNLESS the underlying conduct was “ willful and malicious” or fraud
§ Fraud generally requires a showing of intentionally or recklessly false misstatement
II. Intent:
To constitute intent (purpose and knowledge)
o The act must be produced with the intention of bring about harm
o The act must be done for the purpose of causing the contact
o OR with the knowledge that such contact will be produced by the action
1. Intent necessary to constitute battery
· is intent TO MAKE CONTACT NOT intent to injure.
2. Intent and Mistake
· The fact that the defendant made a mistake, even in good faith, does not absolve the defendant form liability UNLESS the mistake is induced by the plaintiff
· EX: The complained of wrong – the bullet hitting and killing the animal – was intended regardless of mistake (it was a dog and the hunter intended to kill a wolf)
3. Intent and Insanity
Restatement Torts 2nd: One who has deficient mental compacity is not immune for tort liability sole on those grounds
· Policy Rationales
he disrespect of its agents (verbal insults)
2. Sensitivity Rule
o The extreme and outrageous character of the conduct may arise from the actor’s knowledge that the other is particularly suceptable to emotional distress THEREFORE insults may be considered OUTRAGEOUS if the person is particularly sensitive and the defendant know it.
Bystanders and Third Parties
Restatement Second § 46- where extreme and outrageous conduct is directed at a third person the actor is subject to liability if he intentionally or recklessly causes severe emotional distress
A) to a member of that persons immeadiate family who is present at the time, whether or not such distress results in bodily harm
b) to any person who is present at the time if such distress results in bodily harm
4. False Imprisionment
The Basic Elements:
· 1. Intent (purpose or knowledge) to confine
· 2. Unconsented detention within boundaries set by the defendant
· 3. Apparent lack of a reasonable exit (not reasonable if it causes illness
· 4. Use of unlawful force, threat of force, or assertion of legal authority by the defendant
· 5. Harm to the plaintiff or knowledge by the plaintiff of the confinement
1. Does not lie for negligence
2. Good faith does not make a difference
3. Confinement must be complete (if you can go in another direction even if you don’t want you are NOT confined)
4. Moral or economic coercion
6. Threats of future action are insufficient (don’t leave or I will call the police is NOT enough for false imprisionment)
False arrest arises when one is taken into custody by a person who claims but does not have the proper legal authority to do so.
· A claim for false arrest will not lie if the officer had a valid warrant and reasonable cause to believe an offence had been commited and that the person they were arresting commited that offense.
5. Trespass to Land (q.f.c.)
Basic Elements for Trespass to land:
· 1. Intent (purpose or knowledge) on the part of the defendant to be present
o state of mid required in intent to be present* not intent to trespass, go on the land of another or violate another’s rights
· 2. Unconsent physical presence on, under, or above the land of another
o Since the intention of trespass of land is to protect the right of exclusive possession of land the only person who may bring an action of trespass is the exclusive owner.
*Must voluntarly be present if someone else is forcing you on the land (kidnapping you and carrying on the land you) are not liable for trespass
