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Wayne State University Law School
Dillof, Anthony M.

Dillof_Torts_Fall 2010
      I.        General Introduction
A.    Definition of Tort – There is no single definition of “tort.”  The most we can say is that: (1) a tort is a civil wrong committed by one person against another; and (2) torts can and usually do arise outside of any agreement between the parties.
B.    Categories – There are three broad categories of torts, and there are individual named torts within each category.
1. Intentional Torts – Intentional torts are ones where the defendant desires to bring about a particular result.  The main intentional torts are:
a.     Battery
b.    Assault
c.     False Imprisonment
d.    Infliction of Mental Distress
2. Negligence – The next category is the generic tort of negligence.  Here, the defendant has not intended to bring about a certain result, but has merely behaved carelessly.  There are no individually-named torts in this category, merely the general concept of “negligence.”
3. Strict Liability – The least culpable category is strict liability.  Here, the defendant is held liable even though he did not intend to bring about the undesirable result, and even though he behaved with utmost carefulness.  There are two main individually-named torts that apply strict liability:
a.     Conducting of abnormally dangerous activities (blasting); and
b.    The selling of a defective product which causes personal injury or property damage.
C.    Significance of Categories – There are two main consequences that turn on which of the three above categories a particular tort falls into:
1. Scope of Liability – The three categories differ concerning D’s liability for far-reaching, unexpected, consequences.  The more culpable D’s conduct, the more far-reaching his liability for unexpected consequences – so an intentional tortfeasor is liable for a wider range of unexpected consequences than is a negligent tortfeasor.
2. Damages – The measure of damages is generally broader for the more culpable categories.  In particular, D is more likely to be required to pay punitive damages when he is an intentional tortfeasor than when he is negligent or strictly liable.
D.    EXAM APPROACH – First, review the fact pattern to spot each individual tort that has, or may have been, committed.  Then, for each tort you have identified:
1. Prima Facie Case – Say whether a prima facie case for that tort has been made.
2. Defenses – Analyze what defenses and justifications, if any, D may be able to raise.
3. Damages – Finally, discuss what damages may be applicable, if the tort has been committed and there are no defenses.  Pay special attention to: (1) punitive damages; (2) damages for emotional distress; (3) damages for loss of companionship of another person; (4) damages for unlikely and far-reaching consequences; and (5) damages for economic loss where there has been no personal injury or property damage.
      I.        Components of Tort of Negligence
A.    Generally – 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.
B.    Prima Facie Case – The five components of a prima facie case for negligence action are:
1. Duty – A legal DUTY requiring D to conduct himself according to a certain standard, so as to avoid unreasonable risk to others;
2. Breach of Duty – A failure by D to conform his conduct to this standard (AKA Carelessness).
3. Cause in Fact – A showing that D’s failure to act with reasonable care was the “cause in fact” of the injury to plaintiff.  Generally, “cause in fact” means a “but for” cause, i.e., a cause without which the injury wouldn’t have occurred.
4. Proximate Cause (Scope of Liability)– A sufficiently close causal connection between D’s act of negligence and the harm suffered by P that it’s fair to hold D liable, as a matter of policy.
5. Actual Damages – Actual damage suffered by P. 
     II.        Unreasonable Risk
A.    Generally – P must show that D’s conduct imposed an unreasonable risk of harm on P (or on a class of persons of whom P is a member).
1. Not judged by Results – It is not enough for P to show that D’s conduct resulted in a terrible injury.  P must show that D’s conduct, viewed as of the time it occurred, without benefit of hindsight, imposed an unreasonable risk of harm.
B.    Balancing – In determining whether the risk of harm from D’s conduct was so great as to be “unreasonable,” courts use a balancing test: “Where an act is to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or the particular manner in which it is done.
C.    Warnings – One of the ways the risks of conduct can be reduced is by giving warnings of danger.  The fact that D gave a warning of dangers to P in particular, or the public in general, is thus a factor that will make it less likely that D will be found negligent when the danger that was warned of results in an accident.
1. Failure to warn can itself be negligent – If D fails to give a warning of a danger that he knows about, the warning could have been easily given, the mere failure to warn can itself constitute negligence.
2. Does not immunize D – However, it’s clear that even if D does give a warning, this does not immunize D from negligence liability – if D’s activity is unreasonably dangerous (evaluated by balancing its benefits against its risks) despite D’s warning to P, D will still be liable.
    III.        The Reasonable Person
A.    Objective Standard – The reasonableness of D’s conduct is viewed under an objective standard.  Would a “reasonable person of ordinary prudence,” in D’s position, do as D did?  D does not escape liability merely because she intended to behave carefully or thought she was behaving carefully.
B.    Physical and mental characteristics – The question is whether D behaved reasonably “under the circumstances.”  “The circumstances” generally include the physical characteristics of D himself.
1. Physical Disability – Thus if D has a physical disability, the standard for negligence is what a reasonable person with that physical disability would have done.  (Blind man standard)
2. Mental Characteristics – The ordinary reasonable person is NOT deemed to have the particular MENTAL characteristics of D.  (Being dumber or more careless than an ordinary person is not a defense).
3. Intoxication – Intoxication is no defense – even if D is drunk, she is held to the standard of conduct of a reasonable sober person.
4. Children – A child is held to the level of conduct of a reasonable person of that age and experience, not that of an adult.
a.     Adult Activity – But where a child engages in a potentially dangerous activity normally pursued only by adults, she will be held to the standard of care that a reasonable adult doing that activity would exercise.  (Snowmobile kid)
C.    Custom – Courts generally allow evidence as to custom for the purpose of showing presence or absence of reasonable care.  However, this evidence is generally not conclusive.
1. Evidence by D – Thus where D shows that everyone else in the industry does things the way D did them, the jury is still free to conclude that the industry custom is unreasonably dangerous and thus negligent.
2. Proof by Plaintiff – Conversely, proof offered by P 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.
D.    Emergencies – If D is confronted with an emergency, and is forced to act with little time for reflection, D must merely behave as a reasonable person would if confronted with the same emergency, not as a reasonable person would with plenty of time to think.
E.    Anticipating conduct of others – A reasonable person possesses at least limited ability to anticipate the conduct of others.
1. Negligence – D may be required to anticipate the possibility of negligence on the part of others.
a.     Parental Supervision – A parent has a duty to exercise reasonable care to supervise the conduct of his or her minor child, to prevent the child from intentionally harming others or posing an unreasonable risk of harm to others.
                                                                      i.        Direct Liability – This principle does NOT make the parent “vicariously liable” for the child’s torts.  Instead, it constitutes direct negligence by the parent not to use reasonable care in controlling the child, where the parent has the ability to control he child, and knows or should have known of the risk being posed by the child’s conduct.
2. Criminal or intentionally tortious acts – Normally the reasonable person (and, hence, D) is entitled to presume that third persons will not commit crimes or intentional torts.
a.     Special Knowledge – But if D has a special relationship with either P or a third person, or special knowledge of the situation, then it may be negligence for D not to anticipate a crime or intentional tort.
A.     “Negligence Per Se Doctrine” – Most courts apply the “negligence per se” doctrine: when a safety statute has a sufficiently close application to the facts of the case at hand, an unexcused violation of that statute by D is “negligence per se,” and thus conclusively establishes that D was negligent.
1. Restatement Standard – The 3rd Rest articulates the doctrine this way: “An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and the accident victim is within the class of persons the statute is designed to protect.”
2. Ordinances and Regulations – In virtually all states, the negligence per se doctrine applies to the violation of a statute.  Where the violation is of an ordinance or regulation, courts are split about whether the doctrine should apply, but most courts still apply it.
B.    Statute must apply to facts – The negligence per se doctrine will apply only where P shows that the statute was intended to guard against the kind of injury in question.
1. Protection against particular harm – This means that the statute must have been intended to protect against the particular kind of harm that P seeks to recover for. 
2. Class of Persons protected – Also, P must be a member of the class of persons whom the statute was designed to protect.
C.    Excuse of Violation – The court is always free to find that the statutory violation was excused, as long as the statute itself does not show that no excuses are permitted.
1. Typical Reasons – Some typical reasons for finding D’s violation excused:
a.     D was reasonably unaware of the “factual circumstances” that make the statute applicable;
b.    D made a reasonable and diligent attempt to comply:
c.     The violation was due to the confusing way the requirements of the statute were presented to the public;
d.    Compliance would have involved a greater risk of harm.
D.    Contributory negligence per se – If the jurisdiction recognizes contributory negligence, D may get the benefit of contributory negligence per se where P violates a statute.
E.    Compliance not dispositive – The fact that D has fully complied with all applicable safety statutes does not by itself establish that he was not negligent – the finder of fact is always fee to conclude that a reasonable person would take precautions beyond those required by statute.
A.    Generally – The doctrine of RES IPSA LOQUITUR (“the thing speaks for itself”) allows P to point to the fact of the accident, and to create an inference that, even without a precise showing of how D behaved, D was probably negligent.
Example – A barrel of flour falls on P’s head as he walks below a window on the street.  At trial, P shows that the barrel fell out of a window of D’s shop, and that barrels do not fall out of windows without some negligence.  By use of the RES IPSA LOQUITUR doctrine, P has presented enough evidence to justify a verdict for him, so unless D comes up with rebuttal evidence that the barrel did not come from his shop or was not dropped by negligence, D will lose.  (Byrne v. Boadle)
B.    Requirements for – Courts generally impose four requirements for the RES IPSA LOQUITUR:
1. No Direct Evidence of D’s conduct – There must be no direct evidence of how D behaved in connection with the event.
2. Seldom occurring without negligence – P must demonstrate that the harm which occurred does not normally occur except through the negligence of someone.  P only has to prove that most of the time, negligence is the cause of such occurrences.
Example – If an airplane crashes withou

’s right to recover for mental suffering.
1. No physical symptoms – Where there is not only no impact, but no physical symptoms of emotional distress at all, nearly all courts deny recovery.
Example – D narrowly misses running over P.  No one is hurt.  P has no physical symptoms, but is distraught for weeks.  Few if any courts will allow P to recover for her emotional distress.
a.     Exceptions – Some courts recognize an exception to this rule in special circumstances (e.g., negligence by telegraph companies in wording messages, and by funeral homes in handling corpses).
b.    Abandoned – About 6 states, including California and probably NY, have simply abandoned the rule against recovery for negligent infliction of purely mental harm.
c.     The “at risk” plaintiff – The general rule means that if P, by virtue of his exposure to a certain substance, suffers an increased likelihood of a particular disease, P may generally not recover for the purely emotional harm of being at risk.
Example – D releases toxic chemicals into the water.  This causes P to have a greatly increased risk of throat cancer.  Most courts will not allow P to recover for distress at being extra vulnerable to cancer.
d.    Intentional Torts – Remember that the general rule applies only to negligent conduct by D – if D’s conduct is intentional or willful, P may recover for purely emotional harm with no physical symptoms, by use of the tort of intentional infliction of emotional distress.
2. Physical Injury without impact (Zone of Danger I)– Where D’s negligent act (1) physically endangers P, (2) does not result in physical impact on P, and (3) causes P to suffer emotional distress that has physical consequences, nearly all courts allow recovery.
Example – D narrowly avoids running over P.  P is so frightened that she suffers a miscarriage.  P may recover.
3. Fear for others’ safety – If P suffers purely emotional distress (w/out physical consequences), and P’s distress is due solely to fear or grief about the danger or harm to third persons, courts are split.
a.     Zone of Danger (Zone of Danger II) – if P was in the “zone of danger” (physically endangered but not struck), nearly all courts allow him to recover for emotional distress due to another person’s plight.
Example – D narrowly avoids running over P, and in fact runs over P’s child S.  Most courts will allow P to recover for her emotional distress at seeing S injured.
b.    Abandonment of zone requirement (Bystander Emotional Harm)– A number of states – probably still a minority – have abandoned the “zone of danger” req.  In these courts, so long as P observes the danger or injury to X, and X is a close relative of P, P may recover.
Example – P is on the sidewalk when D runs over P’s son, S.  In a court which has abandoned the “zone of danger” req, P will be able to recover for his emotional distress at seeing his son injured, even though P himself was never in physical danger.  (Dillon v. Legg).
   IV.        Unborn Children
A.    Modern View – Most courts have rejected the traditional view that an infant injured in a pre-natal accident would never recover if born alive.  Today, recovery for pre-natal injuries varies:
1. Child born alive – If the child is born alive, nearly all courts allow recovery.
Example – D makes a drug taken by P’s mother while P is a fetus only a few weeks old.  P is born with serious birth defects resulting from the drug.  Nearly all courts would allow P to recover.
2. Child not born alive – Courts are split about whether suit can be brought on behalf of a child who was not born alive.  Usually, a court will allow recovery only if it finds that a fetus never born alive is a “person” for purposes of the wrongful death statute.
    V.        Pure Economic Loss
A.    Traditional Rule – Where D tortuously causes physical injury or property damage to X, but only pure economic loss to P, the traditional rule is that P may not recover.
Example – A ship owned by D damages a dock owned by X.  P, owner of a different ship, is required to dock elsewhere and suffers extra labor and docking costs, but no physical injury.  Under the traditional view, P may not recover these expenses from D, even though D was a tortfeasor vis-à-vis X.  (Barber Lines v. M/V Donau Maru).
1. Rationale – The rationale for this restrictive rule is the fear of open-ended liability.
B.    Modern Approach – But most modern courts probably no longer impose a blanket rule of no liability for pure economic loss.  If a court does decide to relax the no-liability rule, it is most likely to award recovery where: (1) the injury to P was relatively foreseeable; (2) relatively few plaintiffs would be permitted to sue if liability were found for pure economic loss; and (3) D’s conduct is relatively blameworthy.
Example – D, a railroad, negligently causes a fire.  P, an airline with nearby operations, is forced to close for 12 hours and loses business.  Held, P may maintain its suit because it was part of an “identifiable class” who D knew or had reason to know was likely to suffer such damages from its conduct (People Express Airlines v. Consolidated Rail Corp)