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West Virginia University School of Law
Taylor, John E.

Fall 2005, Professor Taylor

Tort Law: rules regarding compensation for PI, harm/ property damage one party causes another. CIVIL HARMS not encompassed by K or crim. law; lawfully imposed duty to provide a reasonable standard of care.

Torts w/ FAULT(must be fault before compensation): most common.

· Intentional Torts: desire or substantial certainty to bring about a harmful/offensive action. (clear elements, similar to criminal law).
Torts to Persons
1. Battery
2. Assault
3. False Imprisonment
4. Intentional Infliction of Emotional Distress
Torts to Property
1. Trespass to Land
2. Trespass to Chattel

· Recklessness: conscious disregard towards a high level of risk (absence of intent). Rare.

· Negligence: unintentional; failure to exercise SOC that a reasonable person would have exercised in similar situation. Avoiding harm that reasonable person would have anticipated.

Elements (L) “prima facie” case: meeting all the elements for a COA.

1. Duty (obligation to protect another person against unreasonable risk of injury).

Misfeasance: engaging in conduct that creates risk; easily proven (ACT).
Nonfeasance: although you didn’t create the risk, you failed to act when you should have (OMISSION). Harder to prove.

2. Beach of Duty: failure to exercise the care that is due (conduct unreasonable under the circumstances).

3. Causation: action or inaction must cause the injury (aka “cause in fact” or “actual causation”).

a. “But for” causation: action must have directly caused the injury. “BUT FOR the ∆’s action, there would be no damages.

4. Scope of Liability: draws the line between the consequences you are responsible for and the consequences you are not responsible for. “Satisfied if the harm that occurs is one of the harms that explain why the conduct was negligent in the first place.”

5. Damages: actual losses suffered; there is no claim w/

ons alleged in the complaint.

Interrogatories: written questions submitted to an opposing part for use in discovery.
Depositions: witness’s out-of-court testimony for use in discovery or court.


Affirmative Defense: ∆’s assertion raising new facts that, if true, will defeat the ∏’s (or prosecution’s) claim, even if the allegations are true (∆’s burden of proof).

Contributory Negligence: ∏ hasn’t been careful enough in protecting self (enough a TINY amount bars recovery in some states).

Assumption of Risk: sign waver, or release of liability. Enforceable?

Strict/Absolute Liability: liability imposed without fault; breach of an absolute duty to provide safety; little or no defense (often found in defective product situations).