Torts

Tort Means “Wrong”

A tort is a violation of a duty imposed by

civil law.

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 §1: Basis of Tort Law
Doing business today involves risks, both
legal and financial.
A tort is a civil injury designed to provide
compensation for injury to a legally
protected, tangible or intangible, interest.
There are intentional and unintentional
(negligence) torts.

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§2: Intentional Torts Against Persons
and Business Relationships
The person committing the tort, the
Tortfeasor or Defendant, must “intend” to
commit the act. Intend means:
üTortfeasor intended the consequences of his/her
act; or
üHe/she knew with substantial certainty that
certain consequences would result.

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 Types of Intentional Torts
Assault and Battery.
False Imprisonment.
Infliction of Emotional Distress.
Defamation.
Invasion of Privacy.
Business Torts.

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 Assault
Intentional, unexcused act that:
üCreates a reasonable apprehension of fear, or
üImmediate harmful or offensive contact.
NO CONTACT NECESSARY.

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 Battery
Battery is the completion of the Assault:
üIntentional or Unexcused.
üHarmful, Offensive or Unwelcome.
üPhysical Contact.

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 Defenses to
Assault & Battery
Consent.
Self-Defense (reasonable force).
Defense of Others (reasonable force).
Defense of Property.

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 False Imprisonment
The Intentional confinement or restraint.
Of another person’s activities.
Without justification.
Merchants may reasonably detain
customers if there is probable cause.

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 Intentional Infliction of
Emotional Distress
An intentional act that is:
üExtreme and outrageous, that
üResults in severe emotional distress in another.
Most courts require some physical
symptom or illness.

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 Defamation
Right to free speech is constrained by
duty we owe each other to refrain from
making false statements.
Orally breaching this duty is slander;
breaching it in print or media is libel.

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 Defamation
Gravamen of defamation is the
“publication” of a false statement that
holds an individual up to hatred,
contempt or ridicule in the community.
Publication requires communication to a
3rd party.

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 Defamation-Damages [1]
Damages for Libel.
üGeneral Damages are presumed; Plaintiff does
not have to show actual injury.
üGeneral damages include compensation for
disgrace, dishonor, humiliation, injury to
reputation and emotional distress.

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 Defamation-Damages [2]
Damages for Slander.
üRule: Plaintiff must prove “special damages”
(actual economic loss).
üExceptions for Slander Per Se (loathsome
disease, business improprieties, serious crime,
non-chaste).

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 Defamation-Defenses
Truth is generally an absolute defense.
Privileged (or Immune) Speech.
üAbsolute: judicial & legislative proceedings.
üQualified: Employee Evaluations.

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 Invasion of Privacy
Every person has a fundamental right to
solitude freedom from public scrutiny.
üUse of Person’s Name or Likeness.
üIntrusion on Individual’s Affairs or Seclusion.
üPublication of Information that Places a Person
in False Light.
üPublic Disclosure of Private Facts.

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 Appropriation
Use of another’s name, likeness or other
identifying characteristic for commercial
purposes without the owner’s consent.

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 Fraud
Fraudulent misrepresentation involves
intentional deceit:
üMisrepresentation of material fact;
üIntent to induce another to rely;
üJustifiable reliance by innocent party;
üDamages as a result of reliance;
üCausal connection.

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 Wrongful Interference
Tort that interferes with a contractual
relationship.
Occurs when:
üDefendant knows about contract between A and B;
üIntentionally induces either A or B to breach the
contract; and
üDefendant benefits from breach.

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 Wrongful Interference
With a Business Relationship occurs
when:
üEstablished business relationship;
üTortfeasor, using predatory methods, causes
relationship to end; and
üPlaintiff suffers damages.
Bona fide competitive behavior is a
defense to this tort.

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 §3: Intentional Torts
to Property
Trespass to land occurs when a person,
without permission:
üPhysically enters onto, above or below the
surface of another’s land; or
üCauses anything to enter onto the land; or
üRemains, or permits anything to remain, on the
land.

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Intentional Torts to Property [2]
Trespass to personal property is the
Intentional interference with another’s
use or enjoyment of personal property
without consent or privilege.
Disparagement of Property.
Slander of Title or Quality.

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 §4: Negligence
Tortfeasor does not intend the consequences of
the act or believes they will occur.
Actor’s conduct merely creates a foreseeable
risk of injury. Analysis:
üDefendant owed Plaintiff a duty of care;
üDefendant breached that duty;
üPlaintiff suffered legal injury;
üDefendant’s breach caused the injury.

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 Duty of Care
Defendant owes duty to protect Plaintiff
from foreseeable risks that Defendant
knew or should have known about.
Courts use reasonable person standard
(jury) to determine whether duty exists.

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Duty of Care: Foreseeability
The consequences of an act are legally
foreseeable if they are consequences that
typically occur in the course of event.
Whether an act is foreseeable is generally
considered a matter of fact determined
by the reasonable person standard (jury).

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 Duty of Care
Duty of care varies, based on the
Defendant’s occupation, relationship to
Plaintiff.
Professionals may owe higher duty of
care based on special education, skill or
intelligence. Breach of duty is called
professional malpractice.

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 Injury and Damages
To recover, Plaintiff must show legally
recognizable injury.
Compensatory Damages are designed to
reimburse Plaintiff for actual losses.
Punitive Damages are designed to punish
the tortfeasor and deter others from
wrongdoing.

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 Causation
Even though a Tortfeasor owes a duty of
care and breaches the duty of care, the
act must have caused the Plaintiff’s
injuries.
üCausation in Fact, and
üProximate Cause.

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 Causation in Fact
Did the injury occur because of the
Defendant’s act, or would the injury have
occurred anyway?
Usually determined by the “but for” test,
i.e., but for the Defendant’s act the injury
would not have occurred.

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 Proximate Causation
An act is the proximate (or legal) cause of
the injury when the causal connection
between the act and injury is strong
enough to impose liability.
Foreseeability of injury is an important
factor.
Think of proximate cause as an unbroken
chain of events.

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Ex: Factual Cause & Foreseeable Harm
Mechanic fails
to fix Car Factual
Mechanic cause and
customer’s accident,
is liable to foreseeable
brakes, which car hitting
cyclist type of
causes... bicyclist
injury

Noise from Factual

Car Mechanic is cause, but
accident startles
accident, NOT liable no
someone who
car hitting for falling foreseeable
falls out a person
bicyclist type of
window injury

Car accident, Mechanic No

car Bicyclist hits is NOT
pothole and factual
does not hit liable to cause
bicyclist crashes cyclist
 Defenses to Negligence

Assumption of Risk.
Superseding Intervening Cause.
Contributory or Comparative
Negligence.

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 Assumption of Risk
Plaintiff has adequate notice and
understanding of the risks associated with
an activity.
He knowingly and willingly engages in the
act anyway.
Plaintiff, in the eyes of the law, assumes
the risk of injuries that fall within the
scope of the risk understood.

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 Superseding Cause
act and Plaintiff’s injury relieving DeA
unforeseeable, intervening act that occurs
after Defendant’s act that breaks the
causal relationship between Defendant’s
fendant of liability.
If the intervening act was foreseeable,
however, Defendant may be liable for
Plaintiff’s injuries.

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 Contributory Negligence [1]
Under common law, if Plaintiff if any way
caused his injury, he was barred from recovery.
Most states have replaced contributory
negligence with the doctrine of comparative
negligence.
The operative concept in comparative
negligence is that one cannot recover from
another for any injuries one has caused to
oneself.

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 Comparative Negligence
In determining liability, the amount of
damages a Plaintiff causes to himself are
subtracted from the amount of damages
suffered by the Plaintiff, and only the
remainder is recoverable from the
Defendant.
However, if Plaintiff is more than 50%
liable, he recovers nothing.

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Donoghue V Stevenson case

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 Vietnamese case
The fly-in-bottle lawsuit
Tan Hiep Phat

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A contractor used dynamite to loosen a
rocky hillside. The blast from the
dynamite caused a house foundation to
crack. The house was located over a half
mile away from the dynamite site. The
contractor was careful when using the
dynamite and no allegation of negligence
is made. However, the house owner
claims the contractor is liable for damage
to the foundation. Is the house owner
correct? Explain

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Strict Liability and
Product Liability
 §1: Strict Liability
Defendant’s liability for strict liability is
without regard to:
üFault.
üForeseeability.
üStandard of Care.
üCausation.
Liability is based on creation of
extraordinary risk.

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 Abnormally
Dangerous Activities
Defendant is strictly liable for an
“abnormally dangerous activity” if:
üActivity involves serious potential harm;
üActivity involves high degree of risk that
cannot be made safe; and
üActivity is not commonly performed in the
community or area.

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 Wild Animals
Persons who keep wild animals are
strictly liable for injuries caused by the
beast.
Persons who keep domestic animals are
liable if the owner knew or should have
known that animal was dangerous.

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 §2: Product Liability
Product Liability is not a new tort.
Liability can be based on:
üNegligence;
üMisrepresentation; or
üStrict Liability;
üWarranty Theory.

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 Product Liability
(Negligence)
Negligence-based product liability is
based on a manufacturer’s breach of the
reasonable standard of care and failing to
make a product safe.

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 Product Liability
(Negligence) [2]
Manufacturer must exercise “due care”
in:
üDesigning products;
üManufacturing and Assembling Products;
üInspecting and Testing Products; and
üPlacing adequate warning labels.

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 Product Liability
(Negligence) [3]
Manufacturers who violates state or federal law
in the manufacture or labeling of a product,
may be negligent per se.
No privity of contract required between
Plaintiff and Manufacturer. Liability extends to
any person’s injuries caused by a negligently
made (defective) product.

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 Product Liability
(Misrepresentation)
Occurs when fraud committed against
consumer or user of product.
Fraud must have been made knowingly
or with reckless disregard for safety.
Plaintiff does not have to show product
was defective.

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 §3: Strict Product Liability
Manufacturers liable without regard to
fault based on public policy:
üConsumers must be protected from unsafe
products;
üManufacturers should be liable to any user of
the product;
üManufacturers, sellers and distributors can bear
the costs of injuries.

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 Strict Product Liability [2]
Requirements for strict liability:
üProduct is unreasonably dangerous when
Defendant sells the product;
üPlaintiff injured by use or consumption of
product and defective condition is the
proximate cause of injury.
üGreenman v.Yuba Power Products (1962).

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 Strict Product Liability [3]
Plaintiff must show product was so
“defective” it was “unreasonably
dangerous”:
üProduct was dangerous beyond ordinary
consumer expectations; OR
üA less dangerous alternative was economically
feasible but rejected.

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 Market Share Liability
Theory of liability when multiple
Defendants contributed to manufacture
of defective product.
Liability of each Defendant is
proportionate to the share of the market
held by each respective Defendant.

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 Liability of Suppliers
Suppliers of Component Parts may be
liable if:
üComponent is defective at the time of
sale/distribution;
üSupplier “substantially participates” in the
design and integration of defective product.

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 Liability of Suppliers [2]
Manufacturers, distributors, suppliers,
sellers liable to an injured bystander who
did not purchase, use or consumer the
product.
Injuries to bystanders from defective
products are reasonably foreseeable.

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 §4: Strict Liability—
Restatement (3rd) of Torts
The terms “unreasonably dangerous”
and “defective” are used interchangeably
and subject to differing definitions by
different courts.
Restatement defines three different types
of defects: manufacturing, design and
warning defects.

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 Strict Liability:
Manufacturing Defects
Occurs when a product “departs from its
intended design even though all possible
care was exercised in the preparation and
marketing of the product.”

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 Strict Liability:
Design Defects
Occurs when the “foreseeable risks of
harm posed by the product could have
been reduced or avoided by the adoption
of a reasonable alternative . . . and the
omission of the alternative design renders
the product not reasonably safe.”

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 Strict Liability:
Warning Defects
A product may be defective because of
inadequate warnings or instructions.
Liability based on foreseeability that
proper instructions/labels would have
made the product safe to use.

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 Warning Defects [2]
There is no duty to warn about obvious
or commonly known risks.
Seller must also warn about injury due to
product misuse. Key is whether misuse
was foreseeable.

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 §5: Defenses to
Product Liability
Assumption of Risk.
Product Misuse (Plaintiff does not know
the product is dangerous for a particular
use).
Contributory/Comparative Negligence.
Commonly known dangers.
Statutes of Limitation.

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What about Vietnamese Law?

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 Discussion
Driving in a car, at a blind spot in the road,
Walter honks his horn three times. Two
blocks away, an elderly woman believes
the horn is an air raid siren and suffers a
heart attack. Walter honked his horn, and
the honking caused the woman’s death.

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 Criminal v Tort?
1. At a downtown bar, Walter drinks to excess. As he is
driving home, at the first intersection, he strikes and
injures a pedestrian who was crossing with the light.
Walter’s blood alcohol level proves to be twice the legal
limit.
2. Believing he is entitled to Paula’s typewriter, Ralph
takes it..
3. A mugger, gun drawn, sneaks up behind Steve on the
street. A police officer seizes the mugger before Steve
realizes what is happening..
4. Tina is dying. Victor refuses to donate blood to save
him.

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