Tort Law

A tort is a private or civil wrong, other than a breach of contract, in which a person violates a legal duty owed to another person and causes injury.

The primary purpose is to compensate the injured party for losses caused by another person’s wrongful conduct.

Compensation is the principal purpose of tort law. However, punitive damages may sometimes be awarded when the defendant’s conduct is willful, malicious, or especially wrongful.

• A tort is a private wrong against an individual or organization.

• A crime is a public wrong against society or the state.

• A tort action usually seeks compensation for the injured party.

• A criminal prosecution usually seeks punishment of the offender.

• A plaintiff in a civil action must prove all the elements of recovery by a preponderance, or greater weight, of the evidence.
• The state must prove all the elements of a crime beyond a reasonable doubt, a much higher standard.

A tort results from violating a legal duty generally imposed by law. A breach of contract results from failing to perform a duty created by an agreement between the parties.

1. Intentional torts
2. Torts involving business relationships
3. Negligence
4. Strict liability
5. Products liability

An intentional tort results from a voluntary and intentional act that interferes with another person’s legally protected interests without consent, privilege, or other legal justification.

Negligence is the failure to exercise the level of care that a reasonable person would exercise under similar circumstances.

Strict liability is liability imposed without requiring proof that the defendant acted intentionally or negligently.

Tort law may protect:

• Personal safety

• Freedom of movement

• Emotional well-being

• Reputation

• Privacy

• Real and personal property

• Contractual and business relationships

• Consumers from defective products

The plaintiff generally must establish:

1. A voluntary act by the defendant

2. The required intent

3. A causal connection between the act and the resulting interference or injury

A voluntary act is a conscious physical movement by the defendant.

Examples may include movements resulting entirely from:

• Reflexes

• Seizures

• Unconsciousness

• Other involuntary physical conditions

Intent generally exists when the defendant:

• Desires to cause the result; or

• Knows that the result is substantially certain to occur

Battery is an intentional, unprivileged, and unwanted harmful or offensive touching of another person.

No. The contact may constitute battery if it would be harmful or offensive to a reasonable person, even if it does not cause a serious injury.

Not necessarily. Contact may occur indirectly through an object or instrument used by the defendant.

Yes. Valid consent may prevent contact from being wrongful because battery requires unprivileged or unwanted contact.

Yes. Voluntary intoxication does not necessarily prevent a person from forming the intent required for battery.

Assault is an intentional act that causes another person to reasonably apprehend immediate harmful or offensive contact.

No. Assault concerns the reasonable anticipation of immediate contact. If contact actually occurs, the defendant may also have committed battery.

Yes. The plaintiff generally must know of the threat when it occurs in order to experience the required apprehension.

Yes. A threat of harm at some distant or indefinite time generally does not constitute assault.

Raising a fist in front of another person in a manner that causes the person to reasonably believe an immediate punch is coming may constitute assault.

• Assault protects against reasonable apprehension of immediate contact.

• Battery protects against actual harmful or offensive contact.

False imprisonment is the intentional confinement of another person without consent and without lawful justification.

No. Confinement may result from:

• Physical barriers

• Threats of force

• Improper assertions of legal authority

• Other conduct that prevents the person from leaving

A properly conducted lawful arrest generally does not constitute false imprisonment because the confinement has legal justification.

The shopkeeper’s privilege permits a merchant to reasonably detain a person suspected of theft for the purpose of investigation.

The detention must generally be:

• Based on reasonable suspicion

• Conducted in a reasonable manner

• Limited to a reasonable amount of time

A merchant may lose the privilege by:

• Using excessive force

• Detaining the customer for an unreasonable time

• Acting without a reasonable basis for suspicion

• Using an unnecessarily humiliating or dangerous method

It is extreme and outrageous conduct that intentionally or recklessly causes another person severe emotional distress.

No. Ordinary insults, minor annoyances, and rude behavior generally are not sufficiently extreme or outrageous.

It is sometimes called the tort of outrage.

The distress must be severe rather than temporary embarrassment, irritation, or ordinary unhappiness.

Defamation is an unprivileged publication of a false statement that injures another person’s reputation.

1. Libel
2. Slander

Libel generally refers to defamation expressed in a written, recorded, or otherwise relatively permanent form.

Slander generally refers to spoken defamation.

Publication means communicating the statement to at least one third person who understands it.

No. Publication in defamation law simply means communication to a third person. It does not require formal printing or mass distribution.

Truth is generally a complete defense.

Defamation requires a false statement. A truthful statement does not satisfy the falsity requirement, even if the statement harms the plaintiff’s reputation.

Absolute privilege provides complete protection for certain statements made in recognized official settings.

It may apply to statements made during:

• Legislative proceedings

• Judicial proceedings

• Certain executive proceedings

Internet service providers and certain online platforms generally are protected from liability for defamatory material created and supplied by third parties.

No. Protection of the service provider does not necessarily protect the original author or speaker.

• Intrusion upon seclusion

• Publicity given to private life

• False light

• Appropriation of name or likeness

It is an intentional and unreasonable invasion of another person’s solitude, private space, or private affairs.

Examples may include:

• Unauthorized electronic surveillance

• Secret recording in a private area

• Unauthorized physical entry into a private space

• Improper monitoring of private communications

Not necessarily. The wrongful invasion itself may support the claim even if the defendant does not disclose the information to others.

It is the widespread disclosure of private information that:

• Would be highly offensive to a reasonable person; and

• Is not a matter of legitimate public concern

No. Unlike defamation, the information may be true. The wrong comes from improperly publicizing highly private information.

False light involves publicly presenting a person in a misleading manner that would be highly offensive to a reasonable person.

Appropriation is the unauthorized use of another person’s name, image, identity, or likeness for the defendant’s benefit.

Using an athlete’s photograph in an advertisement without permission may constitute appropriation.

Malicious prosecution involves wrongfully initiating or continuing legal proceedings against another person without an adequate legal basis and for an improper purpose.

The original proceeding generally must end favorably for the person who later brings the malicious-prosecution claim.

No. A favorable outcome is only one requirement. Other matters, such as lack of probable cause and an improper purpose, may also have to be established.

Yes. Prosecutors generally have strong immunity for actions performed within their official prosecutorial role.

Trespass to land is an intentional and unauthorized physical invasion of another person’s real property.

Not necessarily. The defendant generally must intend the physical act that results in entry. The defendant does not necessarily have to know that the land belongs to another person.

Not always. An unauthorized physical entry itself may be sufficient.

Yes. Trespass may involve an unauthorized invasion:

• On the surface

• In the airspace immediately above the property

• Beneath the property

Necessity may privilege entry onto another person’s land when the entry is reasonably required to avoid a more serious and immediate harm.

A person who enters private property to escape an attacking animal may be privileged to enter because avoiding physical injury is more important than preventing the temporary entry.

A nuisance is an unlawful and unreasonable interference with another person’s use and enjoyment of land.

Examples may include:

• Excessive noise

• Smoke

• Strong odors

• Vibration

• Pollution

• Other recurring disturbances

• Trespass generally requires a physical invasion of land.

• Nuisance involves substantial and unreasonable interference with the use and enjoyment of land.

A private nuisance interferes with a particular person’s use and enjoyment of private property.

A public nuisance interferes with rights shared by the general public or a substantial portion of the community.

A private person generally must show a special injury that is different in kind from the harm suffered by the public generally.

It is an intentional interference with another person’s possession or use of movable personal property.

Personal property includes movable items, such as:

• Vehicles

• Equipment

• Furniture

• Electronic devices

• Other personal possessions

Conversion is an intentional exercise of dominion or control over another person’s personal property that seriously interferes with the true owner’s rights.

Examples may include:

• Taking the property

• Selling it without authority

• Destroying it

• Refusing to return it

• Using it in a manner seriously inconsistent with the owner’s rights

The defendant may be required to pay the property’s full value. This is sometimes described as a forced sale of the property to the defendant.

Conversion requires a serious interference. Minor damage or temporary interference may support recovery for the actual damage but may not justify payment of the property’s full value.

It occurs when a defendant knowingly and improperly causes a party to breach a valid existing contract.

The claim generally involves:

1. A valid contractual relationship

2. The defendant’s knowledge of the relationship

3. Intentional and improper interference

4. A breach or disruption

5. Resulting damage

No. Hiring a competitor’s employee is not automatically wrongful.

It may become tortious when the hiring party intentionally induces the employee to breach an existing contract and acts with the purpose of injuring the original employer.

Disparagement involves false and unprivileged statements that harm another person’s or business’s economic interests.

1. Slander of title
2. Slander of quality

Slander of title involves false statements that cast doubt on another person’s ownership or legal interest in property.

Slander of quality involves false statements concerning a product’s:

• Characteristics

• Condition

• Safety

• Fitness

• Usefulness

• Quality

It may be called trade disparagement or trade libel.

Intentional misrepresentation, or fraud, occurs when a defendant knowingly or recklessly makes a material false statement to induce another person’s reliance, resulting in loss.

1. A material misrepresentation
2. Knowledge of falsity or reckless disregard for the truth
3. Intent to induce reliance
4. Justifiable reliance by the plaintiff
5. Resulting damages

It is a false statement important enough to affect a reasonable person’s decision.

Scienter is the defendant’s knowledge that the representation is false or the defendant’s reckless disregard for whether it is true.

The plaintiff’s loss must result from acting on the false statement. If the plaintiff did not rely on it, the statement generally did not cause the loss.

The loss-of-bargain rule measures damages by comparing:

• The value the property would have had as represented; and

• The property’s actual value

$$\text{Loss-of bargain damages}=\text{Represented value}-\text{Actual value}$$

Example:

If an item was represented as worth $900 but was actually worth $300:

$900−$300=$600

The loss-of-bargain amount is $600.

Palming off is the marketing of goods in a manner likely to cause consumers to believe that the goods came from another producer.

It may involve copying or imitating another product’s:

• Name

• Label

• Packaging

• Shape

• Appearance

• Trade dress

Secondary meaning exists when consumers associate a product’s distinctive appearance, name, or packaging with a particular producer.

A trademark is a word, name, symbol, design, or similar identifier used to identify the source of goods and distinguish them from the goods of other businesses.

Trademark law helps:

• Identify the source of goods

• Distinguish competing products

• Protect business goodwill

• Prevent consumer confusion

Trademark infringement occurs when someone uses a mark in a manner likely to confuse consumers about the source, sponsorship, or approval of goods.

Not necessarily. A confusing use may constitute infringement even if the user did not deliberately intend to deceive consumers.

A patent provides exclusive rights concerning a qualifying invention or design for a limited period.

A utility patent generally lasts 20 years from the date of application.

Patent infringement is the unauthorized manufacture, use, sale, or other legally prohibited exploitation of a patented invention.

Copyright protects original expression fixed in a tangible medium.

Examples may include:

• Books

• Articles

• Music

• Photographs

• Artwork

• Recordings

• Other original creative expression

No. Copyright protects the original expression of an idea rather than the abstract idea alone.

Protection generally begins when an original work is fixed in a tangible medium.

Copyright infringement is the unauthorized copying, distribution, performance, display, or other protected use of a copyrighted work.

Fair use permits certain limited uses of copyrighted material without the copyright owner’s permission.

No. Fair use depends on the circumstances and does not authorize unrestricted copying of an entire protected work.

A trade secret is confidential business information that provides an economic advantage because it is not generally known.

Trade secrets may include:

• Formulas

• Methods

• Processes

• Customer information

• Business strategies

• Confidential technical information

The business must generally take reasonable measures to maintain the information’s secrecy.

Misappropriation is the improper acquisition, disclosure, or use of another business’s protected confidential information.

No. Proper reverse engineering generally is distinguishable from obtaining information through theft, espionage, or a breach of confidentiality.

Negligence is conduct that falls below the standard of care required to protect others from unreasonable risks of harm.

1. Duty of care

2. Breach of duty

3. Factual cause

4. Harm

5. Scope of liability or proximate cause

A duty of care is a legal obligation to act with the level of care required under the circumstances.

The reasonable-person standard.

It is an objective standard that asks how a reasonably careful and prudent person would have acted under similar circumstances.

No. It is generally objective rather than based solely on what the particular defendant believed was reasonable.

No. A person generally cannot avoid negligence liability merely because of limited intelligence, poor judgment, or personal inexperience.

Yes. A person with a physical disability may be compared with a reasonable person who has a similar disability.

Yes. A person with specialized knowledge or professional skill may be expected to use that knowledge or skill reasonably.

No. Under the general rule, a person does not have an affirmative duty to rescue an unrelated stranger.

A duty may arise when:

• A special relationship exists

• The defendant created the danger

• A statute requires assistance

• The defendant voluntarily begins a rescue

• Another legally recognized exception applies

The person generally must act with reasonable care and should not abandon the effort in a way that leaves the victim in a worse position.

A business generally owes customers reasonable care to inspect the premises and correct or warn about dangerous conditions.

Customers are invited onto the premises for a purpose connected with the business owner’s activities or economic benefit.

The landowner should reasonably:

• Inspect the premises

• Discover dangerous conditions

• Correct dangerous conditions

• Warn invitees when correction is not reasonably possible

Actual notice means the owner or business actually knew about the dangerous condition.

Constructive notice means the condition existed long enough, or was sufficiently apparent, that a reasonable inspection should have discovered it.

No. The plaintiff must generally establish that the store created the condition or had actual or constructive notice and failed to respond reasonably.

Yes. A business may be required to take reasonable precautions against foreseeable harmful conduct by customers, guests, or other third parties.

A breach occurs when the defendant’s conduct falls below the applicable standard of care.

No. A sudden and genuinely unforeseeable medical emergency may show that the defendant did not act unreasonably.

Continuing a dangerous activity despite a known risk may constitute a breach of duty.

Negligence per se is a doctrine under which violating a safety statute or regulation may establish the defendant’s breach of duty.

The plaintiff generally must show:

1. The defendant violated a statute or regulation.

2. The plaintiff belonged to the class the law intended to protect.

3. The injury was the type the law intended to prevent.

4. The violation contributed to the injury.

No. The purpose of the law must relate to the injured person and the type of injury that occurred.

Example:

Violation of a law requiring a safety guard may support negligence per se when the missing guard causes the type of injury that the law was designed to prevent.

The violation may not constitute negligence per se if the ordinance was intended to regulate business hours rather than prevent slip-and-fall injuries.

Factual cause determines whether the defendant’s conduct actually contributed to the plaintiff’s injury.

The test asks whether the harm would have occurred but for the defendant’s conduct.

If the injury would not have occurred without the defendant’s conduct, that conduct may be a factual cause of the injury.

It means “the thing speaks for itself.”

It may permit the fact-finder to infer negligence from the circumstances when direct evidence of the defendant’s specific careless act is unavailable.

It may apply when:

• The event ordinarily would not occur without negligence.

• The defendant controlled the relevant instrumentality or process.

• The plaintiff did not cause the event

Finding a foreign contaminant inside a sealed food container may allow an inference that negligence occurred during production, even if the consumer cannot identify the precise careless act.

The plaintiff must prove a legally recognized injury or loss.

Depending on the circumstances, harm may include:

• Physical injury

• Property damage

• Financial loss connected to a recognized injury

• Other legally protected damage

Scope of liability determines whether the defendant should be legally responsible for the particular consequences of the negligent conduct.

Proximate cause.

It limits liability to injuries that are sufficiently connected to and reasonably foreseeable from the defendant’s conduct.

No. Liability generally does not extend to highly extraordinary, remote, or unforeseeable consequences.

An intervening cause is an event that occurs after the defendant’s conduct and contributes to the plaintiff’s injury.

A superseding cause is an unforeseeable intervening event that breaks the legal chain of causation and may relieve the original defendant of liability.

Yes. An unforeseeable intentional criminal act by a third person may be treated as a superseding cause.

If the criminal conduct was reasonably foreseeable, it may not break the chain of liability.

Contributory negligence is the plaintiff’s failure to exercise reasonable care for the plaintiff’s own safety.

In jurisdictions following the traditional rule, the plaintiff’s contributory negligence may completely bar recovery.

Comparative negligence allocates damages according to the plaintiff’s and defendant’s respective percentages of fault.

The plaintiff’s damages generally are reduced according to the plaintiff’s share of responsibility.

• Contributory negligence may completely bar recovery.

• Comparative negligence generally reduces recovery according to fault.

Assumption of risk applies when a plaintiff knowingly and voluntarily encounters a recognized danger.

The plaintiff must understand the nature of the particular risk and voluntarily choose to accept it.

No. The acceptance must be informed and voluntary.

Strict liability is liability imposed without requiring proof of intent or negligence.

The law may assign the costs of certain unusually dangerous activities to the person who chooses to conduct them, even when that person exercises reasonable care.

It is an activity involving a serious risk of harm that cannot be completely eliminated through reasonable care.

Using explosives or blasting in a populated area may qualify.

Generally, no. Driving is a common activity whose risks ordinarily can be controlled through reasonable care, so negligence principles usually apply.

The keeper may be strictly liable for injuries resulting from the animal’s dangerous characteristics.

Not necessarily. Strict liability may apply regardless of the precautions taken.

Liability may depend on whether the owner knew or should have known of the particular animal’s dangerous or vicious propensity.

Workers’ compensation is a statutory system that provides established benefits for qualifying work-related injuries without requiring the employee to prove employer negligence.

The employee generally must show that the injury arose from and occurred in connection with employment.

The employee may receive benefits without proving that the employer acted negligently.

Depending on the applicable law, benefits may include:

• Medical expenses

• Wage-replacement payments

• Disability benefits

• Death benefits for qualifying dependents

For injuries covered by the system, workers’ compensation generally serves as the employee’s exclusive remedy against the employer, subject to statutory exceptions.

Products liability concerns the legal responsibility of manufacturers, sellers, and sometimes lessors for injuries caused by defective products.

1. Negligence
2. Breach of warranty
3. Strict products liability

The plaintiff must show that the defendant failed to exercise reasonable care in matters such as:

• Designing the product

• Selecting materials

• Manufacturing or assembling it

• Inspecting or testing it

• Providing warnings or instructions

The focus is on the defendant’s conduct and whether the defendant exercised reasonable care.

No. Modern products liability law generally does not require direct contractual privity between the injured user and the manufacturer.

It is a claim that the product did not conform to an express or implied assurance concerning its quality, condition, safety, or fitness.

The plaintiff generally must show:

• An applicable warranty existed.

• The product failed to conform to the warranty.

• The failure caused injury or loss.

Strict products liability may hold a commercial seller responsible for harm caused by a defective and unreasonably dangerous product without requiring proof of negligence.

The principal focus is the condition of the product rather than the manufacturer’s level of care.

The plaintiff generally must establish:

1. The product was defective.

2. The defect made the product unreasonably dangerous.

3. The defect existed when the product left the defendant’s control.

4. The product reached the user without a substantial change.

5. The defect caused the injury.

No. Proof that the manufacturer failed to exercise reasonable care is not ordinarily required under strict products liability.

Yes. The exercise of reasonable care is not necessarily a complete defense if the product was defective and the other strict-liability requirements are met.

Under this approach, a product may be defective when it fails to meet an ordinary consumer’s reasonable expectations concerning safety.

1. Manufacturing defect
2. Design defects
3. Inadequate warnings or instructions

A manufacturing defect occurs when a particular product departs from its intended design.

No. It may affect only one unit or a limited number of units produced incorrectly.

A machine leaving the factory without a component required by its intended specifications may contain a manufacturing defect.

Yes. Under strict products liability, the focus is on the defective condition of the individual product.

A design defect exists when the product was manufactured as intended, but the intended design itself creates unreasonable safety risks.

A design may be defective when a reasonable alternative design could have reduced or avoided foreseeable risks.

• A manufacturing defect means the product departed from its intended design.

• A design defect means the intended design itself was unsaf

Yes. If every unit follows the same unsafe design, the defect may be present throughout the product line.

A warning defect exists when a product does not provide adequate warnings or instructions concerning foreseeable and nonobvious dangers.

An adequate warning should reasonably:

• Identify the danger

• Explain its seriousness

• Tell users how to avoid the risk

• Be noticeable and understandable