National Paralegal College

Fundamentals of Tort Law

By: Eric Baime

Tort law seeks to provide reimbursement to members of society who suffer losses because of the dangerous or unreasonable conduct of others. Torts may be either (1) intentional, (2) negligent, or (3) in strict liability. The word “tort” means “wrong”, and originally evolved from the writs of trespass and trespass on the case. While each act involved the actor, or tortfeasor, directly causing injury to a victim, one of the many drawbacks to the writ system was that it lacked any comprehensive underlying theoretical basis. In the 1800s, as the writ system was being replaced with the more modern forms of pleading, American law professors and judges began to develop a basic theory for tort law based on fault.

Tort law, in essence, establishes standards of conduct for all members of society. It defines as civil wrongs the following antisocial behaviors: (1) intentional interference with one’s person, reputation, or property (intentional torts), (2) the failure to exercise reasonable care (negligence), and (3) in some circumstances, liability without fault (strict liability). In a nutshell, tort law is a method by which an injured person can attempt to shift the costs of harm to another person. Because the plaintiffs in tort cases are usually seeking money damages, tort actions that are not settled prior to trial are generally tried to juries. Many courts believe, in fact, that the constitutional right to trial by jury is an inextricable part of tort law and that it is inappropriate, if not unconstitutional, to hamstring a jury in its determination of the amount of potential awards for a plaintiff.

Intentional torts are based on willful misconduct or intentional wrongs. It is important to remember, however, that the intent is not necessarily a hostile intent or even a desire to do serious harm. A person acts intentionally if he or she has a conscious desire to produce consequences the law recognizes as tortious, or wrongful. Thus, a person who has no conscious desire to cause the consequences, but is aware that the consequences are highly likely to follow, can also be found to have acted intentionally.

Assault is an intentional tort when one is placed in reasonable apprehension of an intentional, imminent, unconsented, harmful, or offensive touching by another person. Assaults occur when the targeted person’s anxiety is the product of the actor’s threatening conduct, such as stalking or placing a gun in front of one’s face (loaded or not). As long as the individual has a reasonable apprehension of some offensive contact, an assault has occurred. A battery is defined as an unpermitted, unprivileged, intentional contact with another’s person. This tort includes contact that is actually harmful, as well as conduct that is merely offensive. Unlike with an assault, it is not essential that the plaintiff be conscious of the contact at the time it occurs.

Conversion is an intentional tort which allows owners of tangible personal property to regain possession of their property from other persons who have dispossessed them. Any unauthorized act that deprives an owner of possession of his or her tangible personal property is conversion. Because conversion is considered a forced sale, the defendant must pay the full value, not merely the amount of the actual harm. Trespass to land, in contrast, occurs when someone makes an unauthorized entry on the land of another. In fact, the law’s protection of the exclusive possession of land is not limited to the surface of the real property, but extends both below and above it. While trespass may also occur to personal property, most of the interference with the possession of personal property would be considered conversion rather than trespass.

Malicious prosecution is an intentional tort that provides target individuals with civil remedies against persons who have filed groundless complaints against the target that result in the target’s criminal prosecution and now civil complaints. The plaintiff in a malicious prosecution suit must prove that the defendant acted maliciously and without probably cause in instituting a criminal prosecution.

False imprisonment is an intentional tort that provides target individuals with civil remedies against those who unlawfully deprive them of their freedom of movement. Plaintiffs must prove that they were intentionally and unlawfully detained against their will for an unreasonable period of time. Most courts, however, have held that plaintiffs must be aware of their confinement while suffering it, or if not, that they must suffer some type of actual harm.

Defamation is an intentional tort that provides targeted individuals with remedies against persons who intentionally make malicious statements that injure the target’s character, fame or reputation. Generally, the truth of the statement is a complete defense in a suit for defamation because true statements are not considered to be malicious. Libel and slander are both forms of defamation. Libel is defamation expressed by print, writing, signs, pictures, and normally, radio and television broadcasting. Slander involves spoken words that have been heard by someone other than the target. Some actions are known as slander per se, or slander in and of themselves. Slander per se consists of especially egregious offenses, including false accusations that another person has contracted a morally offensive communicable disease, and a defamatory expression impacting directly on one’s profession, such as stating that a particular attorney is a crook, or that a doctor is a quack.

Interference with contractual relations is an intentional tort that occurs when a noncontracting party or third person wrongfully interferes with the contract relations between two or more contracting parties. The plaintiff must prove that the defendant maliciously and substantially interfered with the performance of a valid and enforceable contract. The motive or purpose of the interfering party is an important factor in determining liability. Under the intentional tort of infliction of emotional distress, a person has a cause of action when the conduct of the defendant is serious or “outrageous” in nature and causes anguish in the plaintiff’s mind. Recovery for intentional infliction of mental distress is allowed only in situations involving extreme misconduct. Thus, mental worry, distress, grief, and mortification are elements of mental suffering from which an injured person may recover.

According to the intentional tort of invasion of privacy, a suit may involve unwarranted publicity that places the plaintiff in a false light, intrudes into the plaintiff’s private life, discloses embarrassing private facts, or uses the plaintiff’s name or likeness for the defendant’s gain. Courts have ruled that persons that are considered public figures, however, have less protection as society has a right to information of legitimate public interest. As opposed to an action under defamation and its goal to protect one’s reputation, the purpose of an action under invasion of privacy is to protect one’s peace of mind.

Negligence is the unintentional failure to live up to the community’s ideal of reasonable care, having nothing to do with moral care. An individual who has behaved negligently is one who has not lived up to a certain imputed duty or obligation to conform to a certain standard of conduct for the protection of others against unreasonable risk of harm. However, if the defendant could not reasonably foresee any injury as the result of a certain conduct, there is no negligence and thus no liability. The elements necessary for a cause of action under the tort of negligence are (1) a duty or standard of care recognized by law, (2) a breach of that duty or failure to exercise reasonable care, (3) causation resulting from said breach resulting in (4) some harm to the plaintiff. No cause of action in negligence is recognized if any of these elements are absent from the case.

Malpractice, or mala praxis, applies to professional negligence that takes different forms in different fields. Professionals are believed to have a higher degree of knowledge, skills, or experience than a reasonable person and are consequently required to use that capacity. Professionals are required to act as would a reasonably skilled, prudent, competent, and experienced member of that same profession.

There is no actionable negligence unless there is a legal duty of care. However, in the case of legislative acts, plaintiffs must merely establish that they are within the limited class of individuals intended to be protected by the statute. Once it is decided that a statute is applicable, most courts hold that an unexcused violation is conclusive as to the issue of negligence. Thus, it is negligence per se for one to violate a speeding ordinance, and the issue of negligence does not go to a jury, nor are issues of causation relevant. The violation of the ordinance is proof of negligence in itself.

While as a general rule under the common law there is no duty to aid or protect, courts have ruled that when a special relationship is found to exist, there comes with that a duty to aid or protect another. Such a relationship exists in regard to parent and child, lifeguard and swimmer, bartender and patron, counselor and camper, and many, many others. In addition, if one puts another in peril, assumes a duty through contract, or begins to assist and then backs out, one has a duty to aid and if breached, an action for negligence could and likely would ensue. Thus, although persons seeing another in distress may have no obligation to be Good Samaritans, if they choose to do so, they incur the duty of exercising ordinary care.

The ordinary principles of negligence do not govern occupiers’ liability to those entering their premises. Thus, the duty the land occupier or possessor in title owes to a trespasser is less than the duty the possessor owes to the general public under the ordinary principles of negligence. The amount of duty owed by possessors in terms of importance is first to (1) invitees, then (2) licensees, and finally the very lowest of duties is owed to (3) trespassers.

An invitee is either a public invitee or a business visitor. A public invitee is a member of the public who enters land for the purpose for which the land is held open to the public, for example, a customer who enters a store. A business visitor enters land for a purpose directly or indirectly connected with business dealings with the possessor of title. A landowner owes the invitee a duty to exercise ordinary care under the usual principles of negligence liability.

One who enters or remains on land by virtue of the possessor’s implied or express consent is a licensee, for example, a door-to-door salesman or a social guest, such as a neighbor entering the property for a purely social purpose. Police officers and firefighters are also usually classified as licensees. While a possessor of land generally owes the licensee only the duty to refrain from willful or wanton misconduct, the possessor is under a duty to give warning to licensees of known dangers.

trespasser is one who enters and remains on the land of another without the possessor’s expressed or implied consent. Licensees or invitees may become trespassers when they venture into an area where they are not invited or expected to venture, or if they remain on the premises for longer than necessary. The only duty that is owed to a trespasser by an occupier of the land is to refrain from willful or wanton misconduct. However, in regard to an adult trespasser whose presence has been discovered or who habitually intrudes on a limited area, there is still owed a duty of reasonable care. In relation to a child trespasser, who may be enticed to enter upon a property to swim in a pool or jump on a trampoline, there is also owed a duty of reasonable care.

For the plaintiff to support a negligence action there must be a reasonable connection between the negligent act of the defendant and the damage suffered by the plaintiff. For tort liability, however, proof of factual causation is not enough. Tort liability is predicated on the existence of proximate cause, which consists of both: (1) causation in fact, and (2) foreseeability. A plaintiff must prove that his or her injuries were the actual or factual result of the defendant’s actions. Causation in fact may be established directly or indirectly, but there still must be foreseeability.

Courts normally use a “but for” test to establish causation in fact. But for the defendant’s alarm not going off, the defendant would not have gotten into the accident with the plaintiff. In addition to this element, of course, there must also be a foreseeability element to fully establish proximate cause. Thus, the question before the court in a negligence case is whether the conduct has been so significant and important a cause that the defendant should be legally responsible. In most instances, then, causation in fact alone will not suffice for liability.

To account for the many factual variations that will inevitably occur with accidents and instances of negligence, the law has found that for an appropriate and legitimate allowance for causation, there must be some boundary set for the consequences of an act. Therefore, an individual is only responsible for those consequences that are reasonably foreseeable, and will be relieved of liability for injuries that are not reasonably related to the negligent conduct. We found that the court, in West v. East Tennessee Pioneer Oil Co., 172 S.W.3d 545 (Sup. Ct. Tenn. 2005) ruled that a duty of care was created when employees at a gas station allowed and assisted a clearly inebriated customer to gas up his car, which led to a serious accident shortly thereafter. The court reasoned that the foreseeable probability of harm vastly outweighed the burden or duty that the court was placing on the defendants, which was to merely to refrain from allowing and assisting the motorist to fill up his car.

Contributory negligence is a defense that exists when the injured persons proximately contributed to their injuries by their own negligence. When proven, contributory negligence will usually bar any recovery by the plaintiff. The defense of assumption of the risk occurs when the plaintiffs had knowledge of the risk and made the free choice of exposing themselves to it. For example, baseball fans who sit in unscreened seats at the ballpark know that the balls and even bats may strike them. Thus, they implicitly agree to take a chance of being injured in this manner.

A major shortcoming of contributory negligence, however, is that the entire loss is placed on one party even when both are negligent. For this reason, most states now utilize a comparative negligence standard, where total liability is determined by comparing the amount of negligence on behalf of the plaintiff with the amount of negligence on behalf of the defendant. Under the doctrine of comparative negligence, a negligent plaintiff may be able to recover a portion of the cost of an injury. Specifically, comparative negligence divides the damages between the parties by reducing the plaintiff’s damages in proportion to the extent of the person’s contributory fault. Thus, in a pure comparative negligence jurisdiction, a plaintiff adjudged 80% responsible for his injuries would still be able to collect 20%, while in a contributory negligence jurisdiction; such a plaintiff would be awarded nothing.

Plaintiffs can also recover in negligence by proving that a manufacturer’s conduct violated the reasonable person standard and proximately caused injury. In product liability suits, it is often difficult to prove the defendant’s act or omission that caused the plaintiff’s injury. Thus, in the interests of justice, courts developed the doctrine of res ipsa loquitor (“the thing speaks for itself”). This doctrine permits plaintiffs to circumstantially prove negligence if the following facts are proved: (1) the defendant had exclusive control over the allegedly defective product during manufacture, (2) under normal circumstances, the plaintiff would not have been injured by the product if the defendant had exercised ordinary care, and (3) the plaintiff’s conduct did not contribute significantly to the accident.

While res ipsa loquitor does not necessarily lead to definitive proof of negligence, it does permit jurors to infer a fact for which there is no direct, explicit proof – the defendant’s negligent act or omission. Specifically, the trial judge will instruct the jurors that the law permits them to consider the inferred fact as well as the proved facts in deciding whether the defendant was negligent.

Imputed negligence results when one person (the agent) acts for or represents another (the principal) by the latter’s authority and to accomplish the latter’s ends. A common example is the liability of employers for the torts that employers commit in the scope of their employment. Generally, an employee would not be within the scope of employment if (1) the employee is en route to or from home, (2) if the employee is on an undertaking of his own, (3) if the acts are prohibited by the employer, or (4) if the act is an unauthorized delegation by the employer. While employers are not usually liable for the acts of independent contractors, there are certain exceptions to this nonliability, for example, if an employer is negligent in hiring a contractor who assigns a nondelegable duty.

Under a modified no-fault liability statute, an injured person normally has no right to file suit to recover money damages for personal injuries and lost wages below a statutorily specified threshold. Instead, the injured party is compensated by his/her own insurance company. The effect of these statutes has been to reduce the cost of automobile insurance by saving litigation costs, including attorneys’ fees, and by allowing little or no recovery for the pain and suffering and emotional stress that accompany an automobile accident.

In addition to intentional torts and negligence, there is a third type of tort called strict liability or absolute liability. This imposes liability on defendants without requiring any proof of lack of due care. Strict liability in tort is applied in cases involving what the common law recognized as abnormally dangerous activities and, more recently, in product liability cases.

One who is involved in abnormally dangerous activities is legally responsible for harmful consequences that are proximately caused. A few illustrative dangerous instrumentalities commonly associated with dangerous activities include poisons, toxic chemicals, explosives, nuclear fuel and waste, and vicious animals.

Product defects include defects in design, manufacturing defects, and warning defects. A person who has been injured by a product defect may be able to recover based on strict liability, as well as breach of warranty and negligence. In fact, much of the use of strict liability in product liability cases occurred because of dissatisfaction with the negligence and warranty remedies. It was argued that if consumers too often bore the brunt of all injuries, then it would be more economically prudent to shift the cost of injuries to manufacturers, since manufacturers could purchase insurance and could distribute the costs of the premiums among those who purchased their products.

In contrast to the plaintiff who relies on breach of warranty and negligence remedies, a plaintiff who relies on strict liability has to prove that the product was unreasonably dangerous and defective and that the defect proximately caused the injury.

As plaintiff’s injuries continue to mount, there have been increased arguments for tort reform, focusing on limitations or caps placed on jury awards. Specifically, many advocates of reform believe that trial attorney greed is at the core of the problem, while others assert that the high rewards are directly responsible for our seemingly unstoppable increases in health care costs. On the other hand, opponents point out that these reforms seek to arbitrarily deny injured people the awards that they are entitled to and, in fact, the damage awards are large only in cases in which the injuries are horrific and the tortfeasor’s liability is great.

As a result of the increasingly divisive battle to engage in tort reform, many states have tried to lower jury awards by statutorily establishing ceilings on recoveries for noneconomic damages such as pain and suffering. Proponents of tort reform often urge lawmakers to establish financial “caps” on the amount of damages a successful tort plaintiff can receive. The rationale generally given is that doctors cannot afford to pay the cost of malpractice insurance premiums and that establishing ceilings on damage awards will reduce the overall cost of medical care. As we learned in Atlanta Oculoplastic Surgery v. Nestlehutt, 286 Ga. 731 (2010), however, such caps may be ruled as unconstitutional in abridging or infringing on the plaintiff’s constitutional right to a jury trial.

©2014- 2017, National Paralegal College

National Juris University, the graduate division of National Paralegal College, offers the following programs:

Master of Science in Legal Studies
Master of Science in Compliance Law
Master of Science in Taxation