1 Unit 5 – Torts ARE 306 I. Definition A tort is a private or personal wrong that has been imposed upon one person by another as a result of an invasion of a legal right or a breach of a legal duty and for which a court will grant monetary damages. A tort does not include the breach of a contractual duty. The wrong can be intentional, unintentional, or, in some cases, without any fault at all by the “wrongdoer.” II. Intentional Torts An intentional tort is a voluntary act where the wrongdoer intended to bring about a specific consequence or where he knows, or should know, that the consequences will occur. When the court finds that a tort was committed intentionally, it will grant not only monetary damages to make right the injury suffered by the plaintiff but may also award punitive (exemplary) damages (compensation in excess of actual damages) to the plaintiff in order to punish the wrongdoer. Some examples of intentional torts are trespass (wrongful interference with the person, property, or rights of another), battery (unwanted touching of another), false imprisonment (illegal confinement), intentional infliction of emotional distress (acts or words intended to shock), defamation (libel or slander) and invasion of privacy (placing a person in a false light, using a person’s name, or publicizing a private life). Some torts are also crimes, and the wrongdoer will be subject to criminal prosecution, which is not for the purpose of compensating the injured party, but rather for punishing the wrongdoer. A tort would be a crime if the wrong was such unacceptable conduct that it interfered with the interest of the public (not just the interest of a private party). III. Negligence The tort of negligence is based on four elements: (1) the defendant owed a duty of reasonable care to the plaintiff; (2) the defendant breached this duty by failing to do what a reasonable and careful person would do under similar circumstances; (3) the breach of duty was the proximate cause of plaintiff’s injury (proximate cause is that which directly caused the specific injury and without which the injury would not have happened); and (4) there was damage to the person or the property of the plaintiff. Negligence can be defined as a failure to do something that a reasonable person would do under similar circumstances. It can also be the doing of some act that a reasonable person would not have done under the same circumstances. This law is based on society’s expectation that everyone will exercise due care in his conduct toward others if it can be foreseen that the conduct might result in an injury. Negligence results from carelessness, thoughtlessness, or inadvertence, rather than from willfulness. If a plaintiff can prove the four necessary elements to establish a claim of negligence, under common law, the defendant may be able to offer a defense that will2 prevent a recovery of damages by the plaintiff. One such defense is called “contributory negligence.” Society also expects a person to exercise due care for the safety of his own self or property. Therefore, if a plaintiff is negligent in caring for himself in preventing the injury, then he cannot recover any damages from the defendant even though the defendant was also negligent. A second defense to negligence under the common law is called “assumption of the risk.” This can be raised when the plaintiff voluntarily assumes a known risk. Instead of a “reasonable person” standard, the judge or jury considers the specific facts and circumstances before denying a recovery of damages to the plaintiff. A modification of the contributory negligence defense is called the doctrine of “last clear chance.” If the defendant had the last chance to avoid the injury but failed to do so, then the contributory negligence of the plaintiff will not prevent the plaintiff’s recovery for damages. This result happens because the plaintiff’s negligence was not the proximate cause of the injury (a necessary element for this tort). Because of the harshness of a complete bar to recovery by the plaintiff under the defense of contributory negligence, many states now have statutes that allow some recovery under the theory of comparative negligence (or comparative fault). The judge or jury compares the negligence of the plaintiff with that of the defendant and divides the damage award between the two parties proportionately. As in most civil actions, the plaintiff must prove by a preponderance of the evidence that all four elements are present for a negligence claim. This is called the “burden of proof.” A preponderance of the evidence means that the jury believes that it is more probable than not that the evidence is true. One way to establish this burden of proof is the use of circumstantial evidence to prove the defendant’s negligence when there is no actual proof available. This theory is called res ipsa loquitur (“the thing speaks for itself”). In order to use this method of proof, the plaintiff must show that: (1) the injury would not ordinarily occur without negligence by someone, (2) the defendant had complete control over the thing that caused the injury and is the only one that knows the facts as they happened, and (3) the plaintiff was not at fault in any way. Under this rule, the court presumes the defendant’s negligence and the burden of proof is shifted to the defendant to show otherwise. IV. Strict Liability As discussed above, there usually must be a finding of fault to establish an intentional tort or negligence. An exception to this is the concept of “strict liability.” Under this exception, a person who engages in an “ultrahazardous activity” or an “abnormally dangerous activity” is liable for all injuries proximately caused by his activity, even if he took the most care possible to prevent such injuries (no proximate cause requirement). Therefore, this is liability without fault. An activity is considered to be ultrahazardous or abnormally dangerous if it involves a high degree of serious harm, the risk cannot be eliminated even with reasonable precautions, and the activity is inappropriate to the place where it is conducted.3 V. Insurance In addition to reducing the risk of tort liability by exercising reasonable care in his activities, a person can also protect himself and his assets from the financial burdens of tort liability with
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