engineering assignment

44 Tort Law

Chapter 3: Tort Law

By John W. Tulac

Introduction

A tort is a civil wrong for which the law provides a remedy.

Everyone is free to do as one wants, provided one does not

interfere with the equal freedom of others. Tort law protects

people and property by imposing reasonable limitations on the

otherwise unbridled freedom to act.

We may have the power to do something, but not the right

to do it under a given set of circumstances. For example, I can

possess a gun and have the power to use it, but I do not have

the right to point it at you and demand your laptop computer.

Every tort arises out of an act or an omission (not acting

when there is a duty to act or acting when there is a duty not to

act).

Act or conduct requirements: What someone should have

done under the circumstances.

Omission requirements: What someone should refrain from

doing under the circumstances. Example: Don’t yell “Fire!” in

a crowded theater when there isn’t a fire. It could cause a

stampede for the exits and people could get hurt.

This Article is at most an outline of the most important

aspects of tort law. You are required to use the Internet to learn

more about torts at web sites such as findlaw.com,

wikipedia.com and nolo.com. These are examples. Run a

search for different terms. There is a wealth of free information

available.

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The Role of the Design Professional In Society 45

Classification of Torts

Torts are classified as intentional, negligent, and strict.

Torts can be further classified as acts harmful to persons, acts

harmful to property, or acts harmful to both.

Intentional Torts

An intentional tort is one that is purposely done. The

actor’s intent does not actually have to be to cause actual harm.

It is sufficient that the person doing the act acted deliberately

and knew or should have known that the act was likely to cause

harm.

Examples of intentional torts:

• Assault

• Battery

• Conversion

• Defamation

• Fraud

• Intentional Infliction of Emotional Distress

• Invasion of Privacy

• Nuisance

• Sexual Harassment

• Trespass to Property

“Intentional torts” require that the plaintiff prove the

element of intent.

There are two types of rules to define intent:

1. Doing an act for the purpose of causing the

consequences. Yes, I did it and I’m glad I did.

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46 Tort Law

2. Doing an act that creates a substantial probability

(or substantial certainty) of causing the damages.

A person is presumed to have intended the natural and

probable consequences of his or her conduct. This presumption

is rebuttable.

Distinguish proof of motive from proof of intent. Motive

addresses why someone acted. Intent addresses the mental

state associated with the act or omission.

Each intentional tort is comprised of other elements in

addition to intent. Every element must be proved or the cause

of action for that particular tort fails. We will not be studying

intentional torts and their elements in this class. We will focus

only on the torts of negligence, professional negligence and

strict/product liability.

Negligence

A negligent act is one that is done carelessly, recklessly,

thoughtlessly, or foolishly and results in harm. The actor did not

intend to cause harm, but should have known better than to act

that way.

We do a lot of stupid things, but most of the time we don’t

cause any harm to ourselves or to others or to property. You’ve

heard the phrase “No harm, no foul.” Negligence is like that.

Strict Liability

Under certain circumstances, liability can be absolute if a

harm or loss results, regardless of intent or the amount of

caution or control we used. Certain activities are ultra-

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The Role of the Design Professional In Society 47

hazardous, but nevertheless have sufficient beneficial effects

that we do not want to ban them outright. We permit such

activities but hold the operator strictly liable for any resulting

harm or loss. This is known as strict liability.

Using nitroglycerine is an example of strict liability.

Product liability is an example of strict liability.

Negligence

Elements of the Plaintiff’s Cause of

Action for Negligence or

Professional Negligence

1. Duty

2. Breach of Duty

3. Causation

4. Damages

All elements must be proved to establish that someone is

negligence. If an element is not proved the defendant wins. If

plaintiff provides evidence in support of each element, the

plaintiff has established a prima facie case of negligence. The

burden of proof then shifts to the defendant to show by way of

affirmative defense why defendant should prevail.

We will now examine each element of negligence in detail.

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