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Types of Torts

There are three broad categories of torts:

· intentional torts—Intentional torts, as the name implies, are characterized by the mental intent of the tortfeasor. The tortfeasor undertakes an activity with either the desire to bring about an intended result or with the knowledge that the result is “substantially certain." When the action results in an identifiable harm or loss to a third party, it constitutes an intentional tort. If one person physically batters another person by punching him in the face. This is an intentional tort because the individual intended her actions and the probable result.

· negligence—Negligence is conduct by an individual that drops below a reasonable standard of care and causes harm to another person. Succinctly, an individual has a duty to act reasonably when interacting with others. When that individual fails to act reasonably and thereby causes harm to others, that individual is negligent. A person who is driving too quickly, following too closely, or not paying close attention may be negligent if her careless behavior results in an automobile accident.

· strict liability—Strict liability subjects an individual to liability for activity that causes harm to another without regard for her intent or the standard of care she shows in carrying out that activity. That is, simply undertaking the activity that results in harm is sufficient to make the actor liable. The injured party is not required to demonstrate the actor’s intent or the level of care they exercised in undertaking the activity. A person who deals in very hazardous material, has a vicious or wild animal, or takes part in the production or sale of an unreasonably dangerous product may be liable if her activity causes injury to someone. It does not matter that the person did not intend to harm anyone or that the person took extra precautions to not harm anyone. These activities alone are enough to subject the person to liability.

Ask Yourself

· Why do you think that torts are generally categorized based upon the mental state of the tortfeasor? Should the mental state of the tortfeasor affect the severity of the potential liability for the tort? Why or why not? How should the intent of the tortfeasor be compared against the result of the tort when determining the liability of the tortfeasor?

· Doug is speaking with his friend Annie about an unfortunate accident involving her pet dog. Her pit bull bit the mailman, apparently mistaking him for an intruder. The mailman is now suing Annie. Annie says that she is going to trial to contest her liability because her dog broke out of its cage and it wasn’t her fault. Animal bites are strict liability torts in Annie’s state. What does Annie need to know before going to trial?

Fraud

Fraud is the intentional misrepresentation of a material fact that is justifiably relied upon by someone to his or her injury. The false statement inducing the other party’s misunderstanding must regard a material fact about the prospective transaction. Fraud often involves intentional misrepresentations regarding ownership of property or one’s financial status.

Fraud may be an intentional failure to disclose a material fact that induces another into action which results in her harm. This may be the case when a legal duty to disclose the material fact exists. Lying about assets or liabilities in order to get credit or a loan is a common form of fraud.

Ask Yourself

· How do feel about the requirement that fraud be intentional? Should a misrepresentation that is reckless and unverified be considered fraudulent, even if it is not intentional? Why or why not?

· Daryl is selling a poster bearing the signature of a known celebrity athlete. Daryl advertises that the poster is 15-years old and was signed when the athlete was a rookie. In reality, the poster was signed recently, following the athlete’s retirement. If someone buys the poster based upon Daryl’s representations, is there a tortious act? Why or why not?

Negligence

Negligence is unreasonable behavior that causes injury to another person or business.

Five elements make up a claim for negligence:

· existence of a duty of care owed by the defendant to the plaintiff

· unreasonable behavior by the defendant that breaches the duty of care

· causation in fact

· proximate causation

· an actual injury

Ask Yourself

· What are the core differences between intentional torts to negligence actions? How does the existence of a duty to act reasonably compare to intentional activity with a specific mens rea attributable to the activity?

· Luther is driving through a parking lot and listening to music through his headphones. He inadvertently runs into Sandra, who is walking through the parking lot. What type of legal action potentially exists in this scenario?

Legal Duty

The first element of a negligence tort is establishing the nature and extent of the defendant’s duty to the plaintiff. A duty generally arises pursuant one’s conduct or activity, such as assuming a position of authority, control, or other special relationship with someone. Any form of activity in the presence of or otherwise affecting a third party gives rise to a duty of care. A special relationship between individuals may include: parent-child, doctor-patient, attorney-client, etc. The extent of a person’s duty to others is based upon the nature (or genesis) of that duty. Once the nature of the duty is determined, the individual owing the duty must use reasonable care and skill in her actions. That is, an individual must act reasonably in a given situation (based upon the nature of the duty owed) to avoid causing harm to those to whom she owes a duty. The greater the risk or potential harm to others, the greater the level of care required to meet the duty owed.

An individual who decides to drive an automobile owes a duty of care to other motorists and pedestrians. An individual walking on the sidewalk with others owes a duty not to walk carelessly and bump into others.

Ask Yourself

· How do you feel about the duty to act reasonably? What level of interaction between individuals gives rise to a duty? What types of factors should contribute to the establishment and strength of the duty between individuals?

· Eric is a lifeguard by profession. He is taking a leisurely strong along the lake when he notices a person in distress. Does Eric have a duty to attempt to rescue the individual drowning individual?

Unreasonable Behavior and Breach of Duty

Negligence entails unreasonable behavior that breaches the duty of care that the defendant owes to the Plaintiff. This standard is known as the “reasonable person” standard. Whether conduct is unreasonable is a mixed question of law and fact. The duty of care exists under the law, but the determination of what is reasonable may be unreasonable in another situation. In determining whether conduct is unreasonable, a court will consider “the likelihood that the defendant’s conduct will injure others, taken with the seriousness of the injury if it happens, and balanced against the interest which he must sacrifice to avoid the risk.” Notably, the reasonable person standard of care is an objective standard based upon the nature of the relationship and the subjective characteristics of the plaintiff.

A professional, such as a doctor, will be held to the standard of a reasonable professional in a given situation. A failure of a professional to act reasonably within the scope of her duties is known as “malpractice." Further, a large person interacting with a small child may owe a higher standard of care to avoid harmful physical contact than a small person interacting with a large person.

Inaction as Unreasonable Behavior

In some situations, inaction may constitute unreasonable behavior. This is true when a special relationship exists or one individual causes the risk of harm to the other person. In such a situation, an individual incurs an affirmative duty to act.

Failing to act drops below a reasonable standard of care.

A mother fails to help her child cross the street. If the child strays into traffic and is injured, the mother’s inaction is negligent in causing harm to the child. A mother is assumed to act in the best interest of her child, such that others will not act assuming the mother will act. I push a non-swimmer into deep water, I now have a duty to act reasonably in preventing that person from drowning. My inaction to rescue her will result in liability.

Gross Negligence, Reckless and Wanton Behavior

Negligence generally entails a simple failure to meet the standard of care owed to others. “Gross negligence," in contrast, is a severe departure from the standard owed.

Say I am rock climbing with a friend. I do not hook our climbing rope in carabiners every 5 feet, as recommended. I think we will make better time if I hook the rope every 15 feet. When my friend slips, he falls 15 feet, rather than 5 feet, before the rope catches him. This causes him to slam very hard into the rock face. This may be an example of gross negligence. I may not have intended the result or appreciated the risk, by my actions fall way below an acceptable standard of care.

“Reckless” behavior demonstrates a complete disregard for the potentially harmful consequences of one’s conduct. It generally requires a defendant to appreciate the nature and severity of the potential harm that may arise from the conduct. Though it does not entail intent to cause the harm, it shows an extreme lack of due care. Such conduct falls below the standard of care owed to other individuals and constitutes negligence. In some jurisdictions reckless conduct is known as “aggravated negligence." The law frequently allows a plaintiff to recover punitive damages as well as actual damages in such situations.

Shooting an arrow up into the air without knowing whether anyone will be harmed by the arrow could be reckless conduct.

Res Ipsa Loquitur and Negligence Per Se

Two situations exist where a defendant may either be held liable without a showing of unreasonable conduct or the unreasonableness of conduct is inferred from the facts of the situation.

· Res ipsa loquitur posits that in some situations the very nature of the accident or situation indicates that conduct of the defendant was negligent. That is, this type of harm would not have occurred in the absence of negligence by someone in the defendant’s position. As such, it is not necessary to demonstrate how a reasonable person would or should have acted in the situation: Tom is walking by a building when a potted plant falls on his head. It is apparent that the potted plant fell from the room of the building where there is a community garden. Ginny keeps a garden and is present in the garden when the plant falls. There is no evidence that Ginny intentionally dropped the plant or that she was negligent in allowing the plant to fall, but this could result in her liability for negligence pursuant to res ipsa loquitur. It is abnormal that a plant would fall from the top of the building unless someone was negligent in her actions causing the resultant harm.

· Negligence per se posits that a failure to meet a standard or guideline, often established by a statute or regulation, means an individual is negligent without examining whether the individual’s conduct in the situation was reasonable: A professional practice group may establish standards of conduct for its employees. If an employee does not comply with that standard, it could be negligence per se. Violating the standards is assumed negligent without a demonstration of how a reasonable person would act. Further, if an individual is involved in a car crash while speeding, the violation of the speed limit may demonstrate negligence per se without a need to show that a reasonable person would not have been driving at that rate of speed.

Ask Yourself

· How do you feel about using the fictional, reasonable person standard to determine whether an individual has acted reasonably? Do you think that the reasonable person standard varies depending upon the fact-finder? Why or why not? Does it surprise you that inaction can constitute unreasonable behavior in some circumstances and not in others? Why or why not? Should reckless and wanton behavior be considered an intentional tort or unreasonable behavior for purposes of liability? Why?

· Eric is a lifeguard by profession. He is taking a leisurely strong along the lake when he notices a person in distress. He begins to swim after the drowning individual. A few feet into the water, he realizes the water is cold. He does not want to get sick, so he quickly gets out of the water and goes on his way. Has Eric committed a tort?

Causation in Fact

In a negligence action, the defendant’s conduct must have caused the injury to the plaintiff. Causation in fact presents the question, “but for” the act of the defendant, would the injury have occurred? This is the broadest aspect of causation, as any number of causes together could have contributed to the injury. The jury must determine whether the defendant’s conduct is a “substantial, material factor in bringing about the injury." If there are multiple defendants, each individual defendant can be held jointly and severally liable for the collective actions of the group.

Ask Yourself

· Can you think of a situation where an individual is a contributor to an outcome, but the outcome would have occurred regardless of the individual’s involvement? Should a person be held liable if a particular damage would have occurred regardless of her involvement in a tortious activity? Why or why not?

· Jessica and five friends are jumping up and down on a trampoline. Terry falls while bouncing, but the other friends continue to bounce. Terry is thrown from the trampoline by the force generated by the other bouncers. Is Jessica’s conduct the cause in fact of Terry’s injury?

Proximate Causation

Proximate causation means that the harm suffered by the defendant was reasonably foreseeable as a result of the plaintiff’s conduct. More specifically, for the type of injury to be foreseeable, the plaintiff must be one whom the defendant could reasonably expect to be injured by a negligence act. Further, the injury must be caused directly by the defendant’s negligence. The relationship between the defendant’s actions and the harm caused cannot be too far removed or tenuous. This may be the case when an unexpected intervening actor or occurrence is involved in bringing about the harm. It would breach the “chain of causation” necessary for finding a defendant negligent. This determination is left for the jury to decide.

Ask Yourself

· How do you feel about the “reasonably foreseeable” standard? What factors should influence what one determines to be reasonably foreseeable? Can you think of scenarios where the outcome would not occur without a person’s involvement, but the outcome is not reasonably foreseeable from her conduct? Should conduct that is reasonably foreseeable to result in a particular outcome give rise to liability, even if the outcome would have occurred without the individual’s involvement? Why or why not?

· Jessica brings a box of fireworks on a train. While she is boarding, she trips and the box of fireworks explodes. The explosion shakes the loading platform violently. At the opposite end of the loading platform, a large vending machine falls over and injures a passenger. Is Jessica the proximate of the passenger’s injury? That is, does bringing fireworks on a train lead to a foreseeable risk that a distant, heavy object will fall over and hurt someone? Or, is the tall, heavy, inherently unstable design of the vending machine an intervening cause that negates proximate causation?

Common Defenses to Negligence Actions

Jurisdictions commonly recognize three principal defenses to negligence actions:

· contributory negligence—This doctrine bars a plaintiff’s recover in a negligence action if her own fault contributed to the injury “in any degree, however slight.” Contributory negligence is only applied in a few jurisdictions and in limited circumstances.

· comparative negligence—Comparative negligence compares the degree of fault assessable against the defendant with that assessable against the plaintiff. The jury is left to access the percentage of negligence between the parties.

· In a pure comparative negligence jurisdiction, the plaintiff can only recover the percentage of damages not attributable to her own fault. If the plaintiff is 90 percent negligent for her loss of $100k, she can only recover $10K from the defendant.

· In a modified comparative negligence state, the plaintiff cannot recover if her negligence is greater than (or “as great as” in some jurisdictions) the negligence of the defendant. If the plaintiff’s negligence is less than 50 percent compared with that of the defendant, she can recover damages. Her recover is reduced, however, by her percentage of negligence.

· assumption of the risk—Assumption of the risk arises when the plaintiff knowingly and willfully undertakes an activity made dangerous by the negligence of another. That is, the plaintiff identifies a potentially harmful situation brought about by the defendant’s conduct, understands the risk associated with the situation, and proceeds to voluntarily expose herself to this risk of harm. This is a defense against any harm suffered by the plaintiff as a result of this exposure. In some situations, the parties can contractually acknowledge certain risks in a given activity. This may have the effect of assuming the risk of any harm suffered as a result of those risks.

Skydiving is an inherently risky activity. Bob hires Plane Jumpers, LLC to instruct him in this activity. Before his first solo jump, Bob signs an acknowledgement of the potential dangers inherent in this activity. Bob is injured when heavy winds cause him to crash while landing. His acknowledgement is likely an assumption of this risk—which may bar his recovery from Plane Jumpers for allegedly negligent instruction for not preparing him for landing in heavy wind.

Ask Yourself

· Which, if any, of the defenses to negligence do you find most compelling? Why?

· Beverly owns a small store. She recently mopped the floor and placed “wet floor” signs all around the area. William is wearing sneakers with small wheels on the sole. These wheels allow him to skate around on smooth surfaces. He approaches the wet floor area and takes notice of the sign. He proceeds to skate across the wet floor, but falls and breaks his ankle. If William sues Beverly, what defenses might she put forward?

Strict Liability?

Strict liability concerns an individual’s legal liability for injury-causing behavior that is neither intentional nor negligent. Basically, an individual will be liable for any harm resulting to a third party from a course of conduct to which strict liability applies. Injuries caused while working with explosives, dangerous animals, product design or manufacturing, and serving alcohol to the public are strict liability torts in most states.

For example, Beth has a business conducting fireworks shows. She is hired to conduct the fireworks display during a 4th of July celebration. During the event, a large firecracker veers into the crowd and explodes. Two people are injured by the explosion and sue Beth. She will be held strictly liable regardless of the amount of care she exerted in orchestrating the show.

Strict Products Liability

Strict products liability involves the commercial sale of defective products. In most states, any retail, wholesale, or manufacturer who sells an unreasonably dangerous, defective product that causes injury to a user of the product is strictly liable. This applies to commercial sellers who normally sell products like the one causing injury or who place them in the stream of commerce, such as suppliers of defective parts and companies that assemble a defective product.

There are two kinds of defects for purposes of strict product liability:

· production defects—A production defect occurs when products are not manufactured to a manufacturer’s own standards. Consumers of the defective product are later injured as a result of this variation from the manufacturer’s standards.

· design defects—A design defect occurs when a product is manufactured according to the manufacturer’s standards but is an unsafe design. The product injures a user due to its unsafe design.

If either of these defects makes the product unreasonably dangerous if used as intended, any seller of the product (from manufacturer to retailer) may be liable for an injury caused by the defective product. Strict products liability is useful in protecting individual consumers who suffer personal injury or property damage.

Ask Yourself

· How do you feel about the fact that anyone in the chain of distribution can be liable for design or manufacture defects? Why do you think the law allows for such wide liability?

· Fancy Motors is a car manufacturing company. They develop a new, compact car for the US market. The car has troubles from the minute it comes off of the assembly line. The gas tank is located behind the fender-well of the vehicle. This leads to an increased risk of fire in the event of a rear-end collision. Also, Fancy Motors installed a seatbelt system that is designed to have three points of contact with the car frame. Due to space concerns and a lack of understanding of the seat belt system, Fancy only attached the seatbelt to the frame in two locations. Can you identify any points of potential liability for Fancy Motors in this scenario?

Other Common Strict Liability Causes of Action

Most states recognize similar types of conduct as subject to strict liability:

· ultrahazardous activity—Courts may impose strict liability in tort for types of activities they call ultrahazardous. This may include activities such as working with explosives, wild animals, or extreme sports.

· dram shop acts—These laws make sellers of alcoholic beverages directly to customers on the seller’s premises liable for harm caused as a result of the consumer becoming intoxicated.

· common carriers—Carriers of cargo on behalf of others may be strictly liable to the owner for any harm suffered by the cargo. Risk of loss, however, may be shifted back on the owner via contract.

Ask Yourself

· How do you feel about the idea that an individual can be held liable for actions without having any intent to achieve a result or knowledge that the action is wrong? What if an individual is intentionally deceived into undertaking activity that entails strict liability?

· Garth has a Rottweiler named Alf. Alf is generally very amiable. She has a buried electric fence that keeps Alf in her yard. One day, Alf sees a bicyclist riding by her house. She runs through the electric fence and bites the bicyclist. What is the likelihood that Garth will be held liable in this situation?

Defenses to Strict Product Liability Actions

The following defenses affect liability in a strict product liability case:

· contributory and comparative negligence—These are generally not defenses to strict products liability actions; though, the negligence of the plaintiff may be used to reduce damage awards.

· assumption of the risk—If a plaintiff knowingly undertakes a dangerous activity to which strict liability applies, she may be barred from recovering from the defendant for harms suffered. Individuals may contractually acknowledge their assumption of any risks in a given activity. In most jurisdictions, however, assumption of the risk may constitute a defense.

· misuse of a product—Strict product liability depends upon an individual use the product as intended by the manufacturer or in an otherwise reasonable manner. This means that the defendant may avoid liability if the injury to the plaintiff was the result of using the product in a manner that is not intended or is cautioned against. Compliance with federal or state standards regarding the manufacture and design of a product is evidence that the product is not defective, but it is not a complete defense. Many states are beginning to adopt a reasonableness standard for design defects, failure to warn, and testing inadequacies. These standards replace the traditional strict liability standard. Handling fireworks while smoking could be an assumption of the risk if the explosive nature of the product is known or expressed to the user. Removing safety guards from equipment is a common misuse that could constitute a defense to strict product liability.

Ask Yourself

· How do you feel about the available defenses to strict product liability actions? Should comparative negligence apply to such actions? Why or why not? Why do you think assumption of the risk is a commonly accepted defense? Should any defense apply differently depending upon who is being sued (manufacturer, distributor, retailer, etc.)? Why or why not?

· Mycroft purchases a new Sherlock model of riding lawn mower from Watson’s hardware. After using the mower once, he decides to remove the cover guard from the top of the mower deck. This makes it easier for him to clean excess trimming from the deck after use. One day, he accidentally sticks his foot in the pulleys and severely injures his foot. If he sues Watson’s and Sherlock, Inc., under strict product liability, what potential defenses apply?

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