Legal three

[Student Name] 1L

[student email address] Torts

[date] Midterm Mini Thesis Paper

Introduction

Tort law is, to me at least, one of the most mysterious branches of the law. Not

only is it a broad category, it is also an ambiguous one: until you spend time studying

tort law comprehensively, it is hard to pin down exactly what it entails. For this reason,

studying tort law as a law student is one of the most interesting and rewarding activities

I’ve undertaken. The historical evolution of what constitutes a tort is a fascinating

illustration of the common law as a whole (its ability to, over time, both broaden and

make narrow the meaning of terms and concepts into understandable legal

proceedings). Moreover, once one understands what a tort is, the ability to counsel

others on their rights and possible remedies for injuries becomes very valuable. As

such, in this paper I attempt to lay out my understanding of tort law in general (clarifying

what ties many different types of actions together under one common umbrella term),

clarify some of the important historical developments that have led to the modern tort

law in the common law tradition, and finally look at a few specific examples of possible

tort claims I have seen in the past year while studying tort law.

What is tort law, anyway?

If contract law is a subset of the law that first-year students feel like they

“intuitively understand” (rightly or wrongly!), tort law is the exact opposite. Unless you’re

a lawyer, you’ve probably never heard the term “torts,” and even if you have, you

probably have no idea what it means. This is not altogether terribly surprising: “tort law”

is really a collection of a few very different types of legal wrongs that have been

collected under a common name more to distinguish them from other branches (such

as criminal, constitutional, or contract law). In short, torts are a collection of some of the

most common aspects of civil law, and cover intentional torts, torts of negligence, strict

liability and product liability, and defamation.

What these areas have in common are a few things. For one thing, they are all

“wrongs” - they are actions (or inactions) that have caused damage of some kind.

Indeed, this is the root of the wort “tort” (from the French “tort,” meaning “wrong” or

“injury.”) But while many behaviors are wrong, not all wrongs are torts. Some wrongs

are criminal wrongs, other wrongs are moral wrongs. What makes torts torts are a

collection of attributes they have, which can be summarized as having “Civil, Injurious,

Relational, Legal” qualities.

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“Civil” means that torts are not criminal, and not moral or religious. This

distinction matters both historically and contemporaneously. In a historical sense, “civil”

is a reminder that the earliest courts in England were religious (clerical) and involved

judgments based on religious principles, usually administered by officials from the

Catholic church. As tort law evolved, it was explicitly a secular, civil approach to the law,

not one based on religious texts or principles. In the present, the distinction o f “civil”

primarily means that the parties in a legal dispute are citizens (or corporations), and

rarely involve the state. Where the state is involved, matters are more often “criminal” -

the charge is the violation of a state’s law and the prosecuting party is the state (i.e.

charging a citizen with a violation of social order). In contrast, torts are issues between

non-state actors.

“Injurious” is a critical distinction as well. It speaks to the reality that a tort is not a

tort if no actual harm is done. Unlike crimes, where the damage can be the attempt (to

disrupt the peace or to ignore a law), torts are designed to be a legal remedy to

behaviors that have caused damage. Injuries can take many forms, of course, from

physical injuries (often the case with intentional torts such as battery) to mental injuries

(in the case of violation of privacy or defamation), to financial damages (trespass, libel,

fraudulent misrepresentation, etc). This is why a critical element in assessing a tort

charge is assessing what actual damage has occurred. Without an injury, there is no

tort.

“Relational” reinforces these elements and reminds us that torts are injuries that

have been done to another person or entity . Once again, a contrast with criminal law

can be helpful. Whereas some crimes can be committed by an individual without

affecting anyone else (for example, wrongful possession of a firearm in violation of a

specific statute), torts must be done to someone else. To the extent that torts can be

considered mostly a remedy for wrongs, this makes sense: an individual won’t bring

action against himself, and in non-criminal matters, the state is not involved. Therefore,

torts are only relevant between parties - there must be a relationship that has been

violated for a tort to occur.

Finally, torts are “legal” wrongs. They are not necessarily moral wrongs, and are

not dependant on statutes. Of course, there is often overlap between these elements.

The tort of battery (the intentional harmful touching without consent) would strike most

people as a moral wrong (hurting another person is wrong by most moral codes) and is

often codified by statute into a criminal wrong of battery as well. But on the other hand,

a tort such as trespass to land (the intentional entry upon the real property of another

without consent) may not be as universally considered wrong. Some cultures view

property differently than others: they may not recognize private property at all, or may

view property ownership in looser terms. In such an environment, “trespass to land”

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might not be considered a moral or criminal wrong at all. But in the Anglo-American

environment in which tort law has evolved, the tort of trespass to land is considered

legally wrong. This is true of all torts: they are wrong because they have legal standing,

not because of an absolute moral prohibition or the presence of statute prohibiting

them.

How did civil law (and tort law specifically) evolve in the common law system -

how did we get here?

Tort law can be hard to define modernly, so it’s no surprise that the history of tort

law is not terribly clear-cut, either. More than other branches of English common law,

the concept of tort law evolved gradually over time and has only taken its current form

recently. In general, most of what we consider torts today evolved from attitudes

regarding negligence, so the story of tort law evolution is largely one of thinking about

negligent behaviors.

Torts begin to appear as distinct causes of action around the sixteenth century,

at the time writs of “assumpsit” became the established cause of action related to

contractual disputes.1 Until this point, contractual breaches and issues of negligence

generally were not always broken out into separate actions, but as assum psit became

an established remedy for contract matters, tort law began to evolve independently.

Initially, one of the major differences between contract and tort was the issue of parties

eligible to sue: whereas contract matters could be brought by associates or personal

representatives, torts were purely personal: they could only be brought by the injured

party. In Martell’s Case (1382) the maxim was stated as “the most horrible trespass in

the world disappears with the wrongdoer.”

The statement from Martell’s Case reminds us that, to medieval lawyers,

“trespass” was the normal term applied to what we think of as “torts.” Trespass

gradually split into various subdivisions, and continued to turn on the concept of

negligent behavior. Where conduct by one party caused direct physical harm, the usual

charge was “trespass vi et armis” (i.e. “Trespass by force and arms” in Latin).

Interestingly, where modern tort law makes a very clear distinction between physical

injuries caused by intentional behavior (e.g. battery) and physical injuries caused by

negligent behavior (i.e. negligence), early English “vi et armis” did not distinguish

between this condition. Simply put, if you physically harmed another person or his

goods, you could be liable for trespass vi et armis, whether or not you were taking due

care or acting intentionally.2 In a pre-modern society like England where legal

1 Baker, J.H. An Introduction to Engish Legal History (2007), pg. 401ff 2 Baker, J.H. (2007), 402

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proceedings were not as common as they are today, this distinction, while troubling for

a defendant, may not have seemed as strange as it does to us. The concept of the civil

proceeding was fairly simple: it was an attempt to provide compensation as a result of

damage, and the mental or legal culpability was less relevant than the factual

occurrence of harm and the resulting compensation.

This idea, that tort law did not originally distinguish between negligent (or

accidental) occurrences and intentional occurrences, is f ascinating from the modern

perspective. Looking at early case law illuminates how the distinction between

intentional and negligent torts gradually emerged. In short, early defendants

occasionally used the concept of negligence as an attempted defense (not always

successfully), and in time, this defense began to alter how judges and juries considered

the different causes of actions themselves. For instance, in Hulle v. Orynge (the “Case

of Thorns”)3, a plaintiff alleged that the defendant, while acting lawfully in entering the

plaintiff’s property to remove some thorns that had fallen there, inadvertently damaged

plaintiff’s crops. The defendant maintained that he was “not guilty” as he was not

committing a trespass to land (he had legal right to enter the property) and his damage

to the crops was accidental. In this case he was nevertheless found guilty (an early

example of strict liability or liability without fault), but cases like these began to reinforce

the different types of injuries that could arise by intentional or negligent acts. And so,

while the term “trespass” was utilized broadly to try cases related to negligent as well as

intentional behavior, over time these distinctions became codified into the modern torts

we think of today.

As English common law evolved in the US, it was not until the mid nineteenth

century that significant changes to tort law emerged. But by the mid nineteenth century,

US courts began to officially and formally recognize negligence as a clearly defined

category of legal wrong. Arguably the seminal judgment that ushered in the modern

American approach to torts of negligence was the case of Brown v. Kendall (Brown v.

Kendall, 60 Mass. 292, 1850). In this case, Kendall had accidentally partially blinded

Brown with a stick as he tried to stop a fight between the two men’s dogs. At the initial

trial, the trial court found Kendall liable for the damage on the older theory of “trespass

vi et armis” (i.e. direct force and harm). But the MA Supreme Court reversed this

decision based on the facts (that Kendall had clearly not intended any harm at all, and

seemed to be acting with due care towards Brown at the time). Most importantly, in his

opinion, Justice Lemuel Shaw, articulated that from that point forward, all accident

litigation in Massachusetts would be considered under the category of “negligence.” As

common law evolution is largely a result of appellate court decisions, and as US state

courts were highly influential on one another, this was a watershed moment, and

3 Hull v. Orynge, King’s Bench, 1466

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ushered in a clear category of torts due to negligence in contrast to the torts of intent.

Finally, the technological innovations between the mid nineteenth century and

the late twentieth century dramatically increased the kinds of accidents and injuries that

were likely to happen to individuals. Transportation became faster, more common, and

more dangerous (railroad crossings, automobiles, buses, etc. all offered new and novel

ways of getting run over, rammed, or otherwise injured). Mass-marketing and better

supply chain logistics meant that tainted foods, defective products, and other

dangerous goods could be used over a much wider area and by more people.4 And the

emergence of modern publication methods (newspapers at scale, television, radio, and

the internet) fundamentally changed how publicly information could be disseminated -

even if it was not true. As a result, in addition to the g rowth in negligence and intentional

torts, the last century and a half saw the clear emergence of torts related to product

liability and defamation on a new scale.

In the end, the historical story of torts is of a category that was initially not clearly

defined (a general concept of “trespass”) evolving into a wide range of wrongs, leaving

us with a complex and robust branch of law today.

Applying tort law to real life: where I’ve encountered issues of torts personally

In the course of the last year, as I have pursued my first year legal studies, I

have found tort law to relevant to my life both personally and professionally. The

general understanding of tort law, described above, has allowed me to better

understand these issues. Below I lay out one such situation ( related to a f amily event

and a serious injury due to an accident while riding a public ferry).

Personal Example: Common carriers, negligence, and a family injury

A few years ago, my uncle and aunt (from Omaha) were visiting their adult

children in New York City. During the course of their visit, the family took a ride on the

East River Ferry towards Manhattan. In the course of the ferry’s regularly scheduled

crossing, the ferry approached the dock at high speed, and impacted the dock without

warning, throwing many passengers to the floor. A handful of passengers were injured,

including my uncle - who was injured seriously enough that he was rushed to the

hospital and underwent emergency neck surgery to ensure the fractures he had

received would not lead to sudden paralysis. Naturally, the situation was very

distressing: he was lucky not to be paralyzed, but he spent nearly a year after surgery

4 Goldberg, John and Zipursky, Benjamin, The Oxford Introduction to US Law: Torts (), pg. 16ff

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with significantly reduced mobility, frequent pain, and reduced ability to work. And while

he was mostly glad to be alive, he (and the rest of his family) found the event very

traumatic: he and his wife watched their vacation turn into a medical emergency, and

their adult children watched as their father fell to the ground during the accident, nearly

losing his life.

Following the accident, my uncle was referred to a personal injury lawyer who

has been preparing the case against the East River Ferry company. During the past

year, my uncle has prepared depositions, visited with the lawyers, and otherwise

presented his case for an eventual settlement or trial. Interestingly, the result of all this

activity has made my uncle feel badly, as if he is “putting people to too much trouble”

and has felt that he is taking advantage of the Ferry company (which, not surprisingly,

has been reluctant to reach a preliminary settlement). As I have learned more about tort

law (and particularly negligence), I have been able to help my uncle think through why,

in fact, he has a well-established right to relief under the law for the injuries he received.

By explaining the nature of the law, and laying out the considerations below, I’ve helped

him feel much better about the process he is participating in - a textbook example of

how tort law can be an effective remedy for unintentional injuries.

Necessary elements for a negligence cause of action: In order to have a cause

of action against the Ferry company (the defendant), my uncle (the plaintiff) must be

able to prove (a) a duty from the ferry company, (b) breach of that duty, (c) damages

(not merely economic), and (d) actual and proximate cause of those injuries.

Vicarious liability (respondeat superior): An ongoing investigation has indicated

that the captain of the ferry was likely operating in an unsafe fashion on the day of the

accident. Nevertheless, the doctrine of “respondeat superior” notes that an em ployer

will have vicarious liability for the actions undertaken in the norm al course of business

by its employees. As such, in this case, the primary defendant of the suit will be the

Ferry company itself.

Duty of care (common carriers): The standard duty of care owed by one person

to another is that of “reasonable care,” the care that a normal, well-intentioned person

would take under the circumstances. However, in certain cases a defendant will have a

special relationship and, as a result, an elevated duty of care. One of the most

important such circumstances is that of “common carriers” (such operators of

transportation options including ferry boats). This effectively means that the Ferry

operator has a very high duty of care towards passengers (who are entirely at its mercy

for their safety). The Ferry company in this case owed my uncle an elevated duty of

care including preventing foreseeable injuries.

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Breach of duty: In this instance, it is clear that the ferry was operating at an

unsafe speed. The Ferry company specifically prohibits unsafe speeds with an eye

towards protecting passengers, but in this instance they clearly breached the duty.

Damages: My uncle certainly suffered damages of multiple kinds. His immediate

emergency surgery cost him significant money (despite his insurance policy); his

disrupted travel required higher-priced and unexpected return flights and additional

hotel stays; his ongoing rehabilitation brought additional financial burdens; his reduced

ability to work arguably reduced the compensation he would have received in the

ensuing year; and finally, he and his family suffered a traumatic event which led to less

quantifiable emotional distress. It is very clear there were damages in this case.

Causation: Explaining the nature of actual and proximate cause to my uncle has

helped him understand his eligibility for remedies under the law. In his mind, “causation”

suggests moral culpability, and given that he doesn’t know the reason(s) for which the

driver was operating at too high a speed, he has been reluctant to “blam e” him for the

injuries. But I have explained to him that, legally, the issue is not one of moral

blameworthiness, but rather of legal causation. “Actual” in this case means that the act

or omission of the defendant was the factual cause of the injuries. This is clearly the

case: “but for” the ferry hitting the dock, my uncle would not have fallen to the floor, and

but for this sudden fall, he would not have damaged his neck, required surgery,

required further rehabilitation. “Proximate” or legal cause asks whether the chain of

events put in place by the defendant were unbroken, and whether the injuries were

foreseeable. This is equally clearly the case. The chain of events in this circumstance

are actually quite simple (involving only the impact of the boat and dock, and the

resulting impact of my uncle to the floor). The resultant injuries are entirely foreseeable,

so much so that the Ferry company specifically prohibits drivers from approaching the

dock recklessly, cancels ferry crossings during rough weather, etc. All of this speaks to

the reality that the company knows that violent impact can lead to passenger injuries. In

this case, we don’t even need to consider the difference in interpretation between the

Andrews Rule or Cardozo Rule on danger - the passengers are inherently in the zone

of danger in a case involving a boat making impact with a dock.

Contributory or comparative negligence: Despite the straightforward facts at

issue in this case, it is likely the Ferry company will seek to contest the extent of

damages. They may suggest that my uncle was not taking appropriate care over his

own personal safety at the end of the ferry crossing, and that as a result he suffered

injuries due partly to his own negligence. This may be supported by New York State’s

adherence to a “pure comparative negligence” standard (per N.Y. C.P.L.R. § 1411). In

this standard, a plaintiff’s negligent conduct (no matter how much it contributes to the

outcome) will not provide a complete bar to recovery. Rather, the extent to which the

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defendant is liable for damages may be reduced in proportion to the extent that the

plaintiff contributed to the outcome by his own negligence. In this case, it is a question

of fact to determine whether my uncle contributed to his injuries (e.g. by standing too

early, by standing in a less stabilized position, etc) but it seems clear that this will, at

most, reduce the resulting damages rather than bar recovery.

Likely damages: Given the range of injuries, expenses incurred, and emotional

impact from the accident, it seems that the appropriate measure of damages will be a

mix of both specific damages (pecuniary damages that “make whole” my uncle for the

out-of-pocket costs he incurred for surgery, travel, rehabilitation, etc) as well as general

damages (to account for the pain and suffering, lost benefit of what was meant to be a

relaxing vacation trip, etc.) Whether in settlement or trial, it is likely that the total

awarded will reflect the combination of these measurements.

Conclusion: the most human aspect of the law?

In the course of the past year, I have gone from having no concept of what a tort

was, to understanding the complex history that has left us looking at issues of

negligence, intentional acts, product liability, and defamatory conduct all under the

same umbrella. Moreover, I have found this knowledge to help me directly in personal

circumstances (such as counseling my uncle) as well as in professional situations

(better understanding prominent disputes related to negligent or fraudulent conduct in

silicon valley, for example). In all of these cases, I have been struck by how human

issues of tort law are. Not just because humans are the perpetrators of most torts, but

because the emotions that are tied up with issues of legal responsibility vs. moral

culpability are deep and fundamental questions of human nature. The law has evolved

to do its best to correct for human behavior through the vehicle of tort law, and the more

I understand the legal logic behind these torts, the better I can consider the best w ay to

proceed in my own life.

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