TORTS

Torts, as a general category, are civil wrongs recognized by the law as grounds for a
lawsuit. Such wrongs result in an injury or harm constituting the basis for a claim by the injured
party.
Types of Torts There are three major types of tort liabilityintentional wrongs, acts of negligence,
and strict liability. An intentional wrong occurs when a person purposefully harms another person or
his or her property. Negligencethe most common unintentional tortoccurs when one person
unintentionally inflicts injury upon another person. Even though the injury was not intentional, the
person who caused injury can still be held liable for acting carelessly and causing harm. Strict liability
requires people engaged in certain dangerous activities to assume extra responsibility for the
consequences of their actions.
Intentional Torts
Intentional torts are actions taken with the intent to harm another person or another's property. The
intent to harm does not have to be hostile or immoral. The law of intentional torts requires that the
person causing the harm either knew or should have known that his or her actions would result in
harm.
Types of Damages A victim of an intentional tort can recover damages. There are three types of
damagescompensatory, nominal, and punitive. Damages that pay, or compensate, an injured person
for being harmed are called compensatory damages. They may include costs that have resulted or are
expected to result from the injury. If a plaintiff is unable to show financial loss, the jury may award
nominal damages. Nominal damages involve a small amount of money that the defendant must pay in
order to show that the defendant was wrong. Punitive damages are awarded to punish a defendant
whose actions were malicious, willful, or outrageous. Juries usually decide how much money is
appropriate.
Torts That Injure Persons One category of torts is torts that cause injury to persons. These types of
torts include batteryin which a person intentionally makes contact with another person in a harmful
or offensive wayand assaultwhich occurs when a person intentionally causes someone to fear
immediate harm. Other examples of torts that injure persons are infliction of emotional distress, false
imprisonment, and defamation. Defamation includes acts that harm a person's reputation. Slander is
the intentional attack on someone's reputation through spoken words that are false. Libel is
intentionally writing untruthful information to injure another person's reputation.
Torts That Harm Property Intentional torts may harm a person's real, personal, or intellectual
property. Trespass is a tort in which a person enters another person's private property without
permission. A nuisance is a tort that occurs when someone interferes with your ability to use and enjoy
your own property, even if the person has never physically entered your property. The tort of
conversion occurs when someone unlawfully takes, damages, or interferes with another's personal
property. Patents and copyrights exist to protect the ideas, inventions, and creative works of an
individual. A person who interferes with someone's patent or copyright through unauthorized use of
the ideas may be found guilty of the tort of infringement.
Defenses to Intentional Torts There are certain defenses a person may use to try to prove that he
or she should not be found liable for an intentional tort. These reasons include consent, privilege, selfdefense, and defense of property. Consent is the most common defense to a tort. The defendant argues
that the plaintiff agreed to the harmful conduct and should not be able to sue. Privilege justifies
behavior that would otherwise be a tort when it serves the public interest. Self-defense and defense of
property justify the use of certain force to protect one's person or property.
Types of intentional torts note that this is a non-exhaustive that reflects the most common types of
intentional torts:

a.
Assault:
i.
Definition:

An intentional, unlawful threat to cause bodily injury to another by force;

Under circumstances that create a well-founded fear of imminent peril;

Where there exists the apparent present ability to carry out the threatened act.
ii.
Note: assault can be committed even if there is no actual contact with the plaintiff, and
even if the defendant had no actual ability to carry out the apparent threat.
b.
Battery:
i.
Definition:

A battery is the willful or intentional touching of a person against that persons will by
another person, or by an object or substance put in motion by that other person.

Note: offensive touching can constitute battery even if it does not cause injury, and even
if it could not reasonably be expected to cause injury.
c.
Defenses to Assault and Battery:
i.
Consent:

Where a defendant has the plaintiff's consent to commit an act of assault or battery, the
plaintiff may not later bring a lawsuit. The most typical context for consent occurs in sports,
where injuries that result from rule violations that are part of ordinary play are unlikely to support
a legal action. Consent also exists in the context of authorized medical or surgical procedures.
ii.
Police Conduct:

A police officer is privileged to apply the threat of force, or if necessary to apply actual
force, in order to effect a lawful arrest. A defendant who suffers injury as the result of reasonable
force exerted by the police to effect a lawful arrest will not be able to sustain a lawsuit against the
arresting officers for assault or battery.
iii.
Self-Defense:

A person who is assaulted may use such reasonable force as may be necessary, or which
at the time reasonably appeared to be necessary, to protect himself from bodily harm. An act of
self-defense must be proportionate to the threat.
iv.
Voluntary (Mutual) Combat:

Where the plaintiff voluntarily engages in a fight with defendant for the sake of fighting
and not as a means of self-defense, the plaintiff may not recover for an assault or battery unless
the defendant beats the plaintiff excessively or uses unreasonable force.
v.
Defense of Property:

Many jurisdictions allow the use of some amount of threat or force by a person who is
seeking to protect his or her own property from theft or damage. However, there is no privilege to
use force that may cause death or serious injury against trespassers unless the trespasser threatens
death or serious injury.
vi.
Provocation:

Words alone, no matter how insulting or provocative, do not justify an assault or battery
against the person who utters the words.
d.
False Imprisonment:
i.
Definition:

When the defendant intentionally confines the plaintiff, either physically or by

overcoming the plaintiffs will, to a definable area from which there is no reasonably apparent
means of escape.

e.
Intentional Infliction of Emotional Distress:
i.
Definition (elements):

The defendant must act intentionally or recklessly.

The defendant's conduct must be extreme and outrageous.

The conduct must be the cause of severe emotional distress.

ii.
No precise definition, but conduct must be "so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community. The defendant's conduct must be more than malicious
and intentional; and liability does not extend to mere insults, indignities, threats, annoyances, or
petty oppressions.
Negligence
Tort law establishes standards for the care that people must show to one another. Negligence is the
conduct that falls below this standard. Negligence law is concerned with paying victims for the
injuries that have been caused by someone else's conduct.
Elements of Negligence Negligence applies to many kinds of wrongful conduct. Four elements
must exist for a plaintiff to win a negligence actionduty, breach of duty, causation, and damages.
The plaintiff must prove all of these elements in order to be successful in a negligence claim.
Duty and Breach Everyone has a general duty to exercise reasonable care toward other people and
their property. If a person acts unreasonably, he or she has breached the duty of care. In order to judge
whether or not a person's conduct is reasonable, the law asks: Would a person of average intelligence
and general regard for others have acted in the same way? If the answer is no, then the person's
behavior was unreasonable. The law assumes that reasonable people do not break the law. Certain
professionals, such as doctors, pilots, and plumbers, are held to the standards of reasonably skilled
professionals in their field. Even minors are liable for the torts they commit. However, when deciding
the reasonable conduct of a minor, the law usually compares a minor's conduct with other individuals
of the same age, intelligence, and experience.
Causation In order to prove causation, there must be proof that the defendant's actions actually led to
the harm suffered by the plaintiff. The element of causation is broken down into two separate issues
cause in fact and proximate cause. If the harm would not have occurred without the wrongful act, then
the act is the cause in fact. To prove proximate cause, there must be a close connection between the
wrongful act and the harm caused. The harm that resulted must have been foreseeable from the
wrongful act.
Damages The basic idea behind damages is that the plaintiff should be restoredin the form of
moneyto his or her original position before the negligence occurred. Courts allow plaintiffs to
collect for medical bills, lost wages, pain and suffering, and other losses.
Defenses to Negligence Suits Even when a plaintiff can prove all of the elements of negligence,
the defendant may be able to raise a valid legal defense. Most states allow a defense called
comparative negligence. In comparative negligence the defendant and the plaintiff split the loss
according to how much each person was at fault. For example, if a judge decides that a plaintiff was
60 percent responsible for injuries and the defendant only 40 percent responsible, each would only
pay that particular percentage. As another legal defense, the defendant may argue that the plaintiff
assumed the risk of the harm and should therefore be held responsible for the resulting injury
(Assumption of risk: if a person voluntarily encounters a known danger and decides to accept the
risk of that danger, he or she may be prevented from recovering for related negligent acts by a
defendant).
Elements of Negligence
Duty: The defendant owed the plaintiff a duty to act reasonably. A reasonable person would consider
(1) the burden of taking precautions; (2) the likelihood of harm; and (3) the seriousness of the harm.

Breach: The defendants conduct violated that duty (the defendant did not act reasonably).
Causation: The harm would not have occurred without the defendants actions. Requires proof of
Cause in Fact and that the harm was foreseeable (Proximate Cause).
Damages: The plaintiff suffered actual damages (medical costs, lost wages, pain and suffering, etc.).
Scenario 1: Ke$ha: The Case of the Drunk Driver,
Ke$ha is bartending at The Right Round, a nearby pub, because her new song isnt selling very well.
She sees Cee-lo, a regular customer at The Right Round, is clearly intoxicated. He asks her for one
more round of drinks before he leaves. Not wanting to offend him in case he wants to collaborate with
her on his next album, Ke$ha serves him, saying, Lets make this the last round. Twenty minutes
later, Cee-lo leaves the bar to go home. Just after Cee-lo pulls his car onto the highway, he swerves
and hits another car head-on. Cee-lo and the driver of the other car are seriously injured.

What do you think? Is Ke$ha responsible for the accident? Should Cee-lo be able to sue her and
collect damages? Should the other driver?
Scenario 2: Rob & Katrina: The AIDS Case
Rob is has an STD. He is new to Seattle and does not want anyone to know about his illness. He
meets Katrina and they start dating. They really like each other and eventually become exclusive.
They have unprotected sex, but Rob does not tell Katrina beforehand about his STD. Katrina finds out
later that she has the same STD Rob does after she goes to a doctor for a blood test.

What do you think? Does Rob have a duty to tell Katrina about his condition? If he does, did he
breach it, and should Katrina be able to recover damages from Rob? Would your answers change if
Rob was HIV positive (being that there is no cure for AIDS)?

Scenario 3: Milton Bradley: The Case of the Baseball Swing

Milton Bradley is trying to give the Mariners a chance at a pennant win. To stay in shape, he practices
his swing in the off-season. In fact, he likes to practice so much that he often practices in the game
room so he can practice while he watches Sports Center highlights. One day, while practicing his
swing in his game room, he loses his grip on the bat. The bat flies into the dining room and hits
Ichiros wifes friend in the head, causing minor injuries.

What do you think? Sometimes the amount of damages can change. Lets say the bat hit Ichiros
wifes best friend in the arm. Does that change the amount of damages? What if his wifes best friend
was a concert violinist and cant play her violin anymore? Does that change the amount of damages?

Scenario 4. Tom, a sophomore in college, decides that he would like to get a summer job as a
lifeguard. Tom received all of the appropriate training. During his second week on the job he notices
two girls by the concession stand and decides that he is going to go over to them to see if he can get a
date with one of them. While he is talking to the girls a young girl jumps off the diving board and
sinks like a rock to the bottom of the pool. After a couple of minutes, Tom hears someone yell out

my sister is drowning! He jumps into the pool, pulls the girl out, and performs CPR. The girl
comes to and, after catching her breath, appears to be fine.

Scenario 5. Consuela leaves a sharp knife on the kitchen table after making a sandwich. A three-yearold neighbor boy, who has been invited over to play with Consuelas daughter, climbs up on a chair,
grabs the knife, and seriously cuts his finger.
Scenario 6. After a late dinner in the city, Jamison walks out of a crowded restaurant and sees a man
grabbing Ashley, his wife. Ashley tries to get away but the man keeps pulling her back towards him in
a way that suggests that he is trying to kiss her. Ashley says, Stop! Youre hurting my arm.
Jamison pushes his way through the crowd, hits the man, and the man is knocked out. Later, the man
sues Jamison for hitting him.

Scenario 7. Tanner, Kyle, and Martin leave a high school party. All three of them told their parents
that they were sleeping over at each others house, so they could stay out all night. The party that they
were at was busted by the police and now they had nowhere to go. Tanner suggests that they should
break into one of the vacant homes in the neighborhood but Kyle told him that he didnt want to get in
trouble. Tanner said that he wasnt going to be sleeping in the cold and didnt care what they thought.
When Tanner picked up a rock to throw at the window of the home, Kyle tackled him. Tanner fell and
hit his head on a rock causing severe bleeding. Tanner sued Kyle for the medical bills.

Scenario 8: Michael is holding Jack down and slapping him in the face. Michael keeps laughing and
saying, Say Uncle! Jack is crying and keeps saying, Get off of me! Michael slaps Jack again but
this time Jack gets his hand free and punches Michael. Michael falls to the ground gripping his broken
nose. Michael sues Jack.

Scenario 9. Harry, a school bus driver, has a heart attack while driving the bus. The bus slams into a
wall, injuring several students. One month earlier Harrys doctor had warned him of his heart
condition. One of the students start having headaches seven years later and the parents sue.

Scenario 10. Steve and Tom are big fans of the UFC (Ultimate Fighting Championship). After
watching a fight, Tom says that he could be an UFC fighter. Steve said that it would be impossible
because he couldnt even beat him. After a lot of posturing, Tom and Steve agree to an UFC style
fight. During the fight, Steve punches Tom and ruptures his spleen. Tom is taken to the hospital for
treatment of his injury