by Professor Frank B. Cross
Tort
law
requires: (1) a duty which is breached and (2) a legally
protected interest.
Everyone has a duty to behave as a
“reasonable person,” though some people have a higher duty of care (e.g., a
doctor) and others have a lower standard (e.g., children and the mentally
impaired).
Even if you have breached a duty, you are
only liable for a person that has a legally protected interest (e.g., you can
sue for someone intentionally breaking your arm, but you cannot sue someone who
has broken your heart).
3
main categories of torts:
· Intentional torts
· Negligence; a
· Strict Liability
(i.e., you are strictly liable for the harm you have caused even though you
have not breached a duty).
“Intent
follows the bullet.” – Intentional tort b/c you intended to shoot the person or
you would not have pulled the trigger.
Intentional
torts:
Assault
(salt): Is putting someone in fear of harm without
actually causing the harm.
Battery
(pepper): Is actually causing them harm. Can be any unwanted conduct (e.g., an
unwanted kiss).
False
imprisonment: Is where you restrict someone from allowing them their ordinary
freedom to move. EXCEPTION FOR RETAILERS:
Most states have anti-shoplifting laws to protect business owners from
financial harm. These laws permit business owners to temporarily detain someone
from leaving if they do it in a reasonable manner, for a reasonable time, and
they have reason to believe the detained person was shoplifting. NB: The business owner must strictly
meet all these requirements in order for them to be immunized from suit.
Negligence is where you hurt
someone out of either carelessness or stupidity/ignorance.
This is the cause of action most often alleged and brings forth the greatest
damage awards ($) for Plaintiffs.
Strict
liability
is where you have to pay someone for causing harm even if you did nothing
wrong.
It is infrequent that anything happens to
trigger a lawsuit in these trades/professions because of strict, safety
protocols. But, when something bad happens, it has disastrous, resulting
consequences. Applies to businesses which engage in ultrahazardous activities
or substances.
Examples: demolition contractors, hazardous
waste operators, and product manufacturers.
General
duty owed under tort law – reasonable person standard.
Specific duties:
Special
relationships
– Impose higher duties on those of greater power in a special relationship and
may indeed create a duty to act [e.g., doctor-patient relationship, to wit:
surgery(duty)/malpractice(breach of duty)].
Legal
responsibilities:
If you break the law, you are negligent. Failure to conform w/ the law is a
breach of duty under the law automatically. There are some minimal exceptions
(e.g., If you are driving with expired tags and another vehicle rear-ends you,
you are not negligent in the accident under the law b/c tags are a fundraising
mechanism of the state, though technically a law).
Custom: In business, a
practice or custom will create a duty to behave in a certain, specific way in
order to conform with that practice or custom.
Duty
to Act:
Under American law, you have no duty to act except in
special circumstances.
o
This
is contrary to most countries in the World.
o
You
have no duty to rescue anyone in peril.
o
NB: In some states, laws have been passed
requiring their citizens or visitors to their state “to render assistance.”
So,
if you saw a child drowning, you don’t necessarily have to jump in to save her,
but you would have to call for an ambulance immediately. CA is, of course, the exception. A man tried
to use the phone at a bar, and the bar owner refused because the man was not a
patron. A person died as a result. The bar owner was held liable in tort for
refusing the person rendering assistance to use the telephone.
Negligent
mental suffering is not a tort. EXCEPTIONS:
If one person causes great, physical harm to another, that injured person may
suffer with PTSD consequently. Both the intentional tort (harm) and the
negligent mental suffering caused thereby (PTSD) are compensable. The Plaintiff can recover because there was
physical harm. If the Defendant, however, did not commit an intentional
tort, there is no recovery for negligent mental suffering. Otherwise, people could sue one another for
ridiculous reasons – “She was being rude to me.”
INDEPENDENT
TORT DOCTRINE:
If parties are in privity of contract, contract (K) law controls the issue, not
tort law. However, if some K-related activity causes harm, the injured party
can file suit under both contract law and tort law. Res ipsa loquitur:
“The thing speaks for itself.”
A
grand piano does not leap out of a 10-story apartment on its own and kill/injure
person(s) on the street below. It is logical: There must be one or more people
involved who either intentionally or negligently dropped it out the window.
· Duty of
landowners:
o
Main
point of controversy: duty owed to trespassers. Example of freak instance where
liability found: Burglar was severely injured while breaking into a home, sued
and won millions. As a rule, landowners do not have a duty
to trespassers.
Exceptions:
Killing/trapping a trespasser
(except in some states by law).
Known
trespasser
to you:
EXAMPLE:
Child
neighbor cuts across your property every day on his/her way to/from his/her
house, you owe that child trespasser a duty not to get injured on your property.
Attractive
nuisance:
E.g., Swimming pool in a backyard that the homeowner(s) do(es) not fence in/enclose.
Licensee(s): A person who is
on your land by your invitation but lacking a business purpose (e.g., social
visitors). NB: You have a duty to warn them of dangerous
conditions on your property.
Invitee(s): Someone who has
been invited onto your land to conduct business. NB: You have an
even higher duty than you owe to licensee(s): (1) to warn them of dangerous
conditions on your property of which you are aware and
(2) you have a duty to inspect your property to ensure
that there are no known hazardous conditions on your property of which you need
to warn the invitee(s).
Lessee(s): Person(s) renting
your property.
· Required to do
proper repairs.
· Required to
provide adequate security.
· Common areas –
most responsibility there.
· Private areas –
less responsibility there b/c landlord has no control.
· This duty extends
to your lessee(s)’ guest(s).
Proximate
Cause:
You are not liable in negligence actions if you
were not the proximate cause of the harm.
Elements
required:
· Causation in fact – a.k.a., “but
for” causation. If you did not cause the harm, you are not responsible for it.
· Legally close
connection
– foreseeability of the harm. You are only liable for the harms that are reasonably
foreseeable to you, but the precise chain of events need not be. Example: If
you leave a loaded gun in a children’s playground, you are liable to whomever
gets hurt, even though you did not pull the trigger.
Intervening,
superseding causes break the chain of proximate cause.
· EXAMPLE: You leave
your car running while you double park in front of a store to pick up your
food. A car thief jumps in your car and runs over a third party. The thief’s
intervening act broke the chain of proximate cause so you are not liable for
the harm done to the third party. CAVEAT: If this was reasonably foreseeable to
occur (e.g., incident happened in a high crime area), then you are liable
because it was foreseeable that your car would be stolen.