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.
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.
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.
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.
· 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.