Tort Law

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This book is intended to fill a current gap on the shelf by covering the law of torts. At this stage, it is only a series of headings, providing a general structure for the book. The author will gradually add more material as time goes on and other users are kindly requested to do the same, under whichever of the sections they have knowledge of. This is intended to be an undergraduate level book, covering most of the material required for university courses across England and Wales. It is not intended to be a text for practitioners.

American Tort Law is also included.

General Principals of Tort Law[edit]

Meaning of "tort"

"Tort" means civil wrong. The word itself is derived from French or Latin roots. The law of torts is concerned with compensation for damage suffered as a result of another's acts or omissions.

Definition: Tort

From the French, deriving from the Latin torquere, to twist. Any civil wrong, other than a contract dispute, for which there is a remedy. Implies acts that bend or warp societal rules prohibiting causing harm to others.

Basis for Tortious Liability[edit]

Liability in tort arises when some interest of another is harmed. Tort law is not intended to punish wrongful conduct. Rather, the point of this branch of law is to determine liability for harm and assign the cause of harm to the most appropriate actor. This then gives the injured party a place to seek a remedy.

The nature of acts giving rise to injury creates the first organizing principle when considering tort liability. Some acts are clearly intended to give rise to injury, such as physical attack or rumor mongering. On the other hand, many wrongs arise in the context of attempted good acts. Notable examples arise from the failed attempts of good Samaritans to render assistance, or from unintended consequences of otherwise innocent acts. Thus torts can be generally divided into those arising from intentional acts, the so called intentional torts, and those arising from other causes, such as negligence.

Tortious intent requires a bit of careful consideration. Clearly, when an actor closes his fist, draws it back, and delivers a blow to the eye socket of an intended victim he acts with the intent to commit an injury (even though he may well feel justified). Consider, however, the situation of the actor who picks up a brick with the intent of throwing it into a crowd but not intending to hit anyone in particular. Someone hit has clearly suffered harm, but could not point to the thrower and claim the brick was thrown to intentionally harm him. The law has developed to encompass the brick scenario into a sufficient intent to cause injury because it is highly likely to cause harm. So acting in a way intended to cause harm or making it extremely likely to result in harm provides a sufficiently intentional act to assign liability for any resulting harm.

Types of Liability[edit]

Strict Liability[edit]

In tort law, strict liability is the imposition of liability on a party without a finding of fault (such as negligence or tortious intent). The claimant need only prove that the tort occurred and that the defendant was responsible. The law imputes strict liability to situations it considers to be inherently dangerous.[1] It discourages reckless behavior and needless loss by forcing potential defendants to take every possible precaution. It also has the effect of simplifying and thereby expediting court decisions in these cases. A classic example of strict liability is the owner of a tiger rehabilitation center. No matter how strong the tiger cages are, if an animal escapes and causes damage and injury, the owner is held liable. Another example is a contractor hiring a demolition subcontractor that lacks proper insurance. If the subcontractor makes a mistake, the contractor is strictly liable for any damage that occurs. In strict liability situations, although the plaintiff does not have to prove fault, the defendant can raise a defense of absence of fault, especially in cases of product liability, where the defense may argue that the defect was the result of the plaintiff's actions and not of the product, that is, no inference of defect should be drawn solely because an accident occurs.[2] If the plaintiff can prove that the defendant knew about the defect before the damages occurred, additional punitive damages can be awarded to the victim in some jurisdictions. The doctrine's most famous advocates were Learned Hand, Benjamin Cardozo, and Roger J. Traynor. Under English and Welsh law, in cases where tortious liability is strict, the defendant will often be liable only for the reasonably foreseeable consequences of his or her act or omission (as in nuisance). Strict liability is sometimes distinguished from absolute liability. In this context, an actus reus may be excused from strict liability if due diligence is proved. Absolute liability, however, requires only an actus reus.

Vicarious Liability[edit]

Defences to Liability[edit]

Remedies[edit]

Specific Torts[edit]

Negligence[edit]

Negligence (Lat. negligentia, from neglegere, to neglect, literally "not to pick up something") is a legal concept in the common law legal systems mostly applied in tort cases to achieve monetary compensation (damages) for physical and mental injuries (not accidents).

Negligence is a type of tort or delict (also known as a civil wrong). "Negligence" is not the same as "carelessness", because someone might be exercising as much care as they are capable of, yet still fall below the level of competence expected of them. They could also be aware of the issues, yet choose to put the issue aside because they underestimated the importance. It is the opposite of "diligence". It can be generally defined as conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from foreseeable risks of harm. In the words of Lord Blackburn,

   "those who go personally or bring property where they know that they or it may come into collision with the persons or property of others have by law a duty cast upon them to use reasonable care and skill to avoid such a collision." Fletcher v Rylands ([1866] LR 1 Ex 265)

Through civil litigation, if an injured person proves that another person acted negligently to cause his injury, he can recover damages to compensate for his harm. Proving a case for negligence can potentially entitle the injured plaintiff to compensation for harm to their body, property, mental well-being, financial status, or intimate relationships. However, because negligence cases are very fact-specific, this general definition does not fully explain the concept of when the law will require one person to compensate another for losses caused by accidental injury. Further, the law of negligence at common law is only one aspect of the law of liability. Although resulting damages must be proven in order to recover compensation in a negligence action, the nature and extent of those damages are not the primary focus of negligence cases.

Occupier's and Non-occupier's Liability[edit]

Breach of Statutory Duty[edit]

Dangerous Products Liability[edit]

Defamation[edit]

An act of communication that causes someone to be shamed, ridiculed, held in contempt, lowered in the estimation of the community, or to lose employment status or earnings or otherwise suffer a damaged reputation. Such defamation is couched in 'defamatory language'. Libel and slander are defamation.

Nuisance[edit]

In common law there is something termed a 'nuisance' which can be defined as a matter which is an unreasonable and substantial interference on the use and enjoyment of a person's property.

For a matter to qualify and be actionable as a nuisance in law it must be a serious matter.

One-off events are rarely sufficient. Also, specific sensitivities of those suffering cannot be taken account of in deciding whether a matter is a nuisance.

Taking action in common law has some advantages over the statutory nuisance procedure which is described below.

Not least among the advantages is the fact that action is not restricted to the particular types of nuisance which form 'statutory nuisance'.

However, there are also disadvantages.

This is provided merely as a means by which to introduce statutory nuisance; you are strongly advised to seek legal advice before embarking on common law nuisance action. Other important differences include the following:

1. A matter which is a statutory nuisance must fall within one of the following categories.

(a) any premises in such a state as to be prejudicial to health or a nuisance; (b) smoke emitted from premises so as to be prejudicial to health or a nuisance; (c) fumes or gases emitted from premises so as to be prejudicial to health or a nuisance; (d) any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance; (e) any accumulation or deposit which is prejudicial to health or a nuisance; (f) any animal kept in such a place or manner as to be prejudicial to health or a nuisance; (fa) any insects emanating from relevant industrial, trade or business premises and being prejudicial to health or a nuisance; (fb) artificial light emitted from premises so as to be prejudicial to health or a nuisance; (g) noise emitted from premises so as to be prejudicial to health or a nuisance; (ga) noise that is prejudicial to health or a nuisance and is emitted from a vehicle, machinery or equipment in a street (h) any other matter declared by any enactment to be a statutory nuisance.

2. Statutory nuisance law is based in public health legislation and for something to be a statutory nuisance there must be an effect on health or wellbeing.

Also, as stated in the section above on common law nuisance, the specific sensitivities of those suffering cannot be taken account of - the test is therefore whether a typical person would be expected to suffer some health effect from the nuisance.

Trespass[edit]

Trespass is an intentional tort. If a person intentionally applies force to another person or interferes with the goods or lands of another person then, in many circumstances, the person suffering the force or interference can, without proof of the extent of the injury suffered, succeed in an action against the wrongdoer.

To the Person[edit]

There are three main types of trespass to the person, namely battery, assault and false imprisonment.

Assault and Battery[edit]

A battery is committed when one person deliberately applies force to the body of another person. It is also committed if one person deliberately brings about an offensive contact with the body of another. An example being, spitting on someone. A plaintiff in a battery action merely has to prove the application of force or some offensive substance to his person. The defendant then has to prove that the application of force or the substance was not intentional: McHale v. Watson (1964) H.C.A. The plaintiff does not need to prove damage in order to recover.

Assault (U.S.) Definition: Intentional conduct by the defendant causing the plaintiff or a 3rd party to experience immediate and reasonable apprehension of a harmful or offensive contact. The contact need not occur and need not have been intended by the tortious actor.

The tort of assault protects from the apprehension of unwanted contact, while the tort of battery protects from the unwanted contact itself. Words alone are not sufficient to constitute assault and the apprehension must be reasonable in the circumstances.

Elements of assault:

Intentional conduct exists when the defendant's actions started as a thought process in the defendant's mind. It is the physical manifestation of the defendant's will. No affirmative conduct exists when acts are done reflexively or while unconscious, as in somnambulism or while under hypnotic suggestion. If acts are done while voluntarily intoxicated, the resulting acts are also considered voluntary.

Intent to cause harm. Established by the following: 1. Acts speak for themselves: Intent may be inferred from the nature of the act itself. 2. Substantial certainty test. Was the defendant substantially certain that the consequences of his actions would result? If YES, the defendant had the intent to commit the tort.

Best understood in an example for battery: at a garden party with a buffet, the 7-year-old son of the hostess sees a guest about to sit down with her plate of food. The kid pulls out the chair on which the guest was about to sit. The guest falls to the concrete patio, breaking her tailbone.

Was there an intent to injure? No, the kid was playing a prank, BUT

Was there an intent to commit battery? Per the substantial certainty test, was the kid substantially certain the guest would fall, that is, substantially certain the consequences of his action would result? YES. There was intent to commit battery because the kid knew pulling out the chair would result in the guest falling down.

...to cause Plaintiff or a 3rd party... Or, transferred intent. The intended harm could have been aimed at or intended for a 3rd party, but affects the Plaintiff.

Example: Defendant FS hides in the alleyway near the bar where SW is having a drink, intending to assault SW when he comes out of the bar. When SW leaves the bar through a door to the alleyway, FS wings a garbage can lid at SW. But SW has just noticed his shoelace is untied, and has bent down to tie it. The garbage can lid flies past SW and hits you, resulting in injury. You become the Plaintiff, although FS intended the harm upon SW. This is transferred intent.

...immediate (apprehension)... For the tort of assault, the Plaintiff must see it coming.

Example: SW takes a vacation to Yosemite National Park, and is standing at a railing at the base of Bridalveil Falls. Unknown to SW, his persistent nemesis FS has followed him to Yosemite and finds SW at the base of the roaring waterfall. FS comes up behind SW, says a few choice words, then points a gun at SW's head and fires off several blanks, then leaves. The deafening roar of the waterfall kept SW from hearing FS's words and blank rounds. A witness nearby then tells SW what transpired. Has an assault been committed? NO. SW was not aware of the act. Assault requires immediate (not later) apprehension of the act.

...apprehension... This is not about fear. This is about apprehension, that is, the power of perceiving or comprehending.

Example: SW, a wiry man and boxing aficionado, goes into a bar for his after lecture drink. There he sees the former heavyweight champion of the world, Evander Holyfield. SW approaches Holyfield and swings at him "in fun," and Holyfield avoids the blow. Even though SW's swing probably would not have harmed Holyfield, and Holyfield could have knocked out SW with a single blow, SW's swing WAS assault, because Holyfield apprehended the coming blow.

...harmful or offensive contact... Whether the act was harmful or offensive is decided by the jury based on the "reasonably prudent person" standard: Would a reasonably prudent person in this community find the contact in question harmful or offensive? Incidental contact is generally not considered harmful or offensive.

Example: SW goes to the Bank of America building to have a drink in the Carnelian Room to celebrate his final lecture of the semester. As the elevator ascends, it stops at several floors, and each time, more people enter the elevator car. A man in a business suit gradually gets closer to SW to make room for the other people. Eventually, a few floors short of the Carnelian Room, the man's shoulder touches SW's shoulder. Not having had his drink yet, SW considers suing the man for assault.

Was this assault (& battery?) Probably NO. Most jurors, applying the reasonably prudent person standard, would consider the minor touching in a crowded elevator not harmful or offensive, but mere incidental contact. In a crowded urban environment, one has no reasonable expectation to be entirely free from incidental contact.

...resulting in damages. The damages to the Plaintiff may be minor, such as experiencing a moment of fear or revulsion. Or it could be profound, as in stalking scenarios, where the Defendant makes life very difficult for the Plaintiff over a period of time, but no physical harm to the Plaintiff has occurred. Where the damage to the Plaintiff is "minor," the jury may award nominal damages ($1.00) thus making available the possibility of also awarding punitive damages. (Punitives may only be awarded where either compensatory or nominal damages have been awarded.) [comment: while useful for remembering to discuss damages on a bar exam, this formulation can be a bit confusing otherwise. All that is necessary to understand the tort is that actual apprehension (not fear as correctly noted earlier) be developed in the victim. That is the only effect of this mental protection tort. Therefore, I suggest deleting this paragraph.]


Battery (U.S.)

Definition: The Defendant engages in affirmative conduct with the intent to cause Plaintiff or a 3rd party a harmful or offensive contact resulting in damages to the Plaintiff or 3rd party from that contact. Elements of battery are the same as for assault, without the element of apprehension. The harmful or offensive contact may be either direct (one's body) or indirect (something closely affixed to the person, such as their clothing, handbag, etc.)

Example: In a Texas cafeteria, a food worker approached a man as he carried his tray of food. The worker said to the man words to the effect of, "We don't serve your kind here," and struck the man's food tray causing the food to spill all over the man. Even though the worker only touched the food tray and not the man himself, this was battery. The man sued and won.

One does not need to be aware of the harmful or offensive contact for a battery to have occurred.

Example: At an Ivy-league law school circa 1900, a female law student fell asleep in the library surrounded by her study materials. A male student, no doubt struck by her academic brilliance, leaned over her and kissed her as she slept. She did not apprehend the contact. Someone else witnessed the kiss and later told the female student what had happened. She sued the male student for battery and won.

Liability for unintended consequences: "You take your Plaintiffs as you find them," also known as the Eggshell Skull Theory. In a case of battery, the Defendant is liable for the consequences of the battery despite particular vulnerabilities of the Plaintiff.

Example: SW is walking across Drumm Street near the Hyatt Hotel one day, and sees an old friend from his high school soccer team, Harvey, the goalie. Back in the day, the team would greet each other with a friendly "goalie tap" to the shin. SW eagerly approaches Harvey and lightly kicks Harvey in the shin. Unbeknownst to SW, Harvey is recovering from surgery on his shin. The bone is still fragile and fractures from the "tap." Harvey is rehospitalized, the refractured shin becomes infected, and eventually Harvey's leg must be amputated. SW is liable for the unintended consequences of his "goalie tap" to Harvey's bad shin. Harvey sues SW for battery and wins, and now SW must pay compensatory damages for his medical bills, pain, suffering, and lost income.

Battery may be the result of fraud. There are 2 types of fraud in this context, but only one may result in battery:

1. Fraud in fact. This may give rise to battery.

Example: SW goes to an end-of-semester party. During the party, the seemingly friendly but resentful FS offers SW some Godiva chocolate. SW thanks him and eats the chocolate, a few pieces of it. In fact, it wasn't really Godiva chocolate. It was Ex-Lax, an over-the-counter constipation remedy. SW suffers cramps, diarrhea, and dehydration from eating all the Ex-Lax. This is battery. SW suffered an unwanted touching. He sues FS for battery. (SW would win but FS has avoided service of process by going back to Yosemite to savor his victory and relive his past triumph.)

2. Fraud in the inducement: May not give rise to battery. Example: At the party, FS says to all assembled, "I'll give these Raiders tickets to anyone who eats this candy." SW eats the candy. (It's really candy.) FS does not give SW the tickets. This is not battery. (SW leaves the party, goes to the bar where Evander Holyfield hangs out, and convinces Holyfield to come meet his friend, FS.... Not really.)

False Imprisonment[edit]

To Land[edit]

To Goods[edit]

Conversion[edit]

Unlawful Harassment[edit]

Protection of Economic Interest: the Genus Tort[edit]

Deceit[edit]

Intimidation[edit]

Conspiracy[edit]

Slander of Title and Malicious Falsehood[edit]

Interference[edit]

With Contract[edit]

With Trade[edit]