Chapter 5



        Tort (a “wrong”): An actionable civil wrong, not arising from a breach of contract or other agreement. A breach of legal duty (imposed by law) that proximately (i.e., DIRECTLY) causes harm or injury to another.  Some useful definitions:


        Actionable Civil Wrong: A wrongful act or omission capable as serving as the basis for a lawsuit.


        Civil vs. Criminal Wrong: A tort is a “civil” wrong, punishable by compensating, or paying damages to, the injured party, rather than a “criminal” wrong, punishable by paying a fine to the government and/or being imprisoned. Some torts may also serve as the basis for separate criminal prosecution by the state.


        Tort vs. Contract: A tort, with a few well-defined exceptions, does not arise from a breach of contract or other agreement. Therefore, the duty that is violated by the tortfeasor (i.e., the “wrongdoer”) must exist as a matter of law, not as a consequence of any agreement between the tortfeasor and the injured party.


        Proximate Cause: An injury or harm is proximately caused by an act or omission if it appears that the injury or harm was either a direct result or a reasonably probable consequence of the act or omission.







[Here against a person or business]


           Assault: An intentional, unexcused act creating in another person reasonable apprehension or fear of immediate harmful or offensive contact (e.g., pointing a gun at someone). It is Non Contact:  i.e., freedom from having to expect harmful or offensive contact.


        Battery: An intentional, unexcused and harmful or offensive contact (e.g., firing the gun). (and/or hitting the person).  Contact- throwing a rock.-- i.e., a harmful or offensive contact.


        False Imprisonment: The intentional confinement of another person or restraint of another person’s activities without justification. The confinement may occur through the use of physical barriers, physical restraint, and/or threats of physical force.  Note: Shoplifters often use this as a method to sue but lose due to probable cause.


                  Intentional Infliction of Emotional Distress: An intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another. Consider: death of a family member.  Continued extreme methods to collect debts.   See case 5.1  Roach v. Stern.






LEGAL DEFENSES Against An Otherwise Tortuous Act


        Consent: When a plaintiff consents to the act that damages him or her, the alleged tortfeasor generally is not liable for any damage done.


        Self-Defense: An individual defending his or her life or physical well-being, either from real or apparent danger, may use reasonably necessary force, or resort to reasonably necessary action, to prevent harmful contact.  This included killing the other person IF necessary (deadly force).   Note: this defense is NOT available when the danger has passed.  In other words, revenge is not acceptable. 


        Defense of Property: An individual may use reasonable force to remove an intruder from the individual’s home or to restrain the intruder for a reasonable time. Force that is likely to cause death or serious bodily injury (i.e., deadly force) normally may not be used solely to protect property.


        Defense or Assistance of Others: An individual can act in a reasonable manner to protect or assist others who are in real or apparent danger.


        Necessity: An otherwise tortuous act may be excused if the tortfeasor acted in accordance with law or the public good.






        Defamation: Anything published or publicly spoken that injures another’s character, reputation, or good name.


       Libel: Defamation in written form. Includes pictures, signs, statutes, films.


        Slander: Defamation in oral form.


        ABSOLUTELY ESSENTIAL: The “Publication” Requirement: To be actionable, the statement must have been communicated to persons other than the defamed party.


Examples of “publication”:     Dictation to Secretary

                                                Internet chat room


                                                Private meetings of more than just the two persons involved






        Truth: Truth is normally an absolute defense. In other words, if the allegedly defamatory words were objectively true, the defendant cannot be held liable for publishing them.


        Privilege: The ability to act contrary to another person’s right without giving legal redress for such acts.


        Absolute Privilege: Statements made and/or actions taken in judicial and certain legislative proceedings (e.g., statements made by attorneys during trial, statements made by legislators during floor debate) are privileged against any claim of wrongful conduct.


        Qualified Privilege: In other situations, statements or actions made in good faith and, in the case of statements, made only to those who have a legitimate interest in the statement, are privileged.


·              Statements in evaluations:  if made in good faith and limited to only those who need to know, they are ok.


        Absence (or lack) of Malice: Generally speaking, otherwise false and defamatory statements made about public figures are privileged unless they are made with actual malice that is, with either knowledge of falsity or reckless disregard of the truth or falsity.






        Defamation Per Se: Common law recognizes four types of false utterances that constitute defamation without defense or justification:


(1)      that another has a loathsome communicable disease (e.g., a sexually-transmitted disease);


(2)      that another has committed improprieties while engaging in a profession or trade;


(3)      that another has committed or has been imprisoned for a serious crime; and


(4)      that an unmarried woman is unchaste.



Let’s Consider: On-line (computer) defamation – what is it really??


Is it Libel?  published”- data may be stored


Is it Slander? (arguably spontaneous)- spoken with fingers not unlike sign language


What is considered to be spoken?  What is the difference between TTY and a chat room?







        Invasion of Privacy: Common law recognizes four acts that qualify as improperly infringing on another’s privacy:


(1)      Appropriation: the use of a person’s name, picture, or other likeness for commercial purposes without their permission;


(2)      Intrusion in an individual’s affairs or seclusion in an area in which the person has a reasonable expectation of privacy      


                   For example, Searching a home?  Drug tests?  Blood testing?  Window peeping?


(3)      Publication of information that places a person in false light (includes defamation) ; and


(4)      Public disclosure of private facts about an individual that an ordinary person would find objectionable.  i.e., review of person’s spending habits without their permission.








        Fraud/Fraudulent Misrepresentation: Intentional deceit, usually for personal gain. Actionable fraud consists of the following elements:


(1)      A misstatement or omission of a material fact,


(2)      made knowingly or with reckless disregard for the truth,


(3)      and with the intention of deceiving another by inducing them to rely on the misrepresentation,


(4)             on which a reasonable person would justifiably rely to his or her detriment, and


(5)             on which the injured party did, in fact, rely to his or her detriment.




Mere puffery, or “seller’s talk,” will not give rise to a cause of action for fraud, because such claims involve opinions, not facts, and therefore cannot be justifiably relied upon by a reasonable person. However, statements of opinion may give rise to a claim of fraud if the party expressing the opinion has a superior knowledge of the subject matter. (i.e., a CPA, attorney, doctor or other professional)





Wrongful Interference


Interference with (existing) Contract:  The tort of interference with contract requires proof of the following:


1.     A valid contract exists between the parties X and Y;

2.     A third party, Z, KNOWS that the contract exists, AND

3.     Z intentionally causes X or Y to breach the contract.


See Case 5.2, Kallok v. Medtronic, Inc.


Interference with Business Relationship: Interference with a prospective business relationship is also actionable, where


1.     While no contract or other business relationship presently exists between X and Y, Z knows or has reason to believe that X and Y might enter into a business relationship, by contract or otherwise AND

2.     Z intentionally interferes with X’s attempt to establish a business relationship with Y.


In either case, Z’s interference will be justified only if Z can establish that it was privileged or justified to act as he did.  For example, effective advertising is usually not an actionable matter. 








        Trespass to Land: Entry onto, above, or below the surface of land owned by another without the owner’s permission or legal authorization.   Consider oil wells- drainage.  Also, compare airplanes.


        Trespass to Personal Property: Taking or harming another’s personal property, in such a way as to interfere with the other person’s right to exclusive possession of his or her personal property, without the owner’s permission or legal authorization.


          Consider:    The focus of trespass is injury to the landowner’s enjoyment of his or her real or personal property, not injury to the property itself.


Taking property is trespass/ Retaining property is Conversion


        Conversion: Taking, using, selling, or retaining possession of personal property that belongs to another without the other's permission or legal authorization for the benefit of the tortfeasor.


          Consider:    Each of the foregoing assume that the purported owner has a superior right of possession.








Negligence: Failing to exercise the standard of care that a reasonable person would exercise in similar circumstances.  ç EXTREMELY IMPORTANT!!!


• In contrast to intentional torts, negligence requires no intent on the part of the tortfeasor, nor does it require that the tortfeasor know or believe the consequences that his or her act or omission may cause. Negligence merely requires that the tortfeasor’s act or omission create a risk of the consequences complained of by the injured party.  ç ALSO EXTREMELY IMPORTANT J


           In other words, negligence involves NO intent and/or NO knowledge or belief.  Point: It is the act that creates the risk, not what the person’s intent was.  (i.e., YOU: I didn’t mean to hit her with my car.  ME: Probably ever so true, but it is still negligence.)


        Actionable negligence requires that:  (i.e., the plaintiff must prove)


(1)     the tortfeasor owed a duty of care to the plaintiff,

(2)     which the tortfeasor breached, (causation) and

(3)     which

                (a) actually causes

                 (b) a legally recognizable injury to the plaintiff.







        Duty of Care: The duty of all persons to exercise reasonable care in their dealings with others.


        Reasonable Care: The degree of care expected of a hypothetical “reasonable person”; not necessarily how a reasonable person would act, rather how a reasonable person should act.  (i.e., moral)


        Tort law presumes that the reasonable person will be:

        attentive, aware of his or her environs,



        even tempered, and









        Duties of Landowners -- Landowners are expected to exercise reasonable care to protect from harm those persons coming onto their property è even trespassers.


       Business Invitees: Retailers and other business that explicitly or implicitly invite persons to come onto their premises are expected to exercise reasonable care toward these business invitees.


CONSIDER:  Attractive Nuisance (kids in swimming pool at an apartment)


        Dram Shop” Liability: Many jurisdictions hold that a business, and in some jurisdictions an individual, that served alcoholic beverages to a person after he or she arrived intoxicated or became intoxicated is liable for any injuries caused by the intoxicated patron or guest.


Check out case 5.3, Martin v. Wal-Mart Stores, Inc.



        Duties of Professionals -- If an individual has knowledge, skill, or expertise superior to that of the ordinary person, the individual is held to that standard of care expected of a reasonable person with the same or similar knowledge, skill, or expertise. Failure to perform up to the standard of a “reasonable professional” can result in the professional being subject to liability for professional malpractice.


****NOTE THAT There is no duty to Rescue:  This is an ethical and moral issue, NOT a legal requirement.*****


Compare:  a failure to stop and aid in an accident IS actionable.


Consider: Good Samaritan laws designed to protect those who do try to help.








        Recall the purpose of tort law is to compensate those who suffer legally recognizable injuries. If no such injury occurs, no tort exists and there is nothing to compensate.


        Damages -- Tort law recognizes two categories of damages:


        Compensatory Damages, designed to reimburse the plaintiff for the actual value of the plaintiffs injury or loss, and


        Punitive Damages, designed to punish the tortfeasor for particularly egregious conduct and to deter similar conduct in the future.


Consider: Punitive damages:  This is what caused all the backlash against the evil lawyers-- $$$$









        Causation in Fact: An act or omission without which plaintiff’s injury would not have occurred.


        Proximate Cause exists when the connection between an act and an injury is direct enough to impose liability.  The act must be the proximate cause of the injury.  i.e., The “But For” Test.


        A common and critical element of proximate cause is foreseeability:  if the consequences of the act or omission and/or the victim who is harmed by the act or omission is/are unforeseeable, no proximate cause exists.   Consider Palsgraf – the case which examined the concept of being outside the zone of danger nor the danger reasonably foreseen.  See Case 5.4, page 102. This case in some fashion WILL BE on the exam.


        Independent Intervening Force(s) The connection between the wrongful act or omission and the injury suffered may be broken by the occurrence of another act or omission, not caused by the alleged tortfeasor nor subject to the alleged tortfeasor’s control, which supersedes the original wrongful act or omission as the cause of plaintiff’s injury or loss. Example of bike accident and airplane crash injury.


        Res Ipsa Loquitur: (the facts speak for themselves) A doctrine under which negligence may be inferred to have caused an injury or loss if the event resulting in the injury or loss would not occur in the absence of negligence.








·        Assumption of Risk: A plaintiff who voluntarily enters a risky situation, knowing the risk involved, may not recover from the alleged tortfeasor. In order to establish assumption of risk, the defendant must prove that the plaintiff:


                   (1)     had knowledge of the risk inherent in a situation and


                   (2)     voluntarily entered into the risky situation.


        NOTICE: Risk may be assumed by express agreement or be implied by plaintiffs knowledge and conduct.


        Plaintiff does not assume risk other than those inherent in the situation.


        Assumption of risk will not arise in emergencies.


        Good Samaritan” Statutes: Many states have passed legislation preventing those who are aided voluntarily from then suing the person who rendered the assistance.


        Assumption of risk will not arise when the plaintiff is a member of a class of persons protected from harm by statute.


                   Superceding intervening cause.








        Contributory Negligence: No matter how insignificant the plaintiffs own negligence is when compared to that of the defendant, in a minority of jurisdictions any negligence on the part of the plaintiff that contributed in any way to the injury of which plaintiff complains will bar the plaintiff from recovering damages from defendant.


        Comparative Negligence: More popular today than contributory negligence, a comparative negligence scheme permits plaintiff to recover only for the percentage of his or her injury or loss that was not caused by plaintiffs own negligence.


        50% Caps” Some jurisdictions further refuse to permit a negligent plaintiff from recovering any damages if the plaintiff is responsible for more than 50% of his or her own injury or loss.


Enhanced Injury Theory






Negligence Per Se: (in and of itself) An act or omission in violation of a statutory duty or obligation. Negligence per se often arises where the tortfeasor both violates a criminal statute or ordinance and causes injury to another party.


        Plaintiff must prove that:


(1)     the statute or ordinance clearly sets out what standard of conduct is expected, when it is expected, and of whom it is expected,


(2)     plaintiff is in the class of persons intended to be protected by the statute or ordinance, and


(3)     the statute or ordinance was intended to prevent the type of injury which plaintiff suffered as a result of defendant’s wrongful act.


Recall the good Samaritan laws.