United States tort law
Encyclopedia
This article addresses tort
s in United States law. As such, it covers primarily common law
. Moreover, it provides general rules, as individual states all have separate civil code
s. There are three general categories of torts: intentional tort
s, negligence
, and strict liability
torts.
, assault
, false imprisonment
, intentional infliction of emotional distress
("IIED"), trespass to land
, trespass to chattels
, conversion
, invasion of privacy, malicious prosecution
, abuse of process
, fraud, and defamation of character (libel/slander).
For an example in battery, Dave shoots a gun into a crowd of people because he is specifically trying to hit someone with a bullet. This element would be satisfied, as David had an actual desire to procure the harm required for this tort. Alternatively, Dave shoots a gun into a crowd of people for some reason and genuinely hopes no one gets hit but knows that it is virtually inevitable that someone will actually get hit. This element would still be satisfied, as David had knowledge to a substantial certainty that harm would result.
In contrast, if all that can be said about the defendant's state of mind is that he should have known better, he will not be liable for an intentional tort. This situation might occur if, as opposed to the examples above, Dave shoots a gun in a remote part of the desert without looking just for fun, not wanting to hit anyone, but the bullet does hit someone. Dave did not have a desire or knowledge to a substantial certainty that someone would get hit in this situation. He may, however, be liable for some other tort, namely negligence.
Apprehension is a broader term than fear. If a defendant intends to cause the plaintiff to actually fear a harmful contact, for example, it will therefore always suffice as apprehension, but there are other ways to achieve apprehension as well.
Assault, discussed below, is notably similar to battery. Indeed, the elements of intent and act are identical. The only difference is the result.
Confinement must typically be within boundaries that the defendant establishes. For example, a person is not confined when he is refused entry to a building, because he is free to leave. In addition, a person is not confined unless the will to leave of an ordinary person in the same situation would be overborne. For example, Dave calls Paula into a room with one door. Dave closes the door and stands in front of it. He tells Paula that if she wants to leave, he will open the door and get out of her way but also threatens to blink twice if she does so. An ordinary person's will to leave would not be overborne by Dave's threat to blink twice.
No damage is required in false imprisonment, hence the requirement of a result of awareness or damage. For example, Dave calls Paula into a room with one door. Dave closes the door and stands in front of it. He tells Paula that if she wants to leave, he will take out a gun and shoot her. (Note that this would overcome the will of an ordinary person to leave.) An hour later, Dave changes his mind and leaves the premises. Paula subsequently leaves and is not physically injured at all. Her awareness of confinement is sufficient to satisfy the element of the result in false imprisonment.
Alternatively, Paula is a narcoleptic. She suddenly falls into a deep sleep while feeding the chickens in a barn on Dave's farm in a remote area. Not wanting to move her, Dave locks her in the barn from the outside when he needs to go into town, trying to protect her but also knowing that she won't be able to leave (or call for help) if she wakes up. While Dave is away, the chickens severely scratch Paula's arms, but she does not wake up. Dave returns, unlocks the barn, and successfully wakes up Paula to tend to her wounds. Even though she was unaware of her confinement, she was damaged by it and will have a claim of false imprisonment against Dave.
This is a notable exception to the general rule given above that for almost all intentional torts only desire or knowledge to a substantial certainty will do. IIED also includes recklessness. This still distinguishes it from negligent infliction of emotional distress, though.
Extreme and outrageous conduct refers to the act. Severe emotional distress refers to the result. This is another intentional tort for which no damage is ordinarily required. However, some jurisdictions require the accompaniment of physical effects. In other words, emotional distress will not be deemed to exist in those jurisdictions unless there are physical manifestations, such as vomiting or fainting.
The remedy for this cause of action not only requires the defendant to pay the plaintiff the full value of the chattel but also is properly considered a forced sale. The plaintiff must tender the defendant the chattel. Therefore, a plaintiff may not elect to pursue this cause of action but instead trespass to chattel, namely when he wants to keep his chattel despite its potential damage.
This is a partial privilege. A party who has this privilege is still liable for damage caused. This defense is therefore more important when there is a concomitant issue of whether the opposing party has a valid privilege of defense of property.
The following example is derived from an actual Vermont case from 1908. Paula is sailing on a lake when a violent storm suddenly breaks out. She navigates to the nearest dock and quickly ties up her vessel, not damaging the dock at all. The dock belongs to Dave. Dave attempts to exercise the privilege of defense of property, as Paula would ordinarily be committing a trespass to land in this situation, and unties the vessel. Paula therefore drifts back away from the shore. Her boat is damaged, and she suffers personal injuries, both as a result of the storm.
If Paula had damaged Dave's dock, she would be liable for it, even though she has a valid privilege of private necessity.
More importantly, Dave is now liable to Paula for the damage to her boat and for her personal injuries. Because of the private necessity, Paula is not considered a trespasser. So, Dave did not in fact have a valid privilege of defense of property.
Ordinarily, for private necessity to be valid, the party attempting to exercise it must not have been responsible for creating the emergency. For example, if Paula intentionally punctures her fuel tank just so she can race over to Dave's dock and tie up, she will not have a valid privilege of private necessity. As such, she would be a trespasser, and Dave would have a valid privilege of defense of property.
This is a complete privilege. A party who has this privilege, which will typically be a public official or governmental entity, is not liable for any damage caused. A famous early case on this privilege involved John W. Geary
, the first mayor of San Francisco
, who made the decision during a major fire to burn down several private residences to establish a fire break.
as being the most common source of common law, most Americans
are under the impression that most people can sue for any type of negligence, but it is untrue in most US courts (partly because negligence is one of the few torts for which ordinary people can and do obtain liability insurance.) It is a form of extracontractual liability
that is based upon a failure to comply with the duty of care of a reasonable person, which failure is the actual cause and proximate cause
of damages. That is, but for the tortfeasor's act or omission, the damages to the plaintiff would not have been incurred, and the damages were a reasonably foreseeable consequence of the tortious conduct.
:
This means that if the burden of exercising more care is less than the probability of loss (damage, harm, etc.), and a person fails to undertake the burden, he is not exercising reasonable care and is thus breaching his duty to do so (assuming he has one).
There are other ways of establishing breach, as well.
Occasionally, there is a valid excuse for violating a safety statute, namely when it is safer or arguably safer to violate than to comply with it. This happened in Tedla v. Ellman
. A statute permitted pedestrians to use roadways but, when they do, to walk against traffic. At the time in question, there was heavy traffic going the opposite direction as the plaintiff. Therefore, the plaintiff would have had to walk past many more vehicles, arguably increasing his chances of being hit. So, the plaintiff walked with traffic on the other side of the road, thus violating the statute. There were far fewer vehicles travelling that direction. However, the plaintiff happened to get hit anyway. Even though the purpose of the statute was notably to prevent precisely the result that occurred, the plaintiff nonetheless prevailed because of a valid excuse for violating the statute, namely that it was probably safer not to comply.
phrase that means "the thing speaks for itself." It is also an alternative basis of breach and will not be relevant in every case. Indeed, it is rare. Ordinarily, it only applies when the plaintiff has little or limited access to the evidence of negligent conduct.
Res ipsa loquitur requires that the defendant have exclusive control over the thing that causes the result and that the act be one that does not ordinarily occur without breach.
of the result in a particular cause of action.
Several other tests have been created to supplement this general rule, however, especially to deal with cases in which the plaintiff suffers great harm, yet because multiple acts by multiple defendants, the but for test is unhelpful. This situation occurred in the famous case of Summers v. Tice
. For example, Dan and Dave both negligently fire their shotguns at Paula. Paula is struck by only one pellet. It is impossible to determine which gun it was fired from. Using the but for test alone, Dan and Dave can both escape liability. Dan can say that but for his own negligence, Paula still might have suffered the same harm. Dave can make the same argument. As a matter of public policy, most courts will nonetheless hold Dan and Dave jointly and severally liable. The act of each defendant is therefore said to be an actual cause, even if this is a fiction.
A similar situation arises when it is impossible to show that the defendant(s) was/were negligent at all. This almost inevitably arises in cases also involving res ipsa loquitor. See Ybarra v. Spangard
. For example, making the facts of that case more extreme, Paula goes to the hospital for an appendectomy. She wakes up, and it turns out that her left arm has also been amputated for no apparent reason. (Note that this would implicate multiple issues and other causes of action than negligence.) For purposes of actual cause, unless someone comes forward and admits negligent conduct (assume that there is no video record), Paula will be unable to show an actual cause. In this situation too, most courts will hold all the defendants that Paula names (possibly everyone on the medical staff that was in the room during her surgery) jointly and severally liable. The act of each defendant is likewise said to be an actual cause, even if this is a fiction.
Another test deals with cases in which there are two actual causes and only one is negligent. For example, there are three equidistant points, A, B, and C. Paula's house is at point A. Dave negligently ignites a fire at point B. Lightning simultaneously strikes point C, starting a second fire. The fire at point B and the fire at point C both burn towards point A. Paula's house burns down. Unlike Summers v. Tice, there is only one defendant in this situation. Most courts will still hold Dave's negligence to be an actual cause, as his conduct was a substantial factor in causing Paula's damage. This is sometimes called the substantial factor test.
, 174 N.E. 441 (1931), on proximate cause
in negligent misstatement cases
232 Cal. Rptr 688 (1986)
Tarasoff v. Regents of the University of California
, 211 N.Y. 125, 105 N.E. 92 (1914), the principle of informed consent before operations
, 712 F.2d 391 (9th Cir. 1983)
, post office immune under the Federal Tort Claims Act
Feres v. United States, 340 U.S. 135 (1950), US immune from suit from members of the military
Some jurisdictions recognize one or more designations less than actual intentional wrongdoing, but more egregious than mere negligence, such as "wanton", “reckless” or “despicable" conduct. A finding in those states that a defendant's conduct was "wanton," “reckless” or “despicable”, rather than merely negligent, can be significant because certain defenses, such as contributory negligence
, are often unavailable when such conduct is the cause of the damages.
Comparative negligence
Punitive damages
Punitive damages
(sums intended to punish the defendant) may be awarded in addition to actual damages intended to compensate the plaintiff. Punitive damage awards generally require a higher showing than mere negligence, but lower than intention. For instance, grossly negligent, reckless, or outrageous conduct may be grounds for an award of punitive damages. These punitive damages awards can be quite substantial in some cases.
torts are brought for injuries resulting from ultrahazardous activities, for which the defendant
will be held liable even if there was no negligence on his/her part. Strict liability also applies to some types of product liability
claims and to copyright infringement
and some trademark
cases. Some statutory torts are also strict liability, including many environmental torts. The term "strict liability" refers to the fact that the tortfeasor's liability is not premised on their culpable state of mind (whether they knew or intended to accomplish the wrongful act, or violated a standard of care by doing so,) but, instead, strictly on the conduct itself or its result.
under color of federal or state law, which can be used to sue for anything from a free speech claim to use of excessive force by the police. Tort claims arising out of injuries occurring on vessels on navigable waters of the United States fall under federal admiralty
jurisdiction.
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
s in United States law. As such, it covers primarily common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. Moreover, it provides general rules, as individual states all have separate civil code
Civil code
A civil code is a systematic collection of laws designed to comprehensively deal with the core areas of private law. A jurisdiction that has a civil code generally also has a code of civil procedure...
s. There are three general categories of torts: intentional tort
Intentional tort
An intentional tort is a category of torts that describes a civil wrong resulting from an intentional act on the part of the tortfeasor. The term negligence, on the other hand, pertains to a tort that simply results from the failure of the tortfeasor to take sufficient care in fulfilling a duty...
s, negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
, and strict liability
Strict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...
torts.
Intentional torts
Intentional torts involve situations in which the defendant desires or knows to a substantial certainty that his act will cause the plaintiff damage. They include batteryBattery (tort)
At common law, battery is the tort of intentionally and voluntarily bringing about an unconsented harmful or offensive contact with a person or to something closely associated with them . Unlike assault, battery involves an actual contact...
, assault
Assault (tort)
In common law, assault is the tort of acting intentionally, that is with either general or specific intent, causing the reasonable apprehension of an immediate harmful or offensive contact. Because assault requires intent, it is considered an intentional tort, as opposed to a tort of negligence...
, false imprisonment
False imprisonment
False imprisonment is a restraint of a person in a bounded area without justification or consent. False imprisonment is a common-law felony and a tort. It applies to private as well as governmental detention...
, intentional infliction of emotional distress
Intentional infliction of emotional distress
Intentional infliction of emotional distress is a tort claim of recent origin for intentional conduct that results in extreme emotional distress. Some courts and commentators have substituted mental for emotional, but the tort is the same...
("IIED"), trespass to land
Trespass to land
Trespass to land is a common law tort that is committed when an individual or the object of an individual intentionally enters the land of another without a lawful excuse. Trespass to land is actionable per se. Thus, the party whose land is entered upon may sue even if no actual harm is done...
, trespass to chattels
Trespass to chattels
Trespass to chattels is a tort whereby the infringing party has intentionally interfered with another person's lawful possession of a chattel...
, conversion
Conversion
-Economy and Finance:* Currency conversion or exchange rate* Conversion , one of the options strategies* Economic conversion-Law:* Conversion , conversion by taking a chattel out of the possession of another with the intent of exercising a permanent or temporary dominion over it, despite the...
, invasion of privacy, malicious prosecution
Malicious prosecution
Malicious prosecution is a common law intentional tort, while like the tort of abuse of process, its elements include intentionally instituting and pursuing a legal action that is brought without probable cause and dismissed in favor of the victim of the malicious prosecution...
, abuse of process
Abuse of process
Abuse of process is a cause of action in tort arising from one party making a malicious and deliberate misuse or perversion of regularly issued court process not justified by the underlying legal action.It is a common law intentional tort...
, fraud, and defamation of character (libel/slander).
Elements
The elements of most intentional torts follow the same pattern: intent, act, result, and causation.Intent
This element typically requires the defendant to desire or know to a substantial certainty that something will occur as a result of his act. Therefore, the term intent, for purposes of this section, always includes either desire or knowledge to a substantial certainty.For an example in battery, Dave shoots a gun into a crowd of people because he is specifically trying to hit someone with a bullet. This element would be satisfied, as David had an actual desire to procure the harm required for this tort. Alternatively, Dave shoots a gun into a crowd of people for some reason and genuinely hopes no one gets hit but knows that it is virtually inevitable that someone will actually get hit. This element would still be satisfied, as David had knowledge to a substantial certainty that harm would result.
In contrast, if all that can be said about the defendant's state of mind is that he should have known better, he will not be liable for an intentional tort. This situation might occur if, as opposed to the examples above, Dave shoots a gun in a remote part of the desert without looking just for fun, not wanting to hit anyone, but the bullet does hit someone. Dave did not have a desire or knowledge to a substantial certainty that someone would get hit in this situation. He may, however, be liable for some other tort, namely negligence.
Act
The element of an act varies by whatever tort is in question but always requires voluntariness. For example, if Dave has a muscle spasm that makes his arm fling out to his side and hit Paula, who is standing next to him, any case that Paula attempts to bring against Dave for battery will fail for lack of the requisite act (which will be discussed in the section on battery, below). The act was not voluntary.Result
This element typically refers to damage, although damage is not required to prevail on certain intentional torts, such as trespass to land.Causation
This element refers to actual cause and proximate cause. It will be treated in its own section.Battery
A person commits a battery when he acts either intending to cause a harmful or offensive contact with another or intending to cause another imminent apprehension of such contact and when such contact results. Therefore, there is a variety of ways in which a person can commit a battery, as illustrated by the following examples of defendant Dave and plaintiff Paula.- Dave acts intending to cause a harmful contact with Paula, and a harmful contact does result.
- Dave acts intending to cause a harmful contact with Paula, but an offensive contact results.
- Dave acts intending to cause an offensive contact with Paula, and an offensive contact does result.
- Dave acts intending to cause an offensive contact with Paula, but a harmful contact results.
- Dave acts intending to "only" cause Paula to be imminently apprehensive of a harmful or offensive contact, but a harmful contact actually results.
- Dave acts intending to "only" cause Paula to be imminently apprehensive of a harmful or offensive contact, but an offensive contact actually results.
Apprehension is a broader term than fear. If a defendant intends to cause the plaintiff to actually fear a harmful contact, for example, it will therefore always suffice as apprehension, but there are other ways to achieve apprehension as well.
Assault, discussed below, is notably similar to battery. Indeed, the elements of intent and act are identical. The only difference is the result.
- Katko v. BrineyKatko v. BrineyKatko v. Briney, 183 N.W.2d 657 , was a famous tort case decided by the Supreme Court of Iowa, in which a homeowner was held liable for battery for injuries caused to a trespasser who set off a spring gun set as a mantrap in an abandoned house on the homeowner's property.Case Brief: Briney...
, 183 N.W.2d 657 (Iowa 1971)
Assault
A person commits an assault when he acts either intending to cause a harmful or offensive contact with another or intending to cause another imminent apprehension of such contact and when such imminent apprehension results. Therefore, there is also a variety of ways in which a person can commit an assault.False Imprisonment
A person commits false imprisonment when he acts intending to confine another and when confinement actually results that the confinee is either aware of or damaged by.Confinement must typically be within boundaries that the defendant establishes. For example, a person is not confined when he is refused entry to a building, because he is free to leave. In addition, a person is not confined unless the will to leave of an ordinary person in the same situation would be overborne. For example, Dave calls Paula into a room with one door. Dave closes the door and stands in front of it. He tells Paula that if she wants to leave, he will open the door and get out of her way but also threatens to blink twice if she does so. An ordinary person's will to leave would not be overborne by Dave's threat to blink twice.
No damage is required in false imprisonment, hence the requirement of a result of awareness or damage. For example, Dave calls Paula into a room with one door. Dave closes the door and stands in front of it. He tells Paula that if she wants to leave, he will take out a gun and shoot her. (Note that this would overcome the will of an ordinary person to leave.) An hour later, Dave changes his mind and leaves the premises. Paula subsequently leaves and is not physically injured at all. Her awareness of confinement is sufficient to satisfy the element of the result in false imprisonment.
Alternatively, Paula is a narcoleptic. She suddenly falls into a deep sleep while feeding the chickens in a barn on Dave's farm in a remote area. Not wanting to move her, Dave locks her in the barn from the outside when he needs to go into town, trying to protect her but also knowing that she won't be able to leave (or call for help) if she wakes up. While Dave is away, the chickens severely scratch Paula's arms, but she does not wake up. Dave returns, unlocks the barn, and successfully wakes up Paula to tend to her wounds. Even though she was unaware of her confinement, she was damaged by it and will have a claim of false imprisonment against Dave.
Intentional Infliction of Emotional Distress
A person commits IIED when he intentionally or recklessly engages in extreme and outrageous conduct that is highly likely to cause severe emotional distress.This is a notable exception to the general rule given above that for almost all intentional torts only desire or knowledge to a substantial certainty will do. IIED also includes recklessness. This still distinguishes it from negligent infliction of emotional distress, though.
Extreme and outrageous conduct refers to the act. Severe emotional distress refers to the result. This is another intentional tort for which no damage is ordinarily required. However, some jurisdictions require the accompaniment of physical effects. In other words, emotional distress will not be deemed to exist in those jurisdictions unless there are physical manifestations, such as vomiting or fainting.
Trespass to Chattel
A person commits trespass to chattel when he acts either intending to dispossess the rightful possessor of a chattel or intending to use or intermeddle with the chattel of another and when dispossession of the chattel for a substantial time results, or damage to the chattel results, or physical injury to the rightful possessor results.Conversion
A person commits conversion when he acts intending to exercise dominion and control and when interference with the rightful possessor's control results that is so serious that it requires the actor to pay the full value of the chattel to the rightful possessor. An exercise of dominion and control refers to the act. Serious interference refers to the result. Seriousness is determined by the following factors:- the nature of the act and how long it lasted;
- the nature of the interference and how long it lasted;
- the inconvenience to and expense incurred by the rightful possessor;
- the actor's good faith (whether he was trying to help someone, for example);
- when applicable, the mistake by the actor (he took a book that looked just like his own but was actually someone else's, for example); and
- when applicable, the damage to the chattel.
The remedy for this cause of action not only requires the defendant to pay the plaintiff the full value of the chattel but also is properly considered a forced sale. The plaintiff must tender the defendant the chattel. Therefore, a plaintiff may not elect to pursue this cause of action but instead trespass to chattel, namely when he wants to keep his chattel despite its potential damage.
Defamation
- Barrett v. RosenthalBarrett v. RosenthalBarrett v. Rosenthal is a 2006 California Supreme Court case concerning online defamation. The case resolved a defamation claim brought by Stephen Barrett, Terry Polevoy, and attorney Christopher Grell against women's health advocate Ilena Rosenthal and several others. Barrett and others alleged...
- Curtis Publishing Co. v. ButtsCurtis Publishing Co. v. ButtsCurtis Publishing Co. v. Butts, 388 U.S. 130 , was a case in which the Supreme Court of the United States established the standard of First Amendment protection against defamation claims brought by private individuals....
- Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 was a Supreme Court case which held that a credit reporting agency could be liable in defamation if it carelessly relayed Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) was a Supreme Court case which held...
- Gertz v. Robert Welch, Inc.Gertz v. Robert Welch, Inc.Gertz v. Robert Welch, Inc., 418 U.S. 323 , was a case in which the Supreme Court of the United States established the standard of First Amendment protection against defamation claims brought by private individuals...
- Hustler Magazine v. FalwellHustler Magazine v. FalwellIn Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 , the United States Supreme Court held, in a unanimous 8–0 decision , that the First Amendment's free-speech guarantee prohibits awarding damages to public figures to compensate for emotional distress intentionally inflicted upon them.Thus,...
- Lunney v. Prodigy Services Co.Lunney v. Prodigy Services Co.Lunney v. Prodigy Services Co., 94 N.Y.2d 242 is a leading U.S. law case on liability of internet service providers for defamation. The court held that Prodigy, an internet chatroom provider, was not considered a publisher of defamatory material posted from an imposter account due to its passive...
- McDonald v. SmithMcDonald v. SmithMcDonald v. Smith, 472 U.S. 479 , was a case in which the Supreme Court of the United States held that the right to petition does not provide absolute immunity to petitioners; it is subject to the same restrictions as other First Amendment rights....
- Milkovich v. Lorain Journal Co.Milkovich v. Lorain Journal Co.Milkovich v. Lorain Journal Co., 497 U.S. 1 , was a United States Supreme Court case that rejected the argument that a separate opinion privilege existed against libel. It was seen by legal commentators as the end of an era that began with New York Times Co. v. Sullivan and continued with Gertz v...
- Near v. MinnesotaNear v. MinnesotaNear v. Minnesota, 283 U.S. 697 , was a United States Supreme Court decision that recognized the freedom of the press by roundly rejecting prior restraints on publication, a principle that was applied to free speech generally in subsequent jurisprudence...
- New York Times Co. v. SullivanNew York Times Co. v. SullivanNew York Times Co. v. Sullivan, 376 U.S. 254 , was a United States Supreme Court case which established the actual malice standard which has to be met before press reports about public officials or public figures can be considered to be defamation and libel; and hence allowed free reporting of the...
- Red Lion Broadcasting Co. v. Federal Communications CommissionRed Lion Broadcasting Co. v. Federal Communications CommissionRed Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367 , established the doctrine that broadcast television stations are full First Amendment speakers whose editorial speech could not be regulated absent good reason...
- Reynolds v. PeglerReynolds v. PeglerReynolds v. Pegler, 223 F.2d 429 , was a landmark libel decision in which Quentin Reynolds successfully sued right-wing columnist Westbrook Pegler, resulting in a record judgment of $175,001....
- Time, Inc. v. FirestoneTime, Inc. v. FirestoneTime, Inc. v. Firestone, , was a U.S. Supreme Court case concerning defamation suits against public figures.-Background:Mary Alice Firestone was married to Russell A. Firestone, Jr., an heir to the Firestone Tire and Rubber Company family fortune. Mary filed for divorce, and Russell submitted a...
- Westmoreland v. CBSWestmoreland v. CBSWestmoreland v. CBS was a $120 million libel suit brought by former U.S. Army Chief of Staff General William Westmoreland against CBS Television for the televising of a documentary entitled The Uncounted Enemy: A Vietnam Deception, narrated by the investigative reporter, Mike Wallace. It was shown...
- John Peter ZengerJohn Peter ZengerJohn Peter Zenger was a German-American printer, publisher, editor, and journalist in New York City. He was a defendant in a landmark legal case in American jurisprudence that determined that truth was a defense against charges of libel and "laid the foundation for American press freedom."-...
Consent
Consent can be a defense to any intentional tort, although lack of consent is occasionally incorporated into the definition of an intentional tort, such as trespass to land. However, lack of consent is not always an essential element to establish a prima facie case in such situations. Therefore, it is properly treated as an affirmative defense.Defense of Property
This is typically a defense to trespass to land or trespass to chattels, as it can refer to realty or personalty.Necessity
Necessity is typically a defense to trespass to land. There are two kinds of necessity, private and public.Private Necessity
This is a partial privilege. A party who has this privilege is still liable for damage caused. This defense is therefore more important when there is a concomitant issue of whether the opposing party has a valid privilege of defense of property.
The following example is derived from an actual Vermont case from 1908. Paula is sailing on a lake when a violent storm suddenly breaks out. She navigates to the nearest dock and quickly ties up her vessel, not damaging the dock at all. The dock belongs to Dave. Dave attempts to exercise the privilege of defense of property, as Paula would ordinarily be committing a trespass to land in this situation, and unties the vessel. Paula therefore drifts back away from the shore. Her boat is damaged, and she suffers personal injuries, both as a result of the storm.
If Paula had damaged Dave's dock, she would be liable for it, even though she has a valid privilege of private necessity.
More importantly, Dave is now liable to Paula for the damage to her boat and for her personal injuries. Because of the private necessity, Paula is not considered a trespasser. So, Dave did not in fact have a valid privilege of defense of property.
Ordinarily, for private necessity to be valid, the party attempting to exercise it must not have been responsible for creating the emergency. For example, if Paula intentionally punctures her fuel tank just so she can race over to Dave's dock and tie up, she will not have a valid privilege of private necessity. As such, she would be a trespasser, and Dave would have a valid privilege of defense of property.
Public Necessity
This is a complete privilege. A party who has this privilege, which will typically be a public official or governmental entity, is not liable for any damage caused. A famous early case on this privilege involved John W. Geary
John W. Geary
John White Geary was an American lawyer, politician, Freemason, and a Union general in the American Civil War...
, the first mayor of San Francisco
Mayor of San Francisco
The Mayor of the City and County of San Francisco is the head of the executive branch of San Francisco's city and county government. The mayor has the duty to enforce city laws, and the power to either approve or veto bills passed by the San Francisco Board of Supervisors, the legislative branch....
, who made the decision during a major fire to burn down several private residences to establish a fire break.
Negligence
Amongst unintentional torts one finds negligenceNegligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
as being the most common source of common law, most Americans
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
are under the impression that most people can sue for any type of negligence, but it is untrue in most US courts (partly because negligence is one of the few torts for which ordinary people can and do obtain liability insurance.) It is a form of extracontractual liability
Legal liability
Legal liability is the legal bound obligation to pay debts.* In law a person is said to be legally liable when they are financially and legally responsible for something. Legal liability concerns both civil law and criminal law. See Strict liability. Under English law, with the passing of the Theft...
that is based upon a failure to comply with the duty of care of a reasonable person, which failure is the actual cause and proximate cause
Proximate cause
In the law, a proximate cause is an event sufficiently related to a legally recognizable injury to be held the cause of that injury. There are two types of causation in the law, cause-in-fact and proximate cause. Cause-in-fact is determined by the "but-for" test: but for the action, the result...
of damages. That is, but for the tortfeasor's act or omission, the damages to the plaintiff would not have been incurred, and the damages were a reasonably foreseeable consequence of the tortious conduct.
Duty of Reasonable Care
- MacPherson v. Buick Motor Co.MacPherson v. Buick Motor Co.MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 is a famous New York Court of Appeals opinion by Judge Benjamin N. Cardozo which removed the requirement of privity of contract for duty in negligence actions.-Facts:...
- Martin v. HerzogMartin v. HerzogMartin v. Herzog, Ct. of App. of N.Y., 228 N Y. 164, 126 N.E. 814 , was a New York Court of Appeals case.-Facts:Martin appealed the order of the Appellate Division that reversed a judgment entered after jury trial that found Herzog negligent and P blameless.Martin was driving his buggy on the...
, 228 N Y. 164, 126 N.E. 814 (1920) - Tedla v. EllmanTedla v. EllmanTedla v. Ellman was a 1939 New York Court of Appeals case that was influential in establishing the bounds of the negligence per se doctrine. Ordinarily, a statutory violation constitutes negligence...
, 280 N.Y. 124, 19 N.E. 2d 987, (1939) on negligence per seNegligence per seNegligence per se is the legal doctrine whereby an act is considered negligent because it violates a statute . In order to prove negligence per se, the plaintiff must show that# the defendant violated the statute,...
, or the violation of a duty under a statute - Seong Sil Kim v. New York City Transit Authority, duty of care to a person who may have been attempting suicide.
Breach
Breach is ordinarily established by showing that the defendant failed to exercise reasonable care. Some courts use the terms ordinary care or prudent care instead. Conduct is typically considered to be unreasonable when the disadvantages outweigh the advantages. Judge Learned Hand famously reduced this to algebraic form in United States v. Carroll Towing Co.United States v. Carroll Towing Co.
United States v. Carroll Towing Co. 159 F.2d 169 is a decision from the 2nd Circuit Court of Appeals that proposed a test to determine the standard of care for the tort of negligence...
:
This means that if the burden of exercising more care is less than the probability of loss (damage, harm, etc.), and a person fails to undertake the burden, he is not exercising reasonable care and is thus breaching his duty to do so (assuming he has one).
There are other ways of establishing breach, as well.
Violation of Statute
This is also known as negligence per se. Breach can be shown in most jurisdictions if a defendant violates a statute that pertains to safety and the purpose of which is to prevent the result of the case. Note that this is an alternative way to show breach. A violation of statute will not have occurred in every case. Therefore, just because it cannot be shown does not mean that there has been no breach. Even if it is attempted to be shown but fails, there may be other bases of breach.Excuse
Occasionally, there is a valid excuse for violating a safety statute, namely when it is safer or arguably safer to violate than to comply with it. This happened in Tedla v. Ellman
Tedla v. Ellman
Tedla v. Ellman was a 1939 New York Court of Appeals case that was influential in establishing the bounds of the negligence per se doctrine. Ordinarily, a statutory violation constitutes negligence...
. A statute permitted pedestrians to use roadways but, when they do, to walk against traffic. At the time in question, there was heavy traffic going the opposite direction as the plaintiff. Therefore, the plaintiff would have had to walk past many more vehicles, arguably increasing his chances of being hit. So, the plaintiff walked with traffic on the other side of the road, thus violating the statute. There were far fewer vehicles travelling that direction. However, the plaintiff happened to get hit anyway. Even though the purpose of the statute was notably to prevent precisely the result that occurred, the plaintiff nonetheless prevailed because of a valid excuse for violating the statute, namely that it was probably safer not to comply.
Violation of Custom
Breach can be shown in most jurisdictions if a defendant violates a custom that is widespread and itself reasonable. For example, if a plaintiff introduces evidence that ten percent of a certain industry does a certain thing, it probably will not be considered a custom for purposes of breach in negligence. Alternatively, if 90 percent of a certain industry does a certain thing, but the thing is inherently unsafe, and it is upholding the custom as a cost-saving measure, violation of that custom (doing something safer) will not constitute breach. As with violation of statute, this is an alternative way to show breach. Therefore, just because it cannot be shown, or is attempted to be shown but fails, does not mean that there has been no breach. There may be other ways of showing breach.- Trimarco v. KleinTrimarco v. KleinTrimarco v. Klein Ct. of App. of N.Y., 56 N.Y.2d 98, 436 N.E.2d 502 is a 1982 decision by the New York Court of Appeals dealing with the use of custom in determining whether a person acted reasonably given the situation. It is commonly studied in introductory U.S...
, 56 N.Y.2d 98, 436 N.E.2d 502 (1982), decided that customary conduct is not conclusive (although it is good evidence) of what will be reasonable.
Res Ipsa Loquitur
This is a LatinLatin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
phrase that means "the thing speaks for itself." It is also an alternative basis of breach and will not be relevant in every case. Indeed, it is rare. Ordinarily, it only applies when the plaintiff has little or limited access to the evidence of negligent conduct.
Res ipsa loquitur requires that the defendant have exclusive control over the thing that causes the result and that the act be one that does not ordinarily occur without breach.
Causation
Causation is typically a bigger issue in negligence cases than intentional torts. However, as mentioned previously, it is an element of any tort. The defendant's act must be an actual cause and a proximate causeProximate cause
In the law, a proximate cause is an event sufficiently related to a legally recognizable injury to be held the cause of that injury. There are two types of causation in the law, cause-in-fact and proximate cause. Cause-in-fact is determined by the "but-for" test: but for the action, the result...
of the result in a particular cause of action.
Actual Cause
Actual cause has historically been determined by the "but for" test. If the result would not have occurred but for the defendant's act, the act is an actual cause of the result.Several other tests have been created to supplement this general rule, however, especially to deal with cases in which the plaintiff suffers great harm, yet because multiple acts by multiple defendants, the but for test is unhelpful. This situation occurred in the famous case of Summers v. Tice
Summers v. Tice
Summers v. Tice, , is a seminal California Supreme Court tort law decision relating to the issue of liability where a plaintiff cannot identify with specificity which among multiple defendants caused his harm. The case has had its greatest influence in the area of product liability in American...
. For example, Dan and Dave both negligently fire their shotguns at Paula. Paula is struck by only one pellet. It is impossible to determine which gun it was fired from. Using the but for test alone, Dan and Dave can both escape liability. Dan can say that but for his own negligence, Paula still might have suffered the same harm. Dave can make the same argument. As a matter of public policy, most courts will nonetheless hold Dan and Dave jointly and severally liable. The act of each defendant is therefore said to be an actual cause, even if this is a fiction.
A similar situation arises when it is impossible to show that the defendant(s) was/were negligent at all. This almost inevitably arises in cases also involving res ipsa loquitor. See Ybarra v. Spangard
Ybarra v. Spangard
Ybarra v. Spangard was a leading case in California discussing exclusive control element of res ipsa loquitur. It held that, "[w]here a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the...
. For example, making the facts of that case more extreme, Paula goes to the hospital for an appendectomy. She wakes up, and it turns out that her left arm has also been amputated for no apparent reason. (Note that this would implicate multiple issues and other causes of action than negligence.) For purposes of actual cause, unless someone comes forward and admits negligent conduct (assume that there is no video record), Paula will be unable to show an actual cause. In this situation too, most courts will hold all the defendants that Paula names (possibly everyone on the medical staff that was in the room during her surgery) jointly and severally liable. The act of each defendant is likewise said to be an actual cause, even if this is a fiction.
Another test deals with cases in which there are two actual causes and only one is negligent. For example, there are three equidistant points, A, B, and C. Paula's house is at point A. Dave negligently ignites a fire at point B. Lightning simultaneously strikes point C, starting a second fire. The fire at point B and the fire at point C both burn towards point A. Paula's house burns down. Unlike Summers v. Tice, there is only one defendant in this situation. Most courts will still hold Dave's negligence to be an actual cause, as his conduct was a substantial factor in causing Paula's damage. This is sometimes called the substantial factor test.
Proximate Cause
There are many tests for determining whether an actual cause is a proximate one. Most involve some form of foreseeability.Ultramares Corporation v. Touche
Ultramares Corporation v. Touche, 174 N.E. 441 is a US tort law case regarding negligent misstatement, decided by Cardozo, C.J. It contained the now famous line on "floodgates" that the law should not admit "to a liability in an indeterminate amount for an indeterminate time to an indeterminate...
, 174 N.E. 441 (1931), on proximate cause
Proximate cause
In the law, a proximate cause is an event sufficiently related to a legally recognizable injury to be held the cause of that injury. There are two types of causation in the law, cause-in-fact and proximate cause. Cause-in-fact is determined by the "but-for" test: but for the action, the result...
in negligent misstatement cases
Negligent Infliction of Emotional distress
Miller v. National Broadcasting Co.
Miller v. National Broadcasting Co. 232 Cal. Rptr 668 is a US tort law case on negligent infliction of emotional distress.-Background:...
232 Cal. Rptr 688 (1986)
Medical malpractice
Ewing v. Goldstein
Ewing v. Goldstein 15 Cal Rptr. 3d 864 is a landmark court case that extended California mental health professional's duty to protect identifiable victims of potentially violent persons, as established by Tarasoff v...
Tarasoff v. Regents of the University of California
Tarasoff v. Regents of the University of California
Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 , was a case in which the Supreme Court of California held that mental health professionals have a duty to protect individuals who are being threatened with bodily harm by a patient...
Schloendorff v. Society of New York Hospital
Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92 , was a decision issued by the New York Court of Appeals in 1914 which established principles of informed consent and respondeat superior in United States law.-Facts:...
, 211 N.Y. 125, 105 N.E. 92 (1914), the principle of informed consent before operations
Jablonski by Pahls v. United States
Jablonski by Pahls v. United States, 712 F.2d 391 is a landmark case in which the 9th Circuit Court of Appeals determined that a mental health professional's duty to predict dangerousness includes consulting a patient's prior records, and that their duty to protect includes the involuntary...
, 712 F.2d 391 (9th Cir. 1983)
Public authorities
Dolan v. United States Postal Service
Dolan v. United States Postal Service, 546 U.S. 481 , was a case decided by the Supreme Court of the United States, involving the extent to which the United States Postal Service has sovereign immunity from lawsuits brought by private individuals under the Federal Tort Claims Act...
, post office immune under the Federal Tort Claims Act
Federal Tort Claims Act
The Federal Tort Claims Act or "FTCA", , is a statute enacted by the United States Congress in 1948. "Federal Tort Claims Act" was also previously the official short title passed by the Seventy-ninth Congress on August 2, 1946 as Title IV of the Legislative Reorganization Act, 60 Stat...
Feres v. United States, 340 U.S. 135 (1950), US immune from suit from members of the military
- Warren v. District of ColumbiaWarren v. District of ColumbiaWarren v. District of Columbia is a U.S. Court of Appeals case in which three rape victims sued the District of Columbia because of negligence on the part of the police. Two of three female roommates were upstairs when they heard men break in and attack the third...
, 444 A.2d. 1, D.C. Ct. of Ap. (1981) holding that the police were not responsible for failing (though repeatedly warned) to respond to calls and arrest people committing crimes
Some jurisdictions recognize one or more designations less than actual intentional wrongdoing, but more egregious than mere negligence, such as "wanton", “reckless” or “despicable" conduct. A finding in those states that a defendant's conduct was "wanton," “reckless” or “despicable”, rather than merely negligent, can be significant because certain defenses, such as contributory negligence
Contributory negligence
Contributory negligence in common-law jurisdictions is defense to a claim based on negligence, an action in tort. It applies to cases where a plaintiff/claimant has, through his own negligence, contributed to the harm he suffered...
, are often unavailable when such conduct is the cause of the damages.
Damages
Joint liability- Walt Disney World Co. v. Wood, 489 So. 2d 61 (Fla. Dist. Ct. App. 1986)
Comparative negligence
- Li v. Yellow Cab Co.Li v. Yellow Cab Co.Li v. Yellow Cab Co., 532 P.2d 1226, 13 Cal.3d 804 , commonly referred to simply as Li, is a California Supreme Court case that judicially embraced comparative negligence in California tort law, rejecting strict contributory negligence....
, 532 P.2d 1226, 13 Cal.3d 804 (1975),
Punitive damages
Punitive damages
Punitive damages
Punitive damages or exemplary damages are damages intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit...
(sums intended to punish the defendant) may be awarded in addition to actual damages intended to compensate the plaintiff. Punitive damage awards generally require a higher showing than mere negligence, but lower than intention. For instance, grossly negligent, reckless, or outrageous conduct may be grounds for an award of punitive damages. These punitive damages awards can be quite substantial in some cases.
- BMW of North America, Inc. v. GoreBMW of North America, Inc. v. GoreBMW of North America, Inc. v. Gore, 517 U.S. 559 , was a United States Supreme Court case limiting punitive damages under the Due Process Clause of the 14th Amendment.-Facts:...
, Constitutional limits on punitive damages
- Liebeck v. McDonald's Restaurants
- Pearson v. ChungPearson v. ChungPearson v. Chung, better known as the "pants lawsuit", is a civil case filed in 2005 by Roy L. Pearson, Jr., an administrative law judge in the District of Columbia in the United States, following a dispute with a dry cleaning company over a lost pair of trousers. Pearson filed suit against Soo...
(2005)
Strict liability
Strict liabilityStrict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...
torts are brought for injuries resulting from ultrahazardous activities, for which the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
will be held liable even if there was no negligence on his/her part. Strict liability also applies to some types of product liability
Product liability
Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause...
claims and to copyright infringement
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
and some trademark
Trademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
cases. Some statutory torts are also strict liability, including many environmental torts. The term "strict liability" refers to the fact that the tortfeasor's liability is not premised on their culpable state of mind (whether they knew or intended to accomplish the wrongful act, or violated a standard of care by doing so,) but, instead, strictly on the conduct itself or its result.
Product liability
Product liability refers to the liability of manufacturers, wholesalers and retailers for unreasonably dangerous products.- Escola v. Coca-Cola Bottling Co.Escola v. Coca-Cola Bottling Co.Escola v. Coca-Cola Bottling Co., 24 Cal.2d 453, 150 P.2d 436 , was a decision of the Supreme Court of California involving an injury caused by an exploding bottle of Coca-Cola...
, 24 Cal.2d 453, 150 P.2d 436Case citationCase citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1944) - Sindell v. Abbott Laboratories, 26 Cal. 3d 588 (1980)
Federal torts
Although federal courts often hear tort cases arising out of common law or state statutes, there are relatively few tort claims that arise exclusively as a result of federal law. The most common federal tort claim is the 42 U.S.C. § 1983 remedy for violation of one's civil rightsCivil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
under color of federal or state law, which can be used to sue for anything from a free speech claim to use of excessive force by the police. Tort claims arising out of injuries occurring on vessels on navigable waters of the United States fall under federal admiralty
United States admiralty law
United States admiralty law is the body of admiralty law in the United States.-Jurisdiction:Section 2 of Article III of the United States Constitution gives original jurisdiction in admiralty matters to the federal courts. The federal courts have exclusive jurisdiction over most admiralty and...
jurisdiction.
See also
- United States contract lawUnited States contract law-Definition:A contract is an agreement between legally competent parties to do or not to do something legal for consideration.-Elements:The elements of a contract are mutual assent, consideration, legally competent parties and legal purpose.-Mutual Assent:...
- Civil Procedure in the United StatesCivil procedure in the United StatesCivil procedure in the United States consists of the rules of civil procedure that govern procedure in the federal courts, the 50 state court systems, and in the territorial courts. Like much of American law, civil procedure is not reserved to the federal government in the Constitution...
- Restatement of Torts, SecondRestatement of Torts, SecondThe American Restatement of Torts, Second is an influential treatise issued by the American Law Institute. It summarizes the general principles of common law United States tort law...
- Restatement of Torts, Apportionment of Liability, Third
- Restatement of Torts, General Principles, Third (discussion draft)
- Restatement of Torts, Products Liability, Third
- Privacy laws of the United States