The first step in analyzing a negligence claim is to determine whether the tortfeasor owed a legal

Índice Show

Intentional Torts
Negligence
Strict Liability

Duty:
A duty is simply a legal obligation. In order to be sued for Negligence, the Defendant must have owed a duty to the Plaintiff.

Breach:
A breach is a violation of a law or duty. The Defendant must breach his duty in order to be liable for negligence.

Cause:
The breach of duty must have caused harm to the Plaintiff.

Harm:
The Plaintiff must suffer harm in order to sue for negligence. If he suffers no harm, he cannot sue.

Where the laws of intentional torts allow a plaintiff to sue for harm the defendant caused on purpose, the laws of negligence allow a plaintiff to sue for harm the defendant caused either by accident or through reckless behavior. With that in mind, please keep negligence in the back of your mind when you are analyzing a scenario involving intentional torts because you may find that a plaintiff will be able to recover in negligence even if he cannot recover for an intentional tort. For example:

Bruce Wayne is the head librarian at the Gotham City Library. Bruce hires Peter Parker, a private security guard, to monitor the library at night. Peter’s job is to walk through the library at closing time to make sure no patrons are still in the building and then lock the doors for the night. One night, Peter locks up like he is supposed to but he forgets to walk through the building first. Unfortunately, Clark Kent, an avid reader, is in the library and does not realize that the library has closed. Because Peter forgot to walk through the building, he does not realize that Clark is still inside and Clark gets locked inside the library for the night. If Clark sues Peter for False Imprisonment, Clark will lose because Peter did not intentionally lock Clark in the library. However, even though Clark will not recover for an intentional tort, he can still sue and possibly recover against Peter for negligently locking him in the library.

The four elements that a plaintiff must prove to win a negligence suit are 1) Duty, 2) Breach, 3) Cause, and 4) Harm. When trying to establish a case for negligence, you must make sure that all four elements have been met:

(1) Duty:
The first step in analyzing a negligence scenario is to establish whether or not the defendant owed the plaintiff a duty. There are two kinds of duty that a defendant could owe the plaintiff. The first is the general "duty of care". The duty of care is simply a duty to conduct yourself as a reasonable person, acting under similar circumstances, would conduct himself. In any negligence suit we look at the defendant’s actions and try to determine whether a reasonable person would have acted the way the defendant acted had the reasonable person been in the same circumstances that the defendant was in. If the defendant’s behavior matches the reasonable man’s behavior the defendant has fulfilled his duty of care. If the defendant’s actions fall below what a court determines the reasonable man’s actions would have been the defendant has breached his duty.

The second duty is a "special duty" imposed by statute or case law which may exist either in addition to, or in place of the regular duty of care. For example:

A state passes a law requiring all home owners to shovel snow from the sidewalks in front of their houses. Thanks to this law, every home owner in the state has a special duty to all pedestrians to make sure that his sidewalks are clear of snow.

In order to determine duty you must look at the relationship between the plaintiff and the defendant and identify whether or not, based on that relationship, the defendant owed duty to the plaintiff.

(2) Breach
Once you have determined the existence of a duty, you must determine whether or not the defendant has breached his duty. A defendant can breach his duty both by acting in a certain manner or by failing to act in a certain manner. That is to say, a defendant can breach his duty either by acting in a manner that violates the reasonable man test, or by not acting in a situation where he is legally required to act.

(3) Cause
Once you have demonstrated that the defendant owed a duty to the plaintiff and that the defendant breached that duty, you must show that the breach was both the actual and proximate cause of the plaintiff’s harm.

(4) Harm
Finally, you must show that the plaintiff suffered harm as a result of the defendant’s breach. If a plaintiff does not suffer harm, he can not sue for negligence. For example:

Hermann is an avid skier. One day, while practicing his slaloming technique, he suffers a bad fall and breaks his right leg. At the hospital, the doctor accidentally casts Hermann’s left leg. The left leg remains in a cast for two months while the broken right leg goes untreated. Somehow, the broken right leg heals by itself and Hermann suffers no harm because of the doctor’s mistake. Because Hermann has not suffered any harm, he will not be able to sue the doctor for negligence.

Please note that, as with intentional torts, there are several possible defenses to a charge of negligence. As the final step in your analysis you must go through these possible defenses to see if the defendant can use one of them to insulate himself from liability.

The study of “Torts” governs basic everyday human interaction. During the course of human interaction, it is natural that people should suffer injuries, be they physical, financial or emotional, at the hands of other people. “Torts” is the study of when and to what extent these injuries must be compensated by the party who is responsible for causing the injuries.

A “tort” is an action that causes an injury that, under the law, makes the victim eligible to receive compensation from the person who caused the injury. The person who commits a tort is sometimes known as a “tortfeasor”.

These are three basic ways in which a tort can be committed: A tort can be committed intentionally; i.e., the tortfeasor intended for the injury to occur or knew that is would occur. A tort can also be committed through the negligence of the tortfeasor. Finally, a tort may be committed through no fault of the tortfeasor. Of course, it is much easier to recover from an intentional tortfeasor than from a negligent tortfeasor and much easier to recover from a negligent tortfeasor than from a person who was not at fault for the injury that occurred.

Intentional Torts

Following are some examples of intentional torts:

Battery is defined as a harmful or offensive contact. A contact is offensive if a reasonable person under the circumstances would find it offensive. Thus, if A taps B on the shoulder to get his attention to ask what time it is, that is not a battery, even if B does take offense to the tapping.Battery must involve contact between the defendant and the plaintiff. However, the Defendant does not have to actually make physical contact with the plaintiff’s body to inflict a harmful or offensive touching. Even contact with an object held by the defendant can constitute battery. In addition, if the defendant causes another object to hit the plaintiff’s body, that is also sufficient.
An Assault is an act that puts another person in reasonable fear of imminent harmful or offensive contact. Much of the time, assaults are nothing more than failed Battery attempts, where the defendant tried to harm the plaintiff, but the plaintiff was able to avoid the harm. However, you can commit an assault without actually intending to harm anybody. As long as you make someone believe that you are about to touch them in a harmful or offensive way, you have committed an assault. Thus, pointing a gun at a person is an assault, even if you never had any intention of pulling the trigger.
False Imprisonment is defined as a restraint of a person in a bounded area without justification or consent. In order to sue for false imprisonment, the plaintiff must show that the defendant intentionally caused the plaintiff to be unlawfully confined to the specific area. The confinement must be unlawful. An arrest of a suspect by police is not false imprisonment, even if the person arrested later is found to be innocent.
Intentional Infliction of Emotional Distress is defined as intentionally or recklessly causing another person severe emotional distress through extreme and outrageous conduct. This can be a result of either the defendant's acts or words. Since the conduct must be “extreme and outrageous,” mere insults or shouting at a person are not actionable. However, if the defendant knows that a victim is unusually sensitive (such as a child), insults may be enough to be considered a tort.
Trespass to land is defined as a person’s unlawful entry onto another’s land. The entry can even be extremely slight.
Trespass to chattel is the unlawful interference with another person’s personal property. (Chattel means personal property, as opposed to real property, which means land or a house.) The most common example of trespass to chattel is theft.In most cases, the person who committed the trespass to chattel can simply give back the property and pay for any damage to it. However, if the defendant has seriously interfered with the chattel (such as if the thief steals a car and gets into an accident that totals the car), the court may order the defendant to pay for the entire value of the item interfered with. If such is the case, the tort is known as a “conversion”.
Defamation occurs when a defendant makes a statement about a plaintiff that is false and has the effect of harming the reputation of the plaintiff in the community. In order for an action of defamation to arise, the defendant must communicate his defamatory statement to someone other than the plaintiff. Further, in order to recover for defamation, the plaintiff must prove that the defendant intentionally communicated the defamatory statement to a third person, or that the defendant negligently failed to exercise due care in making sure the statement was not published. Under the law, truth is an absolute defense against a charge of defamation. Thus, if the defendant can show that the statement that he made about the plaintiff is true, there will be no successful action for defamation.There are many “privileges” that protect people from suits for defamation:
(a) Legislative Privilege: Statements made by a member of a legislative body (such as Congress) during the lawmaking process, even if defamatory.

(b) Judicial Privilege: Statements made as part of a court proceeding are usually not actionable as defamation, although this privilege is not absolute.
(c) Executive Privilege: Statements made by the President or governor of a state or their staff members are privileged, although the privilege is not absolute.
(d) Domestic Privilege: Statements made between spouses enjoy a limited privilege against a defamation lawsuit.

Constitutional Privilege:

Because of the First Amendment’s guarantee of freedom of the press, the Supreme Court has ruled that the press gets certain protections against defamation suits brought by people in the news. The Supreme Court has reasoned that, if every time a newspaper printed a story about someone that later turned out to be false, this would have a “chilling effect” on the press’ ability to properly cover and report the news. The rules are discussed in the Torts and Constitutional Law classes. Here is a basic synopsis of those rules:

If the plaintiff is a public official or “public figure” (i.e., a person who is famous or in the general news), the plaintiff can only sue a media outlet for defamation if the media outlet acted with “actual malice.” This means that the plaintiff must prove that the media outlet acted with knowledge that the statement was false or, at least, with reckless disregard for the truth. In addition, the plaintiff must prove this by “clear and convincing” evidence, a standard of proof higher than a regular civil case.
If the plaintiff is a private figure suing a media outlet, but the issue that is being reported is one of “public concern,” he can recover even absent a showing of actual malice. However, to recover “punitive” damages (special extra damages designed to punish the tortfeasor), the plaintiff needs to show actual malice.
If the plaintiff is a private figure suing a media outlet, and the issue that is being reported is not one of “public concern,” the plaintiff can recover both compensatory (regular) and punitive damages without a showing of actual malice.

8. Invasion of Privacy: There are 4 categories of actions that have been recognized by the law as constituting actionable invasions of privacy: (a) Intrusion upon seclusion (b) “Public disclosure of private facts” (c) “Appropriation of plaintiff’s name or likeness for commercial purposes”, and (d) “Publication putting plaintiff in a false light”

9. Fraud, also known as misrepresentation, occurs when one party lies to the other party about an aspect of a business transaction that causes the other person to go through with the transaction and thus lose money.

Generally, to establish a case for misrepresentation, the plaintiff must prove that: (a) The defendant made a material misrepresentation (b) The defendant had knowledge of the misrepresentation (c) The defendant intended for the plaintiff to rely on his misrepresentation (d) There was actual and justifiable reliance on the part of the plaintiff (e) There were damages sustained by plaintiff

Defenses

There are also several defenses that can be invoked against a lawsuit other than “I didn’t do it.” These defenses include self defense, defense of others, necessity, and consent of the victim. These defenses are examined in more detail in the Torts course.

Negligence

Negligence is sometimes referred to as the “500 pound gorilla” of torts law. This is because the vast majority of torts cases that are brought in courts throughout the country are for negligence. Slip and fall cases, hot coffee spilling on patrons of restaurant cases and most other cases that you are familiar with from the news are negligence cases.The laws of negligence allow a plaintiff to sue for harm the defendant incurred by mistake, that was caused by the negligent or reckless behavior of another person. Even when analyzing a scenario involving intentional torts, keep negligence in the back of your mind because you may find that a plaintiff will be able to recover in negligence even if he cannot recover for an intentional tort.

The four elements that a plaintiff must prove to win a negligence suit are:

DutyThe first step in analyzing a negligence scenario is to establish whether or not the defendant owed the plaintiff a duty. Courts have interpreted this element to mean that there must have been some level of foreseeability of harm that existed between the defendant’s actions and the plaintiff’s harm. In other words, for negligence to apply, a reasonable person must have been able to tell that the negligent conduct of the defendant was reasonably likely to cause harm in the manner suffered by the plaintiff. If the harm was completely unforeseeable, then the defendant is said to have owed no duty to the plaintiff to desist from the negligent conduct, and the defendant will not be liable.
Breach Once you have determined the existence of a duty, you must determine whether or not the defendant has breached his duty. A defendant can breach his duty either by acting in a certain manner or by failing to act in a certain manner. That is to say, a defendant can breach his duty either by acting in a manner that violates the reasonable person (foreseeability) test, or by not acting in a situation where he is legally required to act.
CausationOnce you have demonstrated that the defendant owed a duty to the plaintiff and that the defendant breached that duty, you must show that the breach was the cause of the plaintiff’s harm.
Harm (damages)
Finally, you must show that the plaintiff suffered harm as a result of the defendant’s breach. If a plaintiff does not suffer harm, he cannot sue for negligence.

Each of these elements is analyzed in detail in the Torts course.

In addition to the standard duties to avoid hurting other people, there are some special duties that the law imposes. These include the duty of a hotel manager to make the hotel safe for guests, the duty for “common carriers” (e.g., railroad company carrying passengers) to make the transportation safe for passengers and the duty of property owners to make the premises safe for guests. A violation of these duties will lead to civil liability if it causes an injury. It should be noted, though, that these duties are not absolute.

As with intentional torts, there are certain defenses that can be mounted against a charge of negligence. These include:

Contributory Negligence: If the plaintiff, through her own negligent actions, helped to cause her own injury, she may be completely or partially barred from recovering money from the defendant.
Assumption of Risk: If the plaintiff voluntarily assumed the risk of the harm by voluntarily entering harm’s way, the plaintiff may be barred from recovering money, even if it was the defendant’s negligence that actually caused the harm.

Strict Liability

In some cases, a person can be liable to pay for injuries or damages caused by his actions or products, even if he did not cause the injury intentionally and was not negligent at all! The liability in these cases is known as “no-fault” or “strict” liability. Examples of scenarios in which strict liability is applied are:

Animals: If a person’s animal damages someone, and either: a) the animal is a wild animal, orb) the animal has shown a propensity towards violence in the past,then the owner of the animal will be strictly liable for the injuries that it causes.
Abnormally Dangerous Activities: The general rule is that if someone maintains an abnormally dangerous condition on his property or engages in an action that poses an unavoidable risk of harm to other people or property, that person will be liable for the harm caused under the theory of Strict Liability, even if he used reasonable care to prevent the harm.
Products Liability: The recent trend in the U.S. is to hold manufacturers or retailers strictly liable for injuries caused by defective products in many cases. These cases include where there is a defect in the way an item was manufactured (e.g., a car’s brakes fail because an assembly line worker didn’t tighten a bolt enough) and cases where the manufacturer or retailer made a promise that did not turn out to be accurate (e.g., the car dealer promised that the windshield was shatterproof and it shattered, causing injuries to the driver). In such cases, there can be liability even if the plaintiff cannot prove any negligence on the part of the manufacturer or dealer.