TORTS

A tort is a private wrong against a person or his property, for which a damages award or other judicial remedy may be
sought. Aside from certain limited circumstances, all torts arise from either an intentional, wrongful action or from a
negligent action.
A crime is a public wrong, committed with intent or by negligence, for which the law provides punishment or
recompense to society. Many torts are also crimes, and most crimes involve tortious acts. Thus a single action may result
in two trials: a criminal trial and a tort (civil) trial.
Comparison of crimes and tors:
❖ A crime is a public wrong against society, while a tort is a private wrong against individuals or businesses.
❖  In crimes, the “plaintiff” (prosecutor) is the state (the offended person is usually a witness), while in torts, the
plaintiff is an individual or a business.
❖ The form of law is, as regards crimes, mostly statutory law and as regards torts, mostly common law.
❖ In crimes, the prosecutor’s burden of proof is guilty beyond a reasonable doubt, while in torts, the plaintiff’s burden
of proof is the preponderance of the evidence.
❖ Crimes consent rarely a defense, while torts usually consent a defense.
❖ In crimes, no damages are necessary, while in torts, damages must be shown.
❖ The basis for criminal guilt is an intentional tort and an sometimes gross negligence or recklessness, while the basis
for tort liability is an intentional act, negligence or strict liability.    
 
Classification of torts:
Intentional torts: The defendant's act must be expressly or implicitly intended; the resulting harm need not be
intended, but must have been reasonably foreseeable. Examples: assault and battery, false imprisonment and invasion of
privacy.
 Negligence: It’s an unintentional breach of duty. The plaintiff must show four things:
(a) there was a duty imposed on the defendant in favor of the plaintiff,
(b) the defendant breached (violated) that duty,
(c) the breach was the proximate (natural and foreseeable) cause of the harm, and

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(d) plaintiff suffered damages.

The duty, meaning the standard of care, is that of a reasonable, prudent person acting with ordinary care and skill: the
"reasonable man" standard. A highly educated or skilled defendant may be held to a standard proportional to his actual
knowledge and ability. In negligence, duty of care is breached if the defendant failed to act as a reasonable, prudent
person would have acted in the situation the defendant faced.
But the plaintiff must also prove causation in fact. Causation in fact exists if, but for the defendant's wrongful acts, the
damages to the plaintiff would not have occurred. However, if the plaintiff and/or his damages were unforeseeable, the
defendant may successfully argue that the alleged tort lacks proximate cause.

Strict liability: For reasons of public policy, defendants who engage in abnormally dangerous activities are held strictly
liable for harm resulting from those activities.
 
Other theories of tort liability include:
− Res ipsa loquitur: When a certain type of accident occurs ordinarily because of negligence, and the defendant had
exclusive control of the instrument causing the injury (for example an airplane that crashed, a scalpel left in a
patient's stomach), a presumption arises that the defendant was negligent.
−   Respondeat superior: When employees commit torts in the scope of their employment, the liability is placed on
employers as well as employees.
 
Examples of torts:
− Negligence: Duty, breach, causation, and damages are the crux of any tort case concerning
negligence. Examples: poorly manufactured products, professional malpractice, traffic accidents.
− Intentional torts:
✓ Assault: arousing in another individual the apprehension of an immediate harmful or offensive contact with his
body. Words must be accompanied by some act. 
✓  False arrest: detention of the plaintiff, without his permission, under the falsely asserted authority of the
defendant. No physical barrier, force or threat of force is necessary. 

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✓ Infringement of copyrights, patents, trademarks, or trade names.
✓ Unfair competition: a tort that, in its broad sense, overlaps other torts such as infringement of intellectual property
or interference with contracts. 
✓ Trespass to personal property: unjustified interference with the plaintiff's use of personal property. 

✓  Battery: unjustified contact with someone else's body or anything connected to it, for example a purse. The contact
may be direct or due to a force put into motion by the defendant. It includes actions exceeding one's authority for
physical contact. 
✓ False imprisonment: wrongful use of force, physical barriers, or threats of force to restrain the plaintiffs’ freedom
of movement. 
✓  Disparagement: a business defamation that involves injurious falsehoods about a product or a competitor's
reputation.
✓ Trespass to real property: unauthorized entry onto the plaintiffs land, either by a person or by something the
person caused to enter the land. This tort can also occur when presence on the plaintiffs property becomes
unauthorized, but continues.
✓ Abuse of process: the use of a court process for a purpose for which it was not intended.

 
Defenses to torts:

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Good defences result from failing to comply with the definitional requirements of a specific tort or from falling short of the
level of proof required in any civil case. Some defences to torts are:
− Act of God is a defense to negligence when natural forces such as lightning, earthquakes, or hurricanes are the
proximate cause of injury. However, when a person negligently created a situation whereby a foreseeable act of God
could cause damage, no defense is available to foreseeable damages.
− Contributory negligence: If the plaintiff was negligent and that negligence contributed to his injuries, the
defendant is absolved from liability even if the defendant's negligence was much greater than the plaintiff’s.
−  Infancy bars criminal liability for children who are under certain age and do not understand that a particular act is
wrong. But children have no such immunity for torts, since the law is more concerned with compensating the injured
than with determining moral guilt. In negligence cases, a child's standard of care is based on his intelligence and
experience rather than the usual objective standard.
−  Insanity: It may negate intent for some intentional torts. However, the mentally incompetent are generally held
accountable for their tortious acts (including negligence) on the grounds that to deny compensation would be unfair
to their victims.
−   Intoxication is a criminal defense only when involuntary, when a person by force, by mistake or by some situation
beyond his control ingests an intoxicating substance. But for torts, intoxicated persons will generally be held to the
same standard of care as if they were sober: intoxication is no defense.

−   Statutes of limitations are statutorily defined periods of time within which a legal action must be brought. In civil
actions, the time varies from state to state and depends on the subject matter.

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− Superseding (intervening) causes break the causal connection in torts between the defendant's act and the plaintiffs
damages. As a general rule, they offer a defense based on lack of either causation in fact or proximate cause.
−  Assumption of risk is a defense to unintentional torts or negligence. It means that a plaintiff who knowingly and
voluntarily faced a dangerous situation may not recover for an injury arising out of the known risks inherent to that
situation. An exception to this defense is a rescue acting in an emergency situation.
−  Comparative negligence: When the negligence of the plaintiff and the negligence of the defendant are
concurrent causes of the plaintiffs damages, any damages awarded to the plaintiff are reduced by an amount
proportionate to the degree of the plaintiffs fault. Sometimes, this is as long as the plaintiff’s fault is less than the
defendant's fault.

 
Product liability is the liability attributed to the manufacturer of a product when such product is defective. Liability
arises from negligence or strict liability. Acts and defects resulting in liability may arise from improper manufacture or
inspection, a failure to warn or problems in design.
Negligence is failure to follow some generally accepted standard of care. Thus, if manufactured goods explode, for
example, a negligence case must demonstrate,
1. Some standard of care generally applicable in the manufacture of such goods, and,
2. Failure by the defendant to rise to the level of such standard of care. But these requirements for proving negligence
can be very difficult for a plaintiff to meet, and modern common law has devised principles to assist the plaintiff in
certain kinds of situations.
One of these principles is res ipsa loquitur, by which negligence need not be proved by plaintiff if

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− The product was under the exclusive control of defendant at the time of its manufacture,
− Injuries such as those suffered by the plaintiff do not ordinarily happen in the absence of negligence. Thus, res ipsa
loquitur may be used as a substitute for the requirement of proving negligence by the manufacturer.
Strict liability is another principle and exception to the negligence requirement. This theory imposes liability on
manufacturers and sellers as a matter of public policy. There are three requirements:
(1) that the product was sold in a defective condition and as such was unreasonably dangerous to the user;
(2) that the seller is in the business of selling such a product, and
(3) that the product reached the user without substantial change.
“Defective” means merely that the goods were not in such condition or of such manufacture as an ordinary consumer
might reasonably expect.
The seller's remedy for possible strict liability may be in full and adequately placed warnings. But even with such
warnings, plaintiffs may have no difficulty framing a strong case.
Besides, each party in the chain of manufacturing and distribution may be liable: manufacturers of end products,
component part manufacturers, wholesalers, retailers, distributors, etc.