Torts

Prof. Sangseok Ha
 Torts (Introduction)
• Seventy-nine years old lady spilled her McDonald’s coffee
on her leg trying to remove the lid to add cream and
sugar. She burned herself.

• She sued McDonald’s, alleging that the coffee was too hot.
 Torts (Introduction)
• If the facts were like below?
• The company served its coffee at a temperature twenty
degrees hotter than its competitors.
• The temperature that its managers admitted was too hot to
drink right away and hot enough to cause burns.

• If the facts were like there was no significant difference of

temperature between McDonald’s and the other
competitors?
 Torts (Introduction)
• The jury awarded her $160,000 to compensate her for the injuries
and $2.7 million to punish McDonald’s.
• The debate here was whether there is lawsuit abuse or correcting a
wrong.

• Only after this case and the resulting publicity, McDonald’s reduced
the temperature of its coffee.

• Here the tort system worked: a wrongdoer was forced to

compensate an injured victim and to remedy its dangerous conduct.
 Why do we need tort law?
• Very often, people are injured when someone else is
responsible.

• So, we need a legal system to deal with injuries like these cases.

• In fact, we do use mechanisms other than tort law to take care

of the problems that arise from injuries like insurance,
occupational pensions, social security, etc.
 Why do we need tort law?
- The Purpose of Tort law –

• Tort law permits private persons to take the lead in implementing its
policies. – The mechanism of Common Law
• Most of tort law is made up of relatively general rules of civil action.
• Tort law links the deterrence and compensation policies to the
objective of fairness by requiring that the compensation to the victim
come from the wrongdoer.
 Why do we need tort law?

• Tort law provides incentives for good conduct and

disincentives for bad conduct, requires that wrongdoers
compensate their victims, and serves our sense of justice.
 What is tort law?
Generally saying, tort law is for compensation and duties.

• The concept of tort law is to redress a wrong done to a

person or property and provide relief from the wrongful acts
of others, usually by awarding monetary damages as
compensation.
• An essential element of tort law is the application of very
general principles - such as “everyone must use reasonable
care not to injure someone else” - to a particular case.
 What is tort law?
• Tort comes from Latin word meaning “twisted” or “turned
aside”, so a tort is an act that is turned aside from the standard
of proper conduct - a wrongful act.

• If tort law sanctions wrongful conduct, how do we tell what

conduct is wrongful?
 Whether “law of tort” or “law of
torts”?
• This question is about whether the tort law is confined to the
existing kind of torts (law of torts), or the courts can create
new kinds of tort (law of tort = Windfield).
• A tort is every act or omission that gives rise to injury or harm
to another and amounts to a civil wrong for which courts
impose liability.
• In the context of torts, "injury" describes the invasion of any
legal right, whereas "harm" describes a loss or detriment in fact
that an individual suffers.
 Torts vs. Contract

• At a very general level we may say that tort law is concerned

with allocating responsibility for certain types of losses.

• It was Winfield’s view that tortious duties exist by virtue of the

law itself and are not dependent upon the agreement or
consent of the persons subjected to them.
 Torts vs. Contract
• The “core” of contract is the idea of enforcing promises,
whereas tort aims principally at the prevention or
compensation of harms.
• In tort, the content of the duties is fixed by the law, whereas
the content of contractual duties is fixed by the contract itself.
• But it is also clearly established that there may be concurrent
contractual and tortious liability to the same claimant,
though he may not, of course, recover damages twice over.
 Concurrent contractual and
tortious liability
• Donoghue v Stevenson (1932) (Neighbor principle)
• Mrs. Donoghue went to a cafe with a friend. The friend brought her a
bottle of ginger beer and an ice cream. The ginger beer came in an
opaque bottle so that the contents could not be seen. Mrs. Donoghue
poured half the contents of the bottle over her ice cream and also
drank some from the bottle. After eating part of the ice cream, she
then poured the remaining contents of the bottle over the ice cream
and a decomposed snail emerged from the bottle. Mrs. Donoghue
suffered personal injury as a result. She commenced a claim against
the manufacturer of the ginger beer.
Concurrent contractual and
tortious liability
• Three-party situations.
• a defendant may be liable on the same facts in contract to A
and in tort to B (notwithstanding privity of contract) –
Donoghue case
• Two-party situations.
• there may be concurrent contractual and tortious liability to the
same claimant, though he may not, of course, recover damages
twice over.
• Burden of proof issue: only against breach of duty? or against
damage?
 Torts vs. Crime
• Crime and tort overlap. Many torts are also crimes, sometimes with
the same names and with similar elements and sometimes a civil
action in tort is deduced from the existence of a statute creating a
criminal offence.
• But the object of the criminal proceedings in any case is the
imposition of some sanction in the nature of punishment.

• Civil Action – Preponderance of the evidence = Balance of Probability

• Criminal Action – Beyond a reasonable doubt
 What is tort law?
• Tort law is that branch of the law that deals with civil law,
including lawsuits but excluding issues involving contracts.
• Tort law is considered to be a form of restorative justice since it
seeks to remedy losses or injury with monetary compensation.
• In general tort law falls into three categories:
• intentional harm;
• The complaints dealing with negligence;
• and unintentional but non-negligent acts known as strict liability.
 Structure of Torts Classes
• Intentional Torts
• Intentional torts to person
• Battery
• Assault
• False Imprisonment
• Intentional torts to property
• Trespass to Land
• Trespass to Goods & Conversion
• Intentional Infliction of Emotional Distress (Wilkinson Case)
• Affirmative defenses
 Structure of Torts Classes
• Negligence
• Duty of Care
• Breach of Duty
• Causation
• Damage
• Vicarious Liability
• Defamation
• Nuisance
• Strict Liability and Absolute Liability
 Intentional Torts to the person
• Battery
• offensive or harmful contact to P’s person
• Assault
• reasonable apprehension of immediate battery
• False Imprisonment
• confine or restrict P to a bounded area
• Intentional Infliction of Emotional Distress – damage needed
• An act by D amounting to extreme and outrageous conduct makes
severe emotional distress)
 Intentional Torts to Property
• Trespass to Land
• physical invasion of P’s real property
• Trespass to Chattels – damage needed
• interfere with P’s right of possession in a chattel
• Recovery of actual damages from harm to chattel
• Conversion – damage needed
• seriously interfere with P’s right of possession in a chattel to the full
value of it
• Damage award of fair market value of chattel at time of conversion
 Affirmative Defenses
• Consent
• valid consent
• within the boundaries of the consent
• Self-Defense, Defense of Others, and Defense of Property
• a defense for the wrongdoer’s own force used against the victim to protect someone /
something
• reasonableness – when defense available? mistake allowed?
• appropriate degree of force
• Necessity (Not against the wrongdoer but property damage only)
• a defense only for the wrongdoer’s own property torts against the property & necessary
to avoid threatened injury
• public, private necessity
 Negligence (1)

• Duty of Care
• A duty of D to conform to a specific standard of conduct to
protect P
• Foreseeable P
• Reasonable Person Standard & specific details
• E.G: Professionals, Children, Occupiers of land to trespassers/
licensees/ invitees
 Negligence (2)
• Breach of Duty
• Res Ipsa Loquitur – in this case, P has made a prima facie case
• Causation
• Non-remote Damage caused by Def’s breach of duty
• Actual Causation (causation in fact) = But for Test,
• Proximate Causation (legal causation) = limitation of liability by using
Foreseeability Test)
• Damage
Negligence (3)

• Defenses to Negligence
• Contributory Negligence
• Consent
• Illegality
Defamation

• Prima facie case

• Defamatory language
• of or concerning P
• Publication
• Damage to P’s reputation
• Affirmative defenses
 Nuisance
• Private Nuisance: substantial, unreasonable interference with
another private individual’s use or enjoyment of property that he
actually possesses or to which he has a right of immediate
possession. - Damages are often presumed.
• Difference between Trespass to Land (interference with P’s
exclusive possession of property) and Nuisance (interference with
P’s use or enjoyment of property)
• Public Nuisance: unreasonable interference with the health, safety,
or property right of the community like building for criminal
activities such as prostitution. - Damages are not presumed.
 Strict Liability vs. Absolute
Liability
• Strict liability means liability regardless of whether the
defendant is at fault.
• Exceptions to Strict liability are following.
• P’s fault - If the substance escaped due to the plaintiff's fault, then the
defendant shall not be held responsible.
• Act of God - If it was an event that was beyond human activity
• Act of third party - If the act of a third party which couldn’t be foreseen
had taken place, then the person shall not be held liable.
• Consent of P
• Absolute liability can simply be said as Strict liability minus