10/7/19

TORTS IN THE U.S.

LEGAL SYSTEM
Miki Hamstra & James Hamstra
9 October 2019

What Torts Are Not

Torts Overview

Torts are civil Not related to Not criminal

wrongs contracts violations

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Criminal Law vs. Torts

A crime is a wrong against A tort is a wrong against an

society as a whole individual

Examples of Torts

Battery Fraud/Deception Trespassing

Not the “Tort” we are discussing…

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Purpose & Elements of Torts

Purpose of Torts

Compensation An injured Through award For injuries During a

party of damages incurred tortious act

Balancing Interests in Torts

Harm caused Benefit to Peaceful Social Economic

to an individual society society Responsibility Considerations

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Elements of a Tort Action

Act or Omission +

Personal or Property Interest +

Intent, Negligence, Inadvertence, or Mistake =

Tort

Examples of Torts

Intentional Infliction of Emotion Distress

Causing of severe mental or

physical injury though highly
aggravated acts or words
• Plus intent to cause injury
• Plus reasonable certainty of
injury

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Defamation

Slander (spoken)
or libel (written)
interference with a
person’s
reputation

Wrongful Death Action

Heirs of a deceased person

bring a negligence lawsuit
against someone who
allegedly caused the death

Categories of Torts

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Three Categories of Torts

Intentional Torts Negligent Torts Strict Liability

Intentional Torts

Intentional Torts

■ Intentional breach of a protected right

■ Must prove state of mind with circumstantial
evidence
– Knowledge there was a substantial certainty of
harm

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False Imprisonment
An Unlawful Detention
■ Intent to confine a person in
a certain area
■ Actual confinement
■ Person aware of the
confinement
■ Person cannot safely exit

Trespass
Unauthorized entry of person or thing
onto another’s property
■ An act
■ Intent to enter (knowledge not
required)
■ Invasion of another’s property (or
expiration of privilege)
■ Damages not required

Battery

Unlawful interference
with someone’s body
(e.g., touching without
consent)

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Negligent Torts

Negligent Torts

■ All persons have duty to conduct themselves to not

create unreasonable risks of physical harm to others
■ Standard: Would a reasonable person have acted
similarly under similar circumstances?

Negligence Elements

■ Defendant had duty of care

■ Breach of duty by negligent act or
omission
■ The act or omission caused injury
(proximate cause)
■ Act or omission does not have a
defense
– Assumption of risk or
contributory negligence

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Negligence

Proximate Cause

■ Difficult concept involving:

– Precedent, legal reasoning,
public policy, & common sense
■ Did a duty exist?
– Reasonably foreseeable?
■ Was that duty breached?
■ Was there an intervening cause?

Strict Liability Torts

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Strict Liability Torts

■ Liability without fault

– Under certain circumstances, recovery is allowed
even if no fault by defendant
■ Can be legally innocent, but morally guilty
■ Abnormally dangerous activities

Strict Liability Examples

■ Blasting using explosives

like dynamite
■ Storing inherently
dangerous substances
■ Keeping wild animals

Strict Liability Policy

■ Activities are still
allowed if no harm
occurs
■ Party conducting
the activities
insures the public
against harm
■ Sellers and
manufacturers can
be liable

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Closing Thought for the Lecture

Solving a problem…

…Can have unintended consequences

■ The U.S. has 3,142 counties (subdivisions of states)
■ Almost 2/3 obstetrician-gynecologist (OB-GYN) doctors
are sued for medical malpractice during their career,
which is the highest rate of all specialties (2018)
– Malpractice insurance can cost up to 1/3 of a doctor's salary in
some areas
■ 50% of counties have no OB-GYN (2017)
■ Those counties have more than 10 million women, most
who need OB-GYNs for primary care
https://www.aamc.org/news-insights/labor-pains-ob-gyn-shortage

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