Law of Tort

KEENAN 346-374
What is a tort?
 Definition of a Tort

Black’s Law Dictionary defines a tort as

1. A civil wrong for which a remedy may be obtained,
usually in the form of damages…

2. (pl.) The branch of law dealing with such wrongs.

 CRIMINAL LAW VS. TORT LAW
Criminal Law Tort Law

- Claimant is the state - Claimant is private party

(State v. Michael) (John v. Michael)
- Guilty or not Guilty - Liable or not Liable
- Prosecution must prove - Liability
- Guilty judgment results - Liability results in paying
in prison sentence damages (i.e. money)
 CONTRACT LAW VS. TORT LAW

Contract Law Tort Law

• The parties to a contract • Since damage is always
must always be legally suffered against the will
bound to one another, or of the party affected, no
there cannot be a valid privity exists or is
contract. required in Tort Law.
• Duties determined by the • Duties determined by
parties i.e. under terms Law.
and conditions of
contract. • Minors can be sued and
• Minors are limited in damages are recovered.
liability.
TORT IN THE SYSTEM
 Types of Torts

There are a variety of torts, which can broadly be broken

into the following three categories:
- Negligent torts
Negligent torts, as their name suggests, are torts that are caused by
the negligence of the person who commits the tort.
- Intentional torts

Intentional torts, also as their name suggests, are torts caused

intentionally by the person who commits the tort.
Strict liability torts
Strict liability torts are torts where the law has determined that some
activities are so dangerous that an individual engaging in those
activities is liable for damages regardless of intent or negligence
resulting in harm. A common example is blasting with dynamite.
NEGLIGENCE
NEGLIGENT TORTS: ELEMENTS
 Negligent Torts: Duty

Everyone has a duty to exercise due care all of the time.

What is due care?

Due care is the amount of care that a reasonable person

would exercise under the circumstances. What is a
reasonable person?

A reasonable person is not any real person or even the

average person, but an imaginary prudent person who takes
the precautions necessary to avoid harming another person
or their property.
 Negligent Torts: Duty

Can you think of examples of due care that each of

the following people must exercise?:
1. A lifeguard at a municipal pool.
2. A lumberjack felling a tree.
3. An owner of an aggressive dog.
4. A high school football coach.
 Negligent Torts: Breach

Breach is the simplest of the four elements.

Once you determine the standard of care, you ask,
did the defendant follow that standard of care?
For example, if the standard of care requires the
owner of an aggressive dog to keep the dog on a leash
and the owner does not do so s/he has breached the
duty of care.
 Negligent Torts: Causation

There are two types of causation:

 Causation in fact; and

 Proximate cause
 Negligent Torts: Causation

Causation in fact, also known as “but-for” causation, is

pretty simple.

The question is, but for the defendant’s actions would

the injury have occurred?

Example: A hits B in the shin with a golf club. B’s shin

would not have been injured if A had not him in the
shin with a golf club.
 Proximate Cause

The actions of the person (or entity) who owes you a duty
must be sufficiently related to your injuries such that the
law considers the person to have caused your injuries in a
legal sense. If someone's actions are a remote cause of
your injury, they are not a proximate cause.

Negligent Torts: Elements Several theories exist regarding

proximate cause:
• Foreseeability
• Direct Causation
• The “Danger Zone”
 Negligent Torts: Causation

This is Ken Griffey, Jr.

Ken Griffey, Jr. likes to practice his swing in his living
room.
Unfortunately, this sometimes leads to disaster…
 Negligent Torts: Causation

One day, while practicing his swing in his living room,

Ken loses his grip on the bat. The bat flies into the
sitting room and hits his wife’s friend in the head,
causing minor injuries.
Q1: Is there causation in fact?

Q2: In there proximate causation?

 Negligent Torts: Causation

Ken did not learn his lesson when he injured his wife’s
friend. Once again, during a practice session, Ken
loses his grip. This time the bat flies through a
window and hits the ladder his roofer is using to
climb onto his roof. The roofer falls and breaks both
his arms.
Q1: Is there causation in fact?

Q2: In there proximate causation?

 Negligent Torts: Causation

Ken, Ken, Ken. He keeps practicing, and keeps losing his

grip. This time the bat flies into his neighbor’s yard.
The bat hits his neighbor in the head just as he is
squirting lighter fluid onto his grill. He squirts too
much, which causes an explosion. In addition to his
head injuries, he suffers burns from the explosion and
there is some fire damage to his house.
Q1: Is there causation in fact for each injury?
Q2: In there proximate causation?
Q3: What if the fire had burned down the neighbor’s
house? Several neighbors’ houses?
 Negligent Torts: Causation

For some unknown reason, Ken is still practicing his swing in his
house and he has a new neighbor, Eric, that loves to BBQ. It’s a
perfect storm. And sure enough, Ken launches his bat through
his window into his neighbor’s yard. The bat hits the BBQing
neighbor, setting off another BBQ explosion. This time it kills the
neighbor, and the neighbor’s wife is severely injured in the
ensuing fire. As she is being wheeled to the ambulance she is
struck by lightning.
Q1: Is there causation in fact for each injury?
Q2: Is there proximate cause for each injury?
Q3: Could Jane, another neighbor, sue Ken because she can no
longer sell the new gas grill she handmade for Eric to Eric
because Eric is dead?
 Negligent Torts: Damages

The basic idea of damages is fairly simple: All injuries

can be reduced to a monetary amount.

The real difficulty comes in calculating damages. For

example, it is pretty easy to figure out how much a
totaled car is worth, but it’s not so easy to figure out
how much eyesight is worth.
 Negligent Torts: Damages

Betty and Derek are walking to school. Steven is driving

down the street talking to his friends in the backseat.
One of Steven’s friends screams “Look out!” Steven
reacts by turning the wheel of his car, which jumps
the curb and pins Betty’s arm to the wall crushing it.
What remains of Betty’s arm needs to be amputated.
Q1: How much is Betty’s arm worth?
Q2: Does the answer change if Betty was a concert
pianist?
Q3: What if Betty simply wanted to be a concert pianist,
but wasn’t one yet?
 Negligent Torts: Defenses

Even where the plaintiff has proven all of the

elements of a negligent tort, the defendant may be
found not to be liable or the defendant’s liability may
be reduced based on certain defenses. These
defenses include:
1. Contributory Negligence
2. Comparative Negligence
3. Consent
4. Illegality
Famous Product Liability Case
 Liebeck v. McDonald's Restaurants

On July 25, 1992, McDonald’s customer Stella Liebeck

spilled hot coffee on herself and sued the restaurant.
The jury awarded her $2.86 million in damages, which
was later reduced to $640,000. The case became known
as the “McDonald’s coffee case” and is often used as an
example of “frivolous” litigation.
Since the Liebeck case, McDonald’s has changed its
coffee-serving policies. The company now serves its
coffee at a lower temperature and provides warnings to
customers about the potential risks of spilled coffee.
 Product Liability

Theories of Product Liability

 Product liability based on negligence
 Manufacturer fails to exercise due care to make product safe
 Product liability based on misrepresentation
 Manufacturer or seller misrepresents quality, nature, or
appropriate use of a product
 Strict product liability
 Manufacturing defects
 Design defects
 Warning defects
 Strict Liability

Liability Is Imposed for Reasons Other Than Fault

Abnormally Dangerous Activities
 Potential harm of a serious nature to persons and property
 Involves a high degree of risk
 Not commonly performed in the community or area
Basis of Liability
 The creation of an extraordinary risk
TORTS IN BUSINESS: POLLUTION
TORTS IN BUSINESS: DATA BREACH
 Cyber Torts: Defamation Online

Liability of Internet Service Providers

 Communications Decency Act
 Internet service providers are not liable for defamatory
statements
Piercing the Veil of Anonymity
 ISPs can disclose personal information about their customers
only when ordered by a court
 Rights of plaintiffs are balanced against defendants’ rights to
free speech
 SUMMARY

Two notions serve as the basis of all torts: wrongs

and compensation.
A tort is a civil wrong. Torts fall into two broad
classifications: intentional torts and negligence.
Intentional torts occur when the actor intended to
perform an act that resulted in an injury to a
protected right of another party
 SUMMARY

Negligence is the careless performance of a legally

required duty or the failure to perform a legally
required act.
General tort principles are extended to cover cyber
torts, or torts that occur in cyberspace, such as
online defamation.
Under the doctrine of strict liability, a person or
company may be held liable for damages or injuries
caused by a product or activity.
 SUMMARY

The makers of products can be liable for injuries and

damages caused by defective products.
Statutes, agency rules, and common law judicial
decisions that serve to protect the interests of
consumers are classified as consumer law.
 READING

Sarah Riches & Vida Allen, Keenan and Riches’

Business Law 10th edition, Pearson Edition Limited,
2011 (pp. 346-374)
Be ready with the self-test questions at page 373