Introduction to Torts BY G R E G A L B E R T A N D M I L E S E . H AW

Introduction to Torts BY G R E G A L B E R T A N D M I L E S E . H AW K S

Review: Criminal Law v. Civil Law Criminal Law Civil Law Plaintiff is the state (e.g., - Plaintiff is private party State v. Doe) (e.g., Doe v. Roe) Guilty or Not Guilty - Liable or Not Liable Guilty verdict results in- Liability results in prison sentence paying damages (i.e., money) Prosecution must prove - Plaintiff only needs a guilt beyond a reasonable preponderance of doubt evidence (i.e., 51% or more)

So, What Is a Tort? Nope. These are tortes.

So, What Is a Tort? Nope. This is a character from a Japanese children’s show.

So, What Is a Tort? Here are some torts [Insert comical video clip of torts]

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. A far less formal definition of a tort is 1. All the crazy stuff that you can possibly imagine happening to a person.

Torts: Fact or Fiction? Raise your hand if you think the following actually happened: 1. A woman sued a doctor for malpractice because he invited his friend to watch him deliver her baby. 2. A woman sued a railroad company because scales fell on her on a railroad platform. A railroad worker had helped a young man, who happened to be carrying a bundle of fireworks, jump onto a moving train. While jumping on the train the young man dropped his package, which caused the explosion that caused the scales to fall. 3. A woman sued a cab company when a cab without a driver hit her. The driver had jumped from the moving cab to escape a robber who had pointed a gun to the driver’s head. 4. A construction worker sued his employer for injuries sustained when he was hit by an out-of-control car and thrown nearly 100 feet into a vat of boiling tar. The construction site had not been properly cordoned off.

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 tortfeasor, or person who commits the tort. Intentional torts Intentional torts, also as their name suggests, are torts caused intentionally by the tortfeasor. 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.

Negligent Torts: Elements There are four basic elements of a tort: 1) 2) 3) 4) Duty Breach Causation Damages

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 Proximate cause is a little more difficult. Ultimately, it is more of a policy question than a legal question. The issue is where the law wants to cut off liability for a negligent actor. Several theories exist regarding proximate cause: 1) Forseeability 2) Direct Causation 3) The “Danger Zone”

Negligent Torts: Causation: Hypo 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: Hypo 1 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: Hypo 2 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: Hypo 3 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: Hypo 4 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: Hypo 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