United States Law/Tort

From Wikiversity
Jump to navigation Jump to search
Wikibooks-logo.svg Wikibooks has a book on the topic of US Tort Law.

Torts are invasions of interests, such as the interest in freedom from offensive bodily contact, the interest in freedom from emotional distress, the interest of freedom of movement, and the interest of exclusive possession of land and chattels. When one of these interests has been invaded by an unprivileged act or omission, a tort has been committed.



Liability for negligence in tort arises where the defendant owed the plaintiff a duty of care to a specific standard and the breach of that duty was the actual and legal cause of the damages to the plaintiff.

Duty of Care[edit]

In a cause of action for negligence, the plaintiff must prove that the defendant owed a duty of care, which simply means that under the circumstances, the defendant had the obligation to look out for the plaintiff.


There are two schools of thought as to which people the defendant owes a duty of care. In a majority of jurisdictions, the defendant owes a duty of care to all foreseeable plaintiffs. In a minority of jurisdictions, the defendant owes a duty of care to all plaintiffs who are injured by his or her conduct. (Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 164 N.E. 564 (N.Y.1928), wherein Justice Cardozo lays out the majority view, while Justice Andrews lays out the minority view in his dissent.) Foreseeability is determined by looking at the circumstances of the defendant's conduct and asking whether a reasonable person in the position of that defendant at the time of his or her conduct could have foreseen an injury of the type suffered by the plaintiff to a person in the plaintiff's position.

There are several ways a duty of care may arise. A duty may arise by conduct, either by the commission of an affirmative act by the defendant, or by the defendant's failure to act where a special relationship between the plaintiff and the defendant gives rise to a duty for the plaintiff to act. As well, a duty may arise where the defendant is a landowner or a lessor. Finally, a duty may arise from a contract, for instance in the contract between a doctor and a patient, or between an attorney and a client.

Affirmative Act[edit]

If the defendant commits an affirmative act that raises risks to other people, then his or her act simultaneously raises a duty of care to those people. For instance, if the defendant is driving a car, that raises risks to people in other cars and pedestrians on the streets where the defendant is driving. Thus, the defendant owes all of those people a duty of care because it is foreseeable that driving may cause injuries to other people.

Failure to Act[edit]


Bystanders generally owe no duty to intervene in order to prevent injury to another person.

Induced Reliance[edit]

If, by a promise or an act, the plaintiff is induced to rely on action by the defendant, then a duty arises for the defendant such that failure to act will result in a breach of that duty.

Special Relationship[edit]

There may be a special relationship between the plaintiff and the defendant, such that the defendant has a duty to act to protect the plaintiff. The defendant may have a duty to warn the plaintiff of a danger, a duty to protect the plaintiff from another person, or a duty to control another person to keep that person from injuring the plaintiff.


Majority Rule[edit]
Natural Conditions Artificial Conditions Activities
Persons Outside the Premises No Duty Reasonable Care Reasonable Care
Unknown Trespassers No Duty No Duty No Duty
Known Trespassers No Duty Warn or Make Safe Known Dangerous Conditions Reasonable Care
Licensees Reasonable Care Reasonable Care Reasonable Care
Invitees Warn or Make Safe Known Dangerous Conditions Warn or Make Safe Known Dangerous Conditions Reasonable Care
Artificial Conditions Highly Dangerous to Trespassing Children[edit]

Where a landowner knows of an artificial condition on his or her land that may be highly dangerous to trespassing children and knows that children are likely to trespass, the children, due to their age, are incapable of appreciating the magnitude of the risk, and the risk to the children outweighs the burden of preventing their injuries, the landowner will be liable if trespassing children are injured by the artificial condition.

Minority Rule[edit]

In a minority of jurisdictions, landowners owe a duty of reasonable care to all persons, regardless of their status in relationship to the land. This was established by the Supreme Court of California in the case of Rowland v. Christian (1968) 69 Cal. 2d 108 [443 P.2d 561].


Lessors generally owe no duty of care to lessees. However, that general rule has been substantially diluted by six major exceptions, outlined below. The first three of those exceptions are applicable at the time of the transfer of property and the latter three are applicable throughout the duration of the lease.

Undisclosed Dangerous Conditions[edit]

Where there are undisclosed dangerous conditions on the property that are known to the lessor but unknown to the lessee, and they may cause injury to the lessee, the lessor has a duty of care to prevent injuries resulting from those conditions.

If the lessor actively conceals the dangerous conditions, the lessor retains liability for injuries resulting from those conditions until the lessee actually discovers them and has a reasonable time to repair them.

if the lessor fails to disclose the dangerous conditions, the lessor retains liability for injuries resulting from those conditions only so long as it would take for a reasonable lessee to discover the conditions. Once the lessee discovers the dangerous conditions, liability shifts to the lessee.

Conditions Dangerous to Persons off Premises[edit]

Where there are conditions on the property that are dangerous to persons outside the premises, the lessor has a duty of care to individuals who suffer injury as a result of those conditions.

Premises Leased for Admission of the Public[edit]

Where the premises are leased for the admission of the public, the lessor has a duty of care to individuals injured by dangerous conditions on the property. The rationale for this rule is that when the lessor knows that the premises will be opened for the admission of the public, members of the public become foreseeable plaintiffs to the lessor.

Common Areas[edit]

Where part of the premises are retained in the control of the lessor, but the lessee is still allowed to use those parts, i.e., where the premises include common areas, the lessor has a duty of care to individuals injured by conditions in those common areas.

Contract to Repair[edit]

Where the lessor contracts to repair conditions on the premises, the lessor has a duty of care to ensure those repairs are made.

Repairs Performed Negligently[edit]

Where the lessor undertakes repairs to the premises, either under a contract to repair or by his or her own volition, the lessor has a duty of care to ensure that the repairs are not performed negligently.

The Standard of Care[edit]

Reasonable Care[edit]

The basic standard of care is reasonable care. This is defined according to an objective standard rather than a subjective one. That is, reasonable care for any given person is not what that individual thinks is reasonable, but what the society, through the law, has come to define as reasonable behavior.

Reasonable care in a given situation may be determined by weighing the probability of injury resulting from the conduct in question and the foreseeable gravity of potential injury against the burden on the defendant of not altering his or her conduct to avoid the injury and the social utility of the conduct.

Physical Characteristics[edit]

A person with physical handicaps (e.g., a person confined to a wheelchair, a blind person, etc.) must exercise reasonable care commensurate with that which a reasonable person having the same handicaps would exercise.

Special Knowledge[edit]

A person with special knowledge (i.e., knowledge particular to the situation) must exercise reasonable care commensurate with that which a reasonable person having the same knowledge would exercise.

Professional Standard[edit]

A professional must use the knowledge, skill, and training that would be used by a member of the profession in good standing.

Medical Standard[edit]

In a majority of jurisdictions, a medical professional must use the same knowledge, skill, and training as a member of the medical profession in good standing in the same or similar circumstances and the same or a similar community.

In a minority of jurisdictions, a medical professional must adhere to national standards for medical professionals.

Informed Consent[edit]

A majority of jurisdictions used a physician-centered rule for informed consent: Where a patient is considering undergoing a particular treatment, the physician must adequately disclose material risks that a reasonable physician in good standing would disclose.

A minority of jurisdictions use a patient-centered rule for informed consent: Where a patient is considering undergoing a particular treatment, the physician must adequately disclose material risks that a reasonable patient would want to know before choosing to undergo the treatment. As well, to prove breach it must be shown that, given adequate disclosure of the risks, the patient would not have undergone the treatment. Some jurisdictions ask whether the particular patient would have undergone the treatment, while other jurisdictions ask whether a reasonable patient would have undergone the treatment.

Child Standard[edit]

A child must exercise the level of care that would be expected from a child of similar age, intelligence, and experience.

Breach of the Duty of Care[edit]


Cause in Fact[edit]

Proximate (or Legal) Cause[edit]

Defenses to Torts of Negligence[edit]

Contributory Negligence[edit]

Comparative Negligence[edit]

Assumption of Risk[edit]

Strict Liability[edit]

Strict liability does not consider the intent of the party held liable.

A party may be held strictly liable for injuries that result from his or her conduct where the probability that the conduct will cause an injury is high, the likelihood that the injury will be severe is high, the exercise of reasonable care would not eliminate the risk, the conduct is not a matter of common usage and is carried out in an inappropriate location, and the dangerousness of the conduct outweighs its social utility.

There are two major categories of strict liability conduct: injuries caused by animals and abnormally dangerous activities.

Injuries Caused by Animals[edit]

Strict liability for injuries caused by animals is imposed on all those who keep, possess, or harbor the animals, not just the owners of the animals. The injury that is caused by the animal must be the result of some characteristic of the animal that makes it unpredictably dangerous.

Trespassing Livestock[edit]

Livestock are typically animals like cattle, pigs, or other creatures raised for service to humans. Where livestock trespass and do damage to land or property, or cause physical injury to members of the household on that property, strict liability arises. However, unforeseeable intervening forces will cut off liability.

Physical Injury by Domestic Animal with Propensity for Dangerousness[edit]

Where the owner of a domestic animal has knowledge of the animal's propensity for dangerousness, injuries caused by the animal will give rise to strict liability. Unforeseeable intervening forces will not cut of liability.

Wild Animals[edit]

Wild animals are culturally defined. For instance, in some cultures an elephant would be a wild animal, but in other cultures it may be a domesticated animal. In the United States, wild animals are things like lions, tigers, and bears ("Oh, my!"). Keepers of wild animals are strictly liable for the injuries the animals cause. Unforeseeable intervening forces do not cut off liability.

Abnormally Dangerous Activities[edit]

Product Liability[edit]

Strict Liability in Tort[edit]

Strict liability in tort arises where a commercial seller places a product in the stream of commerce in a defective condition unreasonably dangerous and the unaltered product causes personal injury or property damage.

Strict Liability in Contract[edit]


Liability for defamation arises where the defendant makes an unprivileged intentional or negligent publication of a false statement of fact that attaches to the plaintiff, perhaps by extrinsic fact, and causes damages as slander, slander per se, or libel.

Damages for defamation are usually "presumed" damages. These are the damages that one is presumed to suffer when one is the victim of defamation. However, in some cases the plaintiff must prove actual or pecuniary damages in order to recover.


Slander is a defamatory statement that is oral or transitory. In order to recover on a theory of slander, the plaintiff must show pecuniary loss as the result of the defamatory statement.

Slander Per Se[edit]

The four categories of slander per se are exceptions to the rule that recovery for slander requires a showing of pecuniary loss. If the defamatory statement damages the plaintiff in his or her business or profession, alleges serious sexual misconduct or a serious crime of moral turpitude, or imputes a loathsome disease to the plaintiff, that plaintiff need not show actual or pecuniary losses, but may recover "presumed" damages.


Libel is a defamatory statement that is written or permanent. Under a theory of libel, the plaintiff may recover "presumed" damages without having to prove any actual or pecuniary losses.

Constitutional Modifications[edit]

Intentional Torts[edit]


Intent is defined as the desire to cause the consequence or knowledge to a substantial certainty that the consequence will occur.


Battery is a volitional, unauthorized act with the intent to cause a harmful or offensive touching and the touching actually occurs.


Assault is a volitional, unauthorized act with the intent to case a reasonable apprehension of an imminent harmful or offensive touching and the apparent ability to carry it out.

False Imprisonment[edit]

False imprisonment is a volitional, unauthorized act with the intent to confine the plaintiff within boundaries set by the defendant, with no reasonable means of escape, where the plaintiff is conscious of confinement or physically injured, and the defendant uses force or the threat of force.

Intentional Infliction of Emotional Distress[edit]

Intentional infliction of emotional distress is a volitional, unauthorized, extreme and outrageous act done with the intent to cause, or the reckless disregard of the probability of causing, emotional distress, where the emotional distress is severe and there is a causal relationship between the wrongful conduct and the emotional distress.

Trespass to Land[edit]

Trespass to land is a volitional, unauthorized act with the intent to enter land that proves to belong to another.

Trespass to Chattels[edit]

Trespass to chattels is a volitional, unauthorized act with the intent to interfere with the chattel of another, so that the owner is temporarily deprived of its use or the chattel is damaged.


Conversion is a volitional, unauthorized act with the intent to exercise dominion over the chattel of another and so seriously interferes with it that the chattel is damaged or destroyed and the actor must pay its full value.

Defenses to Intentional Torts[edit]




Defense of Others[edit]

Defense of Property[edit]

Recovery of Chattels[edit]