Torts
Overview
Torts covers civil wrongs outside contract: intentional acts, negligence, and strict liability. The exam emphasizes the elements of negligence and the standard defenses.
Intentional torts
Battery is harmful or offensive contact; assault is apprehension of imminent contact; false imprisonment is confinement without consent; trespass and conversion invade property. Defamation requires a false statement of fact, publication, and fault (actual malice for public figures under New York Times v. Sullivan). Defenses include consent, self-defense, necessity, and privilege.
Negligence
The plaintiff must prove:
- Duty - the reasonable-person standard; landowners owe different duties to trespassers, licensees, and invitees; professionals owe the skill of their profession; negligence per se applies when a statute sets the standard.
- Breach - conduct below the standard. Res ipsa loquitur permits an inference of breach where the instrumentality was under the defendant's control and the event would not ordinarily occur without negligence.
- Causation - actual cause (but-for) and proximate cause (foreseeable consequences; intervening causes may cut off liability).
- Damages - actual harm; nominal damages are available for some intentional torts.
Strict liability and products
Strict liability applies to abnormally dangerous activities and to defective products under Restatement §402A: a seller of a defective product unreasonably dangerous to the user is liable without proof of negligence if the defect caused the harm. Defects may be manufacturing, design, or failure to warn.
Defenses and damages
Contributory negligence (a minority rule) bars recovery; comparative negligence reduces damages; assumption of risk bars recovery when knowingly and voluntarily incurred. Punitive damages require gross or intentional conduct.
Worked example
A driver runs a red light and hits a pedestrian, who is hospitalized. The driver owed a duty to foreseeable users of the road, breached it, and the breach was both actual and proximate cause of the injuries. The pedestrian recovers compensatory damages, reduced by any comparative fault; punitive damages require more than ordinary negligence.
Traps
- Assault requires apprehension, not contact; battery requires contact.
- Proximate cause is about foreseeability, not physical closeness.
- Product liability generally requires a defect; a dangerous product with adequate warnings is not defective.
- Standalone economic loss is usually not recoverable in negligence.