Torts: Negligence, Intentional Torts, and Strict Liability
Negligence
The elements are duty, breach, causation, and damages. Duty is generally owed to foreseeable plaintiffs under the Cardozo approach, or to anyone in the zone of danger under Andrews. The reasonable person standard is objective; children are held to a child of like age, intelligence, and experience, except for adult activities. Professionals are held to a reasonable professional standard.
Breach is proved by direct evidence or by res ipsa loquitur (the accident is of a kind that ordinarily does not occur without negligence, caused by an instrumentality in the defendant's exclusive control, and not due to the plaintiff). Causation has two parts: actual cause (but-for or substantial factor) and proximate cause (foreseeability).
Defenses
Comparative negligence (pure or modified) and contributory negligence (in a few jurisdictions) reduce or bar recovery. Assumption of risk requires knowledge and voluntary acceptance of a known risk.
Intentional torts and strict liability
Battery requires harmful or offensive contact with intent; assault requires apprehension of imminent contact. False imprisonment requires confinement within boundaries. Defenses include consent, self-defense, and necessity. Strict liability applies to abnormally dangerous activities and to defective products under the manufacturing, design, and warning defect theories.
Worked example
A driver texting strikes a pedestrian in a crosswalk. Duty is established by the driver's relationship to the public road; breach is the texting; actual cause is but-for; proximate cause is foreseeability of striking a pedestrian; damages are the injuries.
Traps
- Res ipsa requires exclusive control, not merely access.
- Comparative negligence is a partial bar; contributory negligence is a complete bar.
- Puffery is not a warranty; product liability requires a defect.