About Torts

What Is A Tort?

Here is a definition of a tort:

Main Entry: tort
Pronunciation: 'tort
Function: noun
Etymology: Anglo-French, wrongful or illegal act, from Old French, injury, from Medieval Latin tortum, from Latin, neuter of tortus twisted, from past participle of torquEre to twist


: a wrongful act other than a breach of contract that injures another and for which the law imposes civil liability : a violation of a duty (as to exercise due care) imposed by law as distinguished from contract for which damages or declaratory relief (as an injunction) may be obtained; also : a cause of action based on such an act

From: tort. Dictionary.com. Merriam-Webster's Dictionary of Law. Merriam-Webster, Inc. http://dictionary.reference.com/browse/tort

The torts to be presented are:

These are the same as the Counts in the current Complaint at Law.

 

What Is Negligence?

“Tort law establishes standards for the care that people must show to one another. Negligence is the conduct that falls below this standard. Negligence law is concerned with paying victims for the injuries that have been caused by someone else's conduct.” [i]

Negligence is the foundation of much tort law.

A tort is:

a wrongful act, not including a breach of contract or trust, that results in injury to another's person, property, reputation, or the like, and for which the injured party is entitled to compensation. [ii]

One who commits a tort is called a tortfeasor.

The concepts of negligence are not tough stuff.

Basically all that is required to prove a tortfeasor guilty of negligence is the presence of these elements:

1.            A duty was owed.

2.            That duty was breached.

3.            There was a foreseeable injury.

4.            The injury was caused by the breach.

5.            The injury resulted in damages for which recovery is allowed.

One additional element must be absent: a legally valid defense. This makes sense. If one has a legally acceptable reason for his/her actions, then there should be no liability.

A lot has been written about torts. The following are some examples and will provide you with a framework for analysis. This first one is quite basic.

Elements of Negligence – Negligence applies to many kinds of wrongful conduct. Four elements must exist for a plaintiff to win a negligence action—duty, breach of duty, causation, and damages. The plaintiff must prove all of these elements in order to be successful in a negligence claim.

Duty and Breach – Everyone has a general duty to exercise reasonable care toward other people and their property. If a person acts unreasonably, he or she has breached the duty of care. In order to judge whether or not a person's conduct is reasonable, the law asks: Would a person of average intelligence and general regard for others have acted in the same way? If the answer is no, then the person's behavior was unreasonable. The law assumes that reasonable people do not break the law. Certain professionals, such as doctors, pilots, and plumbers, are held to the standards of reasonably skilled professionals in their field. Even minors are liable for the torts they commit. However, when deciding the reasonable conduct of a minor, the law usually compares a minor's conduct with other individuals of the same age, intelligence, and experience.

Causation – In order to prove causation, there must be proof that the defendant's actions actually led to the harm suffered by the plaintiff. The element of causation is broken down into two separate issues—cause in fact and proximate cause. If the harm would not have occurred without the wrongful act, then the act is the cause in fact. To prove proximate cause, there must be a close connection between the wrongful act and the harm caused. The harm that resulted must have been foreseeable from the wrongful act.

Damages – The basic idea behind damages is that the plaintiff should be restored—in the form of money—to his or her original position before the negligence occurred. Courts allow plaintiffs to collect for medical bills, lost wages, pain and suffering, and other losses.

Defenses to Negligence Suits – Even when a plaintiff can prove all of the elements of negligence, the defendant may be able to raise a valid legal defense. Most states allow a defense called comparative negligence. In comparative negligence the defendant and the plaintiff split the loss according to how much each person was at fault. For example, if a judge decides that a plaintiff was 60 percent responsible for injuries and the defendant only 40 percent responsible, each would only pay that particular percentage. As another legal defense, the defendant may argue that the plaintiff assumed the risk of the harm and should therefore be held responsible for the resulting injury.

The above can be found here.

Here is another, more extensive overview of negligence. I have excerpted portions from it. It is valuable in that it touches on some areas that will be visited in the lawsuit part of this website. Any typos are in the original.

You can find the entirety of this outline by clicking here.

Elements of Negligence

I.                   Duty

A.    General Rule: “a person ordinarily has a duty to exercise reasonable care regarding foreseeable risks of harm that may rise from the person’s conduct” (Vetri)

B.     “The trend over the last thirty years is one of narrowing or abolishing some of the limited duty rules and applying the general duty of reasonable care more broadly”; “We must describe the present situation as one where there is a presumptive duty of reasonable care for foreseeable risks arising from one’s conduct unless displaced by a limited duty rule.”

C.    Limited Duty to Act or Rescue

1.      General Rule: There is not a duty to act when the actor has not created the harm

2.      Exceptions: When Actor Does Not Negligently Create the Harm There is Still a Duty When…

a)      There is a special relationship

a.       Protector - Only if protector knows the person is in peril, willfully or negligently fails to make reasonable efforts to rescue, without jeopardizing his own life (People v. Beardsley)

b.      Parent/child

c.       Husband/wife

d.      Companions on a social venture

                                              i.      Farwell v. Keaton – friend beaten and left in car to die. Owed a duty because engaged in a common undertaking.

b)      Voluntary Assumption of Duty (the actor starts to help)

a.       Farwell v. Keaton – friend beaten and left in car to die

c)      Innocent Prior Conduct - The actor caused the harm but not negligently.

d)      Intentional Prevention of Aid by Others

e)      Statute

D.    Limited Duty to Control the Conducts of Others

1.      General rule is that a person has no duty to act for the protection of another person unless his conduct created the risk or there is a special relationship between the parties.

E.     Limited Duty: Emotional Harm Without Physical Harm

1.      Main question: Is foreseeability enough?

2.      Are the plaintiff’s a bystander or a direct victim?

3.      Why courts wouldn’t expand old rule

a)      Couldn’t be sure of Plaintiff’s honesty

b)      Couldn’t know how deep-seated distress was

c)      How can you assign money damages?

d)      Is money the best compensation anyway?

4.      Bystander Emotional Harm Rule (don’t have to be personally in danger)

a)      Dillon v Legg (California 1968)

a.       Defendant must commit negligent act

b.      Plaintiff must be near accident

c.       Plaintiff must have contemporaneous and sensory perception of accident

d.      Plaintiff closely related to injured person.

e.       Emotional distress must be severe

b)      Versland v. Caron Transport (Montana 1983)

a.       Plaintiff must have contemporaneous and sensory perception of act (includes proximity to act)

b.      Plaintiff must be closely related to injured person.

c.       Injured person must be killed or seriously injured.

5.      Zone of Foreseeable Emotional Risk

a)      Traditionally allowed when undertaker mishandles relative’s body and when sending telegrams negligently which falsely announce the death of a relative.

b)      Direct Victim (not a bystander but whose emotional distress was foreseeable)

a.       Duty imposed by law

b.      Duty assumed by defendant

c.       Duty created by a special relationship between defendant and plaintiff.

c)      Sacco v. High Country Independent Press (Montana 1995)

a.       Essential elements of IIED and NIED are identical.

b.      “An independent cause of action for the tort of infliction of emotional distress will arise under circumstances where serious or severe emotional distress to the plaintiff was the reasonably foreseeable consequence of the defendant’s negligent or intentional act or omission.”

c.       If severe emotional distress was reasonable foreseeable from what defendant did negligently, plaintiff can recover.

d.      To combat frivolous conduct the MT Court says that it must be severe emotional distress. Critical element defined by comment J

e.       Benefit of IIED claim over NIED claim is now only punitive damages. Defendant’s act must be really bad for IIED.

f.        Abolished extreme and outrageous conduct as an element of claim.  Only used to obtain punitive damages.

g.       Got rid of Versland bystander rule.

h.       Got rid of limited duty for emotional harm and established general standard of reasonable care.

d)      Treichel v. State Farm (Mont. 1996)

a.       Woman saw husband get killed on bicycle by car.

b.      Got rid of Versland bystander rule and said should apply Sacho.

c.       Witnessing injury is no longer a derivative claim, it is an independent injury and thus claim.

e)      Maloney – can recover emotional damages just based on economic reasons if there is a tangible connection, like land.

II.                Breach of Duty

A.    Defendant’s conduct created a foreseeable chance of harm.

B.    Defendant’s conduct created an unreasonable risk of harm.

C.    Objective Standard of Reasonable Care

1.      We all owe a standard of care to act as a reasonable person under the same or similar circumstances in order not to cause harm by our actions.

D.    Experts - held to the standard of reasonable person with such expertise.

1.      Safety Statutes and Regulations as Standards

a)      Glannon’s Policy Reasons

a.       In Favor

                                              i.      Not using statute disregards will of people embodied by legislature

                                              ii.      Standard of conduct enforced by courts should be the same as that established by legislature

b.      Against

                                              i.      Sometimes unreasonable to obey statute (cross yellow line to avoid hitting kid)

                                              ii.      Sometimes impossible to obey law

                                              iii.      Tort law is fault-based, not strict liability

E.     Proof of Negligence/Breach

1.      Circumstantial Evidence

a)      When no direct evidence of breach, may be appropriate for jury to infer breach through circumstantial evidence.

2.      Res Ipsa Loquitur “the thing speaks for itself”

a)      Used for the breach element when plaintiff has suffered harm but cannot point to a specific negligent act.

b)      Policy – Mere happening of an accident is not evidence of negligence vs. res ipsa loquitur (exception)

c)      Modern Interpretation of Res Ipsa Loquitur

a.       Inference that Someone was Negligent – The accident is of a kind which ordinarily does not occur in the absence of someone’s negligence.

                                              i.      Proof

1.      Facts of Accident

2.      Common Knowledge

3.      Common Sense

4.      Experts (medical)

b.      Inference that Defendant was Negligent – The apparent cause of the accident is such that the defendant would be responsible for any negligence connected with it. Must be more likely than not.

                                             i.      Proof

1.      Defendant had exclusive control of instrumentality during ANA.

2.      Disprove possible 3rd party negligence

3.      Remove plaintiff as contributory

F.     Medical Malpractice

1.      Standard of care is NOT reasonable person

2.      Standard is ordinary professional standard of care

3.      At trial, standard is only established by expert answering: what is the professional standard and did defendant breach it?

4.      Doctors set their own standard.

G.    Doctrine of Informed Consent

1.      Foundation is tort law of assault and battery.

2.      Two standards

a)      Professional medical standard – physician required to disclose those risks which a reasonable medical practitioner of like training would disclose under the same or similar circumstances: requires expert testimony

b)      Lay standard (materiality of the risk or prudent patient) – duty measured by the patient’s need for information. Don’t need expert testimony. Jury determines if a reasonable person in the patient’s position would have considered the risk significant in making decision. Physician must disclose those known risks which would be material to a prudent patient in determining.

3.      Two Causation Tests

a)      Subjective Standard – P must prove she wouldn’t have consented to treatment if properly informed

b)      Objective Standard – P must prove that reasonably prudent person wouldn’t have had surgery if properly informed

III.             Causation

A.    But For Test

1.      But for the Defendant’s allegedly negligent conduct, Plaintiff would not have suffered harm.  Thus Defendant’s conduct is a cause in fact of the harm.

2.      If Plaintiff would have suffered the harm had Defendant not acted negligently, than Defendant’s allegedly negligent conduct is not a cause in fact of Plaintiff’s harm.

3.      by Defendant would have avoided harm to Plaintiff.  What would have happened if Defendant had not acted negligently?

B.    Substantial Factor Test

1.      Defendant’s allegedly negligent conduct is a cause in fact of Plaintiff’s harm if it is a substantial factor contributing to Plaintiff’s harm.

2.      If Plaintiff would have suffered the harm had Defendant not acted negligently, than Defendant’s allegedly negligent conduct is not a substantial factor or cause in fact of Plaintiff’s harm.

3.      Used when there are two or more parties acting independently and simultaneously creating a single injury and the negligent act of either actor alone was sufficient to cause the injury.  But for test fails in this situation.  Duplicative Cases

4.      When two parties are negligent and each is necessary for Plaintiff’s harm to occur, causation passes both the but for test and the substantial factor test.

5.      Two parties are not each a substantial factor when one of the parties’ conduct caused the harm before the other did (preemptive causation) even if the second one would have been sufficient to cause the harm if it happened more quickly than the first.

C.    Burden-Shifting (a.ka. alternative liability theory)

1.      Unable to determine which of two negligent parties caused the harm.

2.      Done in few cases and applied narrowly

3.      Necessary factors for burden-shifting

a)      More than one defendant

b)      All defendants acted negligently

c)      Only one of the defendants caused the harm but don’t know who

d)      Plaintiff can’t prove which defendant is responsible

e)      Not acting in concert, but there is a relationship

f)        The acts of negligence are simultaneous

g)      Responsible party must be in court

h)      Defendants has better access to proof of who actually caused harm than Plaintiff does.

D.    Proof of Causation

1.      Sufficiency of Evidence

2.      Preponderance standard

IV.              Scope of Liability

A.    Doesn’t arise until plaintiff has proved other four elements.

B.     Tool of defendant: “Yea, I was negligent and somebody was damaged, but plaintiff still shouldn’t recover because…”

C.    Modern trend is that scope should be expanded because it is easier to get manufacturers to make safer products than to change people’s behavior.

D.    Direct Consequences

E.     Foreseeable Consequences

1.      Most jurisdictions have adopted this standard

2.      “Not measured by what is empirically more probable than not, but what is likely enough in the setting of modern life that a reasonably thoughtful person would take account of it in guiding practical conduct” - Bigbee

3.      Foreseeability Analysis

a)      Turns on advocacy and facts.

V.                 Damages

A.    Unlike intentional torts, Plaintiff must suffer legally recognized harm – no nominal damages.

This final one is from here.

Negligence

The concept of negligence is central to the tort system of liability. The negligence concept is centered on the principle that every individual should exercise a minimum degree of ordinary care so as not to cause harm to others.

The Latest from Craig Smith's Blog: www.craigsmithsblog.com

Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person. (Cal.Civ.Code § 1714(a).)

"Negligence is not the act itself, but the fact which defines the character of the act, and makes it a legal wrong." (Stephenson v. Southern Pac. Co. (1894) 102 Cal. 143, 147.)

NEGLIGENCE AND ORDINARY CARE-DEFINITIONS

Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under the same or similar circumstances. It is the failure to use ordinary or reasonable care. Ordinary or reasonable care is that care which persons of ordinary prudence would use.

NEGLIGENCE-ESSENTIAL ELEMENTS

The elements of a cause of action in tort for negligence are: (1) a duty to use ordinary care; (2) breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury and (4) resulting damage. (Budd v. Nixen (1971) 6 Cal.3d 195, 200.)

In other words, the essential elements of a claim of negligence are:

1. The defendant was negligent;

2. Defendant's negligence was a cause of injury, damage, loss or harm to plaintiff.

A TEST FOR DETERMINING THE QUESTION OF NEGLIGENCE

One test that is helpful in determining whether or not a person was negligent is to ask and answer the question whether or not, if a person of ordinary prudence had been in the same situation and possessed of the same knowledge, he or she would have foreseen or anticipated that someone might have been injured by or as a result of his or her action or inaction. If the answer to that question is "yes", and if the action or inaction reasonably could have been avoided, then not to avoid it would be negligence.

AMOUNT OF CAUTION VARIES

The amount of caution required of a person in the exercise of ordinary care depends upon the conditions that are apparent or that should be apparent to a reasonably prudent person under the same or similar circumstances.

RIGHT TO ASSUME OTHERS' GOOD CONDUCT

Every person who is exercising ordinary care, has a right to assume that every other person will perform his her duty and obey the law, and in the absence of reasonable cause for thinking otherwise, it is not negligence for such a person to fail to anticipate an accident which can occur only as a result of a violation of law or duty by another person.

RIGHT TO ASSUME OTHERS' NORMAL FACULTIES

A person who is exercising ordinary care has a right to assume that other persons are ordinarily intelligent and possessed of normal sight and hearing, in the absence of reasonable cause for thinking otherwise.

DUTY TO ANTICIPATE CRIMINAL CONDUCT OF THIRD PERSON

When the circumstances are such that the possibility of harm caused by the criminal conduct of a third person is, or in the exercise of due care should be, reasonably foreseeable, it is negligence to fail to use reasonable care to prevent such criminal act from causing injury or damage.

NEGLIGENCE PER SE--VIOLATION OF STATUTE, ORDINANCE, OR SAFETY ORDER

The violation of a law or statute that results in injury to another may constitute negligence per se. However, just because a statute has been violated does not mean that the violator is necessarily liable for any damage that might be ultimately traced back to the violation. "The doctrine of negligence per se does not apply even though a statute has been violated if the plaintiff was not in the class of persons designed to be protected or the type of harm which occurred was not one which the statute was designed to prevent." (Olsen v. McGillicuddy (1971) 15 Cal.App.3d 897, 902-903) Mere "but for" causation, is simply not enough. The statute must be designed to protect against the kind of harm which occurred.

Bottom line is that there are a gazillion places to find the elements of torts or negligence or medical negligence. They will all boil down to the same handful of concepts although they may present them differently.

 

[i] www.glencoe.com/sec/socialstudies/street_law/textbook_activities/chapter_overviews/chapter20.php

[ii] tort. Dictionary.com. Dictionary.com Unabridged (v 1.1). Random House, Inc. http://dictionary.reference.com/browse/tort.