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Paralegal Studies
Instructor: Mary Sessom
Paralegal 100

Introduction to Law of Torts

Introduction | Intentional | Strict liability | Negligence

Introduction (individual’s rights)
     right to be free from bodily harm
     right to enjoy a good reputation
     right to conduct business with out wrongful interference
     right to have property free from interference

A Tort is interference with another’s right by:
     strict liability

The injured party sues the defendant or tort feasor.
     Brought in civil court
     Seek damages
     Not necessarily a crime
     Standard – preponderance of the evidence (i.e. more likely than not)

Intentional torts
     Assault – threaten to strike or harm resulting in fear.
     Battery – unlawful, unprivileged touching
     Trespass – wrongful injury or interference with another’s property
     Nuisance – anything that interferes with another’s enjoyment of property
     Interference with contract
     False imprisonment
Invasion of privacy
Misuse of legal procedure
Infliction of emotional distress

The Elements of an Intentional Tort

1.     An intentional tort.
     An injury.
     Tort was the proximate cause of injury.
4. Injury caused damages.

The Intentional Torts

  • Assault

Threatening to strike or harm with a weapon or physical movement, resulting in fear.

Assault and battery. Although the torts of assault and battery often occur in conjunction with one another, they are separate legal claims. A claim of battery involves intentional conduct that constitutes a “harmful or offensive contact with a person.” A claim of assault arises from conduct that is intended to and has the effect of exciting an immediate apprehension of a harmful or offensive contact.

So, for example, employees who are subjected to unwanted touching can bring battery claims; employees who fear such unwelcome contact by a co-worker or supervisor can assert assault claims. And either claim could include an additional underlying harassment claim

  • Battery

Unlawful, unprivileged touching of another person.

  • Trespass

Wrongful injury or interference with the property of  another.

  • Nuisance

Anything that interferes with the enjoyment of life or property.

  • Interference with contractual relations

Intentionally causing one person not to enter or to break a contract with another.

  • Deceit

False statement or deceptive practice done with intent to injure another.

  • Conversion

Unauthorized taking or borrowing of personal property of another for the use of the taker.

  • False imprisonment

Unlawful restraint of a person, whether in prison or otherwise.

  • Defamation

Wrongful act of injuring another s reputation by making false statements. 

Defamation. Defamation involves the unprivileged publication of false and injurious information to one or more third parties. The tort of defamation consists of two sub-parts: libel, which is the written publication of defamatory statements, and slander, which is the oral publication of defamatory statements.

Defamation claims frequently are asserted by employees who believe that their employer disseminated false information about them to other employees or to a prospective employer. These claims often arise when an employer discusses an employee’s performance, or the reasons for an employee’s termination.

  • Invasion of privacy

Interference with person's right to be left alone.

  • Infliction of emotional distress

Intentionally or recklessly causing emotional or mental suffering  to others.

Intentional infliction of emotional distress. A claim for assault requires apprehension of an immediate injury, but a person who has been threatened and suffers apprehension of a future injury may be able to bring a successful claim for intentional infliction of emotional distress.

An employer may be subject to liability for intentional infliction of emotional distress (sometimes referred to as the tort of outrage where its extreme or outrageous conduct; intentionally or recklessly causes a person to suffer; severe emotional distress.

Not surprisingly, employees subjected to harassment, retaliation or other conduct that violates federal, state or local anti-discrimination laws often assert emotional distress claims. However, such a claim also can be brought as a separate lawsuit predicated on intolerable working conditions, even absent the assertion of statutory-based discrimination claims under federal, state, or local law.

Strict Liability : the second tort

The doctrine of strict liability applies to ultra-hazardous activities that involve a great risk to people and property. The risk is so significant that amount of care will eliminate that risk.  (i.e. wild animals, explosives,  highly flammable liquids)

Also, applies to product liability – cases in which people are injured from defects in products.  The firm that manufactures a product is liable regardless of the fault for injuries to users of the product if a defect in one of those machines. Does not apply if company does not actively engage in the sale of that good. 

Wrongful death statutes preserve the rights of third parties affected by the death of a person to bring a lawsuit.  Punitive damages relate to gross negligence and reckless disregard goes beyond compensation and allows the plaintiff to attack company profits.

NEGLIGENCE: third and most common tort

Elements of Negligence to recover on a negligence claim, Plaintiff must show:

1) Duty of Care a reasonable responsibility to act or not to act

2) Breach of Duty the reasonable person test.  (not equal to logical, normal or average)

3) Proximate Cause without breach the result would not have occurred.  (not equal to actual cause).

This is one of the hardest doctrines in torts.  We talked about actual cause, including “but for” causation and the substantial factor test. Proximate cause consists of both cause in fact and foreseeability. To establish cause in fact, a Plaintiff  must show (1) the defendant's acts or omissions were a substantial factor in bringing about his injuries, and (2) the injuries would not have occurred but for the defendant's acts or omissions.

To establish foreseeability, a plaintiff must show that the defendant, as a person of ordinary intelligence, should have anticipated the dangers his negligent acts or omissions created for others

4) Actual harm (i.e. physical injury, property damage)

5) Measurable Damages - a financial loss ( may include pain and suffering)

Defenses to Negligence

1.Contributory Negligence If plaintiff's own negligence helped cause the injuries, then the plaintiff loses the lawsuit.

2. Comparative Negligence (Adopted by most states)  Plaintiff's recovery is reduced by the percent of his or her negligence.

3. Assumption of Risk.
 If defendant can show that the plaintiff knew of the risk and still took the chance of being injured, may claim this defense to bar plaintiff’s recovery.

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