Tort Law is the area of law by which you make someone else pay for a harm they've caused you. It's pretty much the most famous area of law, outside the criminal law, because America's litigious society (led by J. Edwards, et. al) is always wielding tort claims to soak someone else for one's problems. But tort law is also the foundation of the legal system, defining the harms which no man should be allowed to cause another. Many of these original torts (such as assault, battery, fraud, etc.) are now prohibited in state criminal laws, often with different standards or definitions. So do your own research. Tort law varies from state to state, so this guide should not be used as substantive legal advice, but rather a general overview to basic principles that apply in most jurisdictions. The Guide is thus an overview of basic tort claims, giving you, the citizen, a basic working knowledge - without legalese - of the common law.

The Basic Torts:

Assault
- An intentional act that creates a fear of imminent harmful or offensive contact

Battery
- An intentional harmful or offensive actual contact

Trespass
- Trespass has three basic types:
- To land (trespass to personal land itself is a harm, no other injury need be proved)
- To movable property in one's possession, called chattels (usually requires some damage to value or enjoyment of your property)
- Conversion (The unauthorized use of property not in one's possession, creating interference with ownership)
The defense to trespass is necessity (public necessity, such as to enter a property to put out a city-wide fire, is
absolute, whereas private necessity, such as to save oneself, is allowed but requires compensation after the fact)

Fraud
Fraud requires:
- A false statement claimed to be true
- With knowledge or reckless disregard of the truth
- While intending for people to rely on it
- And a person actually relying on it
- And suffering damage as a result

False Imprisonment
- An intentional restriction on someone's freedom of movement
- False Imprisonment claims require intentional confinement ("absence of reasonable means of escape") to a
certain area, committed without legal authority (e.g. police officers are exempt, and shopkeepers have a limited
authority to detain people suspected of shoplifting)

Intentional Infliction of Emotional Distress
- A non-immediate, usually verbal assault, through "extremely outrageous" behavior "beyond the bounds of
civilized society". a difficult standard to meet
- IIED is a rare tort, historically applied to those who falsely told another that their spouses had died

Nuisance
- Nuisance is defined as "unreasonable interference with another's use and enjoyment of land", without
actual trespass

Invasion of Privacy
- The unauthorized appropriation of someone"s name or likeness, with three types:
- The unreasonable and offensive disclosure of private facts
- An intrusion that is highly offensive to the reasonable person and somewhere where one has a reasonable expectation of privacy
- Portrayal in a false light, requiring both actual malice and the fact that the portrayal is highly offensive

Negligence
- Negligence is the breach of the duty to take reasonable care - it does not require intent to cause harm
- A finding of "reasonable" depends on circumstances, and is usually decided by the jury in their view of what
the "reasonably prudent person" would have done
- The negligence "calculus" of reasonable care balances the probable harm against the burden in preventing
against it - it is not necessary for the plaintiff to prove that there existed an alternative choice, but it helps
- The duty of reasonable care is further modified by relationship, such as landlords, who have "advance notice"
of certain risks and are expected to take extra measures. However no affirmative "Good Samaritan" duty to rescue
exists in most states.
- The custom of the community is relevant but not dispositive, for as Oliver Wendell Holmes noted, "Some
precautions are so imperative that even their universal disregard will not excuse their omission."
- Violating a law or statute is nearly always negligence, unless breaking the law was necessary, or the type of
harm was not the type protected against by the law
- Professional negligence is called malpractice, the failure to respect professional standards
- Children below the age of 5 can't ever be negligent, above that age children are held to the standard of a reasonable
person at their age and experience, unless they engaging in dangerous adult activities, in which case they are held to an adult standard of care

Defamation
- Defamation is an untrue statement that injures a person's reputation
- Slander is defamation in speech; Libel is defamation in print
- Because of the 1st Amendment, a different standard applies to the defamation of a public figure, requiring
actual malice

Products Liability
- Products liability is incurred when a product that is "Defective condition unreasonably dangerous to the
user" harms the user
- The three basic types of product defects also have their own standards:
- Manufacturing defects - Any departure from the intended design of a product
- Design defects - The omission of a reasonable alternative design that could have avoided the defect
- Warning defects - The failure to make an "adequate disclosure of foreseeable risks"

Strict Liability
- Some activities - called "ultrahazardous" or "unreasonably dangerous" activities - make you liable no
matter how much effort or care you take. Strict liability makes you liable for every harm that occurs while
you are engaging in "ultrahazardous" activities.
- Strict liability is usually reserved for the transport of explosive chemicals and similarly dangerous activities,
where the act itself risks extremely substantial harm
- However, owners of dogs who know or have reason to know of their dog's "dangerous tendencies" (e.g.
the dog has already attacked someone) will be strictly liable if their dog harms someone

The Elements of Every Successful Tort Claim

1) Duty & Breach: Duty is a legal obligation to refrain from certain behavior, or sometimes to act. Breach
of Duty is merely a legal concept describing the fact that you didn't do whatever you were supposed to do.

- Certain torts additionally require intent, creating the duty not to intentionally engage in certain
behavior. Intent is defined when either your purpose is to cause harm, or when you
have knowledge that harm is substantially certain to occur

But the intent to cause the harm is broad, and it"s intentional if you intend to cause
the harm to anyone, to any degree, or in any way.

- Self-defense is a defense and a release of duty - but one must reasonably believe that
physical force is necessary to repel an imminent attack - and one must only apply nonexcessive
force to defend oneself

2) Damage: Some actual harm resulting from the act/breach

- Damages are usually quantified and paid to the plaintiff after a successful cause of action
- When the victim consents to the harm, there is no damage, by virtue of the legal doctrine
volenti non fit injuria (To the willing, no injury is done), but the act must be in reasonable reliance
on the expression of consent
- The existence of laws and statutes modify liability - for example, an act that violates a
statute may be a tort even if the victim consented to it

3) Causation: The fact that your act was the cause of the harm

- The first requirement is that the act be the but-for cause, namely that "but for" the act, the
harm wouldn't have occurred

- Because many acts are arguably the "but-for" cause, proximate cause functions as the
limit to causation

Proximate cause is limited by foreseeabie harm and thus often relates to duty - or
as Judge Benjamin Cardozo famously noted, "The scope of harm defines the duty
to be obeyed."

However, the "thin skull" rule means that the severity of the harm doesn't matter -
if you meant to cause the harm in any degree, you are liable for any harm that results

Other Issues

Who You Can Sue
- Through the doctrine of vicarious liability, you may sue an employer if an employee committed a tort during
the course or "within the scope" of his employment
- A common distinction in determining whether an act was "within the scope" or employment is whether the
employee's behavior was a mere "detour" (within the scope) or a "frolic" (outside the scope)
- For more on vicarious liability, please read Will Helvestine"s following article, p. 18
How Much You Can Sue For
- With contributory negligence, the plaintiff's ability to collect for negligence is reduced by the amount that
his or her own negligence contributed to the harm
- Contributory negligence is also called "assumption of the risk"

What You Can Get
- Injunction: Court order to stop a certain harmful behavior
- Damages: Monetary payments to quantify the harm

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written by Bert Dalmayer, April 05, 2008

how to determine how much TORT (DOLLAR AMOUNT) to request in a federal civil complant or were to research this

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