General Definition of Tort

1. Tort is a civil wrong committed by one person against another
2. Torts can and usually do arise outside of any agreement between the parties.

It may be:

1. a direct invasion of some legal right of the individual;
2. the infraction of some public duty by which special damage accrues to the individual;
3. the violation of some private obligation by which like damage accrues to the individual.

Main Features of Tort

1. Not Contractual
   • Not based on idea of consent
   • Every society member will be liable in tort if he behaves in certain ways, regardless of consent of liability
2. Compensation
   • Purpose of tort law: to compensate plaintiffs for unreasonable harm they have sustained.
     • Societal standard: Unreasonableness generally measured from “social utility” standpoint.
     • Economic efficiency: Courts try to impose an incentive on the defendant to be certain the costs of the actions do not outweigh the benefits from the actions.
       • In torts, law addresses — defendant gets the benefits, but costs are imposed on third parties.
       • Benefit v cost.
3. Shifting of Burden
   • Financial burden in this area of law is usually placed on the party that can best afford it.
   • Ability to bear burden is considered, but not absolute.
4. Conflict
   • Economic Efficiency and Shifting of Burden often at odds.
     • To encourage economic efficiency, should place burden on individual who committed civil wrong.
     • Otherwise, allow recovery of costs from “deeper pockets”

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Tort Categories

•  Three types of defendant conduct:
  1. Intentional torts: intentional torts features defendant desiring to bring about a particular result.
     • Main intentional torts:
       1. Battery
       2. Assault
       3. False imprisonment
       4. Infliction of mental distress
  2. Negligence: torts where defendant behaved carelessly
     • no intent to bring about specific result.
  3. Strict Liability: torts where defendant is liable even though conduct is neither intentional nor careless.
     • Main individually-named torts that apply strict liability
       1. Conducting of abnormally dangerous activities
       2. Selling of defective product –> cause personal injury or property damage
     • See Spano v Perini Corp., 250 N.E.2d 31 (N.Y. 1969).
• Distinction among major types of conduct is most significant on 2 issues:
  1. Scope of liability: In cases when conduct produces far-reaching, unexpected consequences, generally:
     • the more culpable the conduct, the more far-reaching the liability
       • Ex. Intentional torts liability extends further than tort of negligence liability.
  2. Damages: What measure of damages that defendant must pay once found liable ?
     •  Compensatory damages:  damages whose purpose is to repay the plaintiff for the harm plaintiff suffered. 
       • Punitive & nominal damages are sometimes obtained.
       • Punitive & nominal damages almost never recoverable where basis for recovery is negligence or strict liability.

For those studying tort cases:

• Three Major Questions about Each Possible Tort:
  1. Are basic requirements for the tort satisfied? (Has a prima facie case for that tort been made?)
     • “prima facie”: referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial.
  2. Are there defenses or justifications that could be raised that would prevent defendant from being liable? (Defenses and justifications?)
  3. If there are no defenses, and the prima facie of the case has been established, what elements of damages may plaintiff recover?
     • punitive damages
     • damages for emotional distress
     • damages for loss of companionship of another person
     • damages for unlikely and far-reaching consequences
     • damages for economic loss where there has been no personal injury or property damage