A Quick Look at First-Year Courses: Torts

The course in torts covers the law applicable to wrongful acts to persons or property, by which others are injured or their property is damaged, and for which the law gives a remedy.

Before you can have a tort, there must be some underlying duty owed to the injured party. A man on shore sees somebody drowning. He can easily toss out a life preserver and save the other person's life, but he does nothing. The wife and children of the deceased sue him for wrongful death. No recovery. He was not under any legal duty to help, and although his conduct may have been morally reprehensible, it was not tortious. But suppose the man on shore was a lifeguard expressly hired to watch the swimmers off that beach. His inaction would probably constitute a breach of a legal duty owed to the man in the water, and a cause of action would lie in tort.


Everyone is under an implied legal duty not to injure anyone else. But the duty to give aid to another will arise only if certain specific legal relationships exist between the parties. You will be concerned with three broad areas of tort liability: intentional torts, negligent acts, and liability for inherently dangerous activity. All encompass some ramification of this concept that a duty must exist.

Obviously, an intentional act to injure another will be a breach of the duty not to injure owed to everyone. Among intentional torts are physical violence to the person (assault and battery), false imprisonment, invasion of privacy, malicious prosecution, fraud and deceit, libel and slander, trespass, and damage to or taking real or personal property. Generally, anytime some act that harms another person is done intentionally, a tort arises.

As a joke, A pulls a chair away just as B is going to sit down; B falls to the floor and is injured. This is an intentional tort. Even though no harm was intended, the act which caused the harm was purposely done. B has a cause of action against A.

Where there is intent to injure, the trier of fact may also award punitive damages as punishment and as a deterrent to future conduct of the same nature. A collection agency employee knows Mrs. B is a pregnant widow with four children whose sole income is from her job as a secretary in a factory. She has been paying the agency fifteen dollars per month on some outstanding debts. The agency employee keeps calling Mrs. B at home at three A.M. every day demanding that she pay more and threatening to tell her boss that she is a deadbeat who should be fired. She gets so nervous from all this harassment that she has a miscarriage. This is a case where punitive damages could properly be awarded against the agency by the trier of fact.

Note that many intentional torts are also crimes. This means that, besides the individual victim, who has a civil cause of action against the perpetrator of the tort (the tort-feasor) the State also has a criminal cause of action arising from the same set of facts. Two separate lawsuits could be filed: a privately brought one for money damages, and a publicly brought one which could lead to fine or imprisonment on conviction.

Negligence Cases

Most of your study of torts will be spent on negligence cases. First you will have to learn all the various elements which go to make up actionable negligence, and then you will have to know all the possible defenses.

In order to have a cause of action for negligence, there must be a duty of care owed to another; there must be a breach of that duty; the breach must be the proximate cause of some injury or damage; the injury or damage must be reasonably foreseeable as a consequence of the breach of the duty. The special defenses cover contributory negligence, assumption of risk, and last clear chance. This is the type of terminology you will be using. Let us see what it means.

The duty of care can arise under the general duty not to injure anyone else, or it can arise under some special affirmative duty which is created by the existence of some legal relationship.

The concept of breach of duty is easy to grasp. Somebody does something that legally they are not supposed to do. It may be based on affirmative interference with another's property or another's right to act in a certain way; it may be passive refraining from acting toward another when some action is required because of the legal relationship between the parties; or it may include any conduct encompassed by these two extremes.

A police officer without a search warrant illegally enters a house; an automobile driver, without looking behind, backs into a car which is legally parked on the street; a chef in a restaurant fails to refrigerate the cream pies properly and customers get sick; a horse rented from a riding stable throws the rider; a poorly maintained railroad switch sticks and one train runs into another. Each situation entails a breach of some duty of care.

At any given time, there are thousands of lawsuits on file in the courts where negligence is the basis of the action. Most of them concern recognizable everyday duties of care which are taken for granted. Occasionally, an astute lawyer thinks up some new duty that has not been recognized before, and brings a lawsuit based on it. These suits are usually unsuccessful, although once in a while one will stand up to scrutiny. Most of them, however, are far ahead of their time. Judges as a group are extremely conservative and are reluctant to extend the law into new areas of applicability based on the theory enunciated in one lawsuit. After a number of suits raising the issue, and discussion of it in law reviews, this new theory might be followed. Then other states also use it and the new theory becomes an established rule.

Recent Examples

When new theories like this arise, they usually hit the newspapers, particularly if they seem outlandish under present-day knowledge and standards. Some recent examples include the man who sued the store that sold a lady a very revealing bathing suit. He claimed he was so distracted watching her that he hit his head going up the ladder to the high-dive board. In another case, a son sued his parents because he did not get a good public school education. His theory was that they acquiesced in his unnecessary absences from high school by giving him false notes to give to the attendance office whenever he asked for them.

I once successfully filed a suit on behalf of a client alleging that the defendant, his neighbor, negligently kept a flock of geese which constantly flew over the client's house and deposited what are commonly referred to as goose droppings on said plaintiffs driveway, which goose droppings when deposited are in a semi-aqueous state and remain so for several minutes.

The complaint then went on to allege that the plaintiff, clad only in a bathrobe, went out to get the Sunday paper, stepped on some newly deposited goose droppings, slipped and tore his bathrobe, injuring his hip and exposing his bare body to the taunts and jeers of sundry and various persons then present in the immediate vicinity of said driveway.

This stood up on demurrer, and the court said it had the elements of a valid cause of action.

Like breach of duty, the element of proximate cause is a basic requirement of any tort case. Proximate cause means that the breach of the duty must be connectable through a logical chain of events to the injury suffered by the plaintiff.

Picture an English country fair in the Middle Ages. All the vendors have come early and set up their stalls to display their produce and merchandise to best advantage. One industrious lad has spent the early morning hours making a giant firecracker with a long fuse. By ten o'clock the crowd has assembled. The firecracker man lights the firecracker and gaily tosses it into the middle of a bunch of vegetables. The excited vegetable man throws it over to the weaver's. The weaver gets rid of it fast and hurls it to the potter. Potter to butcher; butcher to baker; baker to candlestick maker; candlestick maker to draper; draper to pickle monger; pickle monger to--alas, there is no place else to toss it; the fuse has reached the firecracker. It explodes, destroys the stand, and sprays pickles and brine all over the place.

The damaged stall owner sues the original firecracker tosser, who pleads the defense that he did not throw it on the pickle stall, the draper did. The court said that a cause of action arose when the firecracker was first thrown; that the initial toss was the proximate cause in the chain of events which led to the ultimate injury.

When you read this case in law school, the opinion does not mention a firecracker; it talks about a "squib." Some law students who never looked up this word may have not realized that a squib was really a firecracker, and so they never got the full import of the case. I point this out here so that you will be reminded to always look up new terms as soon as you come across them.

Closely connected with proximate cause are the doctrines of foreseeability and reasonableness. All through the study of the law, but most particularly in torts, you will be running into "the little man who wasn't there." Nobody has ever seen him. He can be male. He can be female. No one knows what clothes he wears. No one knows what he looks like. But every judge and every lawyer will tell you that he should have been at the scene of every negligent tort that ever occurred. Had he been there, like Superman of Krypton, he would have prevented it from happening. He is the mythical "reasonable man" of the law. The more negligence cases you read, the better you feel you know him. He is the character against whom all actions are tested. Would a reasonable man act the way this plaintiff or that defendant did under exactly the same set of circumstances?

Reasonable Man Concept

Would a reasonable man foresee the consequences which would result from the defendant's action? The reasonable man concept is one of the big questions in negligence tort cases. Once the jury finds that the defendant's conduct bears a sufficient causal relationship to the plaintiff's injury, they have to determine whether a reasonable man could have foreseen that the harm would have followed from the conduct.

Some years ago, a Supreme Court justice said that he could not give an exact definition of obscenity, but he knew it when he saw it. That is about the status of the reasonable man. Everybody has a sense of who he is and how he thinks, but nobody can describe him with any degree of accuracy. As you study the various cases in torts, however, your concept of the reasonable man will gradually emerge, and eventually, you too will have the feel for his amorphous existence.

Besides testing the defendant's conduct, you will discover that you have to test the plaintiffs as well. Only this time the reasonable man takes the plaintiffs place. The defendant will try to prove that the plaintiff's negligence contributed to the injury. In former days, the finding of the least bit of negligence by the plaintiff would require a defense verdict. This harsh contributory negligence doctrine still exists in many states; however, within the last few years, it is gradually being replaced by the doctrine of comparative negligence. In those jurisdictions following the new rule, the jury is asked to determine the percentage of fault by each party and to apportion the damages between them.

Another defense you will study is "assumption of risk": Knowing the risk, the plaintiff nevertheless went ahead and put himself or herself in the situation which resulted in the injury. A goes to the baseball game and gets hit on the head by a fly ball. Has he assumed a risk inherent in watching the game?

"Last clear chance" is something else you'll run into in tort defenses. If, notwithstanding the plaintiff's contributory negligence, the defendant had the last chance to avoid the injury, judgment may be for the plaintiff.

Besides intentional and negligent torts, the third major class of tort cases you will be exposed to is called liability without fault, where the defendant is liable for the injury even if he or she acted with all due care. Here, the liability arises because of the inherently hazardous nature of the activity which the defendant is engaged in-for example, transporting explosives on the highway, experimenting with radioactive materials, or dusting crops with poisonous chemicals.

Another interesting doctrine you will come across in the study of torts is res ipsa loquitur, the proof of negligence through circumstantial evidence. Something happens causing an injury. The victim does not know the initial cause. It is the type of thing which is usually the result of negligence. Perhaps the source of knowledge as to its cause is solely within the perspective of the defendant. A is standing on a sidewalk. A flower pot falls from an apartment window ledge and hits her. In a suit against the tenant who put the pot on the sill, res ipsa is used to prove the negligence. The burden is on the defendant to explain what caused the pot to fall.

One reason most students like torts so much is that it is so easy to relate to. We have all been in auto accidents of one kind or another; we have been exposed to all sorts of injuries to our person and property (fortunately without fatal effects, or we would not now be considering a career in law.) As you read each case, and after you know and understand the rule clearly, imagine what you would have done if you were the attorney for one side or the other. Is there any way you could have presented the case to achieve victory for your client?