UNIT 4 - TORTS

Torts, as a general category, are civil wrongs recognized by the law as grounds for a
lawsuit. Such wrongs result in an injury or harm constituting the basis for a claim by the
injured party.
Types of Torts There are three major types of tort liability—intentional wrongs, acts of negligence,
and strict liability. An intentional wrong occurs when a person purposefully harms another person or
his or her property. Negligence—the most common unintentional tort—occurs when one person
unintentionally inflicts injury upon another person. Even though the injury was not intentional, the
person who caused injury can still be held liable for acting carelessly and causing harm. Strict
liability requires people engaged in certain dangerous activities to assume extra responsibility for the
consequences of their actions.

Intentional Torts

Intentional torts are actions taken with the intent to harm another person or another's property. The
intent to harm does not have to be hostile or immoral. The law of intentional torts requires that the
person causing the harm either knew or should have known that his or her actions would result in
harm.

Types of Damages A victim of an intentional tort can recover damages. There are three types of
damages—compensatory, nominal, and punitive. Damages that pay, or compensate, an injured
person for being harmed are called compensatory damages. They may include costs that have
resulted or are expected to result from the injury. If a plaintiff is unable to show financial loss, the
jury may award nominal damages. Nominal damages involve a small amount of money that the
defendant must pay in order to show that the defendant was wrong. Punitive damages are awarded to
punish a defendant whose actions were malicious, willful, or outrageous. Juries usually decide how
much money is appropriate.

Torts That Injure Persons One category of torts is torts that cause injury to persons. These types
of torts include battery—in which a person intentionally makes contact with another person in a
harmful or offensive way—and assault—which occurs when a person intentionally causes someone
to fear immediate harm. Other examples of torts that injure persons are infliction of emotional
distress, false imprisonment, and defamation. Defamation includes acts that harm a person's
reputation. Slander is the intentional attack on someone's reputation through spoken words that are
false. Libel is intentionally writing untruthful information to injure another person's reputation.

Torts That Harm Property Intentional torts may harm a person's real, personal, or intellectual
property. Trespass is a tort in which a person enters another person's private property without
permission. A nuisance is a tort that occurs when someone interferes with your ability to use and
enjoy your own property, even if the person has never physically entered your property. The tort of
conversion occurs when someone unlawfully takes, damages, or interferes with another's personal
property. Patents and copyrights exist to protect the ideas, inventions, and creative works of an
individual. A person who interferes with someone's patent or copyright through unauthorized use of
the ideas may be found guilty of the tort of infringement.

Defenses to Intentional Torts There are certain defenses a person may use to try to prove that he
or she should not be found liable for an intentional tort. These reasons include consent, privilege,
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TORTS – Compiled by Butucel Lia, university lecturer, Moldova State University
self-defense, and defense of property. Consent is the most common defense to a tort. The defendant
argues that the plaintiff agreed to the harmful conduct and should not be able to sue. Privilege
justifies behavior that would otherwise be a tort when it serves the public interest. Self-defense and
defense of property justify the use of certain force to protect one's person or property.

Types of intentional torts – note that this is a non-exhaustive that reflects the most common types
of intentional torts:

a. Assault:
i. Definition:
 An intentional, unlawful threat to cause bodily injury to another by force;
 Under circumstances that create a well-founded fear of imminent peril;
 Where there exists the apparent present ability to carry out the threatened act.
ii. Note: assault can be committed even if there is no actual contact with the plaintiff, and even if
the defendant had no actual ability to carry out the apparent threat.
b. Battery:
i. Definition:
 A battery is the willful or intentional touching of a person against that person’s will by another
person, or by an object or substance put in motion by that other person.
 Note: offensive touching can constitute battery even if it does not cause injury, and even if it
could not reasonably be expected to cause injury.
c. Defenses to Assault and Battery:
i. Consent:
 Where a defendant has the plaintiff's consent to commit an act of assault or battery, the plaintiff
may not later bring a lawsuit. The most typical context for consent occurs in sports, where
injuries that result from rule violations that are part of ordinary play are unlikely to support a
legal action. Consent also exists in the context of authorized medical or surgical procedures.
ii. Police Conduct:
 A police officer is privileged to apply the threat of force, or if necessary to apply actual force, in
order to effect a lawful arrest. A defendant who suffers injury as the result of reasonable force
exerted by the police to effect a lawful arrest will not be able to sustain a lawsuit against the
arresting officers for assault or battery.
iii. Self-Defense:
 A person who is assaulted may use such reasonable force as may be necessary, or which at the
time reasonably appeared to be necessary, to protect himself from bodily harm. An act of self-
defense must be proportionate to the threat.
iv. Voluntary (Mutual) Combat:
 Where the plaintiff voluntarily engages in a fight with defendant for the sake of fighting and not
as a means of self-defense, the plaintiff may not recover for an assault or battery unless the
defendant beats the plaintiff excessively or uses unreasonable force.
v. Defense of Property:
 Many jurisdictions allow the use of some amount of threat or force by a person who is seeking
to protect his or her own property from theft or damage. However, there is no privilege to use
force that may cause death or serious injury against trespassers unless the trespasser threatens
death or serious injury.
vi. Provocation:

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TORTS – Compiled by Butucel Lia, university lecturer, Moldova State University
 Words alone, no matter how insulting or provocative, do not justify an assault or battery against
the person who utters the words.
d. False Imprisonment:
i. Definition:
 When the defendant intentionally confines the plaintiff, either physically or by overcoming the
plaintiff’s will, to a definable area from which there is no reasonably apparent means of escape.
e. Intentional Infliction of Emotional Distress:
i. Definition (elements):
 The defendant must act intentionally or recklessly.
 The defendant's conduct must be extreme and outrageous.
 The conduct must be the cause of severe emotional distress.
ii. No precise definition, but conduct must be "so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community. The defendant's conduct must be more than
malicious and intentional; and liability does not extend to mere insults, indignities, threats,
annoyances, or petty oppressions.

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.

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.
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TORTS – Compiled by Butucel Lia, university lecturer, Moldova State University
 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 (Assumption of risk: if a person voluntarily encounters a known danger and decides to
accept the risk of that danger, he or she may be prevented from recovering for related negligent
acts by a defendant).
Elements of Negligence
Duty: The defendant owed the plaintiff a duty to act reasonably. A reasonable person would
consider (1) the burden of taking precautions; (2) the likelihood of harm; and (3) the seriousness of
the harm.
Breach: The defendant’s conduct violated that duty (the defendant did not act reasonably).
Causation: The harm would not have occurred without the defendant’s actions. Requires proof of
“Cause in Fact” and that the harm was foreseeable (“Proximate Cause”).
Damages: The plaintiff suffered actual damages (medical costs, lost wages, pain and suffering,
etc.).
Scenario 1: Ke$ha: The Case of the Drunk Driver,
Ke$ha is bartending at The Right Round, a nearby pub, because her new song isn’t selling very well.
She sees Cee-lo, a regular customer at The Right Round, is clearly intoxicated. He asks her for one
more round of drinks before he leaves. Not wanting to offend him in case he wants to collaborate
with her on his next album, Ke$ha serves him, saying, “Let’s make this the last round.” Twenty
minutes later, Cee-lo leaves the bar to go home. Just after Cee-lo pulls his car onto the highway, he
swerves and hits another car head-on. Cee-lo and the driver of the other car are seriously injured.
State the duty Cee-lo has a duty not to drive while intoxicated. Ke$ha also
has a duty not to serve someone who is visibly intoxicated.

Look for the breach Cee-lo breached his duty to act like a reasonable person
when he drove home even though intoxicated.
Ke$ha breached her duty when she served him another
round even though Cee-lo was clearly intoxicated.

Did defendant’s conduct cause the Yes. By serving Cee-lo another round, Cee-lo got drunk. He
plaintiff’s harm? then decided to drive and got into an accident. The accident
caused the driver of the other car serious injuries.

What damages does defendant Medical damages

owe the plaintiff?
What do you think? Is Ke$ha responsible for the accident? Should Cee-lo be able to sue her and
collect damages? Should the other driver?
Scenario 2: Rob & Katrina: The AIDS Case
Rob is has an STD. He is new to Seattle and does not want anyone to know about his illness. He
meets Katrina and they start dating. They really like each other and eventually become exclusive.

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TORTS – Compiled by Butucel Lia, university lecturer, Moldova State University
They have unprotected sex, but Rob does not tell Katrina beforehand about his STD. Katrina finds
out later that she has the same STD Rob does after she goes to a doctor for a blood test.

State the duty Rob had a duty to inform Katrina of his STD, or, at the
very least, to have had protected sex.

Look for the breach Rob did not warn Katrina of his STD before having
unprotected sex with her.

Did defendant’s conduct cause the Yes. If Rob had not had an STD and not informed Katrina,
plaintiff’s harm? then she would not have the STD to begin with (unless she
knowingly slept with him).

What damages does defendant Medical damages, doctors bills ,mental distress
owe the plaintiff?
What do you think? Does Rob have a duty to tell Katrina about his condition? If he does, did he
breach it, and should Katrina be able to recover damages from Rob? Would your answers change if
Rob was HIV positive (being that there is no cure for AIDS)?

Scenario 3: Milton Bradley: The Case of the Baseball Swing

Milton Bradley is trying to give the Mariners a chance at a pennant win. To stay in shape, he
practices his swing in the off-season. In fact, he likes to practice so much that he often practices in
the game room so he can practice while he watches Sports Center highlights. One day, while
practicing his swing in his game room, he loses his grip on the bat. The bat flies into the dining
room and hits Ichiro’s wife’s friend in the head, causing minor injuries.
State the duty Operate/use a baseball bat with care in an appropriate area

Look for the breach Taking practice swings inside the home with others nearby

Did defendant’s conduct cause the Yes, without Milton’s practice swing, Ichiro’s wife’s friend
plaintiff’s harm? would never have been hit

What damages does defendant Medical damages

owe the plaintiff?

What do you think? Sometimes the amount of damages can change. Let’s say the bat hit Ichiro’s
wife’s best friend in the arm. Does that change the amount of damages? What if his wife’s best
friend was a concert violinist and can’t play her violin anymore? Does that change the amount of
damages?

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TORTS – Compiled by Butucel Lia, university lecturer, Moldova State University
Scenario 4. Tom, a sophomore in college, decides that he would like to get a summer job as a
lifeguard. Tom received all of the appropriate training. During his second week on the job he
notices two girls by the concession stand and decides that he is going to go over to them to see if he
can get a date with one of them. While he is talking to the girls a young girl jumps off the diving
board and sinks like a rock to the bottom of the pool. After a couple of minutes, Tom hears
someone yell out “my sister is drowning!” He jumps into the pool, pulls the girl out, and performs
CPR. The girl comes to and, after catching her breath, appears to be fine.

Scenario Chart
Question: Answer:

Who would the Tom

defendant be in this
scenario?
Who would the Girls parents
plaintiff be in this
scenario?
What tort took place Negligence
in this scenario?

If you were the Damages

defendant in this
action, what would
be the best defense
to use?
Why did you choose The girl was not injured
this defense?
Who do you think Tom. No damages were present
would win in this
scenario? Why?

Scenario 5. Consuela leaves a sharp knife on the kitchen table after making a sandwich. A three-
year-old neighbor boy, who has been invited over to play with Consuela’s daughter, climbs up on a
chair, grabs the knife, and seriously cuts his finger.

Scenario Chart
Question: Answer:

Who would the Consuela

defendant be in this
scenario?
Who would the Neighbor boy parents
plaintiff be in this
scenario?
What tort took place Negligence
in this scenario?

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TORTS – Compiled by Butucel Lia, university lecturer, Moldova State University
 If you were the Breach of duty
defendant in this
action, what would
be the best defense
to use?
Why did you choose Leaving a knife out is a normal occurence
this defense?
Who do you think Consuela
would win in this
scenario? Why?
Scenario 6. After a late dinner in the city, Jamison walks out of a crowded restaurant and sees a man
grabbing Ashley, his wife. Ashley tries to get away but the man keeps pulling her back towards him
in a way that suggests that he is trying to kiss her. Ashley says, “Stop! You’re hurting my arm.”
Jamison pushes his way through the crowd, hits the man, and the man is knocked out. Later, the
man sues Jamison for hitting him.

Scenario Chart
Question: Answer:

Who would the Jamison

defendant be in this
scenario?
Who would the The man who was hit
plaintiff be in this
scenario?
What tort took place Intentional tort
in this scenario?

If you were the Defense to others

defendant in this
action, what would
be the best defense
to use?
Why did you choose Jamison grabbing wifes arm and he has the right to defend his wife
this defense?
Who do you think Jamison
would win in this
scenario? Why?

Scenario 7. Tanner, Kyle, and Martin leave a high school party. All three of them told their parents
that they were sleeping over at each other’s house, so they could stay out all night. The party that
they were at was busted by the police and now they had nowhere to go. Tanner suggests that they
should break into one of the vacant homes in the neighborhood but Kyle told him that he didn’t want
to get in trouble. Tanner said that he wasn’t going to be sleeping in the cold and didn’t care what
they thought. When Tanner picked up a rock to throw at the window of the home, Kyle tackled him.
Tanner fell and hit his head on a rock causing severe bleeding. Tanner sued Kyle for the medical
bills.
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TORTS – Compiled by Butucel Lia, university lecturer, Moldova State University
 Scenario Chart
Question: Answer:

Who would the Kyles parents

defendant be in this
scenario?
Who would the Tanners parents
plaintiff be in this
scenario?
What tort took place International tort
in this scenario?

If you were the Prevention of crime

defendant in this
action, what would
be the best defense
to use?
Citizens have the right to defend
Why did you choose property as well as to prevent crimes. Both were
this defense? occurring (going to occur) in this scenario

Kyle’s parents because he the force was a

Who do you think ppropriate for the circumstance
would win in this
scenario? Why?

Scenario 8: Michael is holding Jack down and slapping him in the face. Michael keeps laughing
and saying, “Say Uncle!” Jack is crying and keeps saying, “Get off of me!” Michael slaps Jack
again but this time Jack gets his hand free and punches Michael. Michael falls to the ground
gripping his broken nose. Michael sues Jack.

Scenario Chart
Question: Answer:

Who would the Jack

defendant be in this
scenario?
Who would the Michael
plaintiff be in this
scenario?
What tort took place Battery
in this scenario?

If you were the Self defence

defendant in this
action, what would
be the best defense
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TORTS – Compiled by Butucel Lia, university lecturer, Moldova State University
 to use?
Because Jack was hitting Michael first and Jack asked him to stop. Jack has the
Why did you choose right to make him stop
this defense?
Who do you think Jack because he
would win in this has the right to defend himself
scenario? Why?

Scenario 9. Harry, a school bus driver, has a heart attack while driving the bus. The bus slams into
a wall, injuring several students. One month earlier Harry’s doctor had warned him of his heart
condition. One of the students start having headaches seven years later and the parents sue.

Scenario Chart
Question: Answer:

Who would the Harry

defendant be in this
scenario?
Who would the Studens parents
plaintiff be in this
scenario?
What tort took place Negligence
in this scenario?

If you were the Missing Elements: Breach of Duty: You could possibly argue “Missing elements”:
defendant in this he did not breach his duty by continuing to drive (many people drive even though
they ha
action, what would ve ailments)
be the best defense
to use?
Why did you choose See above
this defense?
Who do you think The bus driver because of the seven years it took for them to sue
would win in this
scenario? Why?

Scenario 10. Steve and Tom are big fans of the UFC (Ultimate Fighting Championship). After
watching a fight, Tom says that he could be an UFC fighter. Steve said that it would be impossible
because he couldn’t even beat him. After a lot of posturing, Tom and Steve agree to an UFC style
fight. During the fight, Steve punches Tom and ruptures his spleen. Tom is taken to the hospital for
treatment of his injury

Scenario Chart
Question: Answer:

Who would the Steve

defendant be in this
scenario?
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TORTS – Compiled by Butucel Lia, university lecturer, Moldova State University
 Who would the Tom
plaintiff be in this
scenario?
What tort took place Battery
in this scenario?

If you were the Assumption of Risk

defendant in this
action, what would
be the best defense
to use?
Why did you choose Both agreed to fight
this defense?
Assuming both men were hitting each other, Steve would probably win (and not
Who do you think have to pay damages)
would win in this
scenario? Why?

HOW TO WRITE AN OPENING STATEMENT

An engaging and effective opening statement is critical. It is a trial attorney’s first opportunity
to present his or her case to the jury from the client’s perspective and to shape the jury’s views
of the dispute. An opening statement, therefore, needs to be carefully planned. It should offer
an understanding of the dispute and the parties involved in it. It should give an overview so
the jury can better understand the evidence that will later be presented. An opening should
establish the credibility of the attorney giving it so the jury is persuaded to trust the testimony,
documents, and other evidence eventually offered for its consideration.
An opening statement is a factual narrative that should last no longer than is needed to keep
the jury’s attention. It should preview, in an understandable way, the anticipated testimony
and evidence. It should not bore or confuse the jury with too much detail. It also should not
overpromise that which may not, or cannot, be delivered. Failure to deliver on proofs
promised in an opening statement can lead to counsel’s loss of credibility. It can give the
adversary, at closing, an opportunity to argue that the party’s case was not made.
1.Create an outline. Working off an outline will keep the opening statement organized and
inclusive of all the important themes of the case. Use a legal pad or a notebook to outline the
opening statement. Write down the major points that need to be addressed, and then fill in each point
with more detail and specific information.
2. Appeal to the jury's emotions. The jury is made up of real people who live real lives. Create the
opening statement to sound like a story. If the case is something that the jury can relate to, they will
remember and relate to the information shared by the attorney. A compelling opening statement will
provide the opportunity to tell a story and get the jury members personally involved.
3. Propose a theory. The jury will need to know what the attorney is going to prove. Give them
your side of the story. Explain what happened, what is going to be proven, and why no other
explanation could possibly be credible.
4. Present evidence and witnesses. Give a brief introduction of what the jury can expect in terms of
witnesses, testimony and evidence. Explain how those witnesses and the evidence will support your
theory of the case.

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TORTS – Compiled by Butucel Lia, university lecturer, Moldova State University
5. Keep a relaxed style. An opening statement should be conversational and authoritative. Do not
be argumentative or combative at this point. Maintain a professional demeanor that will help the jury
trust you and what you say.
6. Conclude with a major point. The last thing you say should be memorable and important. Use a
punch line repetitively, repeat the theme, and tell the jury what you expect from them.
7. Practice the opening statement. Run through the opening statement in front of colleagues or a
mirror. Make adjustments to style and presentation.

# Sample Opening Statement

“Your Honour, members of the jury, my name is ________________________________ and I am
representing _____________________ (plaintif/claimant or defendant) in this case.
# I intend to prove ________________________________________...
# These are the facts of the case:
-provide background information / overview of the topic / issue (dates, key people, impact on
society)
-give perspective to the side that you are arguing that may appeal to the audience (“Imagine…”)
-state effects of the issue on history (social, political, economic, military)
-state the main arguments that you will be presenting
-offer some challenges / questions to the opposition
# Today you will be presented with evidence and will hear testimony from my witness,
__________________ which will leave no doubt in your mind of the _________________(guilt /
innocence) of the defendant.
# Please find the defendant, _________________________________ (guilty / not guilty).”

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TORTS – Compiled by Butucel Lia, university lecturer, Moldova State University