Glannon-Torts 8/22/2014 5:41:00 PM

BASIC AND INTRO

Torts are typically defined as a civil wrong independent of contract

Tort law is not always about awarding monetary damages but sometimes an
injunction, which would prevent future harm rather than compensate for
past harm. (e.g. Adam shoots Barbara and Barbaras awarded an injunction
against him, meaning Adam cant shoot her again)

Torts all have the same structure
The plaintiff bears the burden of proving by a preponderance of
evidence all of the elements of each tort (prima facie). If even
just one of these elements is not satisfied, the plaintiff loses the
whole suit.
o General elements of a tort P must prove
1. That defendant engaged in the requisite tortious
conduct
2. Actual causation
3. Proximate causation
4. Damages
Affirmative Defenses
Even after proving prima facie case for a tort, defense can put up
an affirmative defense to remove themselves from liability (i.e. self
defense)

INTENTIONAL TORTS
Battery, Trespass to Land, Trespass to Chattels, and Conversion
Battery
o The first phase of the prima facie case, the requisite tortious
conduct (Restatement of Torts S13)
He acts intending to cause a harmful or offensive
contact with the person of the other or a third person,
or imminent apprehension of such contact AND a
harmful contact with the person of the other directly or
indirectly results
Breaking this down:
1. The defendant (Actor) has acted
2. The defendant intended to cause
A harmful contact OR
An offensive contact OR
Plaintiffs imminent apprehension of harmful
or offensive contact
3. With the person of the other or a third person
4. And harmful conduct has resulted
5. Plaintiff has consented (absent from
Restatement but part of prima facie case)



Ch. 14 Proximate Cause 8/22/2014 5:41:00 PM
Proximate Causation
Basics
Proximate causation is just a poorly chosen term for a policy question and actually has very
little to do with the question of cause
Proximate cause requirement applies to all torts
The question of proximate cause considers the fairness or policy consequences
of holding a defendant liable in tort when the tort occurs in an unusual way
o Ex: Laurent is running through the airport and hits George on the foot,
injuring it. It is clear that he is liable for this injury as there is actual
causation and he breached the duty of reasonable care by running and
not paying attention. But what if George misses his flight because of this?
What if he has to get on the next flight which crashes? Is Laurent liable for
his death? But for him stepping on his foot, he would not be on the
plane that crashed.
This is why proximate cause was created, to allow defendants off
the hook for policy reasons.
The Restatement (Third) dislikes the term proximate causation a lot and
prefers the term scope of liability as it more accurately reflects the policy
oriented nature of the term.
Directness Test (Minority Jurisdiction)
Whether the connection between defendants tortious conduct and plaintiffs
injuries were close in time and space.
Is there a natural and continuous sequence-direction connection?
Were the defendants actions a substantial factor in producing the result?
(THIRD RESTATEMENT REJECTS THIS LANGUAGE)
Courts first accepted this test in Polemis (But went on to reject it in Wagon
Mound No. 1.)
o In Polemis the falling of the plank (Ds action) and the injury to the Ps
boat was connected closely in time and space and therefore D was liable.
Foreseeability of type of harm test/harm within the risk (Majority
jurisdiction)(Restatement Third View)
Whether the type of harm that occurs was a foreseeable risk of defendants
negligent conduct.
o Polemis under this test would have found no liability on D for the
explosion of the ship. The harm of dropping the plank may have been
foreseeable to fall and hit person or property but not to cause a large
explosion.
Another way to phrase it is whether the conduct is a harm within the risk of
what makes the defendants conduct negligent.
o The harm within the risk taken by defendants in Polemis was the planks
may fall and hit someone, not that theyd cause an explosion. (Polemis is a
rare case in which P can prove proximate cause under directness test but
not under foreseeability of type of harm test. In most cases, Ps who can
prove the rest of a prima facie case can easily prove proximate causation
under either test)
o Same test that applies to 4
th
element of negligence per se test
The statute was designed to protect against the type of accident
the defendant causes (Ex. Poison that is not labeled as poison by
the pharmacist, is then dropped and cuts the plaintiffs foot)
Proximate Cause and Plaintiffs Conduct in Negligence and Other Cases
In a negligence action, for a plaintiffs contributory (or comparative) negligence
to reduce the amount of liability on defendant, it must be both an actual and
proximate cause of the injury.
Intervening and Superseding Causes
When an intervening action by a third party breaks the chain of causation
o Used in both directness and foreseeability of the harm jurisdictions
Ex: Going back to the Laurent example from above. If George were to end up on
the 2
nd
plane after missing his first due to Laurent stepping on his foot and the
2
nd
plane was hijacked by terrorists, George would not prevail if suing Laurent
because the terrorists actions would be a superseding cause breaking the chain
of causation.
o But if George sued the security company (or TSA) that allowed the
terrorists to sneak weapons onto the plane he would likely win that suit.
o The difference between the two examples is the harm within the risk
In the first example, it wasnt a harm within a risk that stepping on
someones foot could lead to the type of harm of a terrorist
inflicted injury. But in the second example, it was definitely a harm
within the risk of inadeqautley screening passengers for weapons
that could lead to the type of harm of a terrorist inflicted injury.
o Restatement 3
rd
sets forth the rule as, When a force of nature or an
independent act is also a factual cause of physical harm, an actors
liability is limited to those harms that result from the risks that made the
actors conduct tortious
The Economic Harm Rule
Cuts off some liability on policy grounds similiarly to proximate cause
A negligence plaintiff who suffers no injury to her person and no physical
damage to her property cannot recover for other losses Laycock, Modern
American Remedies 109
o Ex: A driver crashes in a NYC bridge at rush hour, delaying thousands of
people in the process. It is foreseeable that a crash on a bridge would
cause the delay but crushing liability cannot be imposed on the driver for
the loss of time on the thousands of delayed drivers (If truckers are
delayed from an on time delivery and lose money). The driver would only
be liable to those whose person or property he physically injured (whom
could also recover economic damages in addition to compensation for
their injuries)
Exception to this rule is if the only kind of harm the defendant could cause is an
economic harm (i.e. you can sue your accountant if he commits malpractice and
you lose money because of it)


8/22/2014 5:41:00 PM

8/22/2014 5:41:00 PM