Definition of Torts

Copyright 1999 by Ronald B. Standler

The word torts is rarely used by nonattorneys and the definitions in dictionaries are not
particularly enlightening.

The venerable legal treatise, Torts, by Prosser and Keeton attempts to define tort, largely
unsuccessfully:
Broadly speaking, a tort is a civil wrong, other than a breach of contract, for
which the court will provide a remedy in the form of an action for damages.
Prosser and Keeton then criticize as "inaccurate" what they just said, by noting that other
remedies, such as injunctions, restitution, and self-help are available. In desperation,
Prosser and Keeton try again to define tort:
It might be possible to define a tort by enumerating the things that it is not. It is
not a crime, it is not a breach of contract, it is not necessarily concerned with
property rights or problems of government, but is the occupant of a large
residuary field remaining if these are taken out of the law.

Part of the problem in making a precise definition of torts is that this area of law has
expanded in an ad hoc fashion by judges (i.e., common law) and legislatures.

Torts is a large subject area in litigation, in which a victim (e.g., plaintiff) generally seeks
money from some person, or some corporation, who harmed the victim.

The easiest way to get a sense of torts is to list the major areas of tort litigation:

• personal injury (e.g., automobile accident, slip and fall, dog bite)

• medical malpractice

• products liability (e.g., defect in either manufacturing or design of product, failure

to warn)

• wrongful death: survivor recovers economic value of remainder of decedent's life

• patent infringement; copyright infringement

• defamation (i.e., libel or slander)

• intentional wrongs against a person: assault, battery, false imprisonment,

intentional infliction of emotional distress. (N.B., assault and battery can also be
crimes, see my essay that compares civil and criminal law)

• wrongs involving tangible property: conversion, "trespass to chattels" (N.B., same

occurrence could also result in criminal prosecution for theft)
 • wrongs involving real property: nuisance against nearby landowner, trespass on
land

• wrongs against a business, such as "unfair competition" or trademark

infringement

• dignitary harms against a person, such as

o invasion of privacy: intrusion on seclusion, unreasonable publicity given
to private life, publicity placing person in false light
o civil rights violations, e.g., 42 USC § 1983

four elements
There are four elements to a tort, all of which must be present before the court can order
a remedy:

1. Duty. The defendant must owe a legal duty to the victim. A duty is a legally
enforceable obligation to conform to a particular standard of conduct. Except in
malpractice and strict liability cases, the duty is set by what a "reasonable man of
ordinary prudence" would have done. There is a general duty to prevent
foreseeable injury to a victim.

2. Breach of the duty. The defendant breached that duty.

3. Causation. The breach was the cause of an injury to the victim. The causation
does not need to be direct: defendant's act (or failure to act) could begin a
continuous sequence of events that ended in plaintiff's injury, a so-called
"proximate cause".

4. Injury. There must be an injury. In most cases, there must be a physical or

financial injury to the victim, but sometimes emotional distress, embarrassment,
or dignitary harms are adequate for recovery.

In most torts the defendant's actions were an accident (e.g., defendant was negligent), but
torts also cover wrongs where the defendant intended to harm the victim.

Sometimes one sees the statement that the central idea in [most] torts is the concept of
fault. Fault is the departure of defendant's conduct a minimum acceptable standard of
conduct. In other words, fault is the breach of the duty mentioned above.

I say "most torts", because there are a few, but important, torts in which liability is
imposed without finding fault with the defendant's conduct. These so-called strict
liability torts include:
 1. products liability
2. keeping of wild or ferocious animals
3. abnormally dangerous activities (e.g., storing, transporting, or using explosives in
a populated area)

duty
Justice Oliver Wendell Holmes, in Texas & Pacific Railway v. Behymer, 189 U.S. 468,
470 (1903) said:
What usually is done may be evidence of what ought to be done, but what ought
to be done is fixed by a standard of reasonable prudence, whether it usually is
complied with or not.

In U.S. v. Carroll Towing Co., 159 F.2d 169 (2dCir. 1947), Judge Learned Hand
considered a case in which a tugboat had broken away from a barge, the barge later sank:
... the owner's duty, as in other similar situations, to provide against resulting
injuries is a function of three variables: (1) The probability that she will break
away; (2) the gravity of the resulting injury, if she does; (3) the burden of
adequate precautions. Possibly it serves to bring this notion into relief to state it in
algebraic terms: if the probability be called P; the injury, L; and the burden, B;
liability depends upon whether B is less than L multiplied by P: i.e., whether
B<P×L
This is one of the few reported judicial decisions in the USA that contains an equation.
When I first read this case, I was bothered by the retrospective application of the analysis.
After the loss, L, has occurred, it is easy to identify the specific measure(s) that allegedly
should have been taken to prevent the loss and focus on just one or two loss-prevention
measures. But, before the loss, there are N possible losses, L1, L2, L3, L4, ... LN, each of
which can be prevented by measures that cost less than the probability of injury times the
amount of loss. But, the manufacturer or service provider might have an uneconomical
product or service if all N loss-prevention measures were taken.
 Intentional Torts And Privileges
Prosser, Wade, & Schwartz's Torts: Cases & Materials 9th
Edition
John W. Wade, Victor E. Schwartz, Kathryn Kelly, David F.
Partlett

Battery
1) Axn
2) Intent to cause h/o contact / imminent apprehension
1. Desire/purpose OR
2. Know w/substantial certainty
3) Results in h/o contact
1. Contact may be an obj. close to P

Assault
1) Intent (desire/kwsc) to cause h/o contact / imminent apprehension
1. Well founded rsbl apprehension
2. May not need actual capacity
2) Axn by D
1. Must B overt/offer
2. Words can defuse but not if it reqs you to buy safety
3) Results in imminent apprehension

False Imprisonment
1) Axn by D
1. If theres rsbl & safe escape, no F.I.
2) Intent (desire/kwsc) to confine P / 3rd party
3) Conscious of confinement / harmed by it
4) Results in confinement of P
1. Apprehension of Force (explicit/implicit)
2. Retention of Property is enough restraint
3. Physical Barrier
4. Force
5. Imminent threat of harm to property/immediate family
6. Assertion of Authority
7. Failure of release when theres duty to do so

Intentional Infliction of Emotional Distress

1) Extreme & Outrageous Conduct
1. Beyond all bounds of decency
2. Big obj. test of rsblness
2) Intentionally/Recklessly causes
1. Recklessness--disregard of high % that severe emotional
distress
will occur
 3) Severe emotional distress
4) 3rd Party, h/she should B
1. Present
2. Immediate family / suffer bodily harm

Trespass to Land
1) Intent to enter land in possn of another / causes a thing /
3rd person to
do so
2) Damages are nominal
3) Things req. actual damage like pollution

Trespass to Chattels
1) Impairment to chattel
2) Can't use chattel
3) Bodily harm
4) Intermeddle intentionally
5) Disposses / deprive the owners possn
6) No nominal damages for harmless trespass

Conversion
1) Intent to interfere should be complete and substantial to
justify a sale
2) Bad faith
3) Complete deprivation
4) Unjustified intent to assert a right
5) Complete value
6) Access to something which is needed for the operation / poss'n
of
another

Consent
1) Explicit
2) Implied
1. Rsbl impression by axn
2. Words/deeds which rsbl person would expect
3. When injured to the pt. of unconsciousness & reqs
prompt
attention for life / limb
4. If in the course of operation, unanticipated cond.
which imperils
life/ limb near the area of operation then can operate on it
5. If no immediate removal would necessitate a sep.
operation
which may unduly threaten the patient then can imply consent
3) Mistake of Facts
 1. Not liable unless D knew mistake of facts
2. Not liable unless D induced P by misrepresentation
4) No Good
1. Duress
2. Threat of force to person in immediate family
3. Drastic circumstances
5) Illegal Activity
1. Maj. say that consent is not a defense so parties are
liable to
each other
2. Min. say that consent is defense so parties can't recover
Self Defense
1) If rsbly believe that they are unrsbly attacked, then can use
rsbl force
to protect yourself
1. Protect from force
2. Imminent apprehension of force
3. False Imprisonment
2) Force must be rsbl
1. Rsbl under circs
2. No deadly harm unless life/serious limb threatened
3. Cannot retaliate
3) Must retreat if A threatens w/deadly force
4) Rsbl mistake is allowed
5) D isn't privileged to defend against privileged force unless
the others
privileged force is based upon a rsbl mistake not caused by D
6) Self-defense transfers over with torts to 3rd party
situtation, unless
unrsbl

Defense of Others
1) Rsbl force under circs
2) Rsbl mistake under circs
3) Maj. say that if 3rd party intervenes & mistakenly helps
against
privileged force, the 3rd party is still liable even though it
may have been
a rsbl mistake

Defense of Property
1) Rsbl force under circs
1. No deadly force
2. Less force than is needed to protect people
2) Can't use force in substitute if you couldn't use when present
3) Traps arent discriminating so its problematic
 1. Entirety of what you are guarding v. entirety to harm
4) Rsbl force allowed for prevention of crime

Repossesion of Property
1) Can repossess if done w/o unnec. force/violence
2) Prompt & immediate hot pursuit nec.
3) Liable if mistake occurs rsbl/not
4) Repossession of property peacefully in installment sale trxn
5) Can detain a person on premise if person rsbly believed to
have taken
chattel unlawfully for rsbl investigation

Public Necessity
1) Apparent nec. is enough
2) No need for compensation
3) Private citizen can act for pub. nec.
Private Necessity
1) Although has the right to stay, must compensate
2) Tort may be unjust enrichment
3) If disproportionately harms, priv. nec. doesnt apply

Justification
1) Only if no traditional defenses can't be used

Negligence

Elements of Negligence
Breach of Duty
1) There's duty 2 use rsbl care & behav. rsbly 2 protect
others from unrsbl risk
2) Breach when there's failure 2 use rsbl care/behav. unrsbly
Causation
1) Causation in fact--cause of the fact
2) Proximate causation
Damages
1) Must B present
2) No nominal damages allowed

Breach of Duty
Rsbl Care/Standard
1) Foreseeability
1. Draw precautions & foreseeability 2 a pt. only
2. Econ. arg. that U should only guard against
what rsbl person can foresee
2) Inherently dang. obj's
 1. Take extra care 4 inherently dang. objs b/c
rsbl person would take more precaution
2. Ez'er 2 take care of only few dang. things
3) Rsbl person takes remedy against something anticipated
1. Can anticipate unusual events but not
foreseeable from constructive/actual notice
2. Rsbl person takes axn 2 remedy from
constructive/actual notice
3. Likelihood of harm, extent of harm, & ease of
avoiding risk looked @ 4 suff. 2 induce rsbl person 2 avoid;
` NOT probability
4) Use of Dang. Objs
1. Dang. may B insig. against benefit 2 the soc.
2. If making dang. obj. safe is high cost
outweighing benefit, it's unrsbl 2 use it
3. Rsbly safe isn't absolute safety but gets rid
of lot of risk @ low cost
4. Foreseeable but unlikely harm, still take care
5) Stand.of Rsblness changes w/X
Cost Benefit Analysis
1) If B is less than Lp (burden is less than probability x gravity of
harm), then
neg. not 2 take precaution
2) Policy 2 min. own cost & motivate 2 internalize soc. cost
1. Cost of risk & harm = harm caused + cost 2 precaution
2. D shouldn't pay both b/c no incentive 2 avoid harm
3) Rest.
1. Neg. if risk outweigh utility
2. Risk of harm, likelihood, extent v.
utility/benefit, burden of things safer
Rsbl Persons Stand.
1) Obj. Stand. of rsbly prudent person
1. Knows certain things like objs fall, fire
burns, etc.
2. Shouldn't need 2 prove certain things & liable
even if lack knowledge b/c min. stand. of knowledge req'ed
2) Custom
1. Doesn't prove by itself rsbl & neg.
2. Relevance b/c [1] experience & judgment, [2]
constructive notice, [3] opp. 2 do things safely & [4]
feasibility
3. Irrelevance b/c may not always B rsbl
3) Circs 4 rsbl prudent person
(1) Circs incl. emergency & imminent peril b/c
ord. person not hero
(2) Disability
 1. If blind, stand. is rsbl prudent
person who's blind
2. Disability taken into circ.
(3) Incl's superior attention, memory, info,
intelligence, & judgment (iffy on last 2 b/c rest. didn't give
exs)
(4) Child
1. Usually 4 neg. of children, apply age,
experience & intelligence 4 a child that age
2. Adult stand. used when the activity is
inherently dang. like operating machinery
(5) Insanity
1. Usual stand. 4 insane people is rsbl
persons stand. w/o insanity taken into acct.
2. Policy rsns of compensation,
deterrence, & false claims
3. Maj. do not take insanity into acct.
even if it's sudden b/c ez'er 2 fake
4. If insane P, then taken into acct b/c
compensation goal dif. where everybody is a
tortfeasor
5. If insanity prevents P from
understanding the sit., then P's not barred from
recovery
(6) Sudden Physical Collapse--taken into acct
(7) Mental Deficiency
1. Taken into acct. if prevented P from
understanding but not into acct if can understand
2. False claim less likely b/c can look @ history
3. Stand. is btwn childs & insane
(8) Profession
1. Rsbl in the field / profession
2. Rsbl member who has knowledge that's
poss'ed normally/ord'ly in the profession
3. Usually need expert testimonies
4. Not need expert testimony if the circ.
calls that even layman knows
(9) Doctors
1. If a specialist, then it's stand. of
rsbl specialist
2. Locality Rule--Dr's meas'ed by same
locality; used in rural areas
3. Informed Consent--breach of duty when
not inform material risks & alt.s that would likely
affect P's dec's
[1] P must show that if informed,
 wouldn't have perf'ed/consented
[2] Stand. of obj. (rsbl patient)
v. subj. (the particular patient)
[3] Risk not warned must materialize
[4] Dr's must disclose pers. int.
that may effect Dr's judgment
4. Exceptions 2 disclosure
[1] Risk ought 2 B known/already known
[2] Disclosure would B
detrimental 2 patients int. (probs)
[3] If in ER, the patient isn't in
condition 2 det. 4 himself
4) Aggravated Neg.
1. Automobile Guest Statutes
2. In CA, if by gratuitous favor there's only ord.
duty of care & can only recover if there's aggravated neg.
3. Probs in distinguishing guests & increased misconduct
Rules of Law
1) 4 ways 4 rsbl persons stand.
1. Applying 2 the facts of the case by judge/jury
2. Est. by leg. / adm. regulation
3. Est.'ed by jud. dec.; part. cond. under the
matter of law
4. Adopted by Ct. of leg./adm. reg.; usually no
civil liabs but use the statute 2 det. unrsbl behav.
2) Violation of Statutes
1. Statutes give fixed stand. 2 det. neg.
2. If statute imposes specif. duty 4
protection/benefit then liab.
3. Statutory purpose doc.--look 2 protected
people & harm intended 2 prevent
4. Ct. doesn't have 2 accept all the statutes
5. Not adopt Sun. blue laws b/c not adopt rsbl
cond. when protect int. of state/secure indiv's enjoy of rt.
& privileges
3) Neg. Per Se
1. Maj. & Rest. view
2. Once the stand. is set by the statute,
unexcused violation is neg. per se
3. Excused Violation 4 Neg. Per Se
[1] Rsbl violation b/c of the actors incapacity
[2] D doesn't know/shouldn't know of
complying w/it
[3] D is unable 2 comply after rsbl care
[4] D is confronted w/emergency unrel'ed 2
his miscond.
 [5] Greater risk of harm 2 D/others by complying
[6] Not exclusive list of excuses
4) Presumption of Neg.
1. When P shows that statute should B used, then
it's prima facie case of neg.
2. If there's no rebuttal, then D is neg.
3. Rsbl excuses allowed
4. If D evens the scale, D wins; If P tips by
preponderance, P wins
5) Evid. of Neg.
1. Still the scale idea but D can put forth anything
2. Jury decides if P's evid. tilts the scale / not
3. P in theory can win even w/o presenting anything
6) Neg. per se v. Presumption of Neg.
1. In excuses, Neg. per se only allows recog'ed
excuses which the judge decs v. Presumption of neg. allows
any
excuse that's 4 rsbl behav. which jury dec's
2. In rebuttal, Neg. per se only recog. violation
if excused v. Presumption of Neg. where D can rebut
Proof Of Neg.
1) Circ. Evid.
1. Actual notice is when person actually knew
2. Constructive notice is when by judging the
condition of the evid., rsbl person would've noticed;
should've
known it was there
3. Inference from inferences
4. Infer from 1 fact 2 another fact
2) Res Ipsa Loquitur (RIL): Special Kind of Circ. Evid.
(1) Deals w/the gap in the evid.
(2) If U know, then can't use RIL
(3) Reqts
1. D had exclusive control of the instrumentality
2. The occurrence doesn't ord'ly occur w/o neg.
3. There was no contrib. neg.
(4) Rebuttals
1. If D can show that there was due care
exercised, then it precludes neg.
2. Rebuttal must B specific not gen. due care
(5) If by 3 reqts of RIL, even if there R other
possibilities, if it's more likely than not Ds neg., then D's
neg.
(6) D usually loses
(7) Medicine & RIL
1. If common hazard, then no RIL
 2. Inherent risk despite due care exception
[1] If there's low risk but can
happen despite all due care, ct's won't
draw inference
[2] If P took calculated risk
which is rare but real
that injury can occur, RIL doesn't apply
(8) Superior Knowledge of D Theory
1. Smoke out evid. by RIL b/c D is in the
better position 2 obtain evid.
2. Even w/o superior knowledge, if all
the reqts met, then more likely that D was neg. &
probably liable so unfairer 2 P not 2 apply
(9) Ybarra Exception: Policy rsns
1. Each Dr's has specific role & none
liable solely but anyone may B liab.
2. Little possibility of smoking out
3. Dr's R insured so not so unfair
4. All the D's had control of instr. @
some X so better 2 put burden on them
5. When patient is unconsc., all D's have
control of instr., & where unusual injury occurs,
apply RIL
6. Specif. exception b/c spec.
responsibility by med. profession, vicarious liab.,
& shared control
7. Usually, P can't win against 2/more D
by showing merely neg. by 1 or the other must
have neg.
(10) D can show lack of neg. 2 jury
(11) RIL imp. b/c would've dismissed before even
getting 2 the jury
(12) Dif. Approaches 2 RIL
[1] Inference
1. Maj. Rule even though weakest
2. Jury may infer whether / not D neg.
[2] Presumption
1. D must put a box 2 rebut the
presumption
2. P still has 2 prove so heavier
burden (CA's)
3. If scale even, D wins
[3] Shifting Burden of Proof
1. D must tilt the scale
2. If even, P wins
3. Min. view
 (13) Similarities & Comparisons 2 violation of
statute rules
1. Neg. per se --strongest & maj. but not
shift burden
2. Presumption similar 2 Presumption of RIL
3. Evidence similar 2 Inference of RIL
4. Inference --weakest in RIL but maj.

Causation
2 Types
1) Causation in Fact
2) Proximate Causation
Causation in Fact
1) But 4 Causation Test
1. But 4 D's unrsbl behav., the accident wouldn't
have occurred
2. Can have lots of but 4 causes 4 single harm
3. Another way of saying that D's neg. is subst.
factor of harm
4. Doesn't apply when wrong place @ the wrong X incidents
2) More Likely Than Not
1. More likely than not D's neg. was subst. factor
then possibility of something else occurring is discounted
2. Must make ed'ed guess
3. More likely than not means 1/2 or more
3) Injury Caused by Neg.
1. Coexistence of injury & neg. isn't enough
2. Neg. must have caused the injury
3. Can infer causation from circ. evid.
4) Burden of Proof
1. D only needs 2 show that more likely than not
injury wasn't the cause
2. D doesn't have 2 prove another specific cause
3. Relev. 2 incl. anything 2 disprove causation
5) Exception 2 But 4 tests & more likely than not
(Herskovits Case)
1. No but 4 cause b/c lwr than 50% chance of
surviving so wouldve died anyway w/o neg.
2. Lost chances of life that was unrecoverable so
make an exception
3. Proportionate amt. of recovery not all the
harm 4 D's neg.
4. Only use this approach if show statistically
more likely than not harm was caused by D's neg. in
medicine
(Merrell Dow Case); Can't use it in birth defect cases where
 can't tell if the harm was caused by the drug
6) Concurrent Cause
1. Can have more than 1 causations & all R liab.
2. Each persons liab. alone may not have caused
the harm but sep. axns combined & prod'ed the single harm
3. One persons liab. doesn't negate the others liab.
4. When neither axns R but 4 causes
(1) Each causes were subst. part of the
harm & should B liabl.
(2) Think of but 4/more likely than not
1st; then look 2 subst. part of the harm
(3) Subst Factor Test
[1] Reverse But 4 Cause--Ds neg.
behav. alone would've caused & would've
been but
4 cause in the absence of other causes
[2] Double But 4 Cause--each
would've been the but 4 cause, but 4 the
other cause
[3] Book Note Def.--each alone
would've been suff. 2 bring about the
harm
7) Joint Tortfeasors
1. Each neg. & 2 neg. acts together caused single
injury OR
2. Both acted in concert w/common plan design act
in purpose
8) Joint Tortfeasor Probs/Exceptions
1. Summers Case--shifted the burden of proof 2 D
2 absolve themselves b/c can't say each more likely than not
did it; both acted neg'ly & smaller # than Ybarra so more fair
2 hold them liab.
2. Sindell Case--can't prove which mfgr'ed DES that
P's mom took; new theory where similar 2 Summers, burden
of proof shifted 2 D 2 show they didn't make DES & each
liab. 4 it's share by sev. liab.
(1) Consumers would B helpless w/o it
(2) Mfgr's R in better position
(3) D's R better able 2 bear the cost;
risk spreading
(4) Delayed effects of the drug
(5) Deter from happening again
(6) All the D prod'ed ID formula
Proximate Causation
1) Policy
1. Not about cause but limiting legal responsibility
 2. No formula 4 prox. causes
3. Fact oriented; result 1st & rsning later
2) Thin Skull Doctrine
1. Take P as U find them
2. Limited; conseq. of PI 2 persons
3. D pays by harm not by unrsblness b/c goal 2
compensate against people who act tortiously
3) Tools 4 Prox. Causation
1. Natural & cont. sequence
2. Subst. factor in prod'ing the effect
3. Dir. cnxn w/o intervening
4. Too attenuated
5. Likely 2 result
6. Foreseeable result
7. Remoteness of X & space
8. Dir / indir.
9. Foreseeability
4) Direct
1. A factor in prox. cause not end all
2. Being dir/indir. doesn't really tell who is
more unrsbl
3. Polemis ct. said damages 4 dir; if indir.
harm, then must have 2 foresee
4. Def. --Conseq's flow in unbroken seq. w/o
intervening cause from the orig. neg. act; act on a set stage
w/o
intervening axns
5) Foreseeability
1. Probably most imp. factor
2. Wagon Mound ct. said no liab. 4 unforeseeable
harm; not reconciliable w/thin skull doc.
3. As long as type of harm was foreseeable, then
doesn't matter about the extent of harm
4. Remote risk can B rsbly foreseeable
6) Palsgraf Case
(1) Andrews Factors
1. Dir. cnxn--nat. & cont. seq; no indep. cause
2. No remoteness in X & space
3. Foreseeable
(2) Cardozo
1. Foreseeable Ps--harm 2 part. P in
breach of duty
7) Major Tools 2 Analyze Prox. Cause
1. Dir. / indir.
2. Foreseeable conseq./harm
3. Foreseeable P
 4. Scope of risk
5. Tenuousness & potency of peril
Intervening Cause
1) Def.
1. Harm by later cause of indep. origin which D
isn't responsible 4
2. Intervening Acts come after neg. & before injury
3. Relev. 2 Prox. cause
2) General Norm
1. Indep. intervening act cut off liab. but not
every intervening act is superseding
2. Ord'ly neg. intervening act does NOT supersede
3) Foreseeability & Liability
1. If intervening acts R foreseeable, then D is liable
2. Even if not foreseeable P, liab. if
foreseeable result/harm
3. Even if not foreseeable manner, liab. if
foreseeable result
4. Notion of basic scope of actors cond. / part
of the risk
4) Exceptions when Intervening Acts R Superseding
1. If both intervening act & result
unforeseeable, then superseding & no liability
2. Wrong X, wrong place so no incr. in P's risk;
if neg. of D doesn't incr. P's risk
3. If it wasn't w/in the scope of risk
Special Theories of Superseding Causes
1) Intentional Crim. Acts
1. Usually, superseding & no liab. if intervening
act was intentional crim. act b/c extraord. even if
foreseeable result w/unforeseeable act/manner
2. Exception --if D's neg. created unrsbl risk 4
crim. act, then not superseding; if the intervening crim.
intentional
act was unrsbl risk then not superseding
2) Purveyors of Liquor
1. Commercial sellers R liab. 4 neg. of others
who drive after drinking b/c can stop serving & spread liab.
by insurance
2. Most ct's don't hold soc. host liab. when the
recipient is adult
3. Soc. host liab. if the recipient is a child
b/c illegal 2 serve minors in the 1st place
3) Rescuers
1. Rescue doc.--Ord'ly rescuer allowed recovery
unless reckless whether rescuer injures himself, 3rd party,
 rescuee, / neg. party
2. Reckless is higher stand. than rsbl
3. Attempt 2 escape dang. then can recover unless reckless
4. Most ct. apply rescue doc. 2 rescue of prop.
as well
5. Doc. b/c 2 some extent rescuers R foreseeable P
4) Medicine Neg.
1. Genly med. neg. isnt superseding unless highly unusual
2. Exceptions
(1) Dr. intentionally inflicted
(2) Misperf. on operation/wrong operation
(3) Wrong patient
(4) NOT a gross neg. stand.
3. P injured by D & gets disease in the hospital
(1) If incr'ed risk b/c of D, then liab.
(2) If risk isn't incr'ed by D's liab., then
no liab.
5) Suicide
1. Usually suicide is a superseding event b/c it's
an intentional act that breaks the chain
2. Exceptions
(1) Not know he's committing suicide
(2) B/c of irresistable impulse committed suicide

Joint Tortfeasors
Types of Joint Tortfeasors
1) Acting in Concert
1. Express / tacit agmt 2 coop. 2 induce certain result
2. Agree 2 do something unrsbl creating unrsbl
risk/induce unrsbl risk
2) Joint Duty
1. Ex. of owner & manger having duty 2 elevator
3) Vicarious Liab.
1. Employer liab. 4 employee when act w/in scope
of the job
4) Concurrent Tortfeasors
1. Indep. acts concurring creating harm 2 P of
indivisible injuries
Joint & Several Liability
1) Collecting Damages
1. P can collect all the damage from 1 of the 2
joint tortfeasors
2. P can only get it once though
3. P can collect in whatever way he likes
4. In C/L, can join Ds in concert of axn but not
4 concurrent tortfeasors
 2) Reconciling Comparative Neg. w/Joint & Sev. Liab.
1. If D1 is judgment proof & there's no joint &
sev. liab., P
2. Min. --no joint & sev. liab. in comparative neg.
3. Maj. --Joint & sev. liab. w/comparative neg.
so D's stuck if the other D can't pay
4. Exceptions
(1) Sindell Case--responsible 4 own portion
(2) CA--not apply joint & sev. liab. in
non-econ. damages
(3) If D's have very low %s
(4) Apply only 2 certain types of Ds
3) Satisfaction & Release
(1) Unjust Enrichment Avoided
1. If already got compensation of full
judgment, then full satisfaction & other D's
shouldnt'
have 2 pay P again in sep. judgment
(2) Partial Satisfaction
1. Part compensation will B credited &
subtracted when collect from sep. 2nd judgment
2. There's possibility of inconsistent judgment
(3) Release
1. In C/L, if release 1 joint tortfeasor,
then releases all the joint tortfeasors
2. If call it covenant & / reserve
explicitly not 2 release, then won't release other
joint tortfeasors
(4) Mary Carter Agmt
1. P would enter agmt w/D that D would
pay @ least certain amt.
2. If the amt. from trial goes over what
D thinks, then P would pay D the excess amt.; but
D cant
profit from P
3. Probs b/c deprive of fair trial from
c collusion btwn D & P
4. Valued b/c risk reduced & incr. settlement
4) Contribution & Indemnity
(1) Apportionment
1. Contribution --The other D pays its
share 2 the D who paid
2. Indemnity --D pays 4 the entire damage
3. In C/L, indemnity was allowed by
contrib. wasn't
(2) Contribution
 1. Today allow contrib. except in
intentional torts there's no contrib.
2. Contribution available only btwn joint
judgment debtors (when P sues both); rejected in
Knell Case
3. Div. =ly in the old approach; div. by
proportions of fault now
(3) Interspousal Immunity
1. Maj. --D can't B liable 4 Ds spouse;
since no joint liab., no contrib. allowed
2. Min. --Allow contrib. btwn spouse b/c
there's tort liab. but spouse can't bring suit; since
liab.
then joint tortfeasor allowed so contrib. allowed
(4) Allocation Prob. when P settles w/D1; Can D2
get compensation from D1?
1. Permit Contrib.--D1 pays but unfair
b b/c the value of settling w/ P disappears; not use
this method
2. D1 discharged so long as good
faith--Unfair 2 D2 b/c
can't get contrib.; proof probs on good
faith so lots of litigations
3. Settlement w/D1 means selling 1/2 of
C/A w/D1--D2 would only pay 4 its share of fault;
unfair 2 P b/c might not get full compensation so
would B
reluctant 2 settle / not settle w/marginal Ds;
greatest
equity of all 3 methods

false imprisonment

Intentionally restraining another person without having the legal right to do so. It's not
necessary that physical force be used; threats or a show of apparent authority are
sufficient. False imprisonment is a misdemeanor and a tort (a civil wrong). If the
perpetrator confines the victim for a substantial period of time (or moves him a
significant distance) in order to commit a felony, the false imprisonment may become a
kidnapping. People who are arrested and get the charges dropped, or are later acquitted,
often think that they can sue the arresting officer for false imprisonment (also known as
false arrest). These lawsuits rarely succeed: As long as the officer had probable cause to
arrest the person, the officer will not be liable for a false arrest, even if it turns out later
that the information the officer relied upon was incorrect.
False imprisonment may sound like a person being dangerously restrained against their
will and at risk of being seriously injured or killed. In a way, it is, but also can describe
other situations which aren’t so perilous sounding.

The definition of false imprisonment is the unlawful restraint of someone which affects
the person’s freedom of movement. Both the threat of being physically restrained and
actually being physically restrained are false imprisonment. In a facility setting, such as a
nursing home or a hospital, not allowing someone to leave the building is also false
imprisonment.

In particular, in nursing homes, the various body restraints are considered false
imprisonments. Not too many years ago, upon entering a nursing facility it was a common
sight to see many elderly people positioned in wheelchairs with vest or belt restraints on,
to keep them from moving around independently. Nowadays, that activity is more likely
to fall under the definition of false imprisonment because it restricts those individual’s
ability to move around on their own, should they desire to.

In fact, should a facility use patient restraints not related to medical treatment, under the
Health Care Financing Administration, they could lose their Medicaid certification. A
variety of situations are possible with this tort -- false imprisonment. If a person refuses to
sign a hospital’s voluntary admission form and is physically prevented from leaving, and
then does sign an agreement form consenting to voluntary admission, this could be
considered false imprisonment.

One such case did occur in Foshee vs. Health Management Associates. A patient was
seeking admission to a psychiatric hospital after being declined for lack of space at a
facility her physician had referred her to. At the psychiatric facility, a nurse told the
woman she could not see a physician unless she was formally admitted to the nursing
facility. This nurse continued on saying that this woman could sign a form for voluntary
admission, but if she refused to do so would be kept involuntarily under the state’s civil
commitment statute. She was kept under restraint at the facility for two days against her
will and was discharged only because she refused to sign a form authorizing her health
insurance to pay for her admission and for the facility’s psychiatrist’s consulting services.

The District Court of Appeal of Florida ruled there was deceit and coercion of this patient
by the nurse, and a civil suit was brought against the psychiatric nurse for false
imprisonment of this woman. The facility and psychiatrist were also found liable in this
case. Quite the opposite can also happen with false imprisonment and the lack of using
restraints that could result in a negligence case being filed if a patient is hurt. A case such
as this scenario did occur.

In Swann vs. Len-Care Rest Home, Inc, a physician ordered restraints on an as needed
basis and also wrote a letter ordering the resident restrained. When this patient was not
restrained, fell and required hospitalization for a head injury, a lawsuit was filed for
negligence.

What happened is a disoriented elderly woman, who frequently got up from her
wheelchair and subsequently fell, had family requesting that she be restrained. In this
group living facility the type of care provided was similar to that which would be found in
an individual’s home, without direct, one-on-one personal care.

The physician not only wrote and signed an order for restraints, but also wrote a separate
letter to facility management requesting the resident be restrained while unattended. The
facility was sued for negligence and lost the case since the resident should have been
restrained as ordered and requested and was not.

So, false imprisonment is not an easy situation to determine, most especially in nursing
facilities. The patient’s safety is of the utmost importance, but unlawfully restraining has
equal hazards with it.

Outside nursing home facilities, false imprisonment could occur if a retail store manager
suspects you have stolen some items from the store and takes you to a back office for
detainment. During this time of confinement, you are refused a chance to go to the
bathroom or get water and the exit to the room is repeatedly blocked by the store manager
who wants to keep you detained until police arrive. This is also considered false
imprisonment, most especially if it continues for an excessively long period of time and
threatens the individual’s well-being.

When considering whether false imprisonment has occurred, keep in mind the particular
scenario at hand. Was a crime committed or not, by the person being detained? Was the
well-being of the individual hampered and were they threatened if they attempted to
leave? Were they physically restrained against their will with repeated attempts to escape
or was the restraint more passive like a chemical restraint, medication, which altered the
person’s state of mind. Chemical restraints can be just as restraining, if not more so, even
though there is not appearance of restriction of movement.

Topics - The Difference Between a Felony and a Misdemeanor

Back

What is the difference between a felony and a misdemeanor?

Answer: When you commit a crime in our society, you have to be punished. How much
punishment a criminal gets depends on how bad their crime was.

To help determine how bad a crime was, the crime is called either a 'felony' or a
'misdemeanor'.

Felonies are more serious crimes, and misdemeanors are less serious crimes. Both can
also result in imprisonment.

Felonies and misdemeanors are also given a number explaining how serious the crime is.
The most serious crime is a 'class one felony', and the least serious crime is a 'class three
misdemeanor'. Here's how the order goes: CLASS 1, 2, 3, 4, 5, & 6 FELONIES, CLASS
1, 2 & 3 MISDEMEANORS. A class 1 misdemeanor falls right after a class 6 felony.

Punishment is based off of this system, and can result in either jail time, a fine, or both.
The jail time for felonies is based off of their class according to the following chart:

For a class 2 felony

Min 4 yrs
Max 10 yrs

For a class 3 felony

Min 2.5 yrs
Max 7 yrs

For a class 4 felony

Min 1.5 yrs
Max 3 yrs

For a class 5 felony

Min 9 months
Max 2 yrs

For a class 6 felony

Min 6 months
Max 1.5 yrs

Misdemeanors are also given jail time in accordance with their class according to the
following chart

1. For a class 1 misdemeanor, six months.

2. For a class 2 misdemeanor, four months.

3. For a class 3 misdemeanor, thirty days.

Similarly, punishments for crimes consisting of fines are based off of the seriousness of
the crime, and are determined by the court at your hearing. Our laws limit fines to certain
amounts:

1. Felonies may not exceed a fine of $150,000

2. Class 1 misdemeanors may not exceed $2,500

3. Class 2 misdemeanors may not exceed $750

4. Class 3 misdemeanors may not exceed $500

Please note that the punishment for your crime depends on your criminal record, or
whether you've committed any crimes in the past. If you have a clean record [no crimes
in your past] then you'll get an easier sentence. If you have a record [there are crimes in
your past] then you'll likely get a more serious sentence.

Another important difference between a felony and a misdemeanor conviction is the

impact that they will have on a person's future. When that person makes it out of jail and
tries to get a job, a felony conviction will likely continue to haunt the criminal. Most
employers want to know about all felony convictions - so if you are ever convicted of any
felony, you would have to tell your employer. If you had just a misdemeanor, you would
have some more privacy in this respect