This article addresses torts in United States law. As such, it covers primarily
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
. Moreover, it provides general rules, as individual states all have separate
civil code
A civil code is a codification of private law relating to property, family, and obligations.
A jurisdiction that has a civil code generally also has a code of civil procedure. In some jurisdictions with a civil code, a number of the core ar ...
s. There are three general categories of torts:
intentional tort
An intentional tort is a category of torts that describes a civil wrong resulting from an intentional act on the part of the tortfeasor (alleged wrongdoer). The term negligence, on the other hand, pertains to a tort that simply results from the f ...
s,
negligence
Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...
, and
strict liability
In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant.
...
torts.
Intentional torts
Intentional torts involve situations in which the defendant desires or knows to a substantial certainty that his act will cause the plaintiff damage. They include
battery
Battery most often refers to:
* Electric battery, a device that provides electrical power
* Battery (crime), a crime involving unlawful physical contact
Battery may also refer to:
Energy source
*Automotive battery, a device to provide power t ...
,
assault
An assault is the act of committing physical harm or unwanted physical contact upon a person or, in some specific legal definitions, a threat or attempt to commit such an action. It is both a crime and a tort and, therefore, may result in crim ...
,
false imprisonment
False imprisonment or unlawful imprisonment occurs when a person intentionally restricts another person’s movement within any area without legal authority, justification, or the restrained person's permission. Actual physical restraint is ...
,
intentional infliction of emotional distress
Intentional infliction of emotional distress (IIED; sometimes called the tort of outrage) is a common law tort that allows individuals to recover for severe emotional distress caused by another individual who intentionally or recklessly inflicted ...
("IIED"),
trespass to land
Trespass to land is a common law tort or crime that is committed when an individual or the object of an individual intentionally (or, in Australia, negligently) enters the land of another without a lawful excuse. Trespass to land is ''actionabl ...
,
trespass to chattels
Trespass to chattels is a tort whereby the infringing party has intentionally (or, in Australia, negligently) interfered with another person's lawful possession of a chattel (movable personal property). The interference can be any physical cont ...
,
conversion
Conversion or convert may refer to:
Arts, entertainment, and media
* "Conversion" (''Doctor Who'' audio), an episode of the audio drama ''Cyberman''
* "Conversion" (''Stargate Atlantis''), an episode of the television series
* "The Conversion" ...
, invasion of privacy,
malicious prosecution
Malicious prosecution is a common law intentional tort. Like the tort of abuse of process, its elements include (1) intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action (civil or criminal ...
,
abuse of process
An abuse of process is the unjustified or unreasonable use of legal proceedings or process to further a cause of action by an applicant or plaintiff in an action. It is a claim made by the respondent or defendant that the other party is misusing ...
, fraud, inducing breach of contract, intentional interference with business relations, and defamation of character (libel/slander).
Elements
The elements of most intentional torts follow the same pattern: intent, act, result, and causation.
Intent
This element typically requires the defendant to desire or know to a substantial certainty that something will occur as a result of his act. Therefore, the term intent, for purposes of this section, always includes either desire or knowledge to a substantial certainty.
For an example in battery, Dave shoots a gun into a crowd of people because he is specifically trying to hit someone with a bullet. This element would be satisfied, as David had an actual desire to procure the harm required for this tort. Alternatively, Dave shoots a gun into a crowd of people for some reason and genuinely hopes no one gets hit but knows that it is virtually inevitable that someone will actually get hit. This element would still be satisfied, as David had knowledge to a substantial certainty that harm would result.
In contrast, if all that can be said about the defendant's state of mind is that he ''should have'' known better, he will not be liable for an intentional tort. This situation might occur if, as opposed to the examples above, Dave shoots a gun in a remote part of the desert without looking just for fun, not wanting to hit anyone, but the bullet does hit someone. Dave did not have a desire or knowledge to a substantial certainty that someone would get hit in this situation. He may, however, be liable for some other tort, namely negligence.
=Transferred intent
=
Transferred intent is the legal principle that intent can be transferred from one victim or tort to another.
In tort law, there are generally five areas in which transferred intent is applicable: battery, assault, false imprisonment, trespass to land, and trespass to chattels. Generally, any intent to cause any one of these five torts which results in the completion of any of the five tortious acts will be considered an intentional act, even if the actual target of the tort is one other than the intended target of the original tort.
Act
The element of an act varies by whatever tort is in question but always requires voluntariness. For example, if Dave has a muscle spasm that makes his arm fling out to his side and hit Paula, who is standing next to him, any case that Paula attempts to bring against Dave for battery will fail for lack of the requisite act (which will be discussed in the section on battery, below). The act was not voluntary.
Result
This element typically refers to damage, although damage is not required to prevail on certain intentional torts, such as trespass to land.
Causation
This element refers to actual cause and proximate cause. It will be treated in its own section.
Causes of action
Battery
A person commits a battery when he acts either intending to cause a harmful or offensive contact with another or intending to cause another imminent apprehension of such contact and when such contact results. Therefore, there is a variety of ways in which a person can commit a battery, as illustrated by the following examples of defendant Dave and plaintiff Paula.
* Dave acts intending to cause a harmful contact with Paula, and a harmful contact does result.
* Dave acts intending to cause a harmful contact with Paula, but an offensive contact results.
* Dave acts intending to cause an offensive contact with Paula, and an offensive contact does result.
* Dave acts intending to cause an offensive contact with Paula, but a harmful contact results.
* Dave acts intending to "only" cause Paula to be imminently apprehensive of a harmful ''or'' offensive contact, but a harmful contact actually results.
* Dave acts intending to "only" cause Paula to be imminently apprehensive of a harmful ''or'' offensive contact, but an offensive contact actually results.
Apprehension is a broader term than fear. If a defendant intends to cause the plaintiff to actually fear a harmful contact, for example, it will therefore always suffice as apprehension, but there are other ways to achieve apprehension as well.
Assault
Assault is notably similar to battery. Indeed, the elements of intent and act are identical. The only difference is the result. A person commits an assault when he acts either intending to cause a harmful or offensive contact with another or intending to cause another imminent apprehension of such contact and when such imminent apprehension results. Therefore, there is a variety of ways in which a person can commit an assault.
False imprisonment
A person commits false imprisonment when he acts intending to confine another and when confinement actually results that the confinee is either aware of or damaged by.
Confinement must typically be within boundaries that the defendant establishes. For example, a person is not confined when he is refused entry to a building, because he is free to leave. In addition, a person is not confined unless the will to leave of an ordinary person in the same situation would be overborne. For example, Dave calls Paula into a room with one door. Dave closes the door and stands in front of it. He tells Paula that if she wants to leave, he will open the door and get out of her way but also threatens to blink twice if she does so. An ordinary person's will to leave would not be overborne by Dave's threat to blink twice.
No damage is required in false imprisonment, hence the requirement of a result of awareness ''or'' damage. For example, Dave calls Paula into a room with one door. Dave closes the door and stands in front of it. He tells Paula that if she wants to leave, he will take out a gun and shoot her. (Note that this ''would'' overcome the will of an ordinary person to leave.) An hour later, Dave changes his mind and leaves the premises. Paula subsequently leaves and is not physically injured at all. Her awareness of confinement is sufficient to satisfy the element of the result in false imprisonment.
Alternatively, Paula is a narcoleptic. She suddenly falls into a deep sleep while feeding the chickens in a barn on Dave's farm in a remote area. Not wanting to move her, Dave locks her in the barn from the outside when he needs to go into town, trying to protect her but also knowing that she won't be able to leave (or call for help) if she wakes up. While Dave is away, the chickens severely scratch Paula's arms, but she does not wake up. Dave returns, unlocks the barn, and successfully wakes up Paula to tend to her wounds. Even though she was unaware of her confinement, she was damaged by it and will have a claim of false imprisonment against Dave.
Intentional infliction of emotional distress
A person is liable for intentional infliction of emotional distress (IIED) when he intentionally ''or recklessly'' engages in extreme and outrageous conduct that is highly likely to cause ''severe'' emotional distress.
This is a notable exception to the general rule given above that for almost all intentional torts only desire or knowledge to a substantial certainty will do. IIED also includes recklessness. This still distinguishes it from negligent infliction of emotional distress, though.
Extreme and outrageous conduct refers to the act. Severe emotional distress refers to the result. This is another intentional tort for which no damage is ordinarily required. However, some jurisdictions require the accompaniment of physical effects. In other words, emotional distress will not be deemed to exist in those jurisdictions unless there are physical manifestations, such as vomiting or fainting.
Trespass to land
A person commits trespass to land when he wrongfully and intentionally enters, or causes a thing or third person to enter, land owned or occupied by another.
Trespass to chattel
A person commits trespass to chattel when he acts either intending to dispossess the rightful possessor of a
chattel or intending to use or ''intermeddle'' with the chattel of another and when dispossession of the chattel for a substantial time results, or damage to the chattel results, or physical injury to the rightful possessor results.
Conversion
A person commits conversion when he acts intending to exercise ''dominion and control'' and when interference with the rightful possessor's control results that is so serious that it requires the actor to pay the full value of the chattel to the rightful possessor. An exercise of dominion and control refers to the act. Serious interference refers to the result. Seriousness is determined by the following factors:
* the nature of the act and how long it lasted;
* the nature of the interference and how long it lasted;
* the inconvenience to and expense incurred by the rightful possessor;
* the actor's good faith (whether he was trying to help someone, for example);
* when applicable, the mistake by the actor (he took a book that looked just like his own but was actually someone else's, for example); and
* when applicable, the damage to the chattel.
The remedy for this cause of action not only requires the defendant to pay the plaintiff the full value of the chattel but also is properly considered a forced sale. The plaintiff must tender the defendant the chattel. Therefore, a plaintiff may not elect to pursue this cause of action but instead trespass to chattel, namely when he wants to keep his chattel despite its potential damage.
Defamation
*''
Barrett v. Rosenthal
''Barrett v. Rosenthal'', 40 Cal.4th 33 (2006),, 146 P.3d 510, 51 Cal.Rptr.3d 55 (Cal. Sup. Ct., November 20, 2006). Supreme Court of the State of California, Alameda County, ''Barrett v. Rosenthal: Court Opinion'', Ct.App. 1/2 A096451. was a Ca ...
''
*''
Curtis Publishing Co. v. Butts
''Curtis Publishing Co. v. Butts'', 388 U.S. 130 (1967), was a landmark decision of the US Supreme Court establishing the standard of First Amendment protection against defamation claims brought by private individuals.
Background
The case involve ...
''
*''
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.''
*''
Gertz v. Robert Welch, Inc.
''Gertz v. Robert Welch, Inc.'', 418 U.S. 323 (1974), was a landmark decision of the US Supreme Court establishing the standard of First Amendment protection against defamation claims brought by private individuals. The Court held that, so long ...
''
*''
Hustler Magazine v. Falwell
''Hustler Magazine, Inc. v. Falwell'', 485 U.S. 46 (1988), was a landmark decision of the United States Supreme Court ruling that the First and Fourteenth Amendments prohibit public figures from recovering damages for the tort of intentional infli ...
''
*''
Lunney v. Prodigy Services Co.''
*''
McDonald v. Smith''
*''
Milkovich v. Lorain Journal Co.
''Milkovich v. Lorain Journal Co.'', 497 U.S. 1 (1990), was a United States Supreme Court case that rejected the argument that a separate opinion privilege existed against libel. It was seen by legal commentators as the end of an era that began w ...
''
*''
Near v. Minnesota
''Near v. Minnesota'', 283 U.S. 697 (1931), was a List of landmark court decisions in the United States, landmark decision of the US Supreme Court under which prior restraint on publication was found to violate Freedom of the press in the United S ...
''
*''
New York Times Co. v. Sullivan
''New York Times Co. v. Sullivan'', 376 U.S. 254 (1964), was a landmark U.S. Supreme Court decision ruling that the First Amendment to the U.S. Constitution's freedom of speech protections limit the ability of American public officials to sue for ...
''
*''
Red Lion Broadcasting Co. v. Federal Communications Commission
''Red Lion Broadcasting Co. v. Federal Communications Commission'', 395 U.S. 367 (1969), was a seminal First Amendment ruling at the United States Supreme Court. The Supreme Court held that radio broadcasters enjoyed free speech rights under the F ...
''
*''
Reynolds v. Pegler
''Reynolds v. Pegler'', 223 F.2d 429 ( 2nd Cir. 1955), was a landmark libel decision in which Quentin Reynolds successfully sued right-wing columnist Westbrook Pegler, resulting in a record judgment of $175,001.
The case has its origins in a he ...
''
*''
Time, Inc. v. Firestone''
*''
Westmoreland v. CBS
''Westmoreland v. CBS'' was a $120 million libel suit brought in 1982 by former U.S. Army Chief of Staff General William Westmoreland against CBS, Inc. for broadcasting on its program ''CBS Reports'' a documentary entitled ''The Uncounted Enemy ...
''
*''
John Peter Zenger
John Peter Zenger (October 26, 1697 – July 28, 1746) was a German printer and journalist in New York City. Zenger printed '' The New York Weekly Journal''. He was accused of libel in 1734 by William Cosby, the royal governor of New York, but ...
''
Affirmative defenses
The following are affirmative defenses to intentional torts.
Consent
Consent can be a defense to any intentional tort, although lack of consent is occasionally incorporated into the definition of an intentional tort, such as trespass to land. However, lack of consent is not always an essential element to establish a prima facie case in such situations. Therefore, it is properly treated as an affirmative defense.
Self-defense
Self-defense is typically a defense to battery. Similar to self-defense is the
defense of others
The right of self-defense (also called, when it applies to the defense of another, alter ego defense, defense of others, defense of a third person) is the right for people to use reasonable or defensive force, for the purpose of defending one' ...
.
Defense of property
This is typically a defense to trespass to land or trespass to chattels, as it can refer to realty or personalty.
Necessity
Necessity is typically a defense to trespass to land. There are two kinds of necessity, private and public.
=Private necessity
=
This is a partial privilege. A party who has this privilege is still liable for damage caused. This defense is therefore more important when there is a concomitant issue of whether the opposing party has a valid privilege of defense of property.
The following example is derived from an actual Vermont case from 1908. Paula is sailing on a lake when a violent storm suddenly breaks out. She navigates to the nearest dock and quickly ties up her vessel, not damaging the dock at all. The dock belongs to Dave. Dave attempts to exercise the privilege of defense of property, as Paula would ordinarily be committing a trespass to land in this situation, and unties the vessel. Paula therefore drifts back away from the shore. Her boat is damaged, and she suffers personal injuries, both as a result of the storm.
If Paula had damaged Dave's dock, she would be liable for it, even though she has a valid privilege of private necessity. More importantly, Dave is now liable to Paula for the damage to her boat and for her personal injuries. Because of the private necessity, Paula is not considered a trespasser. So, Dave did not in fact have a valid privilege of defense of property.
Ordinarily, for private necessity to be valid, the party attempting to exercise it must not have created the emergency. For example, if Paula intentionally punctures her fuel tank just so she can race over to Dave's dock and tie up, she will not have a valid privilege of private necessity. As such, she would be a trespasser, and Dave would have a valid privilege of defense of property.
=Public necessity
=
This is a complete privilege. A party who has this privilege, typically a public official or governmental entity, is not liable for any damage caused. A famous early case on this privilege involved
John W. Geary, the first
mayor of San Francisco
The mayor of the City and County of San Francisco is the head of the executive branch of the San Francisco city and county government. The officeholder has the duty to enforce city laws, and the power to either approve or veto bills passed by t ...
, who made the decision during a major fire to burn down several private residences to establish a fire break.
Authority Granted Tort
Authority granted torts in charge of maintaining discipline is authorized to use reasonable force in performing their duty. An example is a police making an arrest is not liable for battery, when using reasonable force.
Negligence
Amongst unintentional torts one finds
negligence
Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...
as being the most common source of common law. Most
Americans
Americans are the Citizenship of the United States, citizens and United States nationality law, nationals of the United States, United States of America.; ; Although direct citizens and nationals make up the majority of Americans, many Multi ...
are under the impression that most people can sue for any type of negligence, but it is untrue in most US jurisdictions (partly because negligence is one of the few torts for which ordinary people can and do obtain liability insurance.) It is a form of extracontractual
liability that is based upon a failure to comply with the duty of care of a reasonable person, which failure is the
actual cause
Causation is the "causal relationship between the defendant's conduct and end result". In other words, causation provides a means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as the ''actus ...
and
proximate cause
In law and insurance, a proximate cause is an event sufficiently related to an injury that the courts deem the event to be the cause of that injury. There are two types of causation in the law: cause-in-fact, and proximate (or legal) cause. Ca ...
of damages. That is, but for the tortfeasor's act or omission, the damages to the plaintiff would not have been incurred, and the damages were a reasonably foreseeable consequence of the tortious conduct.
Some jurisdictions recognize one or more designations less than actual intentional wrongdoing, but more egregious than mere negligence, such as "wanton", "reckless" or "despicable" conduct. A finding in those states that a defendant's conduct was "wanton," "reckless" or "despicable", rather than merely negligent, can be significant because certain defenses, such as
contributory negligence
In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negl ...
, are often unavailable when such conduct is the cause of the damages.
Professional rescuer
*''
MacPherson v. Buick Motor Co.
''MacPherson v. Buick Motor Co.''is a famous New York Court of Appeals opinion by Judge Benjamin N. Cardozo that removed the requirement of privity of contract for duty in negligence actions.
Facts
The plaintiff, Donald C. MacPherson, a stonecutt ...
'', 217 N.Y. 382, 111 N.E. 1050 (1916) Judge
Benjamin N. Cardozo
Benjamin Nathan Cardozo (May 24, 1870 – July 9, 1938) was an American lawyer and jurist who served on the New York Court of Appeals from 1914 to 1932 and as an Associate Justice of the Supreme Court of the United States from 1932 until his dea ...
which removed the requirement of
privity of contract
The doctrine of privity of contract is a common law principle which provides that a contract cannot confer rights or impose obligations upon any person who is not a party to the contract.
The premise is that only parties to contracts should be ab ...
for duty in negligence actions.
*''
Martin v. Herzog'', 228 N Y. 164, 126 N.E. 814 (1920)
*''
Tedla v. Ellman
''Tedla v. Ellman'' (280 N.Y. 124, 19 N.E. 2d 987) was a 1939 New York Court of Appeals case that was influential in establishing the bounds of the negligence ''per se'' doctrine. Ordinarily, a statutory violation automatically constitutes neglig ...
'', 280 N.Y. 124, 19 N.E.2d 987, (1939)
[ on negligence ''per se'', or the violation of a duty under a statute
*'' Seong Sil Kim v. New York City Transit Authority'', duty of care to a person who may have been attempting suicide.
]
Breach of duty
Breach is ordinarily established by showing that the defendant failed to exercise reasonable care. Some courts use the terms ordinary care or prudent care instead. Conduct is typically considered to be unreasonable when the disadvantages outweigh the advantages. Judge Learned Hand
Billings Learned Hand ( ; January 27, 1872 – August 18, 1961) was an American jurist, lawyer, and judicial philosopher. He served as a federal trial judge on the U.S. District Court for the Southern District of New York from 1909 to 1924 a ...
famously reduced this to algebraic form in ''United States v. Carroll Towing Co.
''United States v. Carroll Towing Co.'', 159 F.2d 169 ( 2d. Cir. 1947), is a decision from the 2nd Circuit Court of Appeals that proposed a test to determine the standard of care for the tort of negligence. The judgment was written by Judge Le ...
'':
Where