Torts in a Nutshell
Author:
Kionka, Edward J.
Edition:
7th
Copyright Date:
2020
23 chapters
have results for torts nutshell
Preface 8 results (showing 5 best matches)
- No single Nutshell could encompass to all tort law. This one’s focus is the basic principles of liability, defenses, and damages. The volatile area of products liability, discussed briefly here, is the subject of a separate Nutshell (David G. Owen, Products Liability in a Nutshell (9th ed. 2015)), as is the law applicable to those who provide medical and other health-care services (
- This book, like all others in the Nutshell series, is intended for anyone seeking a concise exposition or review of the basic principles of American law. Its main value, however, will probably be to first-year law students taking the course in torts, who are struggling to get a glimpse of the elusive “big picture” of which my former dean and colleague John Cribbet of the University of Illinois College of Law famously spoke.
- This Nutshell, again like all others, must be used with caution and with a clear understanding of its limitations. Overall, I believe that it presents an accurate “big picture” of the subjects discussed. But many of the rules are subject to minor exceptions and qualifications which space does not permit to be mentioned. Some rules and subrules, not essential to an understanding of the basic principles, have been omitted altogether. Some hard problems are only alluded to. In addition, the tort law of every jurisdiction is a little bit different from that of every other, and each contains its own idiosyncrasies, judicial and sometimes statutory. This text must not be taken as the law of any particular jurisdiction, but rather as a composite view.
- The law student would be well-advised to base his or her study of tort law primarily on other sources. There is no substitute for a careful analysis of casebook materials for a more thorough treatment and for a necessary perspective of tort law in action. And it would be wise to flesh out your knowledge of the various areas by studying a more complete text, such as the excellent torts hornbook. ...and the Restatement Third of Torts are very helpful. Sometimes you will need to refer to other sources available in the law library or online in areas where enlightenment seems slow to come. Nevertheless, it is my firm belief that law students (as all of us are) must have a clear view of the forest before we can truly understand and appreciate the various trees. I hope that this book will help to provide that overview, a structural framework of concepts to which the elaborations and refinements of ever more specific rules can be attached. May it serve as an entree into the law’s proverbial...
- On the other hand, I have covered some subjects not normally included in most basic torts texts and courses (see, e.g., Chapter 1 and §§ 8–13, 8–14, 8–15, 8–22, and 8–23, and Part V) because I believe that they are important to an accurate overview.
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Chapter 8 Special Liability Rules for Particular Activities and Parties 95 results (showing 5 best matches)
- Products liability law has become so specialized and complex that it is properly the subject of a separate Nutshell (
- The Restatement Third of Torts: Products Liability
- The trend of U.S. tort law during the twentieth century was to expand the scope of potential tort liability, especially as to business and property owners, mainly by: (1) abolishing duty limitations and immunities in negligence cases and moving toward a general duty of ordinary care under the circumstances for all activities; (2) abolishing special limitations on the class of persons to whom D’s duty is owed (i.e., privity limitations) and applying ordinary scope of liability rules to all; (3) making sellers of products strictly liable in tort for product defects; and (4) creating new liability rules by statute (e.g., workers’ compensation, F.E.L.A., and auto compensation acts). In recent decades, however, that expansion has slowed, ceased, or, in some cases, reversed, apparently because courts (and sometimes legislatures) concluded that we have reached a point of equilibrium—an appropriate balance between compensating deserving tort victims and making the tort system affordable by...
- An employer’s vicarious liability includes torts negligently or recklessly committed. It may even extend to intentional torts committed in the scope of the employment and at least in part in furtherance of the employer’s business. The employee’s motive or purpose to serve the employer’s interest is key. For example, a bill collector who commits assault, battery, false imprisonment, or intentionally inflicts emotional distress or maliciously prosecutes or defames P in an effort to extract payment of a bill subjects his employer to liability for the intentional tort. Going a step further, some courts (still a minority) will visit vicarious liability on an employer for other intentional torts committed by an employee while on the job, such a during a fight that ensued when the employee lost his temper during an argument that arose out of the employment.
- It is generally agreed that where there is some special relationship between P and the employer such that the employer owes P a duty of protection (such as in the case of a carrier, an innkeeper, a caregiver, or a hospital) the employer is subject to vicarious liability to P for his employee’s intentional tort even though the tort is committed for entirely personal reasons.
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Chapter 10 Tort and Contract 18 results (showing 5 best matches)
- , R.3d Liability for Economic Harm § 16 (interference with contract); § 17 (interference with economic expectation); § 18 (interference with inheritance or gift). See generally Dobbs et al., Hornbook on Torts Ch. 42 (2d ed. 2016). Discussion of these torts is beyond the scope of this Nutshell.
- When one party to a contract fails to render the agreed performance, or the performance is deficient, the other party may not only lose the benefit of his bargain, but may also suffer other kinds of injury, including physical and pecuniary harm. Assuming the breach to have been intentional, reckless or negligent, may the party wronged elect to sue in tort, or is he confined to his action for breach of contract? For a variety of reasons, P will usually prefer to sue in tort if he can—for example, the tort measure of damages will often be more favorable.
- Election: tort or contract action.
- Just as there is no tort liability between the parties for harm caused by the nonperformance of a contract, absent some recognized exception, so there is generally no tort liability to a nonparty. Thus, one who is hired to repair an auto but never even begins performance is not liable to a third person injured by the defect.
- Traditionally, where D’s duty arises because of a contractual relationship between the parties, D is not liable in tort for harm caused by D’s breach of that contract where the breach consists of D’s failure to commence performance at all. But once having begun to perform, D may be liable in tort for intentional, reckless, or negligent misperformance—whether consisting of acts or omissions to act—that results in physical harm or property damage. For example, one who contracts with P to cut down a tree on his property will not be liable
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Explanatory Notes 7 results (showing 5 best matches)
- Work continues on additional parts of the Restatement Third. As of this writing, the following are in process: Liability for Economic Harm; Intentional Torts to Persons; Defamation and Privacy; Remedies; and Concluding Provisions. The “Economic Harm” material has been completed and approved, but the official text has not yet been published. Part of the “Intentional Torts” material has been approved. Citations in this Nutshell to the latter two parts are to those sections that have been approved.
- For the record, it should be noted that there is also a Restatement Third: Unfair Competition (1995), that contains some topics that fall under the torts umbrella. This Restatement has superseded certain sections of the Restatement Second of Torts. However, those topics are mostly beyond the scope of the first-year law school torts course.
- Restatement of Torts.
- The Restatement Second is now being superseded by the Restatement Third. The Restatement Third, Torts: Products Liability (1998), and the Restatement Third, Torts: Apportionment of Liability (2000), were followed by a two-volume set, the Restatement Third, Torts: Liability for Physical and Emotional Harm. Volume I (2010) comprises six chapters: (1) definitions of intent, recklessness, and negligence; (2) liability for physical harm; (3) the negligence doctrine and negligence liability; (4) strict liability; (5) factual cause; and (6) scope of liability (proximate cause). Volume II, published in 2012, covers (7) affirmative duties; (8) liability for emotional harm; (9) duty of land possessors; and (10) liability of those who hire independent contractors.
- For simplicity and to save space, I use abbreviations: “R.2d § ___” for the Restatement Second of Torts, and “R.3d [name of volume] § __” for citations to the Restatement Third.
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Chapter 6 Liability for Intentional Misconduct 49 results (showing 5 best matches)
- Often the same act is both a tort and a crime. This is especially true with respect to the intentional torts. But despite their common origins, tort and criminal law rules are now more different than similar, and analogies and comparisons between torts and crimes of the same name or having similar bases in conduct should be made only with the greatest caution.
- Both a civil tort action and a criminal prosecution may be brought for the same wrongful conduct. The remedies are concurrent, and either a successful or unsuccessful result in one is ordinarily not a bar to the other. But judgment-proof persons often commit the most common intentional torts; intentional torts are usually uninsured and in most cases uninsurable; and vicarious liability for intentional torts is limited. Thus, intentional tort litigation is of relatively less significance in the day-to-day work of lawyers and courts. Nevertheless, in many circumstances it is a valuable remedy.
- One who “knowingly and substantially instigates, encourages, or assists” another person’s commission of an assault, battery, false imprisonment, or intentional infliction of emotional harm is subject to tort liability for that harm, even if the actor’s conduct does not independently satisfy all elements of the underlying tort. R.3d Intentional Torts to Persons § 10.
- Claims for IIED may also overlap with other intentional torts, such as assault, battery, or false imprisonment, which also allow compensation for emotional distress. Normally, P should be entitled to elect her remedy, choosing whichever tort is most advantageous. Whether she should be permitted to sue for IIED if the statute of limitations has run on the other, overlapping tort is an open question.
- Traditionally, the intentional torts are those named and discussed in the sections following. However, there has come to be recognized a general principle of intentional tort liability, analogous to the general principle of negligence liability (see § 4–1), sometimes called “prima facie tort,” which may be invoked when no particular intentional tort applies.
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Chapter 1 Prologue: Origins, Objectives, and Overviews of Tort Liability 43 results (showing 5 best matches)
- Obviously, this does not tell us very much. To say that the breach of a law-imposed duty creates tort liability begs the question. Moreover, not violations of legal duties are torts. This does not even distinguish tort from breach of contract, since in the final analysis the law determines which contractual duties are enforceable. Some have defined “tort” by excluding “mere” breaches of contract, but this glosses over the fact that the breach of a contractual duty under certain circumstances can be the basis for tort liability.
- If there is any such general principle, it has yet to be adopted by Anglo-American courts and legislatures. The common law developed as a system of individual named torts—trespass, deceit, slander, and later assault and battery, conversion, and so on—each with its own more or less unique rules. In fact, until 1859 there was no legal treatise bearing the name “torts.” As yet, except for the tort called “negligence,” there has been little synthesis of the nominate torts into larger categories.
- Yet the tort law of these countries is remarkably similar to ours. The California Civil Code includes some general tort liability provisions ( §§ 1708, 1709, 1714), but the structure and rules of California tort law are indistinguishable in form from those of other states.
- The victim of a tort has sustained certain harm(s) or loss(es) that we will call “costs.” Tort law is predicated on the idea that these costs—tangible and intangible—can be measured in money. The basic (and usually exclusive) tort remedy is to require the tortfeasor to pay the victim the sum of these costs as “compensatory damages.”
- The third primary function or goal of tort law is to prevent future torts by regulating human behavior. In this respect, the law serves an educational function, and operates prospectively. Theoretically, a tortfeasor held liable for damages will be more careful in the future (specific deterrence), and the general threat of tort liability is an incentive to all to regulate their conduct in accordance with the established standards (general deterrence). To this extent tort law supplements and extends the criminal law; indeed, tort sanctions can often be more potent. Punitive damages are intended to reinforce this function.
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Chapter 12 Survival and Wrongful Death 14 results (showing 5 best matches)
- The statutes are of two types. In some, either all tort actions or all tort actions with certain listed exceptions survive. In others, only certain named actions survive. This creates problems of construction, since frequently the statute lists categories such as “injury to persons or property” instead of the names of particular torts.
- Where D’s tort causes fatal injuries, decedent’s family may sustain a measurable loss. During some periods of the development of the common law, this loss was at least partly compensated, usually in the same action in which the crown punished the actor for the killing. There is some evidence of compensation for wrongful death in the earliest U.S. tort law.
- Under most statutes, any tort theory that would have supported a personal injury action will support an action for wrongful death—an intentional tort, reckless or negligent behavior, strict liability (product or otherwise).
- Survival of Tort Actions
- At common law, all causes of action for personal torts abated with the death of either the tortfeasor or the person injured, regardless of the cause of death. Except as modified by statute, that remains the general rule today.
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Chapter 11 Immunities 37 results (showing 5 best matches)
- Various justifications, all of them rather weak, have been advanced for adhering to the doctrine: there should be no liability for negligence in the performance of a duty imposed by law; a tort cannot be committed by an entire people; whatever the state does must ipso facto be lawful; a government employee who commits a tort must thereby be acting outside the scope of his authority and employment; tort compensation is not a proper use of public funds; tort liability would cause inconvenience and embarrassment to the government; and, occasionally, just “public policy.” The most likely reason for its persistence is a fear that governmental tort liability would precipitate a large-scale milking of the public treasury and fiscally disastrous consequences—a fear that is increasingly seen as unwarranted and outweighed by the injustice of immunity. Thus, all states have now consented (usually by statute or constitutional provision) to allow tort claims in some form and to a greater or...
- FTCA claims must first be submitted to the appropriate federal agency. If denied, the claim may then be brought in federal court, but the substantive law that governs is the tort law of the state in which the alleged tort occurred.
- The most likely reason for the immunity is that it was thought to further a public policy that strongly favors and supports charitable enterprises, whose beneficent work might be hampered if their assets must be used to pay tort claims. But first legal writers and then the courts accepted the now-prevailing view that tort liability is a legitimate expense of any enterprise, however benevolent and worthy, and the public policy favoring charity is outweighed by the injustice of tort immunity, especially now that liability insurance has reduced the burden to manageable levels.
- The sovereign immunity concept has dual aspects, and this duality has caused controversy and confusion. One aspect is procedural, the other substantive. In its original form, under English common law, the rule was fundamentally procedural. A lawsuit could not be brought against the Crown (the sovereign) in the Crown’s own courts without its consent. (This disability would, of course, apply not merely to tort actions but to all others as well.) But the doctrine eventually came to be regarded as also embodying a rule of immunity from tort liability, as reflected in the oft-quoted phrase “The King can do no wrong,” which was usually interpreted as meaning that the sovereign was incapable of committing a tort.
- In the United States, beginning about 1844, statutes (called Married Women’s Acts or Emancipation Acts) were passed in every jurisdiction that gave a married woman a separate legal identity and separate ownership of her own property. These statutes were construed (where possible) to permit the wife to maintain an action against her husband for torts against her property interests and for torts involving only pecuniary loss (e.g., deceit). By necessary implication, the husband was given the same rights against his wife. But most jurisdictions refused to go further, and held that such legislation did not remove the bar to actions between spouses for personal torts not involving property. A few of these acts expressly prohibited interspousal litigation.
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Chapter 4 Liability for Negligent Conduct 26 results (showing 5 best matches)
- Note that professional rescuers are often treated differently under what is known as the “firefighters rule”—a professional rescuer (policemen, firemen, other emergency responders) cannot sue D in tort if D’s only tort was creating the risk that resulted in the occasion for the response, and sometimes also risks associated with the condition of the premises.
- In tort law, the term “negligence” is used in at least two senses. First, it is the name of a tort cause of action, notable for its breadth. It is the closest thing there is to a general principle of tort liability. As a general rule, all persons are under a duty to conduct themselves in all of their diverse activities so as not to create unreasonable foreseeable risks of physical harm to others. In certain cases, as will be discussed later, this duty is limited or denied, but unless such a special exception exists, one may be held liable for the consequences of his negligent conduct, at least if it causes physical harm.
- Second, “negligence” is the name of that form of wrongful conduct which is an element of various tort causes of action (or defenses), including the action called “negligence.” The components of the cause of action for negligence are:
- . Tort liability for physical harm is founded on defendant’s knowledge (actual or constructive) of the risk and of some degree of probability that it will be realized (harm to the plaintiff). In negligence (as distinguished from intentional torts), the actor does not desire the injurious consequences of his conduct; he does not know that they are substantially certain to occur, nor believe that they will. There is merely a risk of such consequences sufficiently great that the ordinarily prudent person will anticipate them and guard against them. Thus, the normal actor (plaintiff or defendant) is charged with his
- Tort law applies the statutory age of majority (18) for purposes of these rules and all those this age or above will be held to adult standards of conduct.
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Chapter 15 Misrepresentation and Nondisclosure 25 results (showing 5 best matches)
- Some sort of misrepresentation is often an element of many different torts. An untrue assertion may be an integral part of some other intentional tort, such as battery, false imprisonment, conversion, or intentional infliction of emotional distress. It is the essence of defamation and the tort of injurious falsehood. Malicious prosecution and interference with contractual relations often involve a misrepresentation. There are many other examples. We are not concerned with such misrepresentations in this chapter.
- It is, of course, everywhere agreed that D will be liable in a tort action of deceit when all of the elements listed above are present. In such cases, deceit is an intentional tort, analogous to those discussed in Chapter 6.
- For the most part, the tort action of deceit or misrepresentation discussed here is limited to cases involving some business or financial transaction between the parties in which one of them has sustained a pecuniary loss. While perhaps there is no reason why the same or similar principles could not be applied in noncommercial situations, or to damages for physical harm (R.2d §§ 310, 311) there has been little occasion for doing so. The other nominate tort actions generally have provided adequate remedies.
- Strict liability in tort for innocent misrepresentation has been and continues to be the subject of a lively controversy, and has a number of distinguished opponents. While the Restatement’s damage limitation removes one objection to strict tort liability, some writers argue with vigor that where the misrepresentation is innocent, principles of contract or warranty law, equity, and restitution are more appropriate remedies as they include special limitations, defenses and other rules of law more properly designed to govern commercial situations where there has been no fraud or negligence.
- The case law allowing recovery in tort for an innocent misrepresentation appears inconclusive on the issue of damages. The Restatement confines the damages in these cases to P’s out-of-pocket loss, thus excluding both the benefit of the promised bargain and consequential damages and creating what amounts to a restitutionary remedy in tort law clothing. R.2d § 552C.
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Chapter 2 Cause in Fact 3 results
- The most basic element of any tort cause of action is some causal connection between the tortfeasor’s act or omission and P’s injury. Yet the application of this simple concept has proved one of the most troublesome tasks in all tort law. No other topic has generated so much controversy and confusion among courts and legal scholars.
- , R.2d §§ 431, 432. Increasingly, this factor has been discredited. Courts and torts scholars have recognized that this factor is more appropriate to scope of liability (“proximate cause”) questions. Confusion between factual cause and proximate cause has been the norm, both in the courts and in the earlier Restatements, which conflated the two concepts. In addition, the advent of comparative fault has eliminated the need to screen out factual causes that are insubstantial. For an excellent discussion of this issue, see R.3d Liability for Physical & Emotional Harm § 26, cmt.
- Joseph H. King, Jr., Causation, Valuation and Chance in Personal Injury Torts Involving Pre-existing Conditions and Future Consequences, 90 Yale L.J. 1353 (1981)
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Chapter 7 Defenses to Liability for Intentional Misconduct 27 results (showing 5 best matches)
- “Privilege” is the general term applied to certain rules of law by which particular circumstances justify conduct that otherwise would be tortious, and thereby defeat the tort liability (or defense) which, in the absence of such circumstances, would follow from that conduct. In other words, even if all of the facts necessary to a prima facie case of tort liability can be proved, if there are additional facts present sufficient to establish some privilege, D has committed no tort. Privileges thus differ from other defenses, such as contributory negligence, which operate to reduce or bar P’s recovery but do not negate the tortious nature of D’s conduct. Conversely, a otherwise might otherwise have had. See generally R.3d Intentional Torts to Persons § 20.
- Consent is a defense to virtually any tort. The law ordinarily has no interest in compensating one who validly, knowingly and freely consents in advance to the invasion of the interest that the law would otherwise have protected. In the law of negligence and strict liability, consent goes by the name “assumption of risk,” and a separate body of law has grown up around that concept which is described elsewhere (§ 5–4). While consent will be treated here in relation to the intentional torts, similar or analogous rules apply in other areas of tort law.
- The next question is, when is D privileged to use force to enter and evict the occupant without liability for assault, battery or some other tort. See R.3d Intentional Torts to Persons § 32.
- Historically, actual consent was technically not a privilege in the case of the intentional torts that are invasions of P’s interests in his person (assault, battery, false imprisonment) as opposed to his property interests. Lack of consent was considered an element of the tort, and ordinarily P had to establish it as a part of his prima facie case. This rule is evolving; some jurisdictions now treat consent in these cases as an affirmative defense. R.3d Intentional Torts to Persons takes no position on the burden of proof on the consent issue (
- Consent is not effective if it is given under duress, which of course includes actual physical force, but it is not entirely clear what kinds of threats are sufficient. Threats of immediate harm directed against P, his family, or his valuable property are usually enough, depending on the nature of the tort. But it has been held that threats of future harm, such as arrest, or “economic” duress such as loss of employment, do not render the consent ineffective (although some other tort may have been committed). See R.3d Intentional Torts to Persons § 15. Going forward, we may predict that consent may be held ineffective if given by the subordinate person in
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Chapter 9 Damages for Physical Harm 32 results (showing 5 best matches)
- Statutes often cap damages in tort cases against governmental units, or in certain statutory tort actions or compensation systems.
- Statutory torts
- not always so. Recall that earlier rules of tort law were oriented toward placing responsibility on a single wrongdoer. And under older rules of procedure, joinder of more than one defendant in a single tort action was possible only where all such defendants acted in concert in committing the tort, either directly (where each did a tortious act pursuant to a common plan) or where one was vicariously responsible for the tortious act of another under principles of conspiracy or joint enterprise such that a mutual agency existed.
- If plaintiff establishes defendant’s liability for some tort but is unable to prove any actual damages, nominal damages may be awarded. R.2d § 907. As the name implies, they are damages in name only, usually one cent or six cents or one dollar. Such awards are largely confined to the intentional torts (e.g., trespass to land) where actual damages need not be alleged or proved. Occasionally they may be given in other cases where P proves that he sustained some actual damage but is unable to establish the amount.
- As a general proposition, when P proves a compensable injury to his person, he may recover for all adverse physical and mental consequences of that injury. R.2d § 924. While the specific elements of damage for which recovery may be had vary somewhat among the torts, and will differ a little from one jurisdiction to the next even for a particular tort, the following types of harms are commonly compensable.
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Chapter 14 Privacy 9 results (showing 5 best matches)
- An 1890 Harvard Law Review article by Warren and Brandeis stimulated the development of the modern tort action for invasion of privacy. According to the conventional analysis, privacy tort law encompasses four distinct wrongs (R.2d § 652A):
- Is this tort necessary?
- Due to the overlap with defamation, a few jurisdictions have rejected this particular tort action altogether as creating, in effect, an unwarranted extension of defamation liability. . And some courts, while recognizing this tort, apply common law or statutory defamation defenses and limitations to false light actions. In some states, this tort is barred by statute.
- Appropriation—often called “commercial appropriation”—differs from the other privacy torts, which protect one’s right to be free from unreasonable or unconscionable intrusion or publicity. In contrast, the tort law of appropriation (which overlaps with copyright and other intellectual property rights) primarily protects the right of “publicity”—that is, the right to prevent others from profiting commercially from the use of one’s name, likeness, or other aspects of one’s “identity.” R.3d Unfair Competition § 46. However, in some cases it may also protect against the unprivileged and unpermitted appropriation of one’s name or identity for certain noncommercial purposes, such as signing one’s name to a petition.
- The tort is complete when the intrusion occurs. No publication or publicity of the information is required. The First Amendment may protect newsgathering activities when the privacy claim is based on publication of the information, but the mere fact that D is acting for the news media does not create a privilege to trespass or invade P’s privacy.
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Chapter 5 Defenses to Negligence and Other Liability 15 results (showing 5 best matches)
- Reckless (“willful and wanton”) conduct and intentional torts.
- In theory, the allocation of fault might include a defendant or even a non-party whose tort was intentional, perhaps even a criminal act. This means that if P’s harm was caused in part by an intentional tortfeasor, that tortfeasor may be assigned the major share of the overall fault, and if that tortfeasor is uncollectible, the collectible part of P’s judgment may be a fraction of his damages as determined by the ...or defendants are only severally liable. For this reason, the Restatement provides: “A person who is liable to another based on a failure to protect the other from the specific risk of an intentional tort is jointly and severally liable for the share of comparative responsibility assigned to the intentional tortfeasor in addition to the share of comparative responsibility assigned to person.” R.3d Apportionment of Liability § 14. Of course, whether this rule is available will depend on the law of each comparative negligence jurisdiction, particularly whether,...
- Just as in all other areas of the law, tort law imposes time limits on bringing claims. The purposes of these limits are to protect defendants (1) from perpetual exposure to potential liability—to permit defendants (and their insurers) to “close the books” at a fixed time—and (2) from the evidentiary problems of defending against stale claims.
- The statutory period of time in which a tort action can be filed generally starts to “run” when the cause of action accrues. Ordinarily, this is at the time of the injury. When the injury is caused by a single traumatic event, such as an accident, the statute begins to run on that date, whether or not P knows that his injury was caused by tortious conduct.
- Restatement Third of Torts: Apportionment of Liability § 7
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Chapter 3 Strict Liability 8 results (showing 5 best matches)
- Federal tort claims.
- Modern tort law classifies the cases involving physical harm to persons and property according to the degree of fault inherent in the tortious conduct: intentional; negligent; reckless or “willful and wanton” misconduct; and a category called “strict liability,” “absolute liability,” or “liability without fault.”
- As previously noted (§ 1–3), some believe strict liability was the prevailing rule of the early common law. Whether it was or not, fault is now the norm. The negligence concept carries with it the requirement that defendant’s conduct be blameworthy in the sense of creating an unreasonable risk of harm. The intentional torts require fault in the form of intent. But there remain a few situations where the historically rooted strict liability has been preserved.
- On appeal, the Exchequer Chamber decided to impose strict liability, but the case did not fit into the existing tort pigeonholes. There was no trespass, perhaps because the flooding was not direct or immediate (the premises of plaintiff and defendants did not adjoin) or because defendant acted through an agent. Nor was there any nuisance (as the term was then understood) since there was nothing offensive to the senses and the damage was not continuous or recurring. Using analogies to strict liability for trespassing cattle, dangerous animals, and “absolute” nuisance, Justice Blackburn concluded:
- There are other of instances in the law of liability without fault, besides those (discussed in this chapter) traditionally collected under the heading “strict” or “absolute” liability. Certain statutes (e.g. workers’ compensation acts) create it. It is found in an employer’s vicarious liability for the torts of her employees; in common law liability for defamation; and in some forms of liability for selling defective products. The common thread that runs through all forms of strict liability is that, irrespective of the care with which it is conducted, a particular activity ought to carry with it the costs of the risks it creates. If it helps one to stretch the concept “fault” to include the creation of these risks, perhaps no harm is done, but it would seem preferable to view strict liability as special instances of mandatory insurance against
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Chapter 13 Defamation 2 results
- Defamation law encompasses two torts, libel and slander. In general, libel is a written defamatory communication; slander is an oral one. In the next section we will discuss the differences between the two, but here we examine the common elements and principles.
- Defamation is an invasion of P’s interest in his good reputation and good name. Like the other torts in this Part VI, the injury is to a “relational” interest, in this case P’s relationship with others in the community as it is affected by others’ opinions about him. Thus, a defamatory statement must be communicated to third persons; if communicated only to P, it could possibly be intentional infliction of emotional distress, but it is not an actionable defamation.
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Outline 6 results (showing 5 best matches)
- Publication Date: October 12th, 2020
- ISBN: 9781684673261
- Subject: Torts
- Series: Nutshells
- Type: Overviews
- Description: A clear, concise, current, and authoritative explanation of all of the most important U.S. tort law doctrines, including those covered in first-year torts courses in law schools. Coverage includes tort law origins and objectives; causation; strict liability; negligence liability and defenses; intentional tort liability and defenses; special liability rules (premises liability, products liability, employers, etc.); damages; tort and contract; immunities; wrongful death and survival; defamation; privacy; misrepresentation.
