TORTS
Torts, as a general category, are civil wrongs recognized by the law as grounds for a
lawsuit. Such wrongs result in an injury or harm constituting the basis for a claim by the
injured party.
Types of Torts There are three major types of tort liability—intentional wrongs, acts of negligence,
and strict liability. An intentional wrong occurs when a person purposefully harms another person or
his or her property. Negligence—the most common unintentional tort—occurs when one person
unintentionally inflicts injury upon another person. Even though the injury was not intentional, the
person who caused injury can still be held liable for acting carelessly and causing harm. Strict
liability requires people engaged in certain dangerous activities to assume extra responsibility for the
consequences of their actions.
Intentional Torts
Intentional torts are actions taken with the intent to harm another person or another's property. The
intent to harm does not have to be hostile or immoral. The law of intentional torts requires that the
person causing the harm either knew or should have known that his or her actions would result in
harm.
Types of Damages A victim of an intentional tort can recover damages. There are three types of
damages—compensatory, nominal, and punitive. Damages that pay, or compensate, an injured
person for being harmed are called compensatory damages. They may include costs that have
resulted or are expected to result from the injury. If a plaintiff is unable to show financial loss, the
jury may award nominal damages. Nominal damages involve a small amount of money that the
defendant must pay in order to show that the defendant was wrong. Punitive damages are awarded to
punish a defendant whose actions were malicious, willful, or outrageous. Juries usually decide how
much money is appropriate.
Torts That Injure Persons One category of torts is torts that cause injury to persons. These types
of torts include battery—in which a person intentionally makes contact with another person in a
harmful or offensive way—and assault—which occurs when a person intentionally causes someone
to fear immediate harm. Other examples of torts that injure persons are infliction of emotional
distress, false imprisonment, and defamation. Defamation includes acts that harm a person's
reputation. Slander is the intentional attack on someone's reputation through spoken words that are
false. Libel is intentionally writing untruthful information to injure another person's reputation.
Torts That Harm Property Intentional torts may harm a person's real, personal, or intellectual
property. Trespass is a tort in which a person enters another person's private property without
permission. A nuisance is a tort that occurs when someone interferes with your ability to use and
enjoy your own property, even if the person has never physically entered your property. The tort of
conversion occurs when someone unlawfully takes, damages, or interferes with another's personal
property. Patents and copyrights exist to protect the ideas, inventions, and creative works of an
individual. A person who interferes with someone's patent or copyright through unauthorized use of
the ideas may be found guilty of the tort of infringement.
1
TORTS – Compiled by Butucel Lia, univeity lecturer, Moldova State University
Defenses to Intentional Torts There are certain defenses a person may use to try to prove that he
or she should not be found liable for an intentional tort. These reasons include consent, privilege,
self-defense, and defense of property. Consent is the most common defense to a tort. The defendant
argues that the plaintiff agreed to the harmful conduct and should not be able to sue. Privilege
justifies behavior that would otherwise be a tort when it serves the public interest. Self-defense and
defense of property justify the use of certain force to protect one's person or property.
Types of intentional torts – note that this is a non-exhaustive that reflects the most common types
of intentional torts:
a. Assault:
i. Definition:
An intentional, unlawful threat to cause bodily injury to
another by force;
Under circumstances that create a well-founded fear of
imminent peril;
Where there exists the apparent present ability to carry out
the threatened act.
ii. Note: assault can be committed even if there is no actual contact
with the plaintiff, and even if the defendant had no actual ability to carry out the apparent threat.
b. Battery:
i. Definition:
A battery is the willful or intentional touching of a person
against that person’s will by another person, or by an object or substance put in motion by that
other person.
Note: offensive touching can constitute battery even if it
does not cause injury, and even if it could not reasonably be expected to cause injury.
c. Defenses to Assault and Battery:
i. Consent:
Where a defendant has the plaintiff's consent to commit an
act of assault or battery, the plaintiff may not later bring a lawsuit. The most typical context for
consent occurs in sports, where injuries that result from rule violations that are part of ordinary
play are unlikely to support a legal action. Consent also exists in the context of authorized
medical or surgical procedures.
ii. Police Conduct:
A police officer is privileged to apply the threat of force, or
if necessary to apply actual force, in order to effect a lawful arrest. A defendant who suffers
injury as the result of reasonable force exerted by the police to effect a lawful arrest will not be
able to sustain a lawsuit against the arresting officers for assault or battery.
iii. Self-Defense:
A person who is assaulted may use such reasonable force
as may be necessary, or which at the time reasonably appeared to be necessary, to protect
himself from bodily harm. An act of self-defense must be proportionate to the threat.
iv. Voluntary (Mutual) Combat:
Where the plaintiff voluntarily engages in a fight with
defendant for the sake of fighting and not as a means of self-defense, the plaintiff may not
2
TORTS – Compiled by Butucel Lia, univeity lecturer, Moldova State University
recover for an assault or battery unless the defendant beats the plaintiff excessively or uses
unreasonable force.
v. Defense of Property:
Many jurisdictions allow the use of some amount of threat
or force by a person who is seeking to protect his or her own property from theft or damage.
However, there is no privilege to use force that may cause death or serious injury against
trespassers unless the trespasser threatens death or serious injury.
vi. Provocation:
Words alone, no matter how insulting or provocative, do
not justify an assault or battery against the person who utters the words.
d. False Imprisonment:
i. Definition:
When the defendant intentionally confines the plaintiff,
either physically or by overcoming the plaintiff’s will, to a definable area from which there is
no reasonably apparent means of escape.
e. Intentional Infliction of Emotional Distress:
i. Definition (elements):
The defendant must act intentionally or recklessly.
The defendant's conduct must be extreme and outrageous.
The conduct must be the cause of severe emotional
distress.
ii. No precise definition, but conduct must be "so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community. The defendant's conduct
must be more than malicious and intentional; and liability does not extend to mere insults,
indignities, threats, annoyances, or petty oppressions.
Negligence
Tort law establishes standards for the care that people must show to one another. Negligence is the
conduct that falls below this standard. Negligence law is concerned with paying victims for the
injuries that have been caused by someone else's conduct.
Elements of Negligence Negligence applies to many kinds of wrongful conduct. Four elements
must exist for a plaintiff to win a negligence action—duty, breach of duty, causation, and damages.
The plaintiff must prove all of these elements in order to be successful in a negligence claim.
Duty and Breach Everyone has a general duty to exercise reasonable care toward other people and
their property. If a person acts unreasonably, he or she has breached the duty of care. In order to
judge whether or not a person's conduct is reasonable, the law asks: Would a person of average
intelligence and general regard for others have acted in the same way? If the answer is no, then the
person's behavior was unreasonable. The law assumes that reasonable people do not break the law.
Certain professionals, such as doctors, pilots, and plumbers, are held to the standards of reasonably
skilled professionals in their field. Even minors are liable for the torts they commit. However, when
deciding the reasonable conduct of a minor, the law usually compares a minor's conduct with other
individuals of the same age, intelligence, and experience.
3
TORTS – Compiled by Butucel Lia, univeity lecturer, Moldova State University
Causation In order to prove causation, there must be proof that the defendant's actions actually led
to the harm suffered by the plaintiff. The element of causation is broken down into two separate
issues—cause in fact and proximate cause. If the harm would not have occurred without the
wrongful act, then the act is the cause in fact. To prove proximate cause, there must be a close
connection between the wrongful act and the harm caused. The harm that resulted must have been
foreseeable from the wrongful act.
Damages The basic idea behind damages is that the plaintiff should be restored—in the form of
money—to his or her original position before the negligence occurred. Courts allow plaintiffs to
collect for medical bills, lost wages, pain and suffering, and other losses.
Defenses to Negligence Suits Even when a plaintiff can prove all of the elements of negligence,
the defendant may be able to raise a valid legal defense. Most states allow a defense called
comparative negligence. In comparative negligence the defendant and the plaintiff split the loss
according to how much each person was at fault. For example, if a judge decides that a plaintiff
was 60 percent responsible for injuries and the defendant only 40 percent responsible, each would
only pay that particular percentage. As another legal defense, the defendant may argue that the
plaintiff assumed the risk of the harm and should therefore be held responsible for the resulting
injury (Assumption of risk: if a person voluntarily encounters a known danger and decides to
accept the risk of that danger, he or she may be prevented from recovering for related negligent
acts by a defendant).
Elements of Negligence
Duty: The defendant owed the plaintiff a duty to act reasonably. A reasonable person would
consider (1) the burden of taking precautions; (2) the likelihood of harm; and (3) the seriousness of
the harm.
Breach: The defendant’s conduct violated that duty (the defendant did not act reasonably).
Causation: The harm would not have occurred without the defendant’s actions. Requires proof of
“Cause in Fact” and that the harm was foreseeable (“Proximate Cause”).
Damages: The plaintiff suffered actual damages (medical costs, lost wages, pain and suffering,
etc.).
Scenario 1: Ke$ha: The Case of the Drunk Driver,
Ke$ha is bartending at The Right Round, a nearby pub, because her new song isn’t selling very well.
She sees Cee-lo, a regular customer at The Right Round, is clearly intoxicated. He asks her for one
more round of drinks before he leaves. Not wanting to offend him in case he wants to collaborate
with her on his next album, Ke$ha serves him, saying, “Let’s make this the last round.” Twenty
minutes later, Cee-lo leaves the bar to go home. Just after Cee-lo pulls his car onto the highway, he
swerves and hits another car head-on. Cee-lo and the driver of the other car are seriously injured.
State the duty
Look for the breach
Did defendant’s conduct cause the
plaintiff’s harm?
4
TORTS – Compiled by Butucel Lia, univeity lecturer, Moldova State University
What damages does defendant
owe the plaintiff?
What do you think? Is Ke$ha responsible for the accident? Should Cee-lo be able to sue her and
collect damages? Should the other driver?
Scenario 2: Rob & Katrina: The AIDS Case
Rob is has an STD. He is new to Seattle and does not want anyone to know about his illness. He
meets Katrina and they start dating. They really like each other and eventually become exclusive.
They have unprotected sex, but Rob does not tell Katrina beforehand about his STD. Katrina finds
out later that she has the same STD Rob does after she goes to a doctor for a blood test.
State the duty
Look for the breach
Did defendant’s conduct cause the
plaintiff’s harm?
What damages does defendant
owe the plaintiff?
What do you think? Does Rob have a duty to tell Katrina about his condition? If he does, did he
breach it, and should Katrina be able to recover damages from Rob? Would your answers change if
Rob was HIV positive (being that there is no cure for AIDS)?
Scenario 3: Milton Bradley: The Case of the Baseball Swing
Milton Bradley is trying to give the Mariners a chance at a pennant win. To stay in shape, he
practices his swing in the off-season. In fact, he likes to practice so much that he often practices in
the game room so he can practice while he watches Sports Center highlights. One day, while
practicing his swing in his game room, he loses his grip on the bat. The bat flies into the dining
room and hits Ichiro’s wife’s friend in the head, causing minor injuries.
State the duty
Look for the breach
Did defendant’s conduct cause the
plaintiff’s harm?
What damages does defendant
owe the plaintiff?
What do you think? Sometimes the amount of damages can change. Let’s say the bat hit Ichiro’s
wife’s best friend in the arm. Does that change the amount of damages? What if his wife’s best
5
TORTS – Compiled by Butucel Lia, univeity lecturer, Moldova State University
friend was a concert violinist and can’t play her violin anymore? Does that change the amount of
damages?
Scenario 4. Tom, a sophomore in college, decides that he would like to get a summer job as a
lifeguard. Tom received all of the appropriate training. During his second week on the job he
notices two girls by the concession stand and decides that he is going to go over to them to see if he
can get a date with one of them. While he is talking to the girls a young girl jumps off the diving
board and sinks like a rock to the bottom of the pool. After a couple of minutes, Tom hears
someone yell out “my sister is drowning!” He jumps into the pool, pulls the girl out, and performs
CPR. The girl comes to and, after catching her breath, appears to be fine.
Scenario Chart
Question: Answer:
Who would the
defendant be in this
scenario?
Who would the
plaintiff be in this
scenario?
What tort took place
in this scenario?
What are the Elements Example(s) from Scenario:
elements for this tort
and how were they 1.
demonstrated in this 2.
scenario? 3.
4.
If you were the
defendant in this
action, what would
be the best defense
to use?
Why did you choose
this defense?
Who do you think
would win in this
scenario? Why?
Scenario 5. Consuela leaves a sharp knife on the kitchen table after making a sandwich. A three-
year-old neighbor boy, who has been invited over to play with Consuela’s daughter, climbs up on a
chair, grabs the knife, and seriously cuts his finger.
Scenario Chart
6
TORTS – Compiled by Butucel Lia, univeity lecturer, Moldova State University
Question: Answer:
Who would the
defendant be in this
scenario?
Who would the
plaintiff be in this
scenario?
What tort took place
in this scenario?
Elements Example(s) from Scenario:
What are the
elements for this tort
1.
and how were they
demonstrated in this
scenario?
If you were the
defendant in this
action, what would
be the best defense
to use?
Why did you choose
this defense?
Who do you think
would win in this
scenario? Why?
Scenario 6. After a late dinner in the city, Jamison walks out of a crowded restaurant and sees a man
grabbing Ashley, his wife. Ashley tries to get away but the man keeps pulling her back towards him
in a way that suggests that he is trying to kiss her. Ashley says, “Stop! You’re hurting my arm.”
Jamison pushes his way through the crowd, hits the man, and the man is knocked out. Later, the
man sues Jamison for hitting him.
Scenario Chart
Question: Answer:
Who would the
defendant be in this
scenario?
Who would the
plaintiff be in this
scenario?
What tort took place
in this scenario?
What are the Elements Example(s) from Scenario:
elements for this tort
and how were they 1.
demonstrated in this
7
TORTS – Compiled by Butucel Lia, univeity lecturer, Moldova State University
2.
scenario? 3.
If you were the
defendant in this
action, what would
be the best defense
to use?
Why did you choose
this defense?
Who do you think
would win in this
scenario? Why?
Scenario 7. Tanner, Kyle, and Martin leave a high school party. All three of them told their parents
that they were sleeping over at each other’s house, so they could stay out all night. The party that
they were at was busted by the police and now they had nowhere to go. Tanner suggests that they
should break into one of the vacant homes in the neighborhood but Kyle told him that he didn’t want
to get in trouble. Tanner said that he wasn’t going to be sleeping in the cold and didn’t care what
they thought. When Tanner picked up a rock to throw at the window of the home, Kyle tackled him.
Tanner fell and hit his head on a rock causing severe bleeding. Tanner sued Kyle for the medical
bills.
Scenario Chart
Question: Answer:
Who would the
defendant be in this
scenario?
Who would the
plaintiff be in this
scenario?
What tort took place
in this scenario?
Elements Example(s) from Scenario:
What are the
elements for this tort
and how were they
demonstrated in this
scenario?
If you were the
defendant in this
action, what would
be the best defense
to use?
Why did you choose
8
TORTS – Compiled by Butucel Lia, univeity lecturer, Moldova State University
this defense?
Who do you think
would win in this
scenario? Why?
Scenario 8: Michael is holding Jack down and slapping him in the face. Michael keeps laughing
and saying, “Say Uncle!” Jack is crying and keeps saying, “Get off of me!” Michael slaps Jack
again but this time Jack gets his hand free and punches Michael. Michael falls to the ground
gripping his broken nose. Michael sues Jack.
Scenario Chart
Question: Answer:
Who would the
defendant be in this
scenario?
Who would the
plaintiff be in this
scenario?
What tort took place
in this scenario?
Elements Example(s) from Scenario:
What are the
elements for this tort
and how were they
demonstrated in this
scenario?
If you were the
defendant in this
action, what would
be the best defense
to use?
Why did you choose
this defense?
Who do you think
would win in this
scenario? Why?
Scenario 9. Harry, a school bus driver, has a heart attack while driving the bus. The bus slams into
a wall, injuring several students. One month earlier Harry’s doctor had warned him of his heart
condition. One of the students start having headaches seven years later and the parents sue.
Scenario Chart
Question: Answer:
Who would the
9
TORTS – Compiled by Butucel Lia, univeity lecturer, Moldova State University
defendant be in this
scenario?
Who would the
plaintiff be in this
scenario?
What tort took place
in this scenario?
What are the Elements Example(s) from Scenario:
elements for this tort
and how were they 1.
demonstrated in this
scenario?
If you were the
defendant in this
action, what would
be the best defense
to use?
Why did you choose
this defense?
Who do you think
would win in this
scenario? Why?
Scenario 10. Steve and Tom are big fans of the UFC (Ultimate Fighting Championship). After
watching a fight, Tom says that he could be an UFC fighter. Steve said that it would be impossible
because he couldn’t even beat him. After a lot of posturing, Tom and Steve agree to an UFC style
fight. During the fight, Steve punches Tom and ruptures his spleen. Tom is taken to the hospital for
treatment of his injury
Scenario Chart
Question: Answer:
Who would the
defendant be in this
scenario?
Who would the
plaintiff be in this
scenario?
What tort took place
in this scenario?
What are the Elements Example(s) from Scenario:
elements for this tort
and how were they 1.
demonstrated in this
scenario?
10
TORTS – Compiled by Butucel Lia, univeity lecturer, Moldova State University
If you were the
defendant in this
action, what would
be the best defense
to use?
Why did you choose
this defense?
Who do you think
would win in this
scenario? Why?
HOW TO WRITE AN OPENING STATEMENT
An attorney prosecuting or defending an accused criminal at a trial must devote a lot of time and
resources to preparing for court. Understanding the facts of the case, legal precedent and the
strengths and weaknesses of both sides is essential. Also important is the speaking skills of the
attorney. He or she will need to address the court, most importantly the judge and jury. The first
impression that jurors will get during the trial is the attorney's opening statement. The opening
statement is the best opportunity the attorney has to lay out the case without objection or argument
from the other side. Write an opening statement that will get the attention of the jury.
[Link] an outline. Working off an outline will keep the opening statement organized and
inclusive of all the important themes of the case. Use a legal pad or a notebook to outline the
opening statement. Write down the major points that need to be addressed, and then fill in each point
with more detail and specific information.
2. Appeal to the jury's emotions. The jury is made up of real people who live real lives. Create the
opening statement to sound like a story. If the case is something that the jury can relate to, they will
remember and relate to the information shared by the attorney. A compelling opening statement will
provide the opportunity to tell a story and get the jury members personally involved.
3. Propose a theory. The jury will need to know what the attorney is going to prove. Give them
your side of the story. Explain what happened, what is going to be proven, and why no other
explanation could possibly be credible.
4. Present evidence and witnesses. Give a brief introduction of what the jury can expect in terms of
witnesses, testimony and evidence. Explain how those witnesses and the evidence will support your
theory of the case.
5. Keep a relaxed style. An opening statement should be conversational and authoritative. Do not
be argumentative or combative at this point. Maintain a professional demeanor that will help the
jury trust you and what you say.
6. Conclude with a major point. The last thing you say should be memorable and important. Use a
punch line repetitively, repeat the theme, and tell the jury what you expect from them.
11
TORTS – Compiled by Butucel Lia, univeity lecturer, Moldova State University
7. Practice the opening statement. Run through the opening statement in front of colleagues or a
mirror. Make adjustments to style and presentation.
# Sample Opening Statement
“Your Honour, members of the jury, my name is ________________________________ and I am
representing _____________________ (crown or defendant) in this case.
# I intend to prove (charge or defense) ________________________________________...
# These are the facts of the case:
-provide background information / overview of the topic / issue (dates, key people, impact on
society)
-give perspective to the side that you are arguing that may appeal to the audience (“Imagine…”)
-state effects of the issue on history (social, political, economic, military)
-state the main arguments that you will be presenting
-offer some challenges / questions to the opposition
# Today you will be presented with evidence and will hear testimony from my witness,
__________________ which will leave no doubt in your mind of the _________________(guilt /
innocence) of the defendant.
# Please find the defendant, _________________________________ (guilty / not guilty).”
12
TORTS – Compiled by Butucel Lia, univeity lecturer, Moldova State University
