Lonang Principles of Torts

I. WHAT IS A TORT?

A.     INTRODUCTION.

B.     Harm (What is the nature of the injury?)

    Definition: A tort is an act by an individual which unlawfully injures the person, or damages the property, of another. That is, Defendant must commit a sin which man has jurisdiction to punish.
    THESIS: Unlawful conduct must be defined objectively (according to biblical standards).
    1.     Injuries are of two kinds:
      a.     Injuries to persons. (Assault, battery, false imprisonment).
      b.     Damages to property. (Theft, trespass, nuisance).
    2.     The nature of the wrong (unlawfulness). Three views of fault: Supp 186.
      a.     A positive act done without lawful authority.
      b.     An act done with wrongful intent (specific intent torts)
      c.     A breach of a lawful duty. (Negligence). Supp 192.
    3.     What latitude do public officials have to define tortious conduct?
      a.     Subjective standard (what does the victim/actor think?). (Generally rejected).
      b.     Reasonable Person Standard.
        1)     Battery: “harmful or offensive contact” – objective?
          - See, Deut. 25:11-12 for definition of “offensive.”
        2)     Intentional infliction of emotional distress: “extreme and outrageous conduct” which “transcends all bounds of decency.” However, decent conduct may become actionable if continuous, directed at certain plaintiff’s, or committed by certain Defendant’s. Is this a truly objective standard?
        3)     Standard is external to the actor, but is it objective? Merely substitutes an opinion poll for individual belief. A factual, or a legal, test?
      c.     Laws of nature and nature’s God – the only truly objective standard. – Does God’s law authorize Defendant to act in this way?
    4.     Negligence – Duty.
      a.     Basic standard of care. The care exercised by a reasonable and ordinarily prudent person, measured by an objective standard.

II. THE STANDARD OF FAULT

A.     INTRODUCTION. THESIS: Without a finding of fault, no liability can be imposed.

B.     Systemic v. Individual fault

    1.     God and His Creation
      a.     Who was at fault in Gen. 3? Man, Satan, or the apple? Man and woman both tried to shift the blame – vv. 12-13.
      b.     God’s testimony: The system was very good. See, Gen. 1:31 – God made no mistakes.
      c.     Man’s solutions
        1)     Environmental – Destroy the world system (“no-fault”)
        2)     Genetic/sociobiologist – Destroy man (“no image of God”) – sterilization of imbeciles. But, God chose to save the world and man, not destroy them. See, John 3:16; Rom. 8:18-21.
    2.     Man and his creation
      a.     Man is a mini-creator: he can govern his creations. Gen. 1:28.
      b.     Solution to governing
        1)     Identify wrongdoer – somebody had to sin. See, Rom. 13:3-4.
        2)     Identify injured – who has standing (legal right) to bring a claim?
        3)     Stick to individual instances
      c.     Man has no authority to do wholesale justice. Some jurisdiction to redress wrongs is reserved by God, e.g., there is no human jurisdiction over a person’s sin nature.
        1)     Remedy requires:
          a)     Individual wrong
          b)     Individual injury
        2)     Legislatures cannot pass remedial statutes – essentially an assessment of fault without a trial.
          - a judicial function
        3)     Today’s generation is not responsible for yesterday’s sin. Ezek. 18:20.
    3.     Conditions, Causes & Coincidences
      a.     Condition: A normal, given state of the world
        1)     Both God and man may create conditions
        2)     A condition is never a cause – i.e., the tree in Eden.
        3)     Ex. 20:5 speaks to conditions, not causes.
      b.     Cause: An interruption of the world’s condition (Fault requires Cause).
        1)     Man as a mini-creator
        2)     Responsibility for conforming to God’s order
        3)     Science cannot distinguish causes and conditions
      c.     Coincidence: An abnormal event beyond man’s jurisdiction
        1)     i.e. an Act of God, e.g., Jer. 51:15-16 (weather) – God’s jurisdiction.
        2)     Determined by derivation and frequency
        3)     The “act of God” defense: Where God is responsible, man is excused
    4.     How to remedy fault?
      a.     A system can be faulty, but not God’s system
      b.     How to test the fault of a system:
        1)     Compliance with God’s order?
        2)     Who has jurisdiction to correct?
        3)     What is the right remedy?
      c.     God’s pattern is to remedy wrongs on an individual basis
        1)     Gen. 18:23.
        2)     Ezek 18:20
        3)     Dt 24:16
        4)     Man is to follow God’s pattern

III. INTENTIONAL TORTS

A.     INTRODUCTION.

B.     Biblical view

    1.     Battery – Deut. 25:11-12, Lev. 24:19-20.
    2.     Trespass to chattels – Lev. 24:18
    3.     Negligence – Ex 21:33-36; 22:6,7-13,14-15. (Deut 22:8?)
    4.     Conversion – Ex 22:1.
    5.     Theft – Ex 22:3-4.
    6.     Trespass – Ex 22:5.

C.     Historic view.

D.     Modern view.

    1.     Prima facie cases.
      a.     Battery: Harmful or offensive contact to P’s person or anything connected with P’s person. General intent, nominal damages.
      b.     Assault: Reasonable apprehension or expectation of an immediate battery. General intent, nominal damages.
      c.     False Imprisonment: An act sufficient to confine or restrain P (by barriers, force, direct or indirect threats or a false arrest made without a warrant unlawfully) to a bounded area with no reasonable means of escape in any direction. General intent, nominal damages.
      d.     Intentional Infliction of Emotional Distress: An act of extreme and outrageous conduct causing severe emotional distress. Specific intent or reckless disregard is required, as well as actual (but not necessarily physical) damages.
      e.     Trespass to Land: An actual invasion of real property (above, below or surface thereof) by a physical object. General intent, nominal damages.
      f.     Trespass to Chattels: Partial interference with P’s right of possession of personal property or intangible property reduced to document form. General intent, actual damages req’d.
      g.     Conversion: Substantial interference with P s right of possession of personal property or intangible property reduced to document form. Requires payment of full FMV at time of conversion.

IV. DEFAMATION AND PRIVACY

A.     INTRODUCTION.

II. Modern view.

    A.     Defamation.
      1.     Prima facie case
        a.     Defamatory language (a false statement of fact, not opinion) tending to harm reputation of any living person. If extrinsic facts are required to show this, prove by inducement and innuendo.
        b.     Of or concerning the plaintiff as understood by a reasonable listener or viewer. If extrinsic facts are required to show this, prove by colloquium.
        c.     Publication to a third person who understood it, either intentionally or negligently. Each repetition of a defamatory statement is a separate publication.
        d.     Damage to P’s reputation. Damages are presumed for all libels and slanders per se. Slander per se includes: 1) business or professional ability; 2) loathsome disease (VD, leprosy & AIDS); 3) crime of moral turpitude; or 4) woman’s unchastity. Special damages req’d for other slanders.
        If 1st Amend. is at issue:
        e.     Falsity of the defamatory statement, and
        f.     Fault on D’s part.
          (1)     Malice (knowledge of falsity or reckless disregard for truth or falsity) required by clear and convincing proof if P is a public official.
          (2)     Malice is req’d if P is a public figure, either due to pervasive fame or notoriety for all purposes, or to voluntary injection in a public controversy for narrow purposes.
          (3)     Negligence is req’d if P is a private person and the defamation concerns a matter of public concern.
          (4)     Damages limited to actual injury where only negligence is found. Presumed damages available if malice exists.
    B. Invasion of privacy
      1.     Misappropriation: Unauthorized use of P’s name or likeness for D’s commercial advantage in promoting or advertising the sale of goods or services. Prove proximate causation, damages presumed.
      2.     Intrusion: 1) the act of prying or intruding upon P’s affairs or seclusion; 2) which would be objectionable to a reasonable person; 3) as to something which is private. Prove proximate causation, damages presumed.
      3.     False light: 1) publicity or broad disclosure of facts placing P in a false light; 2) objectionable to a reasonable person; and 3) malice (only if the matter is in the “public interest”). Prove proximate causation, damages presumed.
      4.     Private facts: 1) publication of true private facts about P; 2) a reasonable person of ordinary sensibilities would object to being made public. Prove proximate causation, damages presumed.

V. NEGLIGENCE – DUTY AND PRIVITY

A.     INTRODUCTION. The modern law of negligence was unheard of in Blackstone’s time. Thus, his treatment of the subject, to the modern mind, seems not only brief, but strange. For he spends only a very few pages decribing negligence as a “class of contracts, implied by reason and construction of law.” He then frames the general basis for actionable negligence on the supposition that “every one who undertakes any office, employment, trust, or duty, contracts
with those who employ or intrust him, to perform it with integrity, diligence, and skill.” We may well ask, Why does Blackstone treat negligence solely as a specie of contract?

    The answer is fairly simple, if we focus on the nature of the duties enforced under negligence law. The historic understanding of negligence was based on the existence of: 1) a duty owed by one person to another; 2) the legal enforceability of that duty; and 3) a breach of duty by the person who owed it. While this is basically in accord with modern conceptions, there was one significant point of
    departure, historically: An actionable duty can arise solely by reason of: 1) direct imposition by God; or 2) being voluntary assumed via contract.

B.     Historic view. Why should this be the touchstone of when an actionable duty is recognized? Because no one has the right, or the authority, to impose a duty upon another without his consent. Now, this does not preclude the imposition of duties (to a limited extent) by legislative enactment, but the history of the law of torts is not a history of legislation. Rather, it is a history of judicial decisions purporting, implicitly or explicitly, to discover those duties which preexisted the
dispute at issue. There were two primary reasons for this. First, judges aren’t supposed to make new laws of their own initiative. This rule, while historically accepted and mandated by the law of nature, has of course been largely abandoned in modern jurisprudence.

    Second, whatever duty has been allegedly breached must have existed at the time the dispute arose, not merely at the time of trial. In other words, judges understood that when declaring a new rule of law, their decisions had only prospective effect and could not be retroactive (or else their decision would be regarded as an ex post facto law). On the other hand, a decision would have retroactive effect if it were merely declaratory of a preexisting legal duty. Thus, judges who
    were inclined to advance the law of negligence by expanding the duties to which people were bound, including the defendant presently before them, generally felt obliged, at least to some extent, to posture their opinion as merely declaratory of some preexisting principle, even though the rule of the case was clearly never before heard of.
    In a very real sense, the history of the law of torts is a study in how judges, by gradual steps and degrees, have attempted to release their decisions from the constraints imposed on them by the nature of judicial power. Rather than limiting their decisions to enforcing duties imposed by God or voluntarily assumed by contract, they have concocted a host of new duties designed to accomplish their social agenda.
    1.     God imposed (via LONANG).
      a.     Enumerated.
        1)     Individual – No duty to others except as governed by love. Rom. 13:8?
        2)     Family relationships.
          a)     Family relationships are governed by love, but not exclusively.
          b)     Some aspects of family relationship impose a legal duty. Define.
        3)     Church body – No duty to others except as governed by love.
        4)     Civil government – Public duties are subject only to criminal sanction, not tort remedy.
        5)     Voluntary associations (including professional relationships, innkeepers and common carriers, etc) – since they are man created, not God created, do not fall within the class of “God imposed duties,” but of duties voluntarily assumed via contract.
      b.     Caveats.
        1)     But love, is a duty owed directly to God, and only indirectly to others. Consequently, any duty governed by love is not a legally enforceable duty, but is merely moral. That is, God has reserved for Himself the jurisdiction to enforce all duties of love – it is not a matter within the civil jurisdiction either as to crimes or as to torts.
        2)     Further, it is a fundamental rule of authority that responsibility for discharging a duty runs to, and the ability to enforce a duty resides in, the person from whom it is derived, unless it has been expressly delegated to another. Thus, any duty imposed by God necessarily must be enforced exclusively by God, unless it the authority of enforcement has been expressly declared in scripture (the law of nature by itself not being capable of making any “express” delegations of
        authority). Thus, anyone claiming the authority to enforce duties imposed by God has to prove their case from the Bible. It is no wonder that Blackstone, in discussing negligence, entirely disregards duties imposed by God and limits his remarks to contract issues. As far as civil law is concerned, duties imposed by God cannot be enforced.
        3)     On these two grounds then, as to moral jurisdiction and enforcement authority, the whole subject of negligence, from a LONANG perspective, reduces to the question of what duties a defendant has voluntarily assumed by way of a contract.
    2.     Voluntarily assumed via contract.
      a.     Contract as the basis for voluntarily assumed duty.
        1)     Actual contract (otherwise legally enforceable).
        2)     Scope and nature of duties limited to the express terms of the contract.
        3)     Enforceability of duties limited to parties to the contract.
      b.     Nature and number of duties voluntarily assumed via contract would naturally be very few and limited in scope. The whole thrust of tort law in the last 150 years has been to expand the situations giving rise to liability on the part of defendants, primarily by expanding the duties to which people are bound, and in particular, to impose duties and liability where they have not been voluntarily assumed.
    3.     Particular standards of care.
      a.     Owners/occupiers of land. Historic distinction between tresspassers, licensees and invitees – how to understand?
        1)     No duty owed to anyone with respect to conditions, because a condition is never a cause, and fault (liability) requires cause.
        2)     Duty to those on premises with respect to the owner’s activities is not dependent on a person’s status (that would be a respecter of persons), but is dependent upon legal relationship.
        3)     Trespassers. No legal relationship exists between owner-occupier and a trespasser, nor has one been voluntarily assumed. Thus, no duty is owed. Period.
        4)     Licensee (a guest of the owner-occupier for other than a commercial purpose). No God-imposed duty and none voluntarily assumed via an enforceable contract. Although licensee has permission to be on premises, the relationship (being non-commercial) is governed exclusively by the law of love. Thus, no civil jurisdiction to enforce merely moral duty which accompanies permission to enter land.
        5)     Invitee (a person whose presence serves a commercial purpose of the owner-occupier). An invitee, by definition, is someone whose relationship with the owner-occupier is not governed exclusively by the law of love, but indeed, is there in furtherance of some business (and therefore a contractual) purpose. Some minimal duties may be implied from the existence of a contract; further, only commercial relationships are civilly enforceable.
      b.     Children.
        1)     Below the age of majority, contractual obligations cannot be enforced against children. Thus, minors cannot be held liable for any duties voluntarily assumed.
        2)     Are there any God-imposed legal duties on children toward others? Probably not.
      c.     Common carriers and innkeepers. A predisposition, historically, towards finding liability. As Blackstone said,
      There is also in law always an implied contract with a common inn-keeper, to secure his guest’s goods in his inn; with a common carrier, or bargemaster, to be answerable for the goods he carries; with a common farrier, that he shoes a horse well, without laming him; with a common tailor, or other workman, that he performs his business in a workmanlike manner: in which if they fail, an action on the case lies to recover damages for such breach of their general
      undertaking. But if I employ a person to transact any of these concerns, whose common profession and business it is not, the law implies no such general undertaking; but, in order to charge him with damages, a special agreement is required.

      Also, if an inn-keeper, or other victualler, hangs out a sign and opens his house for travellers, it is an implied engagement to entertain all persons who travel that way; and upon this universal assumpsit an action on the case will lie against him for damages, if he without good reason refuses to admit a traveller.

        Why this predisposition? The intention was to find the existence of a contract, for if such was found, a better basis existed for the finding of a legal duty, than if a contract did not exist. By definition, hiring a common carrier or innkeeper involved the payment of money or other legal consideration, and a contract for services existed. But the real question is: What does the contract provide? Did innkeeper contracts historically provide that a guest’s goods would be secured?
        No. Thus, Blackstone resorts to an implied contract, simultaneous with but above and beyond the express contract, as a means of imposing the legal duty of securing goods. Yet, even as Blackstine acknowledges, without the implied contract, “a special agreement is required,” that is, as express contract by which a legal duty is voluntarily assumed.

C.     Modern view – Special Relationships.

D.     Modern view – Privity of Contract. Let’s examine the process of how tort law was removed (by gradual steps and degrees) from the LONANG principles:

    1.     Instead of an actual contract, an implied contract. Key: no voluntary assumption by the parties, but merely decreed by civil officials (judges, etc.).
    2.     Instead of express duties, merely implied duties. Blackstone comes in at this level.
    3.     Instead of actual parties, implied parties through the doctrine of “privity of contract.”
      a.     What about a “chain” of contracts? Do duties and obligations run between people who have not contracted with each other, but who have contracted with a common intermediary?
        1)     Not unless all intervening contracts so provide.
        2)     Or unless there has been an actual assignment with or without a novation.

McPherson – Discarded privity of contract requirement.

    4.     Particular standards of care.
      a.     Professionals must exercise the skill of a member of that profession in the same or similar localities. Specialists are held to a stricter standard.
      b.     Children are compared to children of like age, education, intelligence and experience. A subjective standard of care. No negligence for children under 4 years.
      c.     Common carriers and innkeepers must exercise a very high degree of care for patrons.
      d.     Automobile driver. Under guest statute, driver is liable only for gross or wanton and willful misconduct. Duty owed to common law guest (licensee) includes duty to warn of known defects and to exercise reasonable care. Duty to (paid) passenger includes duty to make reasonable inspections for dangerous conditions.
      e.     Owners/occupiers of land.
        1)     No duty owed to those off premises except for unreasonably dangerous artificial conditions.
        2)     Duty to those on premises with respect to the owner’s activities is one of reasonable care.
        3)     Duty to those on premises with respect to conditions is person dependent:
          a)     Undiscovered trespasser – no duty.
          b)     Discovered or anticipated trespasser – must warn about or make safe any unreasonably dangerous artificial conditions.
          c)     Infant trespasser – must exercise ordinary care to avoid reasonably foreseeable risk to children caused by artificial conditions. To recover, child must show: 1) dangerous condition existed owner knew of; 2) owner should know that children visited the area; 3) child was unable to appreciate the risk; and 4) expense of reedy was slight compared to the risk.
          d)     Licensee (one who enters land with owner’s permission for his own purpose, including social guests) – must warn of known dangerous conditions where risk of harm is likely and known.
          e)     Invitee (one who enters premises open to the public or is there for the owner’s commercial purpose) must warn of known dangerous conditions, plus make reasonable inspections and make conditions safe.
    5.     Statutory standards of care: If a statutory standard of care providing for a criminal penalty has been violated, D is guilty of negligent conduct per se.
      a.     P must be within the class protected by the statute.
      b.     The statute must be designed to prevent the type of harm suffered by P.
      c.     Statutory standard of conduct must be clearly defined.
      d.     Note: causation and damages must still be proved.
    6.     Negligent infliction of emotional distress: When D creates a foreseeable risk of physical injury through physical impact or the threat of impact within the “target zone.”
    7.     Affirmative duties to act. General presumption that no duty exists may be rebutted where there is a special relationship between P and D, such as: 1) assumption of duty by acting; 2) common carriers; or 3) places of public accommodation.

VI. NEGLIGENCE – FORESEEABILITY

A.     INTRODUCTION.

B.     Modern view.

    1.     Negligence – The standard of care.
      a.     Foreseeable plaintiffs. A duty of care is generally owed only to foreseeable P’s. In Palsgraf, judge Andrews’ view is that everyone is a foreseeable P. Under Cardozo’s view, a P is foreseeable if included in a foreseeable “zone of danger.”
    2.     Breach of duty. D’s conduct failed to meet the applicable standard of care.
      a.     Direct evidence: D’s act failed to meet the standard of care as established.
      b.     Res ipsa loquitur: Circumstantial evidence indicating that P’s injury: 1) would not have occurred unless someone was negligent; 2) it probably was this D; and 3) P was not negligent. The instrumentality that caused the injury was under D s sole control.
    3.     Causation.
      a.     Factual cause.
        1)     The injury would not have occurred but for D’s conduct.
        2)     Where several causes concur to bring about an injury, D’s conduct must have been a substantial factor in causing the injury.
        3)     When P cannot show which one of several D’s caused the injury, burden of proof shifts to D’s to sort out who caused the injury.
      b.     Proximate cause, or “legal cause.”
        1)     Direct cause exists whenever there is an uninterrupted chain of events from the time of D’s act to the time of P’s injury. All the direct consequences of D’s negligence are foreseeable.
        2)     Indirect cause exists whenever an intervening force combines with D’s act to produce P’s injury.
          a)     If the intervening force is foreseeable, D is liable. Foreseeable intervening causes include: 1) medical help; 2) rescue attempts; and 3) escape attempts.
          b)     If the intervening force is not foreseeable, D is not liable. Unforeseeable (superseding) causes include: 1) criminal acts; 2) intentional torts; 3) extraordinary negligence; and 4) acts of God.
    4.     Damages. Damages are not presumed, but must be actual and proven. The extent of damages to property or injuries to persons does not have to be foreseen.
    5.     Defenses.
      a.     Contributory negligence.
        1)     The standard of care is the same as for ordinary negligence.
        2)     At common law, contributory negligence completely barred recovery by P.
        3)     P may recover despite his own contributory negligence if D had the last clear chance to avoid the accident, but fails to do so.
        4)     Contributory negligence will be imputed to P only where it is proper to find P vicariously liable for another’s negligence.
      b.     Assumption of risk. To have assumed the risk, expressly or impliedly, P must have known of the risk and voluntarily proceeded in face of the risk. Reasonableness of P’s action is irrelevant. Assumption of the risk does not apply where: 1) risk is unavoidable; 2) in an emergency; 3) common carrier or public utility liability; 4) statutorily protected class; or 5) in comparative negligence jurisdictions.
      c.     Comparative negligence. P’s negligence will not bar recovery, but will simply reduce the amount of damages proportionately.
        1)     “Partial” comparative negligence: P’s negligence must be less than the negligence of all D’s for P to recover.
        2)     “Pure comparative negligence: P may recover no matter how great his own negligence may be.
        3)     Last clear chance doctrine does not apply.
        4)     Implied assumption of the risk does not apply, but express assumption of the risk does apply.

VII. STRICT LIABILITY

A.     INTRODUCTION.

B.     LONANG view.

    1.     “Strict liability #1″ which merely ignores the Defendant’s mental state in defining the wrong done.
      - It leaves open the question whether Defendant’s conduct was unauthorized or a breach of duty.
      - Thesis: All torts can be defined w/o re: to Defendant’s mental state, i.e., “fault” is not based on mental state (subjective test), but the nature of Defendant’s authority (objective test).
    2.     “Strict liability #2″ which assumes Defendant’s conduct was lawful, but for policy reasons, imposes liability anyway – much more insidious than #1 because “fault” is presumed irrelevant.
      - GM&L 50: Policy is to remove economic consequences of accidents.
      - “Deep pocket” theory.
    3.     Examples:
      a.     Dangerous animals – Ex 21:28-29.
      b.     Products liability – Standard of perfection demanded?
        - Is there a duty to act perfectly? Is it enforceable?
      c.     No-fault auto insurance – which assumption about liability?
    4.     God wants us to be perfect. Mat. 5:48.
      a.     God’s standard – a perfect heart. 2 Chr. 16:9.
      b.     God doesn’t demand a perfect life. Phil. 3:12; 1 Cor. 13:10.
      c.     Does a standard of strict liability demand a perfect life?
    One of the most foundational aspects of tort law is the concept of fault. The biblical fault concept is based on the idea that a person should not be legally liable for damages unless they are “blameworthy.” Not surprisingly, the concept of fault is under heavy attack today as our laws stray further and further from biblical norms. The attack on the concept of fault is evidenced in the following readings.
    There are essentially three views, or definitions, of fault. The first, which is implicated by modern definitions for each of the intentional torts, is wrongful intent, bad motive (scienter), and other terms referring to a state of mind. The second view of fault has to do with the breach of a duty, or negligence. There is a third kind of fault which is defined by the lawfulness of the action according to the laws of nature and nature’s God.
    Neither of the first two views, as modernly understood, is entirely consistent with biblical principles. Intent and motive, as discussed in the materials on Jurisdiction, are matters of the heart and mind. Consequently, wrongful intent is a matter which (to some extent) only God may ascertain or judge, since He has reserved at least partial jurisdiction over such things. Whether negligence is consistent with biblical principles depends, as discussed later, on whether the duty being enforced
    is a biblically recognized duty.
    Consider the tort of battery (an intended harmful or offensive contact of another person caused by defendant’s action). If a parent spanks a child, is it a battery? Does it depend on whose child is spanked? Is it a battery if a football player is tackled during a football game? Is it a battery if your neighbor punches you in the face? Would it make a difference if you were both professional boxers being paid to fight? Now, which definition of fault best answers these questions: wrongful
    intent, breach of duty, or unlawful action?
    To most modern legal writers, fault means either wrongful intent, breach of duty, or both. The term “strict liability” means liability without fault, or more accurately, liability irrespective of fault. That is, strict liability doesn’t hold someone responsible because they have no “fault,” but holds them responsible whether they are at fault or not (fault is irrelevant). Remember, though, strict liability generally refers only to the irrelevance of wrongful intent or breach
    of duty. The idea of unlawful action is often modernly referred to as “absolute liability,” which many commentators view as a theory of tort liability not based on fault (because “unlawful action” isn’t based on intent or negligence).
    In the next reading, notice what the author’s thesis is: old tort law was based on trespass, which was merely a form of absolute liability (fault was implied, but did not actually exist) by a different name. The author then claims that absolute fault was eventually replaced by negligence, which most recently has again been replaced by strict liability (again, fault does not actually exist). In other words, the author is claiming that the concept of fault was briefly introduced into the law 100
    or so years ago, but that the true historical foundation of tort law is based on one form of liability without actual fault and that the law has now returned to that historical foundation.
    What the author fails to notice, however, is that old tort law was very much based on fault, it’s just that fault was defined on the basis of unlawful action, not intent or negligence. He also fails to mention that whereas the old definition of unlawful action was based on the laws of nature and nature’s God, the modern concept of strict liability is based solely on public policy. Therefore, modern liability theory has divorced itself from any idea of morality or the rightness or wrongness of
    action.

C. Strict Liability

    1.     Prima facie case: 1) the existence of an absolute duty to make safe; 2) breach of that duty; 3) actual and proximate causation; and 4) damages.
    2.     Animals.
      a.     Owner is strictly liable for trespass of his animals to the extent damages are reasonably foreseeable.
      b.     Owner is strictly liable for injuries sustained by licensees and invitees respecting: 1) inherently dangerous animals; or 2) tamed animals actually known to have vicious propensities.
      c.     Owner is not strictly liable to trespassers, although known trespassers may recover for owner’s negligence.
    3.     Ultrahazardous activity.
      a.     An activity is ultrahazardous (abnormally dangerous) if it: 1) involves a substantial risk of serious harm; 2) cannot be performed with complete safety regardless of the care exercised; and 3) is not a commonly engaged-in activity.
    4.     Defenses. “Knowing” contributory negligence and assumption of the risk are good defenses. Unknowing contributory negligence is not a good defense.

VIII. PRODUCT LIABILITY

A.     INTRODUCTION.

B. Products liability.

    1.     Defect. Products liability refers to the liability of a supplier of a defective product to one injured by the product. To find liability under any products liability theory, plaintiff must show a defect.
      a.     Manufacturing Defects. If a product emerges from manufacturing different and more dangerous than the products made properly, it has a manufacturing defect.
      b.     Design Defects. When all products of a line are the same but have dangerous propensities, they may be found to have a design defect. Defendant will be liable if plaintiff can show either (i) that the product failed to perform as safely as an ordinary consumer would expect (defendant must anticipate reasonable misuse); or (ii) that the defendant could have made the product safe without serious impact on the product’s price or utility.
      c.     Failure to Warn. A product may be defective as a result of the manufacturers failure to give adequate warnings as to the risks involved in using the product. For liability to attach, the danger must not be apparent to users.
    2.     Negligence.
      a.     Duty of Care. A duty of care is owed to any foreseeable plaintiff. Privity with the defendant is no longer required, so any foreseeable plaintiff can sue.
      b.     Breach of Duty. Breach of duty is shown by (i) negligent conduct of defendant (ii) leading to the supplying of a defective product.
      c.     Causation. Intermediary’s negligent failure to discover defect does not supersede original manufacturer’s negligence unless intermediary’s conduct exceeds ordinary foreseeable negligence.
      d.     Damages. Physical injury or property damage must be shown (economic loss alone is generally insufficient).
      e.     Defenses. The defenses are the same as in a general negligence action.
    3.     Strict liability
      a.     Duty. Defendant has a duty to supply safe products. Users, consumers, and bystanders can sue. For liability to attach, the product must reach plaintiff without substantial alteration. Strict products liability applies only to products. Any commercial supplier can be held liable. Casual sellers will not be held strictly liable.
      b.     Breach of Duty. For breach of duty, plaintiff must show that the product is defective (as defined above). The defect must make the product unreasonably dangerous.
      c.     Causation. For actual cause, plaintiff must show defect existed when product left defendant’s control. Proximate cause is the same as in negligence cases.
      d.     Damages. Same as those recoverable in negligence actions.
      e.     Defenses. Ordinary contributory negligence is no defense. Assumption of the risk is a defense. In a minority of comparative negligence states, courts will allow any type of fault on plaintiff’s part to reduce his recovery.
      f.     Disclaimers. Disclaimers are irrelevant in negligence or strict liability for personal injury or property damage.
    4.     Implied Warranties
      There are two warranties implied in every sale of goods that can serve as the basis for a suit by a buyer against a seller: (i) Merchantability, which refers to whether the goods are of average acceptable quality and are generally fit for the ordinary purpose for which goods are used; and (ii) Fitness for a particular purpose, which arises when the seller knows or has reason to know the particular purpose for which the goods are required and the buyer is relying on the sellers skill and
      judgment in selecting the goods.
      a.     Breach. If the product fails to live up to either of the above standards, the warranty is breached and the defendant will be liable. Plaintiff does not have to prove any fault on the part of defendant.
      b.     Causation and Damages. Actual cause, proximate cause, and damages are handled as in negligence cases–except purely economic loss is recoverable.
      c.     Defenses. Defenses include assumption of risk and contributory negligence other than failure to discover or guard against the defect. Failure to give notice of breach is a defense under U.C.C.
      d.     Disclaimers. Disclaimers are generally rejected in personal injury cases but upheld for economic loss.
    5.     Express Warranties.
      a.     Express Warranty. Any affirmation of fact concerning goods that becomes part of the basis of the bargain creates an express warranty.
        1)     Breach. Fault need not be shown to establish breach. Plaintiff need only show that the product did not live up to its warranty.
        2)     Causation, Damages, and Defenses are treated just as under implied warranties.
        3)     Disclaimers are effective only if consistent with warranty.
      b.     Misrepresentation of Fact. A seller will be liable for misrepresentations of facts concerning a product where: (i) The statement was of a material fact concerning quality or uses of goods; and (ii) The seller intended to induce reliance by the buyer in a particular transaction. Liability is usually based on strict liability but may also arise for intentional or negligent misrepresentations.
        1)     Justifiable reliance is required (i.e., representation was substantial factor in inducing purchase).
        2)     Causation and Damages. Actual cause is shown by reliance. Proximate cause and damages are same as for strict liability.
        3)     Defenses. Assumption of risk is not a defense if plaintiff entitled to rely on the representation. Contributory negligence is same as in strict liability, unless defendant committed intentional misrepresentation.

IX. MISCELLANEOUS TORTS

A.     INTRODUCTION.

B.     Other torts

    1.     Intentional misrepresentation (Note: no defenses)
      a.     misrepresentation of a material fact
      b.     scienter (malice)
      c.     intent to induce P’s reliance
      d.     causation (actual reliance)
      e.     justifiable reliance
      f.     actual pecuniary losses must be proved
    2.     Negligent misrepresentation
      a.     misrepresentation in business or professional capacity
      b.     breach of duty to the P
      c.     causation
      d.     justifiable reliance
      e.     actual pecuniary losses must be proved
    3.     Malicious prosecution
      a.     institution of criminal proceedings against P
      b.     termination favorable to P
      c.     absence of probable cause for prosecution
      d.     improper purpose of D
      e.     damages must be proved
    4.     Wrongful civil proceedings
      a.     same general rules as for malicious prosecution
      b.     however, absence of probable cause is tougher to show for civil actions
    5.     Abuse of process
      a.     wrongful use of process for ulterior purpose
      b.     definite act or threat to accomplish ulterior purpose
    6.     Private nuisance
      Private nuisance is a substantial, unreasonable interference with another private individual’s use or enjoyment of property that he actually possesses or to which he has a right of immediate possession.
    7.     Public nuisance
      Public nuisance is an act that unreasonably interferes with health, safety, or property rights of community, e.g., using a building for criminal activities such as prostitution. Recovery by a private party is available for public nuisance only if private party suffered unique damage not suffered by public at large.

X. VICARIOUS AND JOINT LIABILITY

A.     INTRODUCTION.

B. General considerations

    1.     Vicarious liability.
      a.     Respondeat Superior. A master/employer will be vicariously liable for tortious acts committed by her servant/employee within the scope of employment. Intentional tortious conduct is not within the scope of employment unless the servant is furthering business of master.
      b.     Independent Contractor. A principal will not be liable for tortious acts of an agent if the latter is an independent contractor, unless: i) The contractor is engaged in ultrahazardous activities; or ii) The principal’s duty is simply nondelegable.
      c.     Partners and Joint Venturers. Each member of a partnership or joint venture is liable for the tortious conduct of another member committed in the scope of the partnership or joint venture.
      d.     Automobile Owner. An automobile owner is not vicariously liable for the tortious conduct of another person driving his automobile, except where provided otherwise by statute.
      e.     Parent for Child. A parent is not vicariously liable for the tortious conduct of the child at common law. However, many states make parents liable for the willful and intentional torts of their minor children up to a certain dollar amount.
      f.     Tavernkeepers. No liability was imposed on vendors of intoxicating beverages for injuries resulting from the vendees intoxication at common law. Many states, in order to avoid this common law rule, have enacted Dramshop Acts.
    2.     Multiple defendants.
      a.     Joint and Several Liability. Where two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable. If injury is divisible, each defendant is only liable for the identifiable portion.
      b.     Satisfaction and Release. Recovery of full payment is a satisfaction. Only one satisfaction is allowed. Until there is satisfaction, however, one may proceed against all jointly liable parties. At common law, a release of one joint tortfeasor was a release of all joint tortfeasors. A majority of states now provide that a release of one tortfeasor does not discharge other tortfeasors unless expressly provided in the release agreement.
      c.     Contribution and Indemnity. Generally, for contribution to apply, both defendants must have a measurable degree of culpability for the tort. Indemnity usually applies when one of the parties is much more responsible than the other.
        1)     Contribution allows a defendant who pays more than his share of damages to have a claim against other jointly liable parties for the excess. Traditional Rule Apportionment is in equal shares regardless of degrees of fault. In states with a comparative contribution system, contribution is imposed in proportion to the relative fault of the various defendants.
        2)     Indemnity shifts the entire loss between or among tortfeasors. Indemnity is available in the following circumstances: (i) by contract, (ii) vicarious liability situations, (iii) under strict products liability, and (iv) in some jurisdictions, where there is an identifiable difference in degree of fault.
        3)     Comparative Contribution. Comparative negligence states have adopted a comparative contribution system where contribution is in proportion to the relative fault of the various defendants. This approach also supplants indemnification rules based on identifiable differences in degree of fault.

XI. DEFENSES AND IMMUNITIES

A.     INTRODUCTION.

    1.     Defenses to intentional torts.
      a.     Consent: Consent may be either expressed or implied by what a reasonable person would infer from P’s conduct. P must have capacity to consent (not a child, drunk or incompetent). If D acts substantially beyond the scope of the consent his defense is waived.
      b.     Defense of persons: When D has reasonable grounds to believe he is being or is about to be attacked, he may use such force as is reasonably necessary to protect against the potential injury. One may use force to defend another person only when: (majority view) the other could have used force to protect himself; or (modern view) he reasonably believes the other could have used force.
      c.     Defense of property: One may use reasonable force to prevent the commission of a tort against his property. This defense yields to valid claims of necessity by the other party.
      d.     Necessity: One may interfere with another’s property where reasonably necessary to avoid threatened injury which is more serious than the property invasion. Unless a public necessity is involved, the actor will be liable for actual damages to the property.
    2.     Privileges & defenses (defamation).
      a.     Consent: Consent may be either expressed or implied by what a reasonable person would infer from P’s conduct. P must have capacity to consent (not a child, drunk or incompetent). If D acts substantially beyond the scope of the consent his defense
      b.     Truth: A complete defense in cases of purely private concern only.
      c.     Absolute privilege: 1) judicial proceedings; 2) legislative proceedings; 3) executive proceedings if reasonably related; 4) compelled broadcasts; and 5) spousal communications.
      d.     Qualified privilege: 1) reporting public proceedings, or 2) statement’s to defend one’s actions. Provided, scope of privilege is not exceeded and there is no malice.
    3.     Defenses (invasion of privacy)
      a.     Consent; and
      b.     absolute and qualified privileges (for false light and private facts cases only).
    4.     Immunities.
      a.     Intra-Family Tort Immunities. Under traditional view, one member of family unit could not sue another in tort for personal injury. Most states have abolished husband-wife immunity. Parent- child immunity remains the majority rule. However, tort immunity is waived to the extent that there is insurance coverage.
      b.     Governmental Tort Immunity
        1)     Federal Government. Under the Federal Tort Claims Act, the United states has waived immunity for tortious acts. However, immunity will still attach for (i) assault, (ii) battery, (iii) false imprisonment, (iv) false arrest, (v) malicious prosecution, (vi) abuse of process, (vii) libel and slander, (viii) misrepresentation and deceit, and (ix) interference with contract rights. Immunity is not waived for acts that are characterized as discretionary, as distinguished from those acts termed ministerial.
        2)     State and Local Governments. Most states have substantially waived their immunity to the same extent as the federal government. Courts limit application of sovereign immunity by not granting it for proprietary functions.
        3)     Public Officers. Public officers carrying out official duties are immune from tort liability for discretionary acts done without malice or improper purpose. Liability attaches, however, for ministerial acts.

XII. DAMAGES

A.     INTRODUCTION.

B.     Restitution (What is the appropriate remedy?)

    THESIS: Some wrongs have no remedy (only God will redress all wrongs).
    1.     The common law requirement of actual damages.
      a.     Valuation problems
        1)     Consortium
        2)     Pain and Suffering
        3)     Emotional distress (unless actual medical expenses incurred).
      b.     Not a denial of the existence of the injury, but an inquiry whether all injuries are compensable.
      c.     Assumption: Factual inability to valuate betrays a legal lack of jurisdiction. Some things must be left to God.
    2.     Modern view: escape from the common law.
      a.     Goal: expand remedies beyond common-law forms.
      b.     Favoring the victim (compensation of injuries) isn’t simply compassionate – it increases state power over all people to compel risk-sharing even when there is no “fault.”
      c.     A question of jurisdiction: does man have either the ability or the authority to spread the risk of all injuries among all the people (to do “perfect justice”)?
    3.     Biblical remedies for tort offenses:
      a.     Whipping (unspecified tort) – Deut. 25:1-3. Also see, Ex. 21:20-21.
      b.     Cut off hand (specified battery) – Deut. 25:11-12.
      c.     Lex talionis – Lev. 24:18-21; Ex 21:23-25.
      d.     Compensation (actual damages) – Ex 21:33-36.
      e.     Lost wages – Ex 21:18-19.
      f.     Penalty/fine – Ex 21:22.
      g.     Release of slaves – Ex. 21:26-27.
      h.     Double damages (theft) – Ex. 22:4,7,9
      i.     Quadruple or quintuple damages – Ex. 22:1
        - Rationale: pain and suffering? Probably not.