TORTS: The Issue of Private Wrongs

Because the victims were soon forgotten in the king's system, they turned back to the local courts, filing cases against offenders who had caused them a harm. These actions were first known as trespass; later torts: "A complex machine for shifting human losses from one who sustained loss to someone else."

At first, there were three varieties of trespass:

1) Trespass with force of arms against the person:

Assault: Acts placing plaintiff in reasonable apprehension of an imminent battery taking place. Words are never enough but may be with some action. There must be present apparent ability of defendant in plaintiffs perception to carry out the threat.

Battery: Intentional touching of the person of another in a rude, in­solent or angry manner. "Person" includes things attached to him at the time, and the touching can be by an agency set in motion.

False imprisonment: plaintiff must be aware that he is not free to move about at will as a result of the acts of defendant. Confinement must be total and without freely given consent.

(2) Trespass against the personal, private property of another by carrying away theft (exerting unauthorized control over property of an­other with intent to deprive the owner of the use and enjoyment) and

(3) Trespass against real estate; breaking the close. In burglary an historic statutory element is "breaking and entering".

All three trespasses require proof of a specific intent to do the act which caused the harm; that is, that the act of the defendant was voli­tional as opposed to a reflex. But it was not necessary to prove that a harm was intended or that harm even resulted. Trespass began in strict liability, at the opposite end of Criminal Law!

But the original law was insufficient. Defendant throws a log to­wards the road, hitting plaintiff who is walking past. Plaintiff, being harmed, has an action in trespass against defendant, because he was di­rectly touched by the agency set in motion by defendant. But what if, instead of hitting plaintiff, the limb lays in the highway and plaintiff, in the dark, stumbles over it and is injured. What then?

Local courts developed actions on the case. Trespass became the action for direct and immediate harm without actual damages. Actions on case were for consequential or indirect harm where actual damages did have to be proven.

But in actions on the case you also had to prove a fault that the de­fendant did the act with some mental culpability, but not necessarily with mens rea. Gradually fault became the doing of an act negligently, recklessly, or intentionally.

Negligence means to do an act, which a reasonably prudent person would, in same or similar circumstances, not do, or to refrain from do­ing an act, which a reasonably prudent person would do. You were held to a mythical community standard of conduct. The community, in the form of the jury, determined its standards case by case.

Reckless means doing an act with a heedless disregard for the safety of others, where the actor knows, or has every reason to know, that a very high risk of harm is being created.

Intentional means the act was done knowingly and volitionally, but the result of the act may not have been intended or even foreseeable.

These definitions are, for all practical purposes, the same when used in the Criminal Law, but in reverse order of importance. That is, intent is the most important question in Criminal Law, with negligence least; in tort, negligence is most important, with intent the least.

At first tort had a problem with liability for any negligent inaction. Eventually it developed the theory that since the tortfeasor is in the best position to reduce or eliminate the risks of his behavior, he may be held responsible for failing to do so provided that he had a duty to act.

The interest and power of the king in Criminal Law soon swallowed up the tort actions of assault, battery, false imprisonment, theft, bur­glary, arson, murder, mayhem, etc. Tort Law for a time lost its character of strict liability, except for trespass on real property. It later developed some strict liability in manufacture, possession or use of dangerous items (dynamite), stored water on the premises, etc.

Tort Law became the way to address a private wrong, while Crimi­nal Law addressed public wrongs. But the same acts could be a crime and a tort! Today, although not at first, a person might be sued at both Criminal Law and Tort Law for the exact same acts.

Tort Law asks: (1) Was there duty owed by the defendant to the plaintiff? (2) Was this duty breached? (3) Was the behavior negligent, reckless, intentional, or under strict conduct? (4) Did damage proximately result? (5) Is the proof sufficient to tip the scales of justice? (6) What compensation is proper?

Proximate cause means two things:

(1) Cause in fact: the plaintiffs injury wouldn't have occurred but for defendant's act;

(2) Legal cause: a reasonable relationship between act done and the risk created (foreseeability).

Tort is considered to have several purposes: (1) compensate people for wrongs suffered; (2) place the cost of compensation upon those who, in justice, ought to bear it; (3) prevent future loss and harm (gen­eral and specific deterrence); (4) vindicate the person wronged; and (5) to deter victims from making an individual retaliation for wrongs done.

The difference between crime and tort is seen in the matter of to whom the fault must be acknowledged: to the state (in Criminal Law) or a victim (in Tort Law). There is also a difference in the response of the law: punishment in Criminal Law and compensation to victim in Tort Law.

Many of the defenses at Criminal Law are available in such as self-defense, necessity, infancy, insanity. The difference is that you are working in the field of preponderance of the evidence rather than pre­sumption of innocence: tort liability is easier to prove and harder to de­fend against. What truly happens is that the jury tends to pragmatism as it looks at these defenses, both in crime and in tort.

The defense, which you most frequently encounter in Tort Law, is contributory negligence or comparative negligence. Under the former, the historical approach to torts, if I drove slowly through a red light while you sped through the green light, and we crashed, your negli­gence (speeding) would prevent you from recovery against my negli­gence (red light violation). The rule said that if there was any contribu­tory negligence, regardless of how slight, it prohibited recovery. In fact, juries probably weighted the degrees of negligence, and altered the damage award accordingly.

But, because of the question of fairness, the law in the U.S. is now almost totally comparative negligence: that is, the jury decides the per­centage of fault of each party, determines the damage due the plaintiff, and then judge applies a formula which reduces the damages by the percentage of contributing fault of the plaintiff.

Some other defenses in tort actions, which are really just variations on the contributory negligence concept, are: last clear chance; assump­tion of risk; abuse/misuse of product. The first would apply in our car collision: you, if driving reasonably, would have seen my driving slowly through the red light and stopped as you had the last clear chance to avoid the collision.

Assumption of risk says you knew there was a risk to your behavior and you chose to go ahead. If you are then hurt by the anticipated risk, there is no recovery. Abuse/misuse of product is a variation of this in product liability cases: you use the product in a way, in which it was not intended, then you cannot complain if the product fails and you are hurt.

And, of course, foreseeability, mentioned earlier, is a form of de­fense. Just keep in mind that in our system it is the jury, which is going to determine all of these issues. Hopefully they have some common sense, which they bring to the process.