Intentional Torts (1)
To hold someone liable (legally responsible to pay damages) in tort, several elements must be proven. We begin with causation and fault.
- I. Distinguish between two issues:
- A. CAUSATION – Did the defendant CAUSE the harm?
- 1. Factual Cause: Would the harm have happened “but for” the defendant?
- 2. Legal or Proximate Cause: Was the defendant an important, close, cause of the harm? Are there other causes that are so much more important that we should ignore this one?
- 3. Direct or indirect harm. An older way of asking the proximate cause questions.
- B. FAULT – Did the defendant do something wrong or was s/he entirely innocent?
- 1. Did the defendant INTEND to do the harmful action?
- a. Involuntary acts
- b. Mistakes/misses
- c. Children
- d. Sometimes INTENT defines the action: as Holmes said, "even a dog knows the difference between being kicked and being tripped over."
- 2. Did the defendant intend to harm (MOTIVE)?
- a. What if defendant intended to do something that the plaintiff thinks is bad, but defendant had no bad motive?
- Medical procedures,
- jokes,
- irrational defendants,
- children
- 3. Did the defendant act without the CARE that people are required to take when they might endanger others?
- This is the "negligence" issue to be discussed later in the course.
- II. Strict Liability: Anyone who is legally caused the harm is liable (i.e., don’t ask question I-B).
- A. Until about 150 years ago, this was the usual rule in tort, at least when the causation was “direct.”
- B. Today, liability usually requires fault of some variety and strict liability only applies in exceptional circumstances (such as unusually dangerous activities or some product failures).