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Tort Laws that Watch Over the Ordinary Citizen



Tort Laws that Watch Over the Ordinary Citizen

Table of Contents



Intentional Torts. 4

Battery. 4

Assault 6

Outrage or Intentional Inflection of Emotional Distress. 6

False Imprisonment 7

Trespass to Chattels. 7

Trespass to Land. 8

Conversion. 9

Tort of Negligence. 10

The duty of care. 12

Breach of duty of care. 12

Damage or Loss as a result of the breach of duty of care. 15








Tort Laws that Watch Over the Ordinary Citizen

The majority of legal cases in courts tend to be predicated on two theories, that is, breach of contract entailing a violation of an obligation assumed by an individual under an oral or written agreement and actions that are based on tort. As such, a tort can be referred to as a conduct that causes harm to other people or their property (Banfi, 2011). It is a private wrong against an individual for which the injured individual may recover damages, that is, monetary compensation by suing the tortfeasor or wrongdoer to recover damages to compensate for the loss incurred or harm caused. It is vital to note that a tort is different from crime and breach. Unlike a breach a breach of contract, a tort is not based on violation of an agreement or covenant; instead, it is based on violation of a duty to another individual (Stimmel, 2018).

On the other hand, while a tort is a wrong emanating from the violation of a private duty, a crime can be referred to as a wrong arising from a violation of a public duty. Nonetheless, a crime may also constitute a tort. For instance, assault is a tort, but is also a crime. Thus, an individual who is assaulted is capable of bringing criminal charges against the assailant while also suing the wrongdoer for damages pursuant to tort law. In a workplace example, a worker’s theft of his employer’s property that was under his care constitutes the crime of embezzlement and tort of conversion. There are three main types of tort, that is, intentional torts, negligence and strict liability. This research paper will explore intentional torts and negligent torts and evince how they are applicable in various situations and cases.

TYPES OF TORTS-Tort Laws that Watch Over the Ordinary Citizen

Torts can either be intentional torts, that is, performed purposefully or negligent torts that are caused by a lack of reasonable care. Two scenarios can illustrate the difference between intentional and negligent torts. First, if an individual is arguing with a neighbor and things escalate to the point whereby the neighbor throws a glass at the person and hits him on the shoulder, then the neighbor has committed an intentional tort (battery). Second, if an individual is arguing with a neighbor and things escalate to the point whereby the neighbor smashes a cup on the floor, and the impact of the crash causes glass shards to fly and lodge in the person’s eye, then the neighbor has committed a negligent tort (FindLaw, 2018).

Intentional Torts-Tort Laws that Watch Over the Ordinary Citizen

An intentional tort can be referred to as a civil wrong that takes place when the tortfeasor engages in an intentional conduct that results in injury or damage to another person (Geistfeld, 2018). It is vital to note that the intent element of these intentional torts is fulfilled when the wrongdoer acts with the desire to cause harmful consequences and is also significantly certain that such adverse consequences will follow. However, mere reckless demeanor otherwise known as willful and wanton demeanor does not constitute an intentional tort. As such, if an individual commits an intentional tort, then he or she intentionally violated a legal duty owed to the victim. There are seven conventional intentional tors recognized by various states. While four of these intentional torts are personal, the remaining three are property-related. The intentional personal torts are assault, battery, outrage (also referred to as intentional infliction of emotional distress) and false imprisonment. On the other hand, property-related intentional torts are trespass to chattels, trespass to land and conversion (Geistfeld, 2018).

Battery-Tort Laws that Watch Over the Ordinary Citizen

In the tort of battery, there is a requirement of an intentional infliction of an offensive or harmful touching of an individual. It is imperative to note that the touching does not need to be direct. As such, touching another person’s clothing or even an object that he or she is holding can qualify to be considered as battery. Also, when an individual sets in motion a process that eventually leads to touching qualifies to be battery. For instance, when a person sets up a bucket of water to pour on another person’s head when he or she walks into a room at a later time is tantamount to touching. While touching is normally associated with outside the body, touching that is inside the body also qualifies as battery. For instance, the act of giving someone a drink that is adulterated with a narcotic or a disgusting substance is contemplated to be touching.

When it comes to intent of battery, the requirements are more relaxed in legal suits. For example, knowing with substantial certainty that an individual would be offensively or harmfully touched is enough to be treated as battery. Intent is also fulfilled in the situation whereby the defendant intended only a near miss. The most prominent aspect of battery, when compared to negligent tort or tort of strict liability, is that there is no injury prerequisite. For instance, spitting a person’s face is unlikely to cause an injury. However, it still constitutes a battery. In a case whereby there is no injury, it could be impossible for the plaintiff to win any appreciable monetary award. Nonetheless, a claim can be made and vindicated, and since certain harmless touching tends to be reprehensible, for instance, spitting, a substantial award of punitive damaged may as well be justified (Geistfeld, 2018).

Given the numerous actions contemplated to be battery, it covers a wide range of conduct from inappropriate conduct to catastrophic conduct. For example, pulling someone’s hair is battery and so is bombing a place full of people. As such, the affirmative defense of consent is extremely vital to battery. The implication of this assertion is that consent can be expressed in words or implied by a past course of interaction or by circumstances. Thus, the defense of consent is what protects many professional acts and contact sports from legal suits related to injury from touching.

Assault-Tort Laws that Watch Over the Ordinary Citizen

The tort of assault may share similarities with battery, but it does not require touching of another person. In this regard, assault is described as the intentional formulation of an immediate apprehension of an offensive or harmful touching. This means that when a person makes another individual reckon or feel that he or she is about to be the recipient of a battery, he is committing assault. Just like battery, injury is not a prerequisite in the prima facie case involving assault. Moreover, similar to battery, the intent prerequisite is nonspecific. Otherwise, when a person intends to hit another individual, but ends up missing, the action qualifies as intent for the purpose of establishing battery in a case (Geistfeld, 2018).

Outrage or Intentional Inflection of Emotional Distress

Liability for the tort of outrage or intentional inflection of emotional distress is usually triggered by outrageous and extreme conduct and the reckless or intentional infliction of severe emotional distress. The vital point to note about outrage is that merely treating another person badly or insulting him or her does not constitute the tort of outrage. The conduct needs to be not only outrageous but also extreme. As such, name-calling and teasing cannot be brought in a court of law as outrage charges. However, when a person falsely tells another individual that a loved one is dead, then such a conduct is tantamount to outrage. In certain situations, an outrage claim may be successfully pursued in the workplace whereby an employer engages in a protracted campaign of harassment (Priel, 2011).

Even when it comes to emotional distress that the plaintiff experiences as a result of the defendant’s conduct or action, this distress must be severe. This prerequisite implies that making another person cry is not sufficient to constitute an outrage. Notwithstanding, reducing a person to prolonged hysterical sobbing or uncontrolled screaming would likely qualify as severe conduct. Based on this understanding, severity could be established through the proof of heart palpitations, wearing down teeth by chronic grinding, recurring night sweats and panic attacks in the long-term (Geistfeld, 2018).

False Imprisonment-Tort Laws that Watch Over the Ordinary Citizen

The intentional tort of false imprisonment is established through the proof of intentional confinement that is harmful to a person or experienced by a person to a bounded area. For instance, kidnapping constitutes a false imprisonment. However, an extremely succinct period of locking a person in a room is also contemplated as false imprisonment. Confinement that is actionable can be attained through threat of physical force, physical force or improper claim of legal authority (Priel, 2011). A good example is when an overzealous store security guard accrues liability for false imprisonment as a result of making inappropriate assertions of legal authority in detaining people who are suspected of shoplifting.

It is vital to note that no injury has to be inflicted or no harm done by the wrongdoer for the plaintiff to make a claim of false imprisonment. As such, a vital affirmative defense is consent that is given by people that keeps people and companies from facing false imprisonment charges. For instance, airlines cannot be charge for false imprisonment for making the passengers wait for the ding before they are allowed to get out of their seats. Another prominent affirmative defense is the lawful arrest privilege that enables the police and sometimes citizens to arrest criminal suspects.

Trespass to Chattels

Chattels can be referred to as items of tangible property that do not qualify as actual or real property. For instance, paper clips, horses, motor vehicles, helium balloons, and jewelry among others are all chattels. An action for trespass to chattels comes about when there is an intentional interference with the plaintiff’s chattel by intermeddling, use or dispossession. While trespass to land and trespass to chattels share similar prerequisites, the requirements for the latter are stricter than those of the former. Just the act of waving a limb over or touching real property is tantamount to trespass to land. The implication of this difference is that there has to be something that is more than damage when it comes to trespass to chattels such as actions that interfere with the plaintiff’s prerogatives in the chattel (Priel, 2011). Examples of such actions are damaging the item, stealing the item or destroying the item.

Trespass to Land-Tort Laws that Watch Over the Ordinary Citizen

The intentional tort of trespass to land is contemplated to be performed when an intentional physical invasion of an individual’s real property has occurred. Real property can be defined as land and any structures affixed or built to the land, as well as, the airspaces above the land to a reasonable distance and the subsurface below the land. Failure to remove something from the plaintiff’s land that the defendant is under obligation to remove is also tantamount to trespass to land (Robinette, 2018).

It is imperative to note that in order for a person to have a valid claim for trespass to land, no injury is required (Robinette, 2018). Even touching a physical portion of the land is not necessary.  A good example is whereby disgruntled neighbor decided to sue neighborhood children for playing a game of catch whereby a ball is thrown over a corner of his lot. In such as case, no compensatory damages would be given since there is no harm that required compensation. Moreover, punitive damages will also be unavailable since the children’s demeanor would not warrant such damages. Thus, the court would likely award nominal damages of only $1. In other words, such a case would be pointless to pursue from the perspective of the practical matter. However, this case is an ideal example of just how far the tort of trespass to land can sweep.

Another key aspect of trespass to land is how the intent prerequisite if comprehended. In this tort, the defendant does not need to have the exact intent to trespass. For instance, if the defendant intends only to walk on a public right-of-way, but ends up straying onto private property, the intent of placing one foot in front of the other is sufficient to be construed as cause of action. Just as other intentional torts, consent is also a defense when it comes to trespass to land (Robinette, 2018). Therefore, when the neighborhood children play trick-or-treat on private property, they will have a defense of implied consent when claims of trespass to land are brought against them.

Conversion-Tort Laws that Watch Over the Ordinary Citizen

The intentional tort of conversion can be described as an alternative cause of action for chattels. A conversion is effected by a person through the intentional exercise of control or dominion over a chattel that results in substantial interference with the plaintiff’s prerogatives to require the defendant to be forced to buy the property. Should a plaintiff seek to pursue conversion, he or she needs to render a heightened showing in comparison to trespass to chattels and prove that the defendant substantially interfered with the chattel so as to warrant a forced sale. As such, the main difference between conversion and trespass to chattels is the remedy. In the case of the tort of conversion, the court will order the defendant to make a payment to the plaintiff equivalent of the value of the chattel prior to the defendant interfering with it. This is a good example of what is referred to as a forced sale. The plaintiff is then allowed to deliver the chattel to the defendant or what is left of it. Otherwise, should the plaintiff seek to retain the chattel irrespective of its condition then the plaintiff ought to pursue a legal action for trespass to chattels rather than conversion. While the monetary recovery might end up being lower, the plaintiff gets to keep the object and not part ways with it (Robinette, 2018).

Tort of Negligence

When it comes to negligence, the main point of contention is who should bear the burden of loss that emanates from an injury-producing accident. Often, this involves a tragic event and negligence tries to make the best out of the situation by enabling the burden of the loss to be transferred from one party to another as deemed appropriate. Thus, the cause of action under the tort of negligence is about compensation rather than punishment. While it may be possible to acquire punitive damages as additional remedy in a negligence lawsuit, doing so requires the plaintiff to prove more than negligence. As such, awarding of punitive damages by courts requires proof that the defendant’s conduct was reckless, willful or wanton. However, at the most basic level, the cause of action for the tort of negligence is about trying to facilitate a less blameworthy individual to transfer the burden of misfortune on to a more blameworthy person.

According to ACCA (2018), negligence is a type of tort that came about as a result of the existence of certain damages or losses that occur between individuals that are not included in legally binding contracts between them and as a result, there is nothing for the aggrieved party to sue the other over. In Donoghue v Stevenson case, the House of Lords ruled that an individual should be allowed to sue another person who caused him or her damage or loss even in situations where by there is no contractual relationship between them (O’Sullivan, 2007). The plaintiff was given a bottle of ginger beer by a friend who bought it for her. However, after drinking half the contents of the beer, she realized that the bottle contained a decomposing snail and suffered nervous shock due to this discovery. Pursuant to contract law, the plaintiff could not sue the manufacturer since her friend is the one who bought the beer and as such, was party to the contract. Nonetheless, the House of Lords decided to formulate a novel principle of law that stated that every individual has a duty of care to their neighbor and this provision enabled Donoghue to sue the manufacturing company for damages successfully (O’Sullivan, 2007).

A classic hypothetical case that is normally utilized to evince how the tort of negligence works is one involving a road accident. Tom is involved in road accident whereby a car driven by Mike hits his car. As a result of this accident, Tom breaks his legs and is not able to walk for three months. The main question is can Tom sue Mike for damages? In the face of it, this case seems plausible and fair since it is Mike who hit Tom’s car while driving and caused him to lose vital motor abilities for more than two months. However, when one looks at the situation from Mike’s point of view, is it really fair for Tom to sue him just like that? Since accidents are quite prone on the roads, should people be allowed to sue each other for every accident that occurs, including meager accidents? If this was the situation then courts would be overwhelmed with cases from the accidents occurring each day. Fortunately, in order for a plaintiff to prove negligence and claim damages, he or she is required to prove certain elements to the court. These elements are:Tort Laws that Watch Over the Ordinary Citizen

  • The defendant has obligation of duty of care to the plaintiff, that is, the defendant had a reason to be careful.
  • The defendant breached that duty of care. In other words, the defendant was not careful.
  • The defendant’s conduct was an actual cause of the injuries incurred by the plaintiff, that is, without the conduct of the defendant, no injury would have occurred.
  • The defendant’s conduct or action was a proximate cause of the injuries incurred by the plaintiff. While this concept could be complicated, it means that the injuries incurred by the plaintiff are not so indirectly connected to the actions of the defendant that it is unfair to hold the defendant responsible for the injuries.
  • There was an injury to the plaintiff’s body or property. In this case, a property means something tangible.

It is vital to note that even if there is proof of negligence, the defendant may still have a defense that protects him or her from liability or decreases the amount of damages they are liable for.

The duty of care-Tort Laws that Watch Over the Ordinary Citizen

The duty of care was established in the Donoghue v Stevenson case. The court held that every individual owes a duty of care to their neighbor. The House of Lords further asserted that the term neighbor means people so directly and closely affected by the act of a person that he or she ought to have them in consideration as being so affected (O’Sullivan, 2007). This definition was still extremely wide, but cases such as Anns v Merton London Borough Council in 1977 and Caparo Industries plc v Dickman in 1990 imposed limitations on the definition through the introduction of “fairness” and “proximity” (ACCA, 2018). While fairness means that it is just, fair and reasonable for one person to owe another person the duty of care, proximity means that the parties need to be sufficiently close so that it is foreseeable reasonably that the negligence of one party would result in damage or loss to the other party. Thus, based on the hypothetical case of the road accident between Mike and Tom, Mike owes a duty of care to Mike and so do all road users.

Breach of duty of care-Tort Laws that Watch Over the Ordinary Citizen

In various cases, it is normally evident that a duty of care exists between the claimant and the defendant. However, the main issue is whether the actions or conduct of the defendant were sufficient to fulfill the duty. In order to determine this, the courts usually set the standard of care that ought to have been met. This standard entails the actions that the court contemplates that a “reasonable person” would have undertaken in the situation. If the court finds that the defendant failed to act reasonably based on their duty of care, then he or she is considered to have breached it. Nonetheless, this reasonable standard may be changed depending on the actual circumstances of the case. For instance, is the claimant or plaintiff is vulnerable such as being frail or disabled, the defendant is reasonably expected  to have taken extra care over them paid them special attention to them as compared to an individual who is healthy and fit. As ACCA (2018), there are other actions that may be taken into contemplation when it comes to breach of duty of care including whether:

  • There are certain social benefits to the defendant’s conduct. If these benefits exist, then the court may take it as inappropriate for the defendant to have been found to have breached the duty of
  • There were practical issues that made it difficult for reasonable precautions to be taken or unreasonable costs would have been incurred by taking reasonable precautions. If these issues exist, the court is not likely to expect the defendant to have taken them so as to fulfill the duty of care.
  • The conduct of the defendant is in line with industry recommendations or common practice. If this condition is fulfilled, then it is likely that the court will find the defendant to have met his or her duty of care unless the common practice is in itself found to be negligent.
  • The conduct of the defendant had a high probability of risk attached to them. If it did, then the court will expect the defendant to show that he or she took extra precautions to prevent the damage or loss from occurring.
  • The defendant is a professional undertaking different tasks in his or her profession. If this is the case, then the court will judge the defendant’s conduct against a reasonable professional in their line of work instead of just any ordinary individual. Moreover, if there are professional guidelines, then the court will judge the defendant’s conduct against the guidelines instead of its expectations (ACCA, 2018).

When these actions are applied to the accident case involving Tom and Mike, the court takes into account whether or not, given the circumstances, Mike drove as a reasonable individual would have to determine if he breached his duty of care or not. For instance, if the weather was extremely cloudy and it was also raining at the time, Mike would be expected to evince that he drove with caution.

Res Ipsa Loquitor-Tort Laws that Watch Over the Ordinary Citizen

There are extraordinary situations whereby the facts may be so overwhelmingly in favor of the plaintiff that the court offers the defendant the option of proving that they were not negligent. The legal term accorded to such situations is res ipsa loquitur which means that the facts speak for themselves. Res ipsa loquitur applies to situations whereby the cause of injury was under the control of the defendant, and as such, the incident would not have occurred if the defendant took proper care. Medical cases are permeated the res ipsa loquitur provision such as the Mahon v Osborne case in 1939 whereby a surgeon was tasked with the responsibility of proving that it was not negligent of him as a professional doctor to leave a swab inside a patient.

Damage or Loss as a result of the breach of duty of care

In this element of a prima facie case for negligence, the claimant or plaintiff simply has to prove that the damage or loss was a direct consequence of a breach of duty of care by the defendant. This means that there is a chain of causality from the defendant’s conduct to the plaintiff’s damage or loss. In a normal court case involving the tort of negligence, a simple “but for” test is usually applied to ascertain causality (ACCA, 2018). The claimant only has to prove that if it were not “but for” the conduct or actions of the defendant, then he or she would not have suffered damage or loss. In situations whereby there is more than one possible cause of the damage or loss, the defendant will only be considered liable if the claimant and the court can prove that his or her conduct or actions are the most likely cause.

An excellent example of a case that evinces how the “but for” test is applied in a tort of negligence case is Barnett v Chelsea and Kensington HMC in 1969, which is another medical case. In this case, a casualty department doctor negligently sent a patient home. Later, the patient died. Nonetheless, the doctor was not found liable for damages due to the fact that the patient was suffering from arsenic poisoning and was likely to succumb to death irrespective of what the negligent doctor could have done. Based on this case, it is a vital precept that individuals should only be liable for losses that they should have reasonably foreseen as a prospective outcome of their conducts or actions. According to ACCA (2018), the Wagon Mound case in 1961 is a case that is normally cited as a justification for this tenet. In this case, oil leaked from the defendant’s boat and came into contact with certain cotton waste within the Sydney harbor. In as much as the oil was of the type that could not catch fire on water, the cotton caught fire and set the oil ablaze resulting significant damage to the wharf belonging to the plaintiff. Notwithstanding, the court did not find the defendants to be liable for fire damage since the actual cause of the fire was ruled to be too remote. This ruling also brings to light the concept of novus actus intervieniens.

Novus Actus Intervieniens-Tort Laws that Watch Over the Ordinary Citizen

It is vital to note that when analyzing tort of negligence cases, other events that are outside the control of the defendant can intervene in the chain of causality and make the outcome of the case more difficult to determine. However, there are certain rules that deal with such events since the ultimate principle is that the defendant will only be liable if his or her actions or conducts are the most probable cause of the damage or loss. Otherwise, defendants cannot be liable if an intervening event or acts becomes the real cause of the damage or loss. Some of the intervening acts that eliminate liability from the defendant include:

  • Actions or conducts of a third party which end up becoming the real cause of the damage or loss. In such a situation, the defendant is only liable for damages caused until the point where the third party intervened.
  • Actions or conducts of the plaintiff are unreasonable or outside the confines of what the defendant could have foreseen in the situation.
  • Unforeseeable natural events. In this case, natural events which the defendant could have reasonably foreseen have no effect on things (ACCA, 2018).

Apart from the prima facie elements of the tort of negligence cases, there are other principle defenses to negligence such as:

  • Contributory negligence – The defense is a more defendant-friendly version of comparative negligence. Contributory negligence is normally applied in a minority of jurisdictions in lieu of comparative negligence. Pursuant to this defense, if the negligence of the plaintiff contributed even to a small extent to the injuries sued upon, he or she is completely barred from any recovery.
  • Comparative negligence – In this case, if the injury incurred by the plaintiff is at least partly attributable to his or her own negligence, then the defendant is exempted from being liable to the claimant for the full amount of the damages or loss. In situations whereby the relative fault is extremely large in comparison to the defendant, the contingent on the jurisdiction, the claimant may be barred from any recovery.
  • Assumption of the risk – In as much as a prima facie case for negligence exists, the claimant will not be able to recover damages or loss if the plaintiff willingly assumed the prospective burden that something bad could occur. Such assumption of risk can be expressed in written words or orally or implied by the circumstances.


Tort cases are normally heard in civil proceedings. This legal process is discordant from criminal proceeding in that a civil cases seek compensation for the victims of harmful acts committed by the defendant, but not to subject the wrongdoer to retribution. The damages that are available for intentional torts tend to wider and more generous than negligence cases. Examples of damages for intentional torts include recovery of lost wages, medical expenses or compensation for suffering and pain (Williams, 2007). In addition, intentional torts can permit punitive damages given that society wishes to deter its members from intentionally causing harm to each other. Proof of wrongful intent is needed to recover damages for intentional torts (FindLaw, 2018).

Awarding and recovery of damages in tort of negligence cases requires people bringing the claim to have suffered real harm due to the actions of the defendant. There are two categories of damages that the claimant or plaintiff is allowed to recover. These include punitive damages and compensatory damages. Punitive damages may be awarded by the court in situations whereby the conduct of the defendant was wanton, reckless or malicious. On the other hand, compensatory damages are awarded by the court to return the plaintiff back to the position he was in prior to being injured by the negligence of the defendant (FindLaw, 2018).

CONCLUSION-Tort Laws that Watch Over the Ordinary Citizen

Tort actions entail how the average citizen uses the court and the majority of the civil actions in various courts (Bell, 2004). It is vital to note that the intentional torts are an extremely discordant type of action despite the fact that they are categorized as torts along with torts of negligence. Moreover, intentional torts usually cannot be eliminated by bankruptcy, but require proof of wrongful intent and allow punitive damages. It is because of this reason that numerous people tend to over-plead their cases and allege intentional tort even in situations whereby the facts do not espouse such interpretation.

Torts have been considered as the watchful older brother of normal citizens due to the relief of the majority of individuals who utilize courts to right the wrongs done to them, but no contractual agreements exist (Bell, 2004). As such, torts can be described as the legal vehicle to make whole those innocent people harmed by other in their daily lives and activities since it provides them with the opportunity to get justice and compensation for damages or injuries caused to them by other people. The duty of care is reinforced in the society by the existence of tort law; otherwise, there would have been immense chaos in the world with no chance of making the perpetrators pay for their actions or conducts.

















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