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Legal Grind® presents

The Little Law Book

by Miriam Kurtzig Freedman, J.D
Illustrations by Daphne San Jose

More Key Concepts in Civil and Criminal Law



Full Faith and Credit Good Old Article IV, Section 1 of the Constitution

Have you ever wondered why it is that if you get married in one state, youíre considered married in the other forty-nine states as well? This is so even if yours is a common-law marriage, not recognized in the other states. Itís so even if you donít qualify for a marriage license in another state because of its different requirements. Divorce too. Your divorce in a state with requirements totally different from anotherís is still valid there and everywhere else.

A driverís license. If valid in your home state, is valid in all others, even where you might not qualify for one. But this works both ways. If you lose your license in one state, you canít go to another to get one. And if you win a lawsuit in one state but the defendantís money is somewhere else, you can take your judgment to the state where the money is for collection through whatís called a foreign judgment. Why...why. . .why?

Why does all this work? Because of the full faith and credit clause of the Constitution. (Article IV, Section I) Different states must recognize each otherís public and legal acts, records, and court decisions, and give them the same effect as where they are made initially. This is one of those basic legal concepts that most of us donít think about too often; but when we need it, itís there!

Civil Law and Lawsuits


A funny word. In French (where it originated) a tort means a 'wrong'. But in the U.S. most people probably think it means a chocolate cake with icing, when they think of it at all! A torte! But, alas, no.

tort drawing

A Tort is a Civil Wrong.

Tort law is part of civil (noncriminal) law. It concerns lawsuits (not prosecutions). These suits arise from injuries (wrongs) mitted by one person, a group, or organization(s) They can be purposeful or negligent.

Here's what happens. You get hurt. Or, someone treats you badly or unfairly. You want to ìsue the bastards.î Tort law answers the question: Is there someone to sue? Or, putting it in legalese, is there a remedy for every tort? Torts deal with civil lawsuits, excluding breaches of contract (Kís). While torts are not part of criminal law, remember that the same action by a defendant (∆) can bring about both a criminal prosecution and a civil lawsuit.

For example, if Bill steals your TV, thatís the crime of theft. It is also the tort of conversion. The district attorney can prosecute for the theft. You can sue for the conversion. Bill is the tort-feasor (doer of the tort!). With this as background, what are some torts?

Types of Torts

Torts are divided into 7 basic types:

    Negligence includes car accidents, slip-and-fall cases, malpractice, personal injury, and some product liability cases. The variety of negligence is very wide, and new torts are created all the time. While it is a common word, negligence has legal meaning. What is it? How does negligence become a tort? We start from the idea that negligence is carelessness, not being reasonable, et cetera. Here's how a tort in negligence is analyzed.
  • Every tort has three elements:

    • The ∆ owes a legal duty to the plaintiff (Π).
    • The ∆ breaches that duty.
    • The breach causes injury either as a direct result of the negligent actor somewhat more indirectly, but foreseeable; that is, the injury was reasonably predictable following the negligent act.

    Legally, we say there is a proximate cause between the breach and the injury.

    These look like simple words-not too technical. But let's define what they mean in this context. First, what is a duty? One personís obligation to another. Duty is based on the relationship of the people involved. For example:

    • employer and employee;
    • innkeeper and guest;
    • business person/owner and customer;
    • host and social visitor;
    • manufacturer and consumer;
    • property owner and licensee, guest, trespasser, or trespasser who is younger than twelve years old
    • person in control of an instrument that can harm (e.g., a car) and a passenger or pedestrian or fellow driver.

    All these cases have a different standard of care, of duty. Itís different if the mailman slips on your steps or if a trespasser does. But, basically, the duty is to act reasonably. What is reasonable? (Ah, the sixty-four-thousand dollar question!)

    Reasonable conduct:

    An important concept in tort law but, as you can imagine, hard for Π and ∆ to agree upon. Lawyers use the ìreasonable person standardî. What would a reasonable person do? Note: You generally donít have a duty to a stranger. Thus, as harsh as it may be, if you see a stranger in serious trouble, you donít have a duty to help. However, laws are changing in this field. In fact, if you help, you better be reasonable! Because, by helping, you assume a duty!

    Good Samaritan statutes:

    Because it seems harsh to let doctors, nurses, and other medical professionals go about their way without helping strangers in distress, many states have enacted Good Samaritan statutes. The name comes from the Bible. These laws protect from lawsuit doctors and other medical professionals who aid an injured stranger in an emergency at the scene of an accident or injury. The duty of reasonable care does not apply. In such a case the Π can sue the doctor (∆) only if he was reckless or grossly negligent.

    The reasonable person standard is an objective, not subjective, standard. A jury can decide if you were reasonable. ìI was doing the best I couldî or ìI thought I was being reasonableî is not defenses if they do not meet the communityís reasonableness standard. Standards are applied to the type of person you are. A reasonable adult. A reasonable lawyer. A reasonable scientist or shopkeeper. Persons with greater knowledge are held to a higher standard. The reasonableness standard does not apply to children unless they are doing adult activities. Thus, if a sixteen-year- old drives a car, he had better be reasonable.

    These standards change all the time. For example, right now the communityís standard for drinking and driving is changing dramatically in this country. It used to be viewed as almost funny; now, youíd better not do it, youíd better have a ìdesignated driverî if youíre planning to go out and drink, and on and on. All these new standards are being applied differently than they were twenty or even ten years ago. Next, what is a breach? It is a failure to act reasonably; a failure to use the amount of care a reasonable person would use in that situation.

    Negligence occurs if you do something below the standard of what a reasonable person would do in those circumstances. What's the measure? A community standard or statute. Letís say that you are careless with someone to whom you owe a duty. Is that a tort? Not necessarily. Not unless the person is hurt by your negligence. If no one got hurt, you got lucky! Finally, what is causation? Something that causes something else. To figure out if there is the required causation in your case, you have to analyze it in several steps.

    1. You have to prove a 'but for' relation between the breach of duty and the injury. But for the breach, there would be no injury. For example, the floor in the store is slippery. You fall on it and break a bone. The slippery floor probably caused your fall.
      If Π gets hurt but the injury was not caused by ∆ís action, then there is no tort. For example, you are in the store with your child. He runs away from you. You run after him and fall and break a bone. The floor was not slippery. The floor probably did not cause your fall. Probably no negligence on the storeís part.
    2. The injury has to be the direct result of the negligent act or of foreseeable intervening forces. The injury has to be caused proximately by the breach of duty. This means it has to be reasonably anticipated that if someone does X, someone can get hurt. If you drive and drink, you may cause an injury. If there is a banana peel on the floor in the store, someone may fall, et cetera. This is the proximate cause requirement.
      If something else happens between the breach and the injury, itís hard to prove that the breach caused the injury. For example, if your neighbor takes down a wall and water comes into your basement as a result, it may be a tort. But if water doesnít come in for five years, itís hard to prove proximate cause because so many other things intervened during the five years. Or if there is an unusual flood up the street at the time the wall was removed, your neighbor may be able to prove that it was the flood, not the wall that caused the water in your basement. That might be whatís termed 'an act of God.' Then you have no one to sue!

    Other important terms in negligence torts:


    Someone you have, expressly or by implication, invited to your property. He may be a customer, servant, and friend. Generally, you are responsible for exercising reasonable care for his safety against latent defects on that part of your property to which he was invited. In addition you have a duty to make reasonable inspections to discover dangerous conditions and, thereafter, make them safe.

    For example, in a store, invitees can come into the selling area but not the back, which is posted ìFOR EMPLOYEES ONLY.î There they would be trespassers. Licensee:

    A person who comes onto your property with permission, but without invitation. Such a person has a right to be there but is there for his benefit, not yours: for example, a door-to-door salesman.

    In the old common law you owed these folks less duty of care. Now, by statute in many states, the duty is the same as for invitees.


    Someone on your property without invitation or license; someone who commits a trespass on your property. Generally, you owe him less care than an invitee or licensee but will be responsible for conduct that is grossly negligent. Thus you canít set an unmarked trap or leave a large unprotected hole on your property.

    An exception is for children under twelve years old. You may be held responsible in their case for maintaining an attractive nuisance as dangerous ìartificial conditionî on your property that a child may play on. If the child gets hurt, you may be liable, even if he is trespassing. For example, a swimming pool with an open gate or no fence at all. On the other hand, a tree the child climbs is probably not an ìartificial condition,î and youíd probably not be liable for an injury.

    Res ipsa loquitur:

    Lovely Latin term to keep in your back pocket just for fun! Literally, this doctrine means, ìthe thing (res) speaks (loquitur) for itself (ipsa). ì Itís used in trying to prove that the ∆ was negligent. Here, one can infer negligence without actually proving it, if (a) the accident would not have happened without negligence and (b) the ∆ had exclusive control of the thing that injured the Π. If the doctrine applies, the Π has made a prima facie case and the jury cannot give a directed verdict for the ∆

    Product liability:

    A manufacturer and seller of a defective product may be liable in negligence. In some cases they are liable also in strict liability.

    Now for the other types of torts:

    • A . Assault:
      The ∆ intends to hurt or scare the Π and the Π believes he is in danger of being hurt at that moment.
      If I point a gun at you and it scares you, thatís an assault, even if it turns out to be a toy gun.
      If I say, ìDonít you ever do that again or Iíll kill you,î that is not an assault: words alone donít do it. Here there is no immediate threat of harm.
      In an assault the ∆ does not need to touch the Π.
    • B. Battery:
      The ∆ intends to offensively touch or hurt the Π without the Πís consent, and does so.
      Even if the Π is asleep, and the ∆ offensively touches him, thatís a battery - because it was without consent.
      When you sign a medical release before surgery, you are, in effect, consenting to the doctorís touching you. If he does the surgery to which you consented, thatís not a battery. If he does more or different surgery that may be a battery-because he went beyond the scope of consent. Complicated, isnít it?
    • C. False imprisonment:
      The ∆ intends to keep the Π from freely moving about in an area that the Π canít leave. If Iím driving my car with you in it, and you want to get out, and I donít stop, that may be false imprisonment. An intentional tort.
      If a storekeeper keeps me on the suspicion of shoplifting but the suspicion was unreasonable, that may be false imprisonment.
    • D. Intentional mental distress:
    • The ∆ intentionally or recklessly causes Π severe emotional distress.
      If I know you are petrified of snakes and I leave one in your desk, that may be grounds for a suit based on intentional infliction of emotional/ mental distress.

    • A. Trespass to land: An intrusion by ∆ onto Πís land. No harm or intent needs to be proven. For example, if your neighbor builds a fence but it happens to sit on part of your property thatís a trespass, even if he did it unintentionally.
    • B. Trespass to chattels:
      The ∆ interferes with Πís right to possess his property. For example, the ∆ takes Πís property, uses it, perhaps damages it.
    • C. Conversion:
      An act that interferes with the ownerís use of his property. Basically, itís the tort version of the crime of theft or destruction of property, which is serious enough so that the ∆ should pay its full value to the Π.

    If injured, the Π does not need to prove any negligence on the ∆ís part. With products he must prove that the product was not safe for its intended use and that he was injured by it.
    The duty to warn is often applied to potentially dangerous products. For example, crashworthiness of cars; hazards and side effects of medications. This is why cigarettes have warning labels. Even ladders now have warning signs on them! Are the products safe for their intended use?
  • Ultra hazardous activity:

    Owning certain types of animals, or engaging in certain types of activities. For example, firearms, if not commonly fired in the particular community or area. If anyone gets hurt, the ∆ may be liable, even if he was not negligent.

    The ∆ unreasonably interferes with the Πís enjoyment of his property. This is where the neighborís noisy parties come in! Or unsavory odors. Or flights overhead. Courts balance the type of area you are in, the nature of the harm, and the social value/utility of that activity. Airplanes must fly but parties can be quieter.

    • A. Deceit:
      Occurs if the ∆ knowingly lies about an important fact that he intends to induce the Π to rely on and which, in fact, the Π does rely on. For example, right before trying to sell his house, the ∆ patches over evidence of major water damage so that potential buyers canít see the damage.
    • B. Negligent misrepresentation:
      It's like deceit, but applies to people in their trade or business or profession. It occurs if the ∆ negligently provides false information to the Π, a customer, on which the Π relies to his detriment.
    • C. Interference with contractual relationships:
      The ∆ intentionally interferes with an ongoing business relationship between the Π and someone else (the third party).
    • D. Intentional interference with advantageous relations:
      The ∆ interferes through tortious means (duress, fraud) where he had no business being in the first place. For example, the ∆ fraudulently induces a change in a testatorís will in which the Π was to be a beneficiary.

    • A. Defamation:
      Occurs if ∆ communicates information about Π to others which is not truthful and hurts the Πís reputation. If the ∆ was negligent, in not doing enough research or background checks, he may be liable.
      Libel: If the defamation occurs in writing.
      Slander: If the defamation is spoken. With famous people, public officials, or other people in the ìpublic domain,î only defamation done with malice (ill will) may be a tort.
    • B. Malicious prosecution:
      If the Π starts a criminal prosecution against the ∆ without probable cause and with malice and the ∆ wins, he may turn around and sue the Π for malicious prosecution.
    • C.Invasion of privacy:
      A wrongful intrusion into a personís private life, whether by others or by the government.
      For example, such an invasion may occur if unreasonable publicity is given to someoneís private life. ìItís not anyone elseís business!î If someone takes your name or uses your picture without permission, especially for commercial use, that may be such an invasion.
      Computers have brought the issue of the right to privacy to the fore: How much may government, industry, and other institutions lawfully know about us?

    And there you have them: many of the major torts that exist in the early 21st century. Stay tuned as new ones emerge to meet changing social, economic, and personal needs. The law is ever changing and organic.

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