What Basics You Need to Know About Tort Law
The essence of tort law is to provide compensation for those who are harmed by the unreasonable conduct of others. When most people think about torts, they are thinking about personal injury or medical malpractice cases, but tort law actually has much broader applications.
There are three major types of torts which attorneys practice in. These are intentional torts, negligence, and strict liability.
With intentional torts, the claim is that the defendant purposefully did something that caused harm. Whether someone who strikes another person is charged with battery, or whether someone who trespasses on someone else’s property, the focus is on the intent that the defendant acted to bring about the harm. These cases are often aggravated when the action is purposefully targeting someone based on their race, sex, or another protected class or activity.
With negligence , the action focuses on whether the defendant acted unreasonably. Did the defendant step outside in front of a moving car? Did the defendant leave a dangerous substance in an area where someone could trip over it? Did the defendant leave a dog unattended around people it hasn’t met before? With negligence torts, the action is usually measured against a reasonable person standard, or determining what a reasonable person would have done in similar circumstances.
With strict liability torts, the issue isn’t whether the defendant actively did something to cause the harm. The harm itself creates liability, whether the defendant had any intent or not. One of the main examples of a strict liability tort is product liability, where a manufacturer can be liable for defects in their products, regardless of intent. The idea behind strict liability is that the ultimate cost of the harm should fall on the maker of the product who is in the best position to avoid the harm in the first place.
Many of the questions on tort law practice questions focus on the different elements of these different types of torts to help test knowledge on this area of law.
Common Types of Tort Cases
It is not possible to provide a comprehensive list of all the kinds of torts. However, tort law has evolved to provide a single, unified source of legal principles that address the most common harms that the citizenry faces. For example, there is a general harm relating to personal safety or the safety of one’s property that includes trespass, nuisance and negligence. Another broad category of harm includes that to reputation or standing in the community, such as defamation, invasion of privacy or unfair competition. And another category is that of unfair trade practices, which can include products liability, antitrust, fraud, etc.
Some of the most common types of tort cases are personal injury, defamation, strict liability, false imprisonment and fraud. Personal injury is perhaps the most high-profile type of tort, and includes most automobile accident cases. It covers all kinds of bodily harm, from broken bones and head injuries to nerve and soft tissue injuries that are often difficult to see or measure. Defamation involves false statements that harm a person’s reputation or professional standing. This includes slander (spoken statements) and libel (written statements). A different kind of harm involves damage to one’s person that is caused by a product. This is called strict liability, for the simple reason that the product need not be evaluated and sold in a negligent way. The product itself is simply defective and causes harm. The harm may be physical or economic. A somewhat specialized area of tort law is false imprisonment, which includes the wrongful confinement of a person within a space from which it is difficult to leave. The confinement is both physical and psychological. For example, a consumer entering the store may have their purse examined without consent and not be allowed to leave until they empty their purse and submit to questioning. Fraud is perhaps the most well-known type of tort, and occurs in a variety of circumstances where one person, or their agent, knowingly makes a statement that causes harm to another person. This could include a lying real estate agent, concealing defects that the buyer needs to uncover to make an informed purchase.
Tort Law FAQs
- How do we know if we even have a tort claim to begin with? Unfortunately, there is no set answer as to whether or not the defendant is liable for the plaintiff’s injuries. This is because of the way that torts are structured from a legal standpoint – these claims only arise when the defendant has acted negligently. If the defendant acted negligently, then they are clearly liable for the plaintiff’s injuries. However, if the defendant did not act negligently, then they are probably not responsible for any harm that befell the plaintiff.
- How do we recognize several elements of a tort – you mentioned something about "negligent conduct," but that’s not a term I am familiar with. This is true, although "negligent conduct" is essentially just another way of saying "tort." Regardless of which term you choose to use, both refer to a civil wrong – that is, an action taken that results in damages to the plaintiff. On top of that, this action must have been performed "substantially," which means that it was more than just an innocent mistake, harmless either because it was performed carefully or because it was done in a bad way that could not possibly hurt anyone.
- What happens if my client decides to bring an intentional tort case? In this case, you and your client will need to prove that the tort occurred as a result of intentional conduct – usually, this requires the plaintiff to provide some form of motive that drove the defendant to commit the tortious act in the first place. This can also be called "malice." Intentional torts include fraud, trespassing and assault.
Analyzing a Tort Scenario
Here’s how to approach different tort case scenarios. In this example, you’ll need to identify the tort, apply the law, and discuss a variety of facts.
Step 1: Identify the Tort
One of the most common questions will ask the student to identify the tort. Here is a fact pattern:
Example: Plaintiff was walking down the street when a robber grabbed her purse. As she fell to the ground, the robber kicked Plaintiff in the knee. Plaintiff required hospitalization for three days and physical therapy for several months. Plaintiff went to the dentist and had a crown placed on a chipped tooth. Plaintiff now claims that she has fainting spells and, although she wants to go back to work, she cannot remember how to complete her job tasks.
What tort is at issue here?
Answer: Battery, false imprisonment, and intentional infliction of emotional distress are all likely torts at issue.
Step 2: Apply The Law
In this section, you’ll first need to identify and define the elements of each tort. Here is the answer:
Answer: Battery requires intentional, harmful or offensive contact with the Plaintiff. Here , Plaintiff has been kicked, which satisfies the intentional element and causes physical harm. The physical injury is sufficient to satisfy the harmful prong. Plaintiff has suffered from offensive bodily contact. Here, it is probable that Plaintiff would recover from her physical injuries, but not from the bruising of her leg.
False arrest requires intentional confinement of the Plaintiff. Here, the robber subdued Plaintiff and kept her from getting away until he got her purse. Plaintiff would likely be able to recover for this tort also.
Intentional infliction of emotional distress uses a "but for" standard to prove that the Plaintiff suffered from extreme and outrageous behavior from the tortfeasor. Here, Plaintiff suffers from fainting spells and emotional scare, and may very well be able to recover for this tort.
Step 3: Discuss The Facts
Finally, you may need to discuss the facts and how they can effect the answer. For example:
Disclaimer: This type of question can be subject to many interpretations and answers. The example above is just one of many possible interpretations.
Study Tips and Resources
To effectively prepare for tort law practice questions, it is essential to develop strategic study habits and utilize available resources. Start with creating an organized study schedule that allocates time for each topic of tort law, breaking down concepts into manageable sections. Complement your textbook learning with supplemental materials, such as Steven L. Emanuel’s "Q&A Torts." This book covers fundamental concepts and offers insightful explanations that can clarify complex issues. Practice problems and past bar exam questions are invaluable tools that provide exposure to a variety of scenarios you may encounter on the exam. Consider using the "Strategies & Tactics for the Multistate Essay Exam" by Lewis L. LaRue, which contains a section dedicated to torts, providing model answers you can use to gauge your understanding. Don’t underestimate the power of study groups. Collaborating with peers allows you to discuss and dissect different topics, clarifying your understanding. If you’re uncertain about a concept, teach it to someone else; this will reinforce your own knowledge. Online forums such as Reddit’s /r/LawSchool or the Top Law Schools discussion forums can also be helpful for finding resources and connecting with fellow students and lawyers alike. In addition to the resources mentioned, familiarize yourself with Tort Law cases, as case law provides a practical context for theoretical concepts and sometimes the key to answering exam questions. Finally, becoming comfortable with multiple-choice exam strategies can be quite useful when answering multiple-choice questions that pertain to torts. Practice tests and quizzes can be found online, but make sure they are credible.
Sample Tort Practice Questions
The following practice questions incorporate some of the skills and knowledge law students should master regarding essential torts law concepts. Answers, explanations, and solutions appear in the next section.
Q1: Driving in a storm, Zoe swerved onto the side of the road and struck a light pole, causing it to fall over and hit Youth Center, which was closed at the time. Neighboring apartment residents filed a lawsuit against Zoe.
Q1 Practice Question: Should Zoe prevail on her motion to dismiss?
Q2: Zoe receives a bill for the fallen light pole.
Q2 Practice Question: Is Zoe liable for the cost of the light pole?
Q3: Zoe’s car broke down agent in an area with very few people passing by .
Q3 Practice Question: If Zoe called a tow company, would her liability be affected due to her choosing the less expensive bid from Tow Company A?
Q4: Zoe was on the cell phone with her husband yelling for help. She was so frantic as she swerved on the road that she could not tell the police exactly what happened.
Q4 Practice Question: Would Zoe be able to testify against the other drivers to support her case?
Q5: Zoe’s husband was in the passenger seat and suffered a back injury. He did not go to the doctor immediately but six months later because his back was bothering him so much. They both sued the Tower Company for general damages and his medical expenses.
Q5 Practice Question: Could they recover general damages for pain and suffering?
