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A Short Review of Torts for Paralegals

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This post will briefly address torts, providing some quick examples and defining different types.

A tort is a civil wrong, not involving breach of contract, that causes injury to another party. Torts can stem from either direct or indirect action.

  • Direct Action:

Fred punches Bob in the face.

  • Indirect Action:

Fred pushes Bob. Bob falls back and hits Carol. Carol falls and breaks her hip.

The three necessary elements of a tort are a breach, causation, and injury.

Breakup is not a tort because the law doesn't recognize emotional breakup as injury. However, stalking and harassment after a breakup certainly is.

Important Distinction:

Injury is what happens to someone. Damages are how much it's worth. Two people could suffer the same injury, but incur different damages.

For example, Steve is in a car accident and loses his right arm. However, Steve is an 85-year-old left-handed accountant. Perhaps he has a ten-year life expectancy. Let's say a jury awards him $500,000.

Now say Tom is in a car accident and loses his right arm. Tom is a 25-year-old right-handed Major League Pitcher. As a result of his injury Tom, who suffered the same injury as Steve, no longer has a contract with his team. He'll never win another World Series or Cy Young award. Maybe he'll miss out on a second contract he would have earned. He'll also miss out on being a pitching coach. Tom's whole life is changed, plus he has a 50-year life expectancy without a right arm. In this case, a jury could potentially award Tom tens of millions of dollars.

3 Main Areas of Torts:

  • Negligent Act
  • Intentional Act
  • Strict Liability

Negligent torts are the most common. For example, someone runs through a stoplight, or someone drives drunk. In this area of torts, you have to establish that the person acted unreasonably and caused injury to another. The problem is, the word unreasonable is so broad. Any action can be unreasonable under a given situation.

Is it unreasonable to sleep? It is when you're driving a car.

Is it unreasonable to eat a sandwich? It is if you're performing surgery.

Intentional torts have to be unprivileged, intentional, and harmful/offensive. You'll want to familiarize yourself with your state's specific language on intentional torts.

Strict liability torts can occur essentially when you know something was bad was bound to happen. The slightest thing that goes wrong will cause an injury. There are certain activities in which you can engage where you can be liable regardless of how careful or careless you are.

For example, if you are an employer and one of your employees is injured on the job, you are liable. This is statutory-created.

Another example: Perhaps a company that makes soups had heavy metal contaminate their product. Soup is supposed to be consumable, customers got sick, therefore, that results in a claim. Product liability usually falls under intentional torts.

To recap: In all tort complaints, there has to be a breach of a duty, and you'll have to state what that breach is. If it's an intentional tort, you'll have to state what the breach is in specific terms. If it's a strict liability tort, you'll have to state what the breach is in statutory terms. Finally if it's a negligence tort, you'll have to state what the breach is in descriptive, yet general terms.

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