Torts: What do if you’ve been hurt?  

You have grown up most likely seeing advertisements for lawyers on television in the afternoon that are asking people who have been injured to call them for free. These lawyers want people to call them because the amount of money injured people can recover from the person, or company that injured them can sometimes be very significant. When somebody causes an injury to another person the injured party can usually sue for the injuries they suffered. The lawsuits that become the basis for suing another person for an injury that was suffered are grouped into the area of law known as torts. The reason those television attorneys allow you to call them for free is because sometimes the damages awarded can be very high and the attorney agrees to work on a contingency fee (percentage of the damages awarded – usually 1/3). For example if you are injured by a defective product and you are awarded $12,000,000.00 by the jury the attorney working on a contingency would get $4,000,000.00. In this portion of the website I will describe some of the major areas of tort law and some of the controversies related to torts that currently exist.

Egg Shell Plaintiff

An important thing to remember about all torts is that in most jurisdictions the person who caused the injury is responsible for all of the plaintiff’s injuries no matter how extreme. For example, if Ted trips two students in the hallway at school. Chuck falls to the floor dropping his books but suffers no injury. Sam, on the other hand, has weak bones and fractures his knee cap and both wrists in the fall. Ted will not be able to argue that he shouldn’t be responsible for all of Sam’s injuries because nobody suffers injuries like that when they get tripped. Ted and all people who commit torts must accept the plaintiff however they are. If they injure a frail “egg shell” plaintiff who cracks easily they will be responsible for some significant damages.

Intentional Torts

Intentional torts are just what the name implies. They are injuries that someone intended to cause. For example, if Bob is angry with Lou and punches Lou in the stomach, Bob intended to hit Lou. Lou can sue Bob for any injuries he suffered from the punch. If the punch was very powerful and Lou needed to go to the doctor to see if there was any damage to his internal organs Lou could sue Bob for the costs of the doctor’s visit. Another interesting thing about intentional torts is that the intent can be transferred to other people. Instead of hitting Lou, Bob hit Jack who was standing next to Lou as Lou jumped out of the way to avoid the punch. The law allows the intent to transfer to Jack so Jack can sue Bob for his injuries because Bob punched him and he didn’t want to be punched. Bob can’t argue that he didn’t intend to hit Jack.

Assault – Assault occurs when someone intentionally puts someone in the apprehension(fear) that they will be hurt or struck. For example, if Jack pretends he is going to hit Joe with a tire iron but stops just before he would make contact with Joe’s arm. Jack has engaged in an intentional act(swinging at Joe) done with the intent to make Joe think that he was going to get hit.

Battery – Battery occurs when someone intentionally causes a harmful or offensive contact to your body. For example, if Jack had actually hit Joe with the tire iron it would have been a battery. An important thing about battery is that it is still battery if the person throws an object at another person with the intent to hit the person with the flying object. If Jack had thrown a baseball at Joe and hit him it would still be battery. It will also be battery if you touch something connected to the person. For example, if you hit someone in the backpack, it is still battery because the backpack is connected to the person.

Defamation – This tort occurs when an individual says or writes something with the intent to hurt someone’s reputation. It doesn’t have to actually harm their reputation but would have harmed the plaintiff’s reputation if someone believed it. Written defamation is called libel and spoken defamation is called slander. There are some basic elements that establish a defamation case:

1. The defendant made a false or defamatory statement about the Person(Plaintiff)

2. The defendant somehow told or gave the statement to others.

3. The defendant was at fault or negligent in making the defamatory statement.

4. The plaintiff was harmed by the statement.

There are a few interesting things to understand about libel and slander. 1. If the defendant is a newspaper, tv network, or other media organization the plaintiff must prove the statement was false. 2. If the statement is about a matter of public interest such as a proposed shopping center, the plaintiff must prove the statement was false. 3. There are some types of slander where the plaintiff will have an easier time getting damages. a. A statement that says the person is involved in some type of criminal activity. b. A statement that says the person has some type of sexually transmitted disease. c. A statement that hurts a person’s business or professional reputation. d. A statement that says the person has engaged in some type of sexual misconduct. 4. You will see the term “actual malice” quite frequently in laws and cases about defamation. Actual malice means the person that made the statement knew the statement was false or showed a reckless disregard for the truth. The Supreme Court changed the face of defamation law in 1964 when the New York Times v. Sullivan decision was released by the Court. This case and some that followed have altered the requirements that public officials, public figures, or individuals related to public issues will need to meet if they are trying to sue someone for defamation. Basically, what the Times decision and others after it have done is place some of the burden on people who are trying to sue if they are public figures or have interjected themselves in a matter of public interest. For example, if Sally gives a presentation about a subdivision a developer wants to put in her town and is leading the citizens group to stop the project, if the local newspaper writes a story about her and she feels it was defamatory toward her she will have a difficult time because she has put herself in a matter of community interest.

False Imprisonment – The tort of false imprisonment occurs when an individual intentionally confines another person against their will. Quite a few jurisdictions have passed laws that allow private businesses to confine people while they investigate potential shoplifting. The laws state that the suspected shoplifter cannot sue the store or store personnel even if it turns out the person had not stolen anything.

Intentional Infliction of Emotional Distress – This tort occurs when someone intentionally causes severe emotional distress to another person by engaging in some extreme and outrageous conduct. For example, Ted is tired of his neighbor Lou’s dog leaving messes on his lawn so he takes a shotgun out and shoots the dog while Lou is watching. Ted knows that it will be very emotionally disturbing for the Lou to watch his dog shot right in front of him. The key to this tort is that the individual knows it will cause severe emotional distress or recklessly ignores how much it will hurt them emotionally.

Trespass to Land – Trespass to land occurs when someone or something comes onto your property without your consent. There are three ways this tort might be committed. 1. Someone intentionally comes onto your property without permission. 2. Someone stays on your property after they were supposed to leave or you asked them to leave. 3. Someone puts an object on your property without your consent. The person who came on your property or put an object on your property will be responsible for any damage they did to your property. For example, if Carl was shooting baskets and his basketball went in your yard and crushed two rose bushes and knocked over and shattered a lawn gnome, he will have to pay you for the damage.

Conversion – This tort occurs when an individual intentionally interferes with someone’s ownership or possession of a piece of their personal property that is so severe they need to pay the full value of the piece of personal property that they damaged. For example, Sam takes his friend Steve’s new snowboard without asking and destroys the new snowboard because Sam has never snowboarded in his life. Steve would get enough money to get a new snowboard. There is a lower tort that is similar to conversion called trespass to chattels where the property is not completely destroyed, so the individual just gets an amount equal to whatever damage the individual did to the property.

Nuisance – A nuisance is something that is interfering with someone’s enjoyment of their home and property. The plaintiff must establish two elements to win their lawsuit. First, the plaintiff must show that their use and enjoyment of their land was interfered with in a substantial way. Second, the plaintiff must show that the defendant’s conduct was intentional, negligent, or abnormally dangerous. The plaintiff may sue for money damages to compensate them or get an injunction which will force the defendant to change its behavior. An important thing to remember about nuisance is that the plaintiff will have difficulty suing if the nuisance was already there and apparent when they moved into the house. For example, your neighbors have a son that is in a band and the band plays in the garage and they start practicing at 11pm in the summer when all of the band members get off work. You or some other people in the neighborhood might file a nuisance lawsuit to get the band to stop playing late at night.

Defenses to Intentional Torts

There are some defenses that are available to someone who is being sued for committing an intentional tort.

Consent – This defense is used when the defendant is arguing that the plaintiff gave them permission to commit the tort. For example, if Bob told Lou to punch him in the stomach to show the strength of his abdominal muscles. Consent can be express meaning they told the other person they could do it or implied which means that the plaintiff’s conduct or the circumstances made the defendant think the plaintiff was giving consent.

Self – Defense – A person can use reasonable force to prevent any harmful or offensive bodily contact or threatened unlawful confinement. The person can only use the amount of force needed to protect themselves. If the individual uses too much force they will then be responsible for the excess force and any harm they did to the other person. Most jurisdictions only allow you to use deadly force if you feel you are in danger of death or serious bodily harm.

Defense of Others – The law in most states allows you to use reasonable force to defend others. The rules for this defense are the same as self-defense. You may only use the amount of force that is needed to stop the attack.

Defense of Property – An owner of property may use reasonable force to defend their property and belongings. In some jurisdictions, if it is safe, it is necessary to tell the person who is coming onto or taking your property to stop before you take action to defend the property.

Necessity – The doctrine of necessity allows a person to go on someone’s land or use someone’s property if they need to in order to prevent a serious injury to themselves or others. For example, if Sally’s car breaks down in the middle of Nebraska in a snow storm and she breaks into a house to get out of the snow storm. She will be responsible for repairing the door she forced to get in but will not be responsible for trespass.


Negligence occurs when an individual or organization has a duty to the plaintiff, but breaches that duty and the plaintiff is injured because of the breach. The defendant in a negligence case had a responsibility to conduct themselves in a particular way and they failed to conduct themselves in the appropriate way and it led to an injury. For example, the theme park needs to make sure they properly inspect all of the rides on a regular basis so that nobody gets hurt on a dangerous ride. A bus company needs to make sure all of its bus drivers have passed all the needed licensing tests and do not have a substance abuse problem.

The Elements of Negligence – There are five elements that need to be proven to win a negligence case.

1. Duty – The defendant had a legal duty to conduct himself in certain way that would avoid unreasonable injuries to other people.

2. Breach – The defendant didn’t conduct himself accordingly or was careless.

3. Cause in Fact – The breach in the defendant’s conduct caused the plaintiff’s injury.

4. Legal Cause – There is a close connection between the breach by the defendant and the injury suffered by the plaintiff. This is also call proximate cause, but the best way to think of it is with the word “foreseeable”. Should it have been “foreseeable” to the defendant that if they committed the kind of breach that they committed someone would get hurt?

5. Actual Damages – The plaintiff suffered actual damages/injuries because of the defendant’s breach.

The Negligence Example – The subdivision has a pool and every year the association hires a lifeguard for the pool. This year the association council decides to save a little money and hires a lifeguard who isn’t certified. The association tells the lifeguard to just make sure kids don’t run and fall around the pool. Sure enough, one day 8 year old Jason swallows some water and begins to drown. He goes under. The un-certified lifeguard gets him out of the water but doesn’t know what to do. By the time EMS arrives, Jason hasn’t been breathing for four minutes. Jason is revived but has suffered some brain damage. 1. Duty – The subdivision association had a duty to hire a certified lifeguard. 2. Breach – The subdivision breached their duty because they hired a lifeguard who wasn’t certified. 3. Cause in Fact – Because the lifeguard wasn’t certified, Jason wasn’t revived as quickly and suffered brain damage. 4. Legal Cause – Was it foreseeable that something terrible might happen at a pool if you hire un-certified lifeguards? Yes! 5. Damages – Jason has medical expenses and the expenses will follow him for life because of the brain damage that he suffered.

Negligent Children –

Children that commit negligent acts are compared to a child of the same age and experience. In determining whether the child understood the duty that they owed to others, they would look at how a typical child of the same age as the defendant would act. So, if the child being sued for negligence is 9 years old, the jury or judge would look at whether or not a typical 9 year old would know it would be negligent to do the act that caused the injury. There is a special rule for children that are engaged in adult activities like driving a car, motorboat, personal watercraft, or hunting. Children participating in these types of adult activities will be compared to what reasonable adults would do in the situation and NOT what the average 15 year old would do in that situation.

What Duty Do You Owe People Who Come to Your House or Business?

Trespassers – A trespasser is someone that comes onto your property without permission. Usually the person who owns that property has no duty to make their land safe or warn trespassers of dangers the trespasser might not see. However, if the owner of the property knows they have a trespasser problem, the owner of the property must warn the trespassers of anything that might hurt them. For example, if all the kids in the neighborhood cut across the back of the Smith’s backyard because it is the quickest way to the park, then the Smith’s must warn the children of any conditions that might hurt them.

Licensees – A licensee is a person who comes to your house for a social reason or has the consent of the owner to be on the property. The owner of the home or property has a duty to warn guests about dangerous conditions that are not open and obvious. Also, the homeowner has a duty to fix or repair things that are hidden and might hurt a guest. For example, if the Hughes family invites everyone over for a graduation party and the railing on the deck is loose and will collapse if it is leaned on, then the Hughes’ need to notify guests not to lean on the railing or fix the railing. For the duties of a person who is renting an apartment go to the Landlord Tenant page.

Invitees – An invitee is a person who comes onto your property for a business purpose. The owner has a duty of reasonable care to warn of, or make safe dangerous conditions that the owner knows about or should know about that will not be open and obvious to the invitee. For example, if you own a restaurant in a bad neighborhood and there have been numerous cars broken into in the parking lot, the owner of the restaurant must warn customers and should probably hire a security guard for the parking lot.

Medical Malpractice –

Medical malpractice occurs when the physician doesn’t treat a patient according to the standard of care that would be followed by a similarly trained and licensed physician under the same situation or circumstances. Many states have passed laws that have established procedures that must be followed to file a medical malpractice lawsuit. Michigan is one of the leaders in these types of procedures. For example, in Michigan the plaintiff must send notice to the health professional or health facility 182 days before the medical malpractice lawsuit can be started. Also, all medical malpractice complaints must include a statement signed by another doctor stating that the lawsuit has merit.

Defenses in Negligence Cases

As with intentional torts there are also some defenses that defendants in negligence cases can use.

Assumption of the Risk – A defendant can argue that the plaintiff knew the risks which they were exposing themselves to and still willingly engaged in the activity. Many activities that people your age engage in like athletics, or adventure activities like para-sailing or bungee jumping have you sign a waiver. These waivers demonstrate that you have assumed the risk, but if you are injured and it was due to the company or individual being grossly negligent you can still sue. Gross negligence is when someone completely ignores their duty and acts in a way that pretty much guarantees someone will get injured. For example, if the para-sailing company never inspects the harness jacket and a customer falls from 50 feet and breaks both of their legs.

Comparative Negligence – In a comparative negligence system the responsibility will be divided between the plaintiff and defendant. The plaintiff’s recovery will then be reduced by their percentage of fault. For example, the jury awards the plaintiff $200,000.00 in damages but finds that the plaintiff was 40% at fault for their own injury. The damages will be reduced by 40% so the plaintiff will only receive $120,000.00 in damages.

Contributory Negligence – In a contributory negligence system a plaintiff who is negligent and contributes to their own injury is not allowed to recover for any of their damages.

 Statutes of Limitations – The law creates a time period in which the plaintiff must file a lawsuit. Each state will have established its own statutes of limitation. For example, battery (intentional tort) cases must be filed within two years of the battery or negligence cases must be filed within three years. Most states have established statutes that say the statute of limitation does not begin running until the injured party realizes they have been injured. For example, if the doctor performs surgery and you don’t discover the doctor made a mistake until four years later. The statute of limitations will begin to run when you discovered the injury.

Strict Liability

Strict liability torts cover activities that are abnormally dangerous or very difficult to control. An individual who is injured by an abnormally dangerous situation or activity only needs to prove causation and damages to win their lawsuit.

Abnormally Dangerous Activities – There are six factors used to determine if an activity is abnormally dangerous.

1. There is a high degree of risk of damage or harm to others.

2. The damage is likely to be serious.

3. The risk cannot be eliminated by reasonable care

4. The activity isn’t something normally done.

5. The activity isn’t appropriate for the place where it was being done.

6. The danger of the activity is greater than the value of the activity to the community.

Some examples of activities that would be considered abnormally dangerous would be the imploding of buildings or other uses of explosives, nuclear reactors, or hauling dangerous chemicals.


The damage that might be done by animals or pets is also covered under strict liability.

1. Dangerous Animals – The owner of a wild animal will always be responsible of any damage or injury the animal causes. Aggressive breeds of dogs like rotweillers, dobermans, and pit bulls are considered dangerous animals in most jurisdictions. If your pet doberman gets out and bites someone you will be responsible for their injuries.

2. Domestic Animals – Injuries caused by domestic animals like cats and non-aggressive breeds of dogs do not lead to strict liability (responsibility) unless the owner knew or had some idea that the animal was mean and dangerous.

3. Wandering Animals – The owner of any animal (livestock or pet) is responsible for any damage the animal causes if the animal trespasses on someone else’s land.

Products Liability

Products liability occurs when an individual makes or sells a product that injures someone. There are a few different theories that are used in products liability lawsuits.

Negligent Manufacturing – This theory uses the same elements as those used for negligence. The plaintiff must show that the defendant did not use appropriate care in manufacturing the product.

Strict Product Liability – This theory of products liability makes the seller of the product responsible for any injuries caused by a product sold in a defective condition.

Design Defects – A seller will be responsible if they designed a product that was unreasonably dangerous. The product might be dangerous because the manufacturer chose the wrong materials or possibly because some safety feature was not included in the product. Who Can File a Products Liability Lawsuit? Most states allow any reasonably foreseeable user or purchaser of a defective product to sue the manufacturer or seller.


There are three main types of damages that can be recovered in a tort case.

1. Economic Damages – reimburse the injured plaintiff for the costs that they have suffered because of the injury. These might include medical expenses, lost wages, or damage to property.

2. Non-Economic Damages – reimburse the injured plaintiff as much as possible for their pain and suffering and other expenses that are not easy to place a place a value on.

3. Exemplary or Punitive Damages – These damages are awarded to punish the defendant when the defendant’s conduct was extremely outrageous. For example, a manufacturer might have to pay punitive damages if they knowingly put a dangerous product on the market and destroyed all of the documents that indicated the product was dangerous.

Tort Reform

One of the elements that has been present in the last few Presidential elections is the debate over tort lawsuits and what should be done to limit or stop frivolous lawsuits from being filed. Most of the states have been trying a variety of techniques to get the frivolous lawsuit problem under control. A couple of the most common are mentioned below.

Caps on Damages – Many states have placed caps or limits on the amount that an injured person can receive in non-economic(pain and suffering) damages. For example, some states have placed a limit of $250,000.00 on pain and suffering in all products liability cases that don’t involve serious impairment of an important bodily function. If there has been a serious impairment or loss of a bodily function they are allowed $500,000.00 in non-economic damages. It is important to remember that there is no limit on economic damages that cover medical expenses, home care, or lost wages.

Class Action Reform – Class action lawsuits occur when a group of individuals who have suffered the same injury caused by the same individual or company are allowed to sue together. This allows the court system to operate more efficiently by handling all of the injured people at one time. It was felt that state courts didn’t always handle these sometimes complex cases well. Therefore, the U.S. Congress passed a class action reform law in 2005 that makes it easier to file class action lawsuits in the Federal Court System.

Governmental Immunity

Good Luck Suing the Government Hundreds of years ago the founding fathers of our nation brought with them the principles of governmental immunity. What this meant is that most states and the Federal government have laws that limit an injured person’s ability to sue the government if the government has injured them somehow. For example, if a student is injured at a school dance it will be very difficult for the student to sue the school district because school districts are usually protected by tort immunity laws. There are some areas where states have created exceptions or areas where injured people are allowed to sue the state for their injuries. Some of these areas are:

1. Failure to maintain highways – if a person is injured because the road was in a defective condition and the state failed to repair and maintain the road the person can usually sue the state.

2. Negligent operation of a government owned vehicle – If a person is injured by some government owned vehicle and the vehicle was being used in an irresponsible manner at the time the injured person will be able to sue.

3. Public building defects – If a person is injured by some defective condition in a public building they will be able to sue.

4. Performance of proprietary functions – If the government is engaged in some activity that is only done to make a profit and is not supported by taxes and a person is injured by or during that activity they can sue the government.

5. Ownership or operation of a governmental hospital – If a person is injured while receiving treatment at a government run hospital, the injured person will be able to sue for their injuries.