Torts: Intentional, Negligent, and Strict Liability

Chapter 5

Torts: Intentional, Negligent, and Strict Liability

Key Crimes and Torts Terms


A TORT is a civil wrong based on the breach of duty not created in contract or criminal law

A TORT is a wrong against an individual versus a CRIME which is against a society as a whole

For a TORT to exist, there must be a duty owed from the defendant to the plaintiff


I. Intentional Torts
Against Persons

  • Fraud/Deceit
  • Remedies
  • Defamation
  • Intentional Infliction of Emotional Distress
  • Assault and Battery
  • False Imprisonment
  • Invasion of Privacy

A. Fraud / Deceit

FRAUD is the misrepresentation of a material fact made with both the knowledge of falsity and the intent to deceive, as well as damages suffered

[CC§ 1709]


  • The representation made by the defendant must be proved to be false
  • If a fiduciary relationship exists, then you must tell the other person of relevant information even though they don’t ask for it
  • It is possible for fraud to be committed through conduct

A. Fraud / Deceit (cont.)

MATERIAL – something is material if it would influence a reasonable person’s decision

FACT – the misrepresentation must be a fact, not of an opinion [CC§ 1572(1)]

  • When one party possesses superior knowledge or special information regarding the subject of representation, a representation made by that party will be treated as a representation of fact

A. Fraud / Deceit (cont.)

KNOWLEDGE – often referred to as SCIENTER or “Guilty Knowledge”

INTENT – the court determines whether the representation was made with the purpose of getting the person to take action based on the representation

RELIANCE – if there is no reliance upon the representation by the plaintiff, there is no fraud, even if the representation is false

A. Fraud / Deceit (cont.)

INJURY – if the plaintiff has not suffered any damages, there is no cause of action for fraud

NEGLIGENT MISREPRESENTATION – occurs if a person makes a statement of fact that is not true, having no reasonable ground for believing it to be true

B. Remedies

There are several remedies available to a victim of fraud


C. Defamation

DEFAMATION –occurs when a person’s reputation is harmed


The best defense to a claim of defamation is that the statement was true


ABSOLUTE PRIVILEGE – exists where publication has been made in the proper discharge of an official duty or in any legislative, judicial, or other official proceeding authorized by law

QUALIFIED PRIVILEGE – offers protection only if malice is not present

  • MALICE – a feeling of hatred or ill will toward the plaintiff


– is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:

Charges a person with a crime, or with having been indicted, convicted, or punished for crime

Imputes in him the present existence of an infectious, contagious, or loathsome disease

Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits

Imputes to him impotence or a want of chastity

Which, by natural consequence, causes actual damage [CC§ 46]

D. Intentional Infliction of Emotional Distress

This tort is of increasing importance to business people today

More and more people claim actions of others have caused them extreme stress

When mental suffering has been caused by intentional and outrageous conduct, damage may be awarded

E. Assault and Battery

ASSAULT – occurs when a person is in apprehension of a battery

BATTERY – occurs when the defendant intentionally, and without consent or privilege, commits an act that results in a harmful or offensive contact with the plaintiff that causes damage, loss or harm

  • Both assault and battery are crimes as well as torts


  • Consent
  • Privilege

F. False Imprisonment

Seldom arises in a business setting

“the unlawful violation of the personal liberty of another” [PC§ 236]

G. Invasion of Privacy

In California, the right of privacy is a constitutional right. The RIGHT OF PRIVACY entitles us to be free from physical or electronic intrusions or invasions

INTRUSION – plaintiff must show that invasion or intrusion was highly offensive to a reasonable person



  • Equivalent to a libel claim
  • Highly offensive to a person of ordinary sensibilities and broadly published


II. Intentional Torts Against Property

  • Trespass to Land
  • Nuisance
  • Conversion

A. Trespass to Land

When there is an unlawful interference with another person’s property, a trespass has occurred

May be intentional, negligent, or reckless




  • Consent
  • Necessity

B. Nuisance

Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property or unlawfully obstructs the free passage or use, in the customary manner, or any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance [CC§ 3479]

C. Conversion

Exercising the wrongful dominion over the personal property of another

DOMINION refers to the person’s ownership of the property or his or her right to the property

A conversion infers that the person committing the conversion has not simply damaged the property but has impaired the ownership or right to the property

III. Negligence

  • Duty
  • Breach
  • Causation
  • Injury to the Plaintiff
  • Negligence Per Se
  • Defenses
  • Assumption of the Risk


The tort of NEGLIGENCE occurs when someone fails to exercise care under circumstances where they owe a duty of reasonable care to those around them

The 4 basic elements that must be proved in a successful claim of negligence are that the defendant:

Owed a legal duty to the plaintiff to use ordinary care;

Breached that duty that was owed to plaintiff;

The breach was the cause, and

The plaintiff suffered injury as a result of the breach

A. Duty

Civil Code Section 1714 imposes a duty on all of us to use ordinary care in our activities and daily life

When the defendant is able to foresee a risk, he is expected to mitigate his actions so that the plaintiff is not harmed

B. Breach

When the defendant fails to exercise the level of care called for under the circumstances, he will be found to have BREACHED his duty

C. Causation

The plaintiff must also prove that the defendant’s carelessness caused the injuries suffered

In California, the SUBSTANTIAL FACTOR standard is used to determine cause in fact (“but for” test)

PROXIMATE CAUSE is the other part of causation which simply stated, if the injuries of the plaintiff were foreseeable to the defendant, there is proximate cause.

D. Injury to the Plaintiff

If the plaintiff suffers no harm from the defendant’s action, liability will not be present

Without damages, negligent acts do not lead to a legal cause of action

E. Negligence Per Se

Where the defendant’s actions violate a statute, ordinance, or regulation of a public entity, it will be presumed that the defendant failed to exercise due care

This presumption will be made when the following are present:

If the violation caused death or injury to a person or property;

The death or injury resulted from an occurrence of the nature that the statute, ordinance, or regulation was designed to prevent;

The person suffering the death or injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted [EvC§ 669]

F. Defenses

COMPARATIVE NEGLIGENCE is the predominant defense used in California. In determining the liability of the defendant under pure comparative negligence, the damages will be diminished in proportion to the amount of fault attributable to the plaintiff.

CONTRIBUTORY NEGLIGENCE is an “all or nothing” rule that prevents the plaintiff from recovering any damages from a negligent defendant if the plaintiff has also failed to exercise due care and this failure contributes to his injuries.

G. Assumption of the Risk

PRIMARY ASSUMPTION OF THE RISK occurs when the plaintiff voluntarily participates in the activity and there is no legal duty owed by the defendant to protect the plaintiff from harm

SECONDARY ASSUMPTION OF THE RISK occurs when the defendant owes the plaintiff a duty of care but the plaintiff knowingly encounters the risk created by the defendant’s negligent actions

IV. Strict Liability

Strict Liability

When one engages in an ultra-hazardous or abnormally dangerous activity, the courts will impose liability regardless of fault

V. Tort Procedure and Tort Reform

A. Possible Federal
Tort Law Remedies

B. California Tort Law: Some Differ From Federal Law

Evidence Guidelines

Medical Injury Compensation Reform Act (MICRA)

“Reckless Misconduct” Provisions

California Tort Claims Act