of the three main areas of tort law--

intentional torts, negligence, and strict liability.

Before we get to that overview, though,

we need to understand that in our study of tort law,

we are going to be making lots of implicit generalizations,

because the reality is that tort law

varies from state to state.

As explained in Episode 1,

tort law is a common law subject.

Most of tort law has evolved

through the holdings of individual court decisions.

A published court opinion,

arising out of an individual dispute,

becomes a precedent, which is applied

to future disputes that arise within the same jurisdiction.

Tort law is almost exclusively a matter of state law,

meaning that each state has developed

its own set of precedents

applicable within its jurisdiction.

In some areas of torts, almost all jurisdictions

follow the same basic approach.

In other areas of tort law, there are jurisdiction splits,

characterized by majority and minority approaches.

When a rule or standard is described

as the "majority approach,"

that means that it is the approach followed

by the majority of jurisdictions.

Sometimes, particularly on matters of first impression,

meaning that there is no precedent on point

from the highest court in the relative jurisdiction,

courts will also look to holdings

from courts in other jurisdictions,

and decide whether or not to follow the same approach.

Early tort law in the United States

borrowed from England, so you'll also see

some early English cases cited by American courts.

Sometimes, in addition to looking to precedents,

courts will also look to something

called a "restatement."

A restatement is something less than a code.

It's not like a statute enacted by a legislature,

and it's not like the Federal Rules of Civil Procedure

or even the Uniform Commercial Code

that's used in contracts...

but a restatement is something more than a treatise,

so it's not just another study aid or reference work.

The restatements are published by the American Law Institute,

an organization of legal academics and practitioners

that was founded in 1923.

A restatement is essentially an attempt

to summarize case law.

The ALI takes the whole body of common law--

judge-made doctrines that have developed

gradually over time--

and it tries to synthesize them into a set of rules.

Restatements are not binding authority in and of themselves,

but they are highly persuasive.

They are meant to reflect the consensus

of the American legal community as to what the law is,

and, in some cases, what it should become.

For torts, there are two restatements to keep track of.

For most of tort law, the second restatement

is the right place to look.

The ALI has also promulgated a third restatement,

but this one is not comprehensive.

It only addresses certain areas of tort law,

like products liability.

In torts, the restatements have not been as influential

as they have been in some other areas of the law,

like contracts.

For that reason, it is not as crucial

to know all of the ins and outs

of the restatements for torts,

but they can be helpful in figuring out doctrinal issues.

We'll use them a fair bit in our discussions

of intentional torts and strict liability,

but less so for negligence.

Now, let's talk about the three main types of tort liability.

Tort is not a single cause of action

the way that breach of contract is.

Rather, it is divided

into several different types of claims,

or causes of action,

all of which may be described as "sounding in tort,"

meaning that they are based on tort law principles.

Causes of action sounding in tort

can be categorized as one of the three main types

of tort liability--

intentional torts, negligence, and strict liability.

These categories are based on the differences

in the defendant's actions.

Intentional torts involve civil liability

for harms that are caused more or less deliberately

by the defendant.

For example, the defendant

deliberately hits the plaintiff across the side of the head.

Later, in our episode on intent,

we will flesh out what "more or less deliberately" means.

Intentional torts is an umbrella term

for several distinct causes of action,

which include battery, assault,

false imprisonment, trespass to land,

trespass to chattels, conversion, and others.

Each of these represents an intentional invasion

of the plaintiff's legally protected interest.

That might be an interest in being free

from harmful, offensive contact with one's person,

or in being free from apprehension

of harmful or offensive contact,

or an interest in freedom of movement,

or a possessory interest in property.

Negligence is the most common basis for tort suits.

This is liability for harms

that are not caused by the defendant deliberately,

but for which the defendant is at fault,

because he or she-- or it, in the case of a business--

was careless in some way.

For example, the defendant, posing for a picture,

backs up into the plaintiff,

knocking him into oncoming traffic.

Negligence is shorthand for an unreasonable

but unintentional interference

with the plaintiff's legally protected interest.

So, roughly speaking, both intentional torts

and negligence are based on wrongdoing

or fault on the part of the defendant.

Strict liability is something else altogether.

It's made up a few exceptional situations

where the law assigns liability

to the defendant even where the harm

was caused by accident, unlike intentional torts,

and even where the defendant was careful, unlike negligence.

For example, the defendant store owner

sells a defectively manufactured blender,

which malfunctions, injuring the plaintiff.

The defendant store owner may be liable,

even though he wasn't responsible

for causing the manufacturing defect,

and even though he could not reasonably be expected

to have discovered the defect before the sale,

because the defective blender

looked just like all the other blenders

it received from the manufacturer.

The idea behind strict liability

is that the law assigns the costs

of any consequences of the defendant's activity,

no matter how unexpected or unavoidable,

to the defendant.

Now, we also need to introduce a different label,

and explain that it's not really

a distinct TYPE of tort liability,

so much as a procedural mechanism

for bringing a claim under one of the three types.

In some jurisdictions, it's called "wrongful death,"

or in others, it might be called a "survival action."

Whichever label is used, the idea is the same.

A wrongful death or survival action

is basically just what happens

to a regular tort claim when the victim of the tort dies.

Wrongful death and survival actions

are made possible by statute.

Under the old common law of England,

there were three very restrictive rules

concerning what happens when a party

involved in a tort dies.

Keep in mind that these are old rules

that you don't need to know now.

They simply provide background for understanding

why wrongful death and survival actions

were not possible under the old common law.

One, if the tortfeasor-- the person who committed the tort--

died before the victim recovered,

the victim's right of action used to die with him.

Now, that's no longer true.

You can sue the estate of the tortfeasor.

Two, if the victim of the tort died

from the tort itself or any other cause,

before he recovered in tort,

the victim's right of action also died.

Now, that's no longer true.

The estate of the victim, or the victim's relatives,

can sue in his place using a wrongful death

or survival action.

Three, finally, if the tortfeasor

caused a victim's death, relatives and dependents

of the victim who were deprived of financial support,

or suffered emotional loss,

did not have a cause of action of their own.

Now, that's no longer true.

Not only can relatives sue

in the place of the deceased victim,

using a wrongful death or survival action,

claiming the damages that the victim

would have been entitled to,

but they can also sue in their own right

for the harms that they have suffered

as a result of the loss of their relative.

For all intents and purposes,

wrongful death and survival actions

work exactly the same way that intentional torts,

negligence, and strict liability claims do

under the common law.

So you'll sometimes see a case

that's styled as wrongful death or survival,

but the court basically treats it

as if it's just another intentional tort,

negligence, or strict liability case.

For each cause of action, courts have established

the basic elements that a plaintiff

is required to demonstrate to establish liability.

Taken together, these elements make up

the prima facie case.

For example, battery is an intentional tort

cause of action.

As we'll discuss in the next episode,

it is made up of the following elements--

one, the plaintiff must show that the defendant

intended to cause harmful or offensive contact.

Two, the plaintiff must show that harmful

or offensive contact actually occurred.

Three, the plaintiff must show that the defendant's actions

caused the plaintiff harm.

And four, the plaintiff must establish damages.

Also, for each type of liability,

courts have recognized affirmative defenses

that the defendant can raise.

For example, defenses to intentional torts

include consent and self-defense.

Defenses to negligence include assumption of risk

and contributory negligence.

The plaintiff has the burden of proof

with respect to the prima facie case,

for whatever claims he, she, or it, makes.

What this means is that for the plaintiff to win,

he has to convince a judge that he's going to be able

to present sufficient evidence to convince a reasonable jury

of facts that would support each of the prima facie elements.

If he can't do that, the judge will throw the case out

before it even gets to the jury.

Then, assuming that the parties are unable

to reach a settlement agreement,

the plaintiff has to actually convince a real jury

to a preponderance of the evidence standard,

meaning "more likely than not,"

of facts that would support each of the elements.

Now, a quick note-- we are saying "jury" here

for simplicity's sake, but sometimes, in a bench trial,

there is no jury, and the judge also acts as fact-finder.

The defendant can respond at each stage

in two different ways.

"A," by disputing the plaintiff's prima facie case,

meaning presenting evidence to counter

the plaintiff's argument that the defendant

acted intentionally,

and/or, "B," by raising affirmative defenses,

meaning presenting evidence to show

that the defendant was acting in self-defense.