Torts: Cases and Context Volume One
Eric E. Johnson
Associate Professor of Law
University of North Dakota School of Law
eLangdell Press 2015
Eric E. Johnson is an Associate Professor of Law at the University of North Dakota. He has taught torts, intellectual property, sales, entertainment law, media law, sports law, employment law, and writing courses. He has twice been selected by students as the keynote speaker for UND Law’s graduation banquet. His writing on legal pedagogy has appeared in the Journal of Legal Education.
With scholarly interests in science and risk, and in intellectual property, Eric’s publications include the Boston University Law Review, the University of Illinois Law Review, and New Scientist magazine. His work was selected for the Yale/Stanford/Harvard Junior Faculty Forum in 2013.
Eric’s practice experience includes a wide array of business torts, intellectual property, and contract matters. As a litigation associate at Irell & Manella in Los Angeles, his clients included Paramount, MTV, CBS, Touchstone, and the bankruptcy estate of eToys.com. As in-house counsel at Fox Cable Networks, he drafted and negotiated deals for the Fox Sports cable networks.
Eric received his J.D. cum laude from Harvard Law School in 2000, where he was an instructor of the first-year course in legal reasoning and argument. He received his B.A. with Highest and Special Honors from the Plan II program at the University of Texas at Austin.
Outside of his legal career, Eric performed as a stand-up comic and was a top-40 radio disc jockey. Eric archives teaching materials on his website at ericejohnson.com. His online exam archive includes more than a dozen torts essay exams and a bank of multiple-choice questions.
For Joe and Zane
This is the first edition of this casebook, updated December 2015. Visit http://elangdell.cali.org/ for the latest version and for revision history.
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What Makes this Casebook Different
This book is different from other casebooks in at least three key ways.
First, this book departs from the traditional style of most casebooks. Rather than just presenting a series of readings, notes, and questions, this book makes a deliberate and systematic effort to explain the law. It’s an implementation of an approach I argued for in an article, A Populist Manifesto for Learning the Law, 60 Journal of Legal Education 41 (2010). In keeping with that approach, this book aims to be easy to read and to make it easy for students to learn difficult concepts.
There’s something to be said for challenging students to figure out things for themselves. But, in my view, traditional casebooks err too much on the side of providing students with opportunities to get befuddled. This casebook strives for a balance. There are many formidable primary sources in these pages, but they are presented within a treatise-like narrative that will, I hope, help students get more of a return from their investment in reading.
Key to the explanatory mission of this book is an emphasis on context. I want students to understand why they are learning what they are learning, and where it fits into the bigger picture of tort law and the legal system as a whole. You will find evidence of that commitment in the first sentence of the first chapter, and it carries through to the end. This book also aims for real-world context, putting doctrine in the context of litigation strategy and trial tactics.
Second, this casebook is free. It is free in both senses of the word.
In one sense, it is free in that it does not cost the reader any money. That is, the price is zero. You can get an electronic copy for free, or you can buy a printed copy for whatever the paper and ink costs. You can also print it out yourself.
The no-money sense of free is great, but this casebook is also free in a deeper sense: It is unfettered by proprietary legal claims so that you have the freedom to abridge, expand, repurpose, or adapt it as you wish. That is to say, this book is “open source.” Consistent with the terms of the Creative Commons license that this book is published under, generations of instructors and students will be able to rip and remix this book to suit their needs.
The license – which is simple to deal with – is CC BY-SA 4.0. It lets you change up and redistribute the book so long as you share it forward – that is, so long as you make it available to others under the same license. The CC license is, in essence, a legal trick to keep downstream users from locking the book up with their own proprietary copyright claims.
The open-source nature of the book provides considerable advantages. For one, it means instructors can create their own customized version of this book at no cost. Cut out the parts you don’t want, and fill-in anything you think is missing.
The CC license also means instructors will never be compelled to use newer editions, since older versions will stay available, and anyone can always keep re-distributing any version.
It’s helpful for learners, too. The open-source licensing means students can cut-and-paste from this book to create their own study materials.
CALI’s eLangdell Press, by the way, has a whole fleet of casebooks with open-source/share-it-forward licensing arrangements.
Third, this casebook is offered not merely as a one-way communication. Instead, this book constitutes an invitation to you. If you are an instructor, please get in touch with me. I would be happy to provide you with notes, slides, advice, and anything else I can offer. And as the semester moves forward, I’d very much like to hear how your class is going. If you are a student, I would love to hear your comments about how this casebook is working and how it could be improved. One the things I like best about teaching live in a classroom is that I can see from the reactions of students whether I’m doing a good job of explaining something. Since, in writing this book, I can’t see any faces, I am relying on you and other readers to not be shy about telling me what I am doing well and what I could be doing better. You can find me at ericejohnson.com.
Let me go on to explain a little about the format of the book.
Questions and Problems
There are two types of questions in this book, and they are separately labeled as such. In addition, there are problems for you to work.
Questions to Ponder: These questions are intended to be interesting and helpful to think about after reading the preceding material. You should not, however, attempt to figure out “the answer” to these questions. They are not meant to have clearly correct answers. Instead, the idea is to prompt you to think more deeply about one or more facets of the case.
Check-Your-Understanding Questions: These questions are intended to help you see if you absorbed the preceding material. Unlike “Questions to Ponder,” the questions labeled as “Check-Your-Understanding Questions” are intended to have right answers.
Problems: The problems in this casebook are much more involved than the questions. Rather than asking for you to ponder ideas or come up with simple answers, the problems call upon you to do analysis. That is, you are expected to apply what you have learned. With the problems, you mirror to some extent the task of the practicing lawyer. As you will learn by working through them, some of the problems in this book have well-defined solutions. Others are more open-ended and invite creativity. But all are meant to get you to utilize doctrine and concepts to generate fresh insights in view of new facts.
Editing of Cases
In editing the cases for inclusion in this book, I have strived primarily for readability and brevity. Thus, I have been quite liberal in cutting down courts’ text, and, in some cases, re-arranging it.
I have left a record of my editing either in the cases themselves, in the annotations below, or in the aftermatter at the end of the book. I realize most casebooks do not provide this level of detail about the editing, but by thoroughly cataloging my edits, I hope to facilitate the revision and adaptation of this book by others.
I have handled footnotes in a slightly unconventional manner. The reason why is that this book is being written to work in multiple formats, including print, the print-like PDF format, and various e-book formats with variable pagination. Achieving compatibility across formats presents a problem with regard to footnotes. Footnotes are no problem in print. But footnotes are often rendered awkwardly in e-book formats.
This is a particular problem for a casebook. Courts love footnotes. Gather together a collection of judicial opinions, and footnotes are everywhere. In truth, footnotes are a wonderful structural tool for writing, since they give the reader choices. Less essential matter is kept out of the text, allowing a time-pressed reader to forge ahead. Yet if a more probing reader wants to read the footnote material, the eyes do not have to go far to find it. Unfortunately, standards developers have not provided a way of dealing with digital footnotes that preserves all the functionality they exhibit on paper.
One way around the problem posed by continuous pagination in electronic formats would be to convert the footnotes to endnotes. Hyperlinking can then facilitate a reader’s movement from the text to the endnotes and back again. But that does not work in this casebook for two reasons. First, even though clicking links back and forth is easier than finding your way through a document with a scroll wheel or slide knob, clicking links is still time consuming. And with a lot of footnotes, the clicking time adds up. Second, this book is intended also to work well in a print distribution, and you can’t use hyperlinks to avoid page turning in a physical book.
Because of these concerns, I have adopted a zero-footnote/zero-endnote policy for this book.
Yet there is nonetheless footnote material in many cases that deserves to be read. So, where I felt footnote material was important, I have incorporated it into the inline text. I have adopted this convention for marking footnote material:
A The superscript right-pointing descending arrow indicates the beginning of footnote material.
@ The superscript left-pointing descending arrow indicates the end of a passage of footnote material.
While this system works well, there is one wrinkle: Sometimes courts put footnote references in the middle of a sentence. Where this has happened, I have had to depart from the exact linear order of the text, usually by inserting the footnote material after the end of the sentence.
Because I think it is good for the reader to be able to get a sense of the relative fidelity of the edited version of a reading compared to the original, I have left editing marks in many places.
Editing a casebook presents a special challenge in indicating what edits you have made. Courts themselves, when writing opinions, include an enormous amount of quoted material. Thus, unedited court opinions are filled with ellipses to show where the quoted version differs from the original. If I used ellipses in editing the opinions themselves, how could the reader of this casebook tell my edits from the court’s?
To avoid such ambiguity, I have used a special mark in lieu of an ellipsis where the chopping was mine:
~ The superscript tilda denotes matter omitted.
The superscript tilda also has the advantage of being less obtrusive than an ellipsis.
 Brackets indicate an insertion. The insertion may be mine or the court’s.
The insertion is generally mine if the brackets are not in a quote, although you’ll notice that some courts use brackets in and around citations as part of their adopted citation style.
Any other editing marks you see are the court’s, not mine.
While I have sought to indicate significant edits in the text, as I’ve just described, I also have made unmarked changes. In such cases, I left them unmarked because I felt marking them would have been unduly distracting. In particular, I have liberally omitted citation matter from cases, including parallel cites, portions of cites, and whole cites. (Note that I didn’t remove all citation; in many places I thought it was helpful or even essential.) Other unmarked edits are cataloged in the aftermatter at the end of this book.
First and foremost, I want to acknowledge and thank my students, particularly my torts students over the years at the University of North Dakota. They helped me immeasurably to grow as a teacher, and they provided invaluable feedback for the early forms of material that evolved into this casebook. A particular note of thanks is due my 2014-2015 and 2015-2016 torts students. Many of them went above-and-beyond-the-call in helping me ferret out typos and rework unclear passages. Since they are current students, I won’t list names, but I am truly indebted to them. I also owe thanks to the faculty, staff, and administration at the University of North Dakota School of Law for their considerable support.
Many other people lent me their time and advice to help with this book. In particular, I grateful to Michael L. Corrado, Murray Tabb, Patti Alleva, Paul LeBel, Keith Richotte, Adam Gutride, Jim Dedman, Brian Schmidt, Devin Rogers, Pete Boll, Susan Carlson, Karen Martin, Jan Stone, and, especially, my wife, Kit Johnson. I also want to thank the anonymous reviewers who, through the CALI editing process, provided excellent counsel.
In addition, I want to thank many people who have helped me in indirect but important ways by having illuminating discussions with me about torts – discussions that ultimately helped me frame the explanations that appear in this book. Those people include Paul Gowder, Sanne Knudsen, Sandra Sperino, John L. Watts, Bruce L. Hay, Guido Calabresi, and, most especially, my own torts teacher, Jon Hanson.
I am also grateful to Justice Raymond D. Austin who suggested Benally v. Navajo Nation to me as a good teaching case, as well as Jennifer L. Schulz for making the same suggestion with regard to Dobson v. Dobson.
Finally, I want to warmly thank Deb Quentel and everyone at CALI for supporting me in this endeavor. I am grateful to them not only for their work with regard to this particular project, but also more broadly for their efforts to make legal education more efficient, effective, affordable, and accessible.
To start, it’s helpful to get some context for what you will be studying: what torts is, where it comes from, and how it fits into the general scheme of law and the law-school curriculum.
What is Torts?
Torts is traditionally one of the core, basic, required courses in law school. The subject of torts is civil lawsuits in which one person alleges that another person perpetrated some harm. Personal injury, medical malpractice, and defamation are all subjects of torts.
The subject matter of torts is broad and fundamental. If you wrote out a list of 10 things someone could sue over, most of them would probably be torts. Breach of contract is a matter for your contracts course. Questions of who owns what are questions for your property course. And many modern claims, such as copyright infringement or antitrust violation, are based in specific federal statutes. But otherwise, most of the traditional, frequently invoked claims that can serve as a basis for a lawsuit can be categorized as torts. Someone punches you? That’s a tort – it’s called battery. A careless driver loses control and drives over your lovingly hewn shrubbery? That’s a tort – it’s called negligence. An enraged neighbor intentionally drives over your shrubbery? That’s the tort of trespass to land. The neighbor does it over and over? Well, depending on how lovingly hewn the shrubbery was, that could be the tort of intentional infliction of emotional distress. Other torts include slander, invasion of privacy, products liability, and fraud.
The word “tort” dates back to Middle English, where it meant a wrong or an injury. The word, with its meaning, came to Middle English, by way of Old French, from the medieval Latin “tortum.” That word was produced as the past participle of “torquere,” which means to twist. Etymologically, the word “tort” is related to “torque,” “tortuous,” and “torture.”
How Torts Fits In
Let’s take a look at law school as a whole and see where torts fits in. Typically, law schools have at least these six courses in the first year: Torts, Contracts, Property, Civil Procedure, Criminal Law, and a course in basic lawyering skills, which goes by different names at different schools.
Torts is a doctrinal course teaching substantive private law. Explaining what that means will help you see how Torts relates to and is distinguished from your other courses.
Doctrine vs. Skills
Roughly speaking, there are two sets of subject matter taught in law school – skills and doctrine. Sometimes both are taught in the same course, but often a course tends to be either a skills course or a doctrinal course. Generally, 1Ls will have one introductory course to teach you how to do the things a lawyer does. This may be called “Legal Methods,” “Lawyering Skills,” “Legal Reasoning and Argument,” or something similar. You are taught how to do legal research, how to write a brief, and maybe how to present an oral argument in court. Advanced skills coursework may include trial techniques, negotiation techniques, drafting for business transactions, estate planning, and more. In contrast with skills courses, courses that teach the law itself are called doctrinal courses. Torts is a doctrinal course. Although a torts course might include some relevant skills training, the primary mission is to teach you what tort law is.
Substantive vs. Procedural
Doctrinal subject matter can be divided into two camps: procedural and substantive. Procedural law is law that governs the function of legal institutions. Most first-year law students take a course called Civil Procedure in which they learn the law that governs civil lawsuits. This includes how to start a lawsuit by serving a summons and a copy of the complaint on the defendant, which court to file the lawsuit in, and other essentials. Other procedural courses include Evidence, which largely concerns when you can say “Objection!” at trial, and Federal Courts, which covers some fascinating questions about the power of the federal courts in relation to Congress, the president, and the states. Substantive law, by contrast, directly governs what people can and cannot do, or to whom they will be liable if they do certain things. In many schools, a course called “Criminal Law” is about half procedural law (such as what constitutes probable cause) and half substantive law (such as the difference between murder and manslaughter). Torts is a body of substantive law. Contracts and Property are substantive courses as well.
Private Law vs. Public Law
Law can also be divided into “private law” and “public law.”
“Public law” refers to direct regulation by the government of individual conduct. If you run afoul of public law, then you are in trouble with the government. Substantive criminal law fits within this category, as does constitutional law, immigration law, environmental regulation, zoning ordinances, and the motor vehicle code.
“Private law,” on the other hand, refers to substantive law that gives one private party a claim on which to sue another private party. Torts is this kind of law. If you commit a tort, you are not in trouble with the government, but you might get sued by some private person. Another way to refer to private law is “the law of obligations,” meaning that it is the law that recognizes obligations between private parties that are enforceable in court.
It is of course possible for the same action to create liability under both private and public law. Many actions that constitute a tort will also constitute a crime. If you intentionally kill someone, that’s actionable in tort as wrongful death, and it is prosecutable under criminal law as murder.
Technically speaking, the government could – if they really wanted to – sue you as a private party in tort. But that almost never happens. If the government comes after you, they have more potent means in the public law than they have under private law. If you break into a secret Air Force installation, for instance, the federal government is not going to noodle around with a tort suit for trespass. The U.S. Attorney will go to a grand jury and cook up an indictment with some heavy federal criminal statutes. Getting sued would seem dreamy by comparison.
The Elemental Concepts of Private Law
In most law schools there are three foundational first-year doctrinal courses that each revolve around an elemental concept in private law. Those courses are Torts, Contracts, and Property. Each of these represents an essential idea that can give one person a claim against another person in court. If one person injures another, that’s actionable under tort law. If one person breaches a binding promise to another, that’s actionable under contract law. If two people both claim to own the same thing, a court can resolve the dispute using property law.
These concepts are not just important as themes for first-year courses. They are fundamental ideas that that animate law as a whole, and thus the concepts from them will reappear over and over again throughout law school.
Take misappropriation of trade secrets, for instance. If an employee takes a secret recipe from a baker and sells it to a competitor, that is actionable under trade secret law. Trade secret law is usually thought of as a separate body of law, not as a species of torts, contracts, or property. But at a fundamental conceptual level, when we ask why we have trade secret law, we find ourselves using the basic theories of tort, contract, and property to explain it. For instance, you could say trade secret misappropriation should be actionable because it constitutes a harm suffered by the originator of the secret. That’s a tort way of thinking about it. Or, you could say the misappropriation should be actionable because it represents a broken promise made by the misappropriator to safeguard the secret. That’s a contract way of thinking about it. Or you could say that the misappropriation is wrong because the trade secret was owned by the originating party and thus the misappropriator had no right to transfer or dispose of it. That’s a property way of thinking about it.
You can think of torts, contracts, and property as the great common-law triumvirate in the first-year curriculum.
There is a fourth elemental concept, although it does not get its own course in the core curriculum. That fourth concept can be called unjust enrichment. The same concept also goes by labels such as “quantum meruit,” and “restitution.” The idea here is that a court should transfer some wealth from one person to another because the other person deserves it more. This is a very broad idea, but it usually is only applied in rare situations where no other theory would reach a just result. For instance, when an unconscious person – incapable of assenting to a contract – receives emergency treatment in a hospital, a theory of unjust enrichment gives the hospital a legal right to get paid. You might cover this doctrine in your contracts course.
So, that’s about it – four fundamental theories of the common law: tort, contract, property, and unjust enrichment. Most of the private law is built out of these four elements. So keep in mind that torts has a conceptual importance well beyond this single course. You can expect tort theories to come up in courses concerning constitutional law, intellectual property, civil rights, federal courts, securities regulation, and many others.
Where Tort Law Comes From
States vs. the Federal Government
In the United States, for reasons having to do with federalism and the dictates of the U.S. Constitution, tort law is almost entirely a creature of state law. Contracts, property, and unjust enrichment are, similarly, matters of state law.
This has a very important implication for this course: You are going to learn a generalized conception of tort law, not the law of any particular state. There are many different versions of tort law in the United States – including each state, plus the District of Columbia and various territories. Happily, tort law is mostly the same everywhere. But, unfortunately, you never know for sure what a particular doctrine of tort law is in any given jurisdiction until you check it out. And what may be a minor difference in the grand scheme of things could make all the difference in a particular lawsuit.
For you, as a law student, this is both annoying and liberating. It is annoying for obvious reasons: You could learn tort law extremely well, but yet not be able to answer any particularized question about it with certainty. It is liberating for the same reason – you are off the hook from knowing with certainty how the law will apply to any given situation. (This can make it a lot easier to dodge legal questions posed to you by members of your extended family when you are home for the holidays.)
By the way, when it is time for you to take the bar exam, you will find that most state bars require you to know the generalized conception of tort law, rather than your state’s particular law. When it comes to torts, you could even get a multiple-choice question on the bar exam marked wrong by answering it accurately based on your state’s idiosyncratic law.
Every once in a while, federal law has a say in a torts lawsuit, but such circumstances are rare. One example, covered in the part of this book on healthcare liability, is how the federal Employee Retirement Income Security Act – better known as “ERISA” – preempts tort lawsuits against health insurers. Two other examples, subjects for Volume Two, concern the Federal Tort Claims Act and constitutional due-process limitations on punitive damages.
Common Law vs. Civil Law
In American elementary schools, maybe even in middle schools and high schools, it is common to teach that the three branches of government – the legislative, the executive, and the judicial – each have three separate, distinct jobs: The legislative branch makes the law; the executive branch enforces the law; and the judicial branch interprets the law. Unfortunately, this is wrong. It is not just slightly inaccurate – it is fundamentally wrong. Most of the private, substantive law that is on the books in the United States has been created by the courts, not legislatures. This kind of court-created law is called the “common law.”
For the most part, what you will study in torts, contracts, and property are doctrines of common law. In creating, fine-tuning, and revising these doctrines, the courts are not being “judicially activist.” Under the common-law system, it is the job of the courts to do this. This is the way it has been for centuries.
The tort of battery, for instance, allows one person to sue another for a harmful or offensive touching. If someone kicks you, that’s a battery. Battery is actionable as a tort not because a legislature passed a statute, but because long ago, a court said it was. And later courts followed that court. If you want to find the “law of battery,” you will have to look in the reported opinions of the courts – not in the enactments of the legislature. This makes looking up the law complicated. And this is a large part of what people pay lawyers for: Reading through lots of cases to figure out what the law is on any given matter.
You could criticize the common-law method as abstruse, wasteful, arcane, and undemocratic. And these criticisms would not be groundless. Regardless, as a general matter, this is how the law works in the “common-law countries,” a group which includes the United States, the United Kingdom, Canada, Jamaica, Ireland, Tanzania, Australia, and New Zealand, among others. Looking at this list of common-law countries, you probably will not be surprised to learn that the common-law way of doing things derives ultimately from England.
There is another way of creating a system of private law that is much closer to the government/law model you may have learned in elementary school – that is, where the legislature makes the law and the courts interpret the law. In this other way of doing things, the legislature passes statutes that govern private legal causes of action. This method is sometimes called a “code system,” since the essential doctrines are arranged in the form of a written code – an organized set of laws. This system is also called a “civil-law system.” Countries that follow such a system are often referred to as “civil-law countries.” Examples include France, Mexico, Germany, Japan, Guatemala, Switzerland, Thailand, China, Brazil, and many others. The phrase “civil law” can be confusing, because in the United States, the word “civil” is often used in contradistinction to “criminal.” For instance your “Civil Procedure” course will cover the procedural law of “civil” lawsuits – meaning litigation that is not criminal litigation. In this sense, a tort lawsuit is a civil lawsuit, even though torts is a common-law subject. But to say that a country is a civil-law jurisdiction is to say that it follows a code system, in which the legislature creates the law of private obligations.
France is an archetypal civil-law jurisdiction. In France, the law that allows one person to sue another comes from the Napoleonic Code. The French civil-law heritage actually gives rise to two important exceptions to the common-law nature of torts in the United States and Canada. One state and one province have a code-based “law of obligations” rather than a common-law of torts. Those two jurisdictions are, naturally, Louisiana and Quebec. Owing to their French colonial history, each has a legal system that is a descendant of the Napoleonic Code.
While the code system has advantages, many of which are immediately apparent – including organization and accessibility – you will find that the common law has a wealth of subtly attractive features. In fact, both the common-law and civil-law systems have much to admire, which is perhaps why many countries – including Botswana, South Korea, Cameroon, Kuwait, and Norway – have adopted a mix of the two.
The Place of Statutes
Even in a common-law jurisdiction, the legislature has a role to play in shaping tort law. While, for the most part, legislatures do not create tort law, they can if they want to. And when a legislature passes a statute on a point of tort law, it trumps any contrary judge-made common law.
For instance, the courts decided long ago that killing another person is not actionable as a tort. If this sounds ridiculous to you, you are in good company. Legislatures have found it ridiculous too. That’s why state legislatures everywhere have passed statutes that create a “wrongful death” cause of action and allow “survivorship” claims.
So, some aspects of tort law are statutory in origin. Nonetheless, tort law is, overwhelmingly, a body of judge-made common law. This means that most of what you will study in a course on torts are cases in which judges have announced and sharpened common-law doctrines.
The Structure of a Tort Case
To proceed methodically through tort law, we will follow what you might call the internal structure of a tort. Understanding this structure requires separating out the roles of the plaintiff and defendant, and then distilling causes of action, elements, and affirmative defenses.
A plaintiff is someone who sues. A defendant is a person whom the plaintiff sues. In the torts context, this typically means that the plaintiff got hurt and the defendant is the one who is alleged to be responsible.
Causes of Action, Elements, Affirmative Defenses, and Burdens of Proof
A cause of action, also called a “claim,” is a basis upon which a plaintiff can sue. Torts has several causes of action. Some examples are battery, negligence, false imprisonment, fraud, and assault. In order to have a meritorious lawsuit, a plaintiff will need to properly allege at least one cause of action. Plaintiffs can, and frequently do, sue on multiple causes of action in the same lawsuit.
Each cause of action can be broken down into a number of elements. For instance, the cause of action for battery can be divided into the following four elements: (1) an action, that is (2) intentional, and which results in a (3) harmful or offensive (4) touching of the plaintiff. It is the plaintiff’s burden of proof to establish each of these elements. The plaintiff must establish all of the elements of the cause of action in order to win. It is not enough for the plaintiff to establish one or even most of the elements. The plaintiff must establish every single one in order to win.
If the plaintiff establishes each of these elements, then the plaintiff is said to have made out a prima facie case. “Prima facie” is Latin for “first face.” If a plaintiff has established a prima facie case, then the plaintiff has presumptively won.
You can understand the requirement that a plaintiff establish every single element just by thinking about it. Suppose you tap a stranger on the shoulder and ask her what time it is – after which she promptly sues you for battery. She can prove you undertook an (1) action, which was (2) intentional, and which resulted in (4) a touching. But the lawsuit must fail because there is nothing harmful or offensive about tapping someone on the shoulder. Because that element has not been established, the prima facie case for battery has not been made out. If you change the facts to replace the tap on the shoulder with a shove, then you have something harmful or offensive. And in that case there would then be a prima facie case for battery.
What does the defendant need to do to win a tort lawsuit? Absolutely nothing. At trial, the defendant can just sit back and see how things go, and if the plaintiff comes up short, failing to establish every element, then the defendant will win.
Now, even if the plaintiff establishes all the elements, and therefore has a prima facie case, the defendant still has two more ways to win. First, the defendant can undermine the plaintiff’s prima facie case by putting on additional evidence to refute the proof offered by the plaintiff on at least one of the elements of the cause of action. This is called a rebuttal defense. If the defendant can disprove just one element, the defendant wins on that cause of action.
There is a second way for the defendant to win as well: an affirmative defense. If the defendant can establish an affirmative defense, then the defendant can actually stipulate to the plaintiff’s entire case and yet still win. An affirmative defense defeats the entirety of the plaintiff’s successful prima facie case.
Different tort causes of action have different defenses. For the tort of battery, two principle defenses are consent and self-defense. Let’s say you punch someone in the face. That’s a battery. But suppose you punch the person in the face in the context of a boxing match. In that case, you can establish the affirmative defense of consent. Consent is a complete defense to battery. Alternatively, if the punch in the face was in the context of defending yourself against someone physically attacking you, then you can establish the affirmative defense of self-defense.
It’s a little strange how this works: If you punch someone in the context of a boxing match, you have committed a battery. That means that a prima facie case can be established against you. It does not mean the plaintiff will win when all is said and done, but it does mean the burden is on you, as the defendant, to establish that the punch was consented to in order to avoid liability. That’s not to say that this will be difficult: Just provide credible testimony that the plaintiff stepped into a boxing ring and took a fighting stance while wearing boxing gloves – that will suffice to show implied consent.
The general standard of proof in a torts lawsuit is preponderance of the evidence. This means that it counts as “proof” to show that something is more likely than not. If a jury, after hearing conflicting evidence, determines it was 50.000000000000001% likely that a defendant acted with consent when punching someone, then that counts as proof. The preponderance standard works for whomever has the burden of proof in a torts case on a given issue. That is, the preponderance standard is the standard by which plaintiff must prove every element of a cause of action, and it is the standard applied to defendants seeking to establish an affirmative defense.
One way of thinking about the burden of proof and the preponderance standard together is that it constitutes a tie-breaker. If the question is whether a prima facie case has been established for a given cause of action, then the burden is on the plaintiff – that means that any tie will go to the defendant. If the issue is whether an affirmative defense is established, the burden is the defendant’s – so a tie on that issue will go the plaintiff. (Just remember, a defendant is not required to prove an affirmative defense to win. If the plaintiff fails to prove any element of a given cause of action, then the defendant wins without doing anything.)
The preponderance standard can be compared to the well-known standard for criminal prosecutions: proof beyond a reasonable doubt. The reasonable-doubt standard in criminal law is a high bar. By comparison, the preponderance of the evidence standard in a tort suit is easy to meet. Suppose, after a trial, a jury collectively thought, “We aren’t very sure about it, but we think it’s slightly more likely than not that the defendant intentionally killed the victim.” That’s enough for a wrongful-death verdict, but it would lead to an acquittal for a murder charge.
One more note about causes of actions and affirmative defenses: Remember that it is possible for a plaintiff to allege more than one cause of action in a lawsuit. In fact, it’s typical. Similarly, a defendant may raise multiple affirmative defenses. A single altercation between two people could give rise to claims for battery, negligence, false imprisonment, fraud, defamation, and more. Each of those claims could give rise to multiple affirmative defenses, and all would ordinarily be dealt with in the same lawsuit.
Why allege more than one cause of action? Well, some causes of action entitle a plaintiff to more in monetary damages than others. Some are easier to prove than others. Bottom line, however, to get some relief, a plaintiff needs only to prevail with one cause of action. Similarly, for any given cause of action, a defendant can raise multiple affirmative defenses. But the defendant needs only to prove one affirmative defense to prevail with regard to any given cause of action.