Torts — Intentional, Negligence, Strict Liability, Damages

A tort is a civil wrong, separate from a breach of contract or a crime, for which a court provides a remedy in the form of an action for damages.

The defendant owes the plaintiff a duty imposed by law (not by private agreement), breaches that duty, and the breach causes legally cognizable harm.

Tort law allocates the costs of accidents and intentional wrongs across private parties. It is the largest body of state common law in the United States and the engine of most mass-litigation in the country — asbestos, tobacco, opioids, talc, Roundup, social-media addiction.

This note is a reference for the doctrinal structure of US tort law:

• The three primary categories: intentional torts, negligence, strict liability.
• The major sub-doctrines: duty, breach, causation, defenses, vicarious liability, joint-and-several.
• The leading cases at each doctrinal node.
• The modern statutory and regulatory overlays that shape contemporary tort practice (CAFA, MDL, CERCLA, MICRA, the modern Restatement Third).
• The mass-tort landscape from asbestos through the social-media-addiction MDL.

Tort law is overwhelmingly state common law, varying significantly by jurisdiction. The Restatements of the American Law Institute are the dominant unifying reference; many doctrines below are stated in their Restatement form with notes on jurisdictional variation.

1. The Three Categories

Tort liability runs along three primary tracks:

• Intentional torts — the defendant intends the act and (under the doctrine of dual intent in some jurisdictions, single intent in others) intends the harmful or offensive consequence, or knows it is substantially certain to result.
  • Restatement (Second) of Torts § 8A: intent means “purpose” or “substantial certainty.”
  • Doctrinal cousins: trespass, nuisance, defamation, privacy torts, business torts.
• Negligence — the defendant fails to conform to the standard of care of a reasonable person under the circumstances, and that failure causes harm.
  • Dominant category by volume; most modern accidents (motor vehicle, slip-and-fall, medical malpractice, professional malpractice) are negligence cases.
  • Four elements: duty, breach, causation (factual + proximate), damages.
• Strict liability — the defendant is liable without fault for harms arising from abnormally dangerous activities, certain animals, or defective products.
  • Liability turns on the activity, not on culpability.
  • The modern landscape: blasting, hazardous materials, wild and certain domestic animals, defective products.

Three secondary categories overlay all of these:

• Product liability — a hybrid that sits across negligence, strict liability, warranty (UCC), and misrepresentation. The single most economically significant category in modern tort practice.
• Statutory torts — wrongful death (statutory in every state since the 19th century, modeled on Lord Campbell’s Act 1846), survival actions, civil RICO (18 U.S.C. § 1964), CERCLA (42 U.S.C. § 9607), Title VII employment discrimination, 42 U.S.C. § 1983 actions against state actors under color of state law, Bivens actions against federal actors.
• Mass torts / MDL practice — Federal MDL consolidation under 28 U.S.C. § 1407 and state-level coordination. As of 2024 over 70% of pending federal civil cases are in MDLs (JPML statistics). The modern delivery system for personal-injury litigation.

2. Intentional Torts to the Person

2.1 Battery

Battery is the intentional harmful or offensive contact with the person of another. Restatement (Second) § 13, § 18.

Elements:

1. Act — voluntary, by the defendant.
2. Intent — to bring about the contact, or to cause apprehension of imminent contact (under transferred intent).
3. Contact — direct (a punch) or indirect (poisoning food, setting a trap).
4. Harmful or offensive — measured against a reasonable sense of personal dignity.

The defendant need not intend harm. Intent to make contact that is in fact offensive to a reasonable sense of personal dignity is sufficient (the “single intent” rule applied in most jurisdictions). The “dual intent” rule, requiring intent both to contact and to cause offense or harm, was reaffirmed in White v. Muniz, 999 P.2d 814 (Colo. 2000).

The plaintiff need not be aware of the contact at the time. A surgeon who operates on an unconscious patient without consent commits battery (Mohr v. Williams, 104 N.W. 12 (Minn. 1905)).

Damages:

• Nominal damages (even absent physical harm).
• Compensatory — pain and suffering, medical expenses, lost wages.
• Punitive damages for malicious conduct.

Battery and the criminal offense of battery share the same name and similar elements but exist in separate domains. The same conduct may give rise to both criminal prosecution (state) and civil action (private plaintiff) at different burdens of proof — beyond a reasonable doubt vs. preponderance of the evidence.

2.2 Assault

Assault is the intentional act causing the plaintiff to reasonably apprehend imminent harmful or offensive contact. Restatement (Second) § 21.

Three elements:

1. Intent to cause apprehension or contact.
2. Apprehension by the plaintiff (subjective awareness, with the content judged as reasonable). Mere fear is not required — expectation of contact is. A small person can assault a large one if the apprehension is reasonable in the circumstances.
3. Imminence — words alone are usually not enough; there must be apparent present ability. Conditional threats (“if you don’t leave I’ll hit you”) and threats of future harm (“I’ll get you tomorrow”) typically do not satisfy.

Assault and battery are distinct torts and may be committed together or separately:

• A blow from behind is battery without assault (no apprehension).
• A swung-and-missed punch is assault without battery (no contact).
• A swung-and-connected punch from in front is both.

The plaintiff must be aware of the threat at the time (contrast battery, where awareness is not required).

2.3 False Imprisonment

False imprisonment is the intentional confinement of the plaintiff within fixed boundaries, by the defendant, with no reasonable means of escape, of which the plaintiff is aware or by which the plaintiff is harmed. Restatement (Second) § 35.

Methods of confinement:

• Physical barrier (locked room).
• Physical force (holding by the arm).
• Threat of force (credible, against plaintiff or third party).
• Assertion of legal authority (false arrest).
• Refusal to release from a confined space where defendant has duty to release.

Mere moral pressure is insufficient. A person free to leave but feeling socially or emotionally pressured to stay is not falsely imprisoned.

The shopkeeper’s privilege (Restatement (Second) § 120A) permits a merchant to detain a person reasonably suspected of shoplifting for a reasonable time and in a reasonable manner. Adopted by statute in most states (NY Gen. Bus. Law § 218; Cal. Penal Code § 490.5).

Damages typically include lost time, emotional distress, harm to reputation, and (where applicable) physical injury during the confinement.

2.4 Intentional Infliction of Emotional Distress

IIED, the Restatement (Second) § 46 tort, requires:

1. Extreme and outrageous conduct — beyond all possible bounds of decency, atrocious, utterly intolerable in a civilized community.
2. Intent or recklessness as to causing severe emotional distress.
3. Severe emotional distress in fact.
4. Causation.

Recovery is hard. Insults, indignities, threats, and rough language are not enough. The leading case is Wilkinson v. Downton, [1897] 2 Q.B. 57 — defendant told plaintiff as a “practical joke” that her husband had been seriously injured; she suffered severe psychiatric harm.

Factors that elevate conduct to extreme and outrageous:

• Abuse of position or relationship of authority (employer, landlord, common carrier).
• Knowledge of plaintiff’s particular susceptibility.
• Pattern of harassment rather than isolated incident.
• Conduct over an extended period.

In the modern era, Snyder v. Phelps, 562 U.S. 443 (2011), held that picketing a soldier’s funeral with anti-gay messages was protected speech and could not support IIED — a constitutional ceiling on the tort.

Negligent infliction of emotional distress (NIED) is a parallel doctrine with three approaches:

• Impact rule (historical, retained by a few states) — physical impact required.
• Zone of danger — plaintiff in physical danger and feared for own safety (Falzone v. Busch, 214 A.2d 12 (N.J. 1965)).
• Bystander recovery — Dillon v. Legg, 441 P.2d 912 (Cal. 1968) — three factors (proximity to scene, sensory perception, close relationship); refined in Thing v. La Chusa, 771 P.2d 814 (Cal. 1989).

2.5 Transferred Intent

Under the doctrine of transferred intent, if the defendant intends to commit one of the five “trespassory” intentional torts (battery, assault, false imprisonment, trespass to land, trespass to chattels) and instead commits a different one of those five, or commits the same tort against a different plaintiff, intent transfers. Talmage v. Smith, 59 N.W. 656 (Mich. 1894) (defendant threw stick at one boy, hit another — intent transferred). The doctrine does not extend to IIED or to torts outside the original five.

2.6 Defenses to Intentional Torts

• Consent — express or implied (O’Brien v. Cunard S.S. Co., 28 N.E. 266 (Mass. 1891) — plaintiff in vaccination line held her arm out, impliedly consenting). Consent is invalid if induced by fraud, coercion, or mistake of fact known to the defendant, or if the plaintiff lacks capacity. Consent obtained through misrepresentation of a material fact (e.g., medical context) is no consent.
• Self-defense — reasonable force to repel imminent unlawful force.
  • Deadly force only against deadly force or serious bodily harm.
  • No duty to retreat in many jurisdictions in one’s own home (castle doctrine).
  • Duty to retreat before deadly force outside home in retreat jurisdictions; abolished by stand-your-ground laws in over 30 states.
  • Reasonable mistake generally permitted.
• Defense of others — same scope as self-defense; reasonable mistake permitted in most jurisdictions (older “alter ego” rule limiting to the privilege of the party defended has largely been abandoned).
• Defense of property — non-deadly force only.
  • Katko v. Briney, 183 N.W.2d 657 (Iowa 1971), held a spring gun set in an unoccupied farmhouse unlawful.
  • The principle: life is more valuable than property; mechanical devices may not deliver force the owner could not deliver in person.
  • Reasonable force to recover property in fresh pursuit is permitted.
• Necessity —
  • Public necessity is a complete defense. Destroying property to stop a spreading fire is privileged with no liability (Surocco v. Geary, 3 Cal. 69 (1853)).
  • Private necessity is an incomplete defense. The defendant may use the plaintiff’s property to save life or limb but must pay for damage caused. Vincent v. Lake Erie Transportation Co., 124 N.W. 221 (Minn. 1910) — ship lashed to dock in storm; owner pays for dock damage.
  • Ploof v. Putnam, 71 A. 188 (Vt. 1908) — dockowner who untied vessel in storm liable for resulting injuries; private necessity created privilege to remain.

3. Intentional Torts to Property

3.1 Trespass to Land

Trespass to land is any intentional, unauthorized entry onto the land of another. No harm need be proved; nominal damages lie even for technical trespass.

The classic statement is Dougherty v. Stepp, 18 N.C. 371 (1835):

“Every unauthorized, and therefore unlawful entry, into the close of another, is a trespass.”

The intent required is intent to enter the land, not intent to trespass. Mistake of ownership is no defense. Throwing an object onto another’s land, causing flooding by altering drainage, sending pollutants — each can constitute trespass.

A licensee who exceeds the scope of permission becomes a trespasser. A guest invited to dinner who wanders into the host’s bedroom may trespass.

Damages include nominal damages, actual harm to the land, lost use, and (for intentional or malicious trespass) punitive damages.

3.2 Trespass to Chattels

Trespass to chattels is the intentional interference with the plaintiff’s possession of personal property that causes harm to the chattel, dispossesses the plaintiff for a substantial time, or causes harm to the plaintiff. Restatement (Second) § 217–218. Minor unauthorized use without harm does not generally support liability.

3.3 Conversion

Conversion is the intentional exercise of dominion or control over the plaintiff’s chattel that so seriously interferes with the plaintiff’s rights of control that the defendant may justly be required to pay full value. Restatement (Second) § 222A. Conversion is the “buy” tort — the measure of damages is the fair market value of the chattel at the time and place of conversion. Trespass to chattels is the “rent” tort — actual damages.

Factors distinguishing trespass to chattels from conversion include the extent and duration of dominion, intent to assert a right inconsistent with the owner’s, the defendant’s good faith, the extent and duration of resulting interference, the harm done, and the inconvenience and expense caused.

3.4 Nuisance

• Private nuisance — a substantial and unreasonable interference with another’s use and enjoyment of land. Restatement (Second) § 821D.
  • Balancing factors: gravity of harm versus utility of conduct, character of locale, social value of competing uses, suitability to locality, burden of avoidance.
  • Spur Industries, Inc. v. Del E. Webb Development Co., 494 P.2d 700 (Ariz. 1972) — feedlot lawful when built; later residential development made it a nuisance. Injunction granted but developer ordered to indemnify the feedlot for relocation. “Coming to the nuisance” with a twist.
  • Boomer v. Atlantic Cement Co., 257 N.E.2d 870 (N.Y. 1970) — cement plant a nuisance to neighbors but injunction denied; permanent damages awarded instead. Economic-balancing approach.
• Public nuisance — an unreasonable interference with a right common to the general public.
  • Standing typically belongs to public officials; private plaintiffs must show special injury different in kind from that suffered by the public at large.
  • Public nuisance has been deployed in:
    • The opioid litigation. State ex rel. Hunter v. Johnson & Johnson, 499 P.3d 719 (Okla. 2021), reversed by the Oklahoma Supreme Court — public nuisance does not extend to marketing of legal products.
    • Lead paint (California success; mixed results elsewhere — State v. Lead Industries Ass’n, 951 A.2d 428 (R.I. 2008) reversed Rhode Island win).
    • Climate-change suits (Connecticut v. American Electric Power Co., 564 U.S. 410 (2011) — federal common-law public-nuisance claims displaced by Clean Air Act; state-law claims working their way through state courts).

4. Defamation

Defamation protects reputation against false statements of fact communicated to a third party.

4.1 Elements

1. A defamatory statement — one that tends to harm reputation in the community.
2. Of and concerning the plaintiff.
3. Publication to a third party who understands its defamatory meaning.
4. Fault — at common law, strict; under constitutional overlay, at least negligence.
5. Damages — presumed in some categories, special damages required in others.

4.2 Libel vs. Slander

• Libel — written, printed, broadcast, or otherwise in fixed form.
  • Damages presumed at common law.
  • Most modern courts treat broadcast and internet communications as libel for permanence.
• Slander — spoken.
  • Special damages required unless within one of the four slander per se categories:
    1. Imputation of a crime (typically of moral turpitude or punishable by imprisonment).
    2. Imputation of a loathsome disease (historically leprosy, venereal; modern application limited).
    3. Imputation harmful to the plaintiff’s business, trade, profession, or office.
    4. Imputation of serious sexual misconduct (historically “unchastity of a woman” — modern courts apply gender-neutrally).
• Libel per quod — statement is not defamatory on its face but becomes so with extrinsic facts. Special damages typically required, though jurisdictions split.

4.2.1 Defenses

• Truth — absolute defense; substantial truth sufficient.
• Privilege:
  • Absolute — judicial proceedings, legislative proceedings, executive officers in performance of duties, spousal communications.
  • Qualified — common-interest (employment references, credit reports), fair report of public proceedings; lost by abuse, malice, or excessive publication.
• Opinion — pure expressions of opinion not actionable; Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), holds that statements implying false facts may be actionable even if cast as opinion.
• Fair comment — on matters of public concern.
• Retraction statutes — many states limit damages where defendant publishes timely retraction.

4.3 Constitutional Overlay

• Public official / public figure plaintiff must prove actual malice — knowledge of falsity or reckless disregard for truth. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Extended to public figures in Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).
• Private figure plaintiff on a matter of public concern must prove at least negligence as to falsity; presumed and punitive damages require actual malice. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
• Private figure / private concern — common law rules largely revive. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985).

Recent megaverdicts on the constitutional framework: Dominion Voting Systems v. Fox News settled for $787.5millioninApril2023ontheeveoftrial;\ast USDominionv.Newsmax\ast and\ast Smartmaticv.Fox\ast remaininlitigation;\ast SandyHookfamiliesv.AlexJones\ast yieldedapproximately$1.4 billion in Connecticut and Texas judgments (2022).

5. Privacy Torts

William Prosser’s 1960 California Law Review article (“Privacy”) synthesized common-law decisions into four distinct privacy torts, adopted in the Restatement (Second) §§ 652A–652E:

1. Intrusion upon seclusion — intentional intrusion, physical or otherwise, upon the solitude or seclusion of another, highly offensive to a reasonable person.
2. Public disclosure of private facts — publicity given to a matter concerning the private life of another, of a kind highly offensive to a reasonable person and not of legitimate concern to the public.
3. False light — publicity that places another in a false light highly offensive to a reasonable person, with knowledge or reckless disregard of falsity (post-Time, Inc. v. Hill, 385 U.S. 374 (1967)).
4. Appropriation of name or likeness — unauthorized use of plaintiff’s name, likeness, or identity for the defendant’s benefit, usually commercial. Spun off into the modern right of publicity in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953) (baseball cards) and now codified by statute in roughly half the states (Cal. Civ. Code § 3344; Ind. Code § 32-36-1-1).

6. Negligence — The Master Tort

Negligence requires:

1. Duty — a legally recognized obligation owed by defendant to plaintiff.
2. Breach — failure to conform to the standard.
3. Causation — both factual (but-for) and proximate (legal).
4. Damages — actual, cognizable harm.

6.1 Duty

The general duty is to exercise reasonable care under the circumstances. The reasonable person is an objective construct — typically of ordinary prudence, with the defendant’s physical characteristics but not the defendant’s mental quirks, applied to the situation as it appeared at the time.

Cardozo majority in Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y. 1928) — duty extends only to foreseeable plaintiffs in the foreseeable zone of danger.

Facts: The Long Island Railroad guard pushed a passenger onto a train. The passenger dropped a package of fireworks. The explosion knocked over scales at the other end of the platform onto Mrs. Palsgraf, who was waiting for a different train.

Holding: No duty owed to her — she was outside the foreseeable zone of danger.

Andrews dissent — duty runs to the world; the issue is proximate cause, not duty. Andrews’ factors for proximate cause (natural and continuous sequence, direct connection, foreseeability, remoteness in time and space) remain influential.

The Cardozo–Andrews split structures every duty-versus-proximate-cause analysis. Most jurisdictions follow Cardozo’s foreseeable-plaintiff approach.

Special relationships generate affirmative duties to act:

• Innkeeper–guest, common carrier–passenger, school–student, employer–employee, jailer–prisoner.
• Custodian of a person with known dangerous propensities (Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976) — therapist’s duty to warn third parties of patient’s specific threats).
• Voluntary undertaking (Erie R.R. v. Stewart, 40 F.2d 855 (6th Cir. 1930) — railroad that customarily stationed flagman at crossing assumed duty to continue).

Special-standard plaintiffs and defendants:

• Children — typically held to the standard of a reasonable child of like age, intelligence, and experience.
  • Robinson v. Lindsay, 598 P.2d 392 (Wash. 1979) — snowmobile case adopting age-appropriate standard but applying adult standard for adult activity.
  • Some jurisdictions follow the “rule of sevens” — under 7 incapable, 7-14 rebuttable, over 14 adult standard.
  • Exception: when engaged in inherently dangerous adult activity (operating a snowmobile, motor vehicle, firearm), adult standard applies.
• Professionals — held to the standard of a reasonably competent member of the profession in the same or similar locality (medicine, law, accounting, engineering).
  • Expert testimony nearly always required to establish standard and breach.
  • National standard for board-certified specialists in most jurisdictions; locality rule waning.
  • Informed consent is its own doctrinal track — patient-centered standard (Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972)) or physician-centered standard depending on jurisdiction.
• Hand formula — United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947) (L. Hand, J.)
  • Duty exists where B < PL (burden of precaution less than probability of harm times magnitude of loss).
  • An economic gloss on breach more than a strict rule; rarely cited explicitly in jury instructions but widely used in law-and-economics analysis.

Landowner duties (traditional categories, still followed in roughly half the states; merged into general reasonableness in Rowland v. Christian, 443 P.2d 561 (Cal. 1968), and progeny):

• Trespassers — refrain from willful, wanton, or reckless conduct.
  • Warn of known artificial dangerous conditions to discovered or anticipated trespassers.
  • Attractive nuisance doctrine for child trespassers (Restatement (Second) § 339) — landowner liable for artificial conditions on the land if: (i) knows or has reason to know children likely to trespass, (ii) condition involves unreasonable risk, (iii) children unlikely to discover or appreciate, (iv) burden of eliminating slight compared to risk, (v) failure to exercise reasonable care.
• Licensees — social guests, persons entering with permission for their own purposes.
  • Warn of known dangers not obvious to the licensee.
  • No duty to inspect.
• Invitees — business visitors, public invitees on land open to the public.
  • Reasonable care to inspect, discover, and warn or remedy.
  • Includes “mode of operation” doctrine in slip-and-fall cases in some jurisdictions.

6.2 Breach

Breach is failure to conform to the applicable standard. Evidence of breach:

• Custom — admissible but not dispositive.
  • The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932) (L. Hand, J.) — tugs lacked radios; industry custom did not require radios; held negligent anyway.
  • “There are precautions so imperative that even their universal disregard will not excuse their omission.”
  • Trimarco v. Klein, 436 N.E.2d 502 (N.Y. 1982) — failure to install shatterproof glass in apartment tub doors, when industry had moved to safer alternative, supported breach.
• Statute — negligence per se: violation of a statute designed to protect against the kind of harm suffered by a member of the protected class establishes breach as a matter of law (Restatement (Second) § 286).
  • Two requirements: (i) plaintiff a member of the class the statute protects; (ii) harm of the type the statute was designed to prevent.
  • Martin v. Herzog, 126 N.E. 814 (N.Y. 1920) (Cardozo) — driving without lights at night.
  • Excused if compliance impossible, emergency, ignorance of facts, incapacity, or compliance more dangerous than violation.
• Res ipsa loquitur — “the thing speaks for itself.”
  • Byrne v. Boadle, 159 Eng. Rep. 299 (Exch. 1863) — flour barrel falling from warehouse window.
  • Permits inference of negligence where:
    1. The accident is of a type that ordinarily does not occur without negligence.
    2. The instrumentality was within the defendant’s exclusive control.
    3. The plaintiff did not contribute to the accident.
  • Restatement (Third) § 17 modernizes to “the accident causing the harm is of a type that ordinarily happens as a result of negligence of a class of actors of which the defendant is the relevant member.”
  • Ybarra v. Spangard, 154 P.2d 687 (Cal. 1944) — multiple-defendant medical case; res ipsa applied to all members of operating-room team.

6.3 Causation

Cause in fact:

• But-for test — would the harm have occurred but for the defendant’s conduct? The default and almost-always-controlling test.
• Substantial factor — used in multiple-defendant cases where each cause alone would suffice.
  • Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Ry. Co., 179 N.W. 45 (Minn. 1920) — two negligently set fires merged; either alone would have destroyed plaintiff’s property; each defendant liable.
• Alternative liability — Summers v. Tice, 199 P.2d 1 (Cal. 1948) — two hunters negligently shot toward plaintiff; one bullet struck; impossible to identify shooter. Burden shifts to each defendant to disprove causation.
• Market-share liability — Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980).
  • DES (diethylstilbestrol) was prescribed for pregnant women in the 1940s–1970s; caused vaginal cancer in daughters decades later.
  • Plaintiff could not identify which manufacturer made the pill her mother took.
  • Liability apportioned by market share among major manufacturers.
  • Adopted by California, Washington, Wisconsin, Florida, New York (in modified form Hymowitz v. Eli Lilly & Co., 539 N.E.2d 1069 (N.Y. 1989)); rejected by most others.
• Loss of chance — recovery for reduced probability of survival in medical malpractice cases.
  • Herskovits v. Group Health Cooperative, 664 P.2d 474 (Wash. 1983) — late cancer diagnosis reduced survival chance from 39% to 25%; plaintiff could recover for the 14% lost chance, not the full death.
  • Adopted in roughly half the states; rejected in others.

Proximate cause / scope of liability:

• In re Polemis, [1921] 3 K.B. 560 — direct consequences regardless of foreseeability. Largely overruled by:
• Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. (The Wagon Mound (No. 1)), [1961] A.C. 388 (P.C.) — foreseeable type of harm required.
• The Wagon Mound (No. 2), [1967] A.C. 617 — slight risk of significant harm sufficient if foreseeable.
• Intervening / superseding causes — intervening forces may cut off liability if highly extraordinary in hindsight.
  • Intentional criminal acts of third parties are classic supervening causes unless foreseeable.
  • Subsequent medical malpractice generally not a superseding cause.
  • Acts of God may supersede if not foreseeable.
• Eggshell-skull plaintiff — the defendant takes the plaintiff as found.
  • Unforeseeable extent of harm is no defense once the type of harm is foreseeable.
  • Classic: minor blow causing rare fatal hemorrhage in plaintiff with preexisting condition.
• Danger-invites-rescue doctrine — Wagner v. International Railway, 133 N.E. 437 (N.Y. 1921) (Cardozo) — “Danger invites rescue. The cry of distress is the summons to relief.” Defendant who creates peril liable to rescuer injured in foreseeable response.

6.4 Damages

• Compensatory — past and future medical expenses, lost wages and lost earning capacity, pain and suffering, loss of consortium, loss of enjoyment of life, emotional distress.
  • Future medicals computed by present value of life-care plan.
  • Lost earning capacity uses work-life tables and vocational expert testimony.
  • Pain and suffering subject to jury discretion; statutory caps in many states.
• Pure economic loss rule — recovery in negligence is barred where the plaintiff suffers only economic loss unaccompanied by physical injury to person or property.
  • Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303 (1927) — ship charterers could not recover for lost use when dry dock negligently damaged the ship.
  • People Express Airlines, Inc. v. Consolidated Rail Corp., 495 A.2d 107 (N.J. 1985) and a minority of states permit recovery to identifiable plaintiffs.
  • Rationale: avoid indeterminate liability (“liability in an indeterminate amount for an indeterminate time to an indeterminate class,” Ultramares Corp. v. Touche, 174 N.E. 441 (N.Y. 1931) (Cardozo)).
• Collateral source rule — damages are not reduced by payments the plaintiff receives from collateral sources (insurance, employer, public benefits).
  • Rationale: tortfeasor should not benefit from plaintiff’s prudence; subrogation rights protect collateral sources.
  • Modified or abolished by statute in many states under tort-reform legislation.
• Loss-of-consortium — spouse, in many states children, may recover for the loss of society, companionship, services.
  • Historical: husband only (wife was a chattel).
  • Modern: both spouses and (in some jurisdictions) parents and children.
• Mitigation — plaintiff must take reasonable steps to mitigate damages.
  • Failure to seek reasonable medical treatment, return to work when able, or repair property reduces recovery.

7. Defenses to Negligence

7.1 Contributory Negligence

The historical common-law rule: any negligence by the plaintiff is a complete bar to recovery.

Survives in only four states + DC as of 2026: Alabama, Maryland, North Carolina, Virginia, and the District of Columbia.

Common-law mitigations:

• Last clear chance — if defendant had the last clear chance to avoid the accident, contributory negligence does not bar recovery.
• Willful and wanton — contributory negligence not a defense to intentional or willful conduct.

7.2 Comparative Negligence

Adopted in 46 states. Two flavors:

• Pure comparative — plaintiff recovers reduced by own fault, even if 99% at fault. Adopted in 13 states (California, Florida pre-2023, New York, Washington, etc.). Florida moved to modified 50% in 2023 with major tort reform (HB 837).
• Modified comparative — plaintiff barred if fault exceeds either 50% (12 states) or 51% (21 states).

Restatement (Third) of Torts: Apportionment of Liability (2000) embraces comparative fault and abolishes the distinction between contributory negligence and assumption of risk.

7.3 Assumption of Risk

• Express — by contract or signed waiver.
  • Generally enforceable.
  • Unenforceable for gross negligence, recklessness, intentional acts, or where public policy forbids.
  • Tunkl v. Regents of the Univ. of Cal., 383 P.2d 441 (Cal. 1963) — hospital admission waiver void; six-factor test for unenforceability based on public-interest characteristics of the service.
• Implied — voluntary encounter with known risk.
  • In most comparative-fault states, implied assumption of risk merges into comparative fault.
• Primary assumption of risk — no duty in the first place (inherent risks of sport, spectator at baseball game struck by foul ball, hockey puck).
  • Knight v. Jewett, 834 P.2d 696 (Cal. 1992) — recreational co-participants owe only a duty not to engage in conduct so reckless as to be outside the range of ordinary activity of the sport.

7.4 Statutes of Limitations and Repose

• Statute of limitations — runs from accrual of cause of action (or discovery for latent injury).
• Statute of repose — runs from event regardless of discovery; absolute bar.
• Continuing tort doctrine — tolls statute during continuous course of wrongful conduct.
• Equitable tolling — for fraudulent concealment, infancy, mental incompetence.

8. Strict Liability

8.1 Abnormally Dangerous Activities

The classic rule descends from Rylands v. Fletcher, L.R. 3 H.L. 330 (1868) — defendant who brings onto his land something likely to do mischief if it escapes is strictly liable. Restatement (Second) § 519–520 lists six factors (high degree of risk, likelihood of great harm, inability to eliminate risk by reasonable care, extent to which activity is uncommon, inappropriateness to location, value to community).

The Restatement (Third) § 20 simplifies: an activity is abnormally dangerous if (i) it creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised, and (ii) it is not one of common usage. Examples: blasting, storing large quantities of toxic chemicals, crop dusting (in residential areas), nuclear operations.

8.2 Animals

• Wild animals — strict liability for harm characteristic of the species’ dangerous propensity. Restatement (Second) § 507.
• Domesticated animals — strict liability if the owner knew or had reason to know of the animal’s dangerous propensities (“one bite rule” relaxed by modern dog-bite statutes — most states impose strict liability by statute for dog bites regardless of prior knowledge; e.g., Cal. Civ. Code § 3342).

9. Product Liability

9.1 Theories

Product liability arose at the intersection of tort and contract. Winterbottom v. Wright, 152 Eng. Rep. 402 (Exch. 1842), imposed strict privity. MacPherson v. Buick Motor Co., 217 N.Y. 382 (1916) (Cardozo, J.), abolished privity for negligence in dangerous products. Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69 (N.J. 1960), abolished privity in implied-warranty cases. Greenman v. Yuba Power Products, Inc., 377 P.2d 897 (Cal. 1963) (Traynor, J.), recognized strict tort liability for defective products, leading to Restatement (Second) of Torts § 402A (1965) — strict liability for one who sells any product in a defective condition unreasonably dangerous to the user or consumer.

Modern theories typically pleaded together:

1. Negligence — failure to exercise reasonable care in design, manufacture, warning.
2. Strict products liability — defective condition; consumer expectations or risk-utility.
3. Breach of warranty — express, implied warranty of merchantability (UCC § 2-314), implied warranty of fitness for particular purpose (UCC § 2-315).
4. Misrepresentation / fraud.

9.2 Three Defect Types

• Manufacturing defect — product departs from intended design.
  • The proverbial pop bottle that explodes; one unit in a million failing.
  • Easiest theory to prove; consumer-expectation test applies.
  • Escola v. Coca Cola Bottling Co., 150 P.2d 436 (Cal. 1944) — Justice Traynor’s concurrence foreshadowed strict products liability.
• Design defect — entire product line is defective. Two tests:
  • Consumer expectation — product more dangerous than ordinary consumer would expect.
  • Risk-utility — adopted by Restatement (Third) of Torts: Products Liability § 2(b) (1998). Plaintiff must prove a reasonable alternative design (“RAD”) that would have reduced foreseeable risks at reasonable cost.
  • Barker v. Lull Engineering Co., 573 P.2d 443 (Cal. 1978), permits either test in California.
  • Soule v. General Motors Corp., 882 P.2d 298 (Cal. 1994) — consumer-expectation test inappropriate for technically complex products.
  • Risk-utility factors (Wade factors): usefulness/desirability of product, safety aspects, availability of substitute, manufacturer’s ability to eliminate unsafe character without impairing utility, user’s ability to avoid danger, user’s anticipated awareness of dangers, feasibility of spreading loss through pricing or insurance.
• Warning defect — adequate warning of non-obvious risks not provided.
  • Learned intermediary doctrine in prescription drug context — warnings to physician sufficient.
  • Direct-to-consumer advertising may erode the learned-intermediary doctrine (Perez v. Wyeth Laboratories Inc., 734 A.2d 1245 (N.J. 1999)).
  • Wyeth v. Levine, 555 U.S. 555 (2009), held state warning claims not preempted for brand-name drugs.
  • PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011), held them preempted for generics (impossibility — generics must use brand-name label).
  • Heeding presumption: in many jurisdictions, plaintiff is presumed to have read and followed an adequate warning had one been given.

9.3 Iconic Product-Liability Cases and Mass Torts

• Liebeck v. McDonald’s Restaurants, P.T.S., Inc., No. CV-93-02419, 1994 WL 16777704 (N.M. Dist. Ct. 1994).
  • Stella Liebeck, 79, suffered third-degree burns requiring skin grafts after spilling coffee in her lap.
  • McDonald’s served coffee at 180–190°F over more than 700 prior burn complaints.
  • $2.86millionjuryverdict(reducedtoroughly$640,000).
  • The case most often cited as emblematic of tort excess and most often misunderstood; the actual facts are dramatically more sympathetic to the plaintiff than the public narrative.
• Ford Pinto — Grimshaw v. Ford Motor Co., 174 Cal. Rptr. 348 (Ct. App. 1981).
  • Rear-end fuel-tank fires causing burn injuries and deaths in low-speed collisions.
  • $125millionpunitiveverdict(reducedto$3.5 million on remittitur).
  • Internal Ford cost-benefit memo (the “Pinto Memo”) treated human life at approximately $200,000 — became a symbol of corporate calculation gone wrong.
  • Criminal prosecution of Ford in Indiana (State v. Ford Motor Co., 1980) ended in acquittal.
• Asbestos — the largest mass tort in American history.
  • Estimated $250+ billion in claims.
  • Over 8,500 defendant companies named.
  • Over 100 bankruptcies (Johns-Manville 1982, Owens Corning, W.R. Grace, USG, Babcock & Wilcox, Combustion Engineering).
  • 524(g) bankruptcy-trust mechanism (added 1994 to the Bankruptcy Code) channels claims into trusts that pay claimants on a percentage-of-liquidated-value basis.
• Tobacco — 1998 Master Settlement Agreement with 46 state attorneys general; $206 billion over 25 years from major tobacco manufacturers (Philip Morris, R.J. Reynolds, Lorillard, Brown & Williamson); restrictions on marketing to youth, funding of anti-smoking education; replaced the patchwork of state suits.
  • Mississippi, Florida, Texas, Minnesota settled separately for an additional ~$40 billion.
  • Engle progeny cases in Florida continue to generate individual judgments.
• Vioxx (rofecoxib) — Merck withdrew the COX-2 inhibitor in 2004 after data showed elevated cardiovascular risk.
  • Consolidated MDL settled for $4.85 billion in 2007.
  • One of the largest pharmaceutical-liability settlements before the opioid era.
• Roundup / Glyphosate — Bayer (which acquired Monsanto in 2018) has paid more than $11 billion to resolve approximately 100,000 claims alleging glyphosate causes non-Hodgkin lymphoma.
  • Johnson v. Monsanto, San Francisco Superior Court (DeWayne Johnson, 2018, $289millionverdict,reducedto$20.5 million) — first case to trial.
  • Hardeman v. Monsanto, 9th Cir. 2021 — affirmed $25 million verdict; certiorari denied.
  • Pilliod v. Monsanto, $2billionverdictreducedto$87 million.
  • IARC classified glyphosate as “probably carcinogenic” in 2015; EPA disagreed.
• Opioids — multistate settlements exceeding $50 billion.
  • Purdue Pharma (Sackler family, ~$6 billion); structure rejected by SCOTUS in Harrington v. Purdue Pharma L.P., 603 U.S. ___ (2024) — third-party releases of non-debtor Sacklers improper.
  • Distributors McKesson, AmerisourceBergen, Cardinal Health — collectively ~$21 billion.
  • Johnson & Johnson — $5 billion settlement.
  • Pharmacies CVS, Walgreens, Walmart — ~$13 billion combined.
  • Mallinckrodt and Endo bankruptcies.
  • The opioid crisis contributed to over 500,000 overdose deaths from 1999 to 2022 in the U.S.
• Talcum powder / Johnson & Johnson — ovarian cancer and mesothelioma claims arising from alleged asbestos contamination in talc.
  • J&J spun off LTL Management in a “Texas Two-Step” bankruptcy strategy.
  • The 3rd Circuit dismissed in In re LTL Management, LLC, 64 F.4th 84 (3d Cir. 2023) — lacked good-faith financial distress.
  • J&J refiled; settlement framework in flux through 2025.
  • Estimated 60,000+ pending claims.
• 3M Combat Arms Earplugs — MDL settled for $6 billion in 2023 covering approximately 240,000 service-member claims.
• Camp Lejeune — Honoring Our PACT Act of 2022 (Pub. L. 117-168) created a federal cause of action for Marine Corps personnel and families exposed to contaminated water 1953–1987.
  • Estimated 500,000+ claims.
  • Eastern District of North Carolina has exclusive jurisdiction.
• Social media addiction / youth mental health — In re Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, MDL No. 3047, N.D. Cal., consolidating actions against Meta, TikTok, Snap, YouTube.
  • Surgeon General’s 2023 advisory on social media and youth mental health helped catalyze litigation.
  • Section 230 defenses central; Anderson v. TikTok permits product-defect theories outside Section 230.
  • Live and active through 2026.
• Hair relaxer / formaldehyde — MDL No. 3060, N.D. Ill., uterine cancer claims against L’Oreal and others.
• PFAS / “forever chemicals” — 3M, DuPont, Chemours; over $13 billion in settlements with public water utilities through 2024.

10. Vicarious Liability

• Respondeat superior — employer liable for torts of employee committed within the scope of employment. Restatement (Second) of Agency § 219.
  • Frolic (employee’s own purposes, substantial deviation) breaks scope.
  • Detour (minor deviation) does not.
  • Intentional torts within scope are covered when motivated at least in part to serve the employer (Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167 (2d Cir. 1968) — drunken sailor opening valves on dock; held within scope because foreseeable consequence of seaman’s life).
  • Sexual misconduct of employees: usually outside scope (Doe v. Forrest, 853 A.2d 48 (Vt. 2004) and similar cases) absent specific facts of misuse of position.
• Independent contractor exception — hirer generally not liable for contractor’s torts.
  • Exceptions that restore liability:
    • Non-delegable duties (statutory, contractual, or public-policy-based).
    • Peculiar risk doctrine (Restatement (Second) of Torts § 416).
    • Inherently dangerous activities.
    • Negligent hiring, retention, or supervision.
    • Apparent authority (hospital signage holding contractor doctors out as employees).
• Joint enterprise / joint venture — vicarious liability among participants with shared business purpose, mutual right of control, financial interest, and community of pecuniary interest.
• Family-purpose doctrine (retained in some states) — owner of vehicle liable for torts of family members using it.
• Negligent entrustment — direct liability for entrusting dangerous instrumentality (car, gun) to one known to be incompetent or dangerous.

11. Joint and Several Liability

Historically, multiple tortfeasors who caused an indivisible injury were jointly and severally liable — plaintiff could collect entire judgment from any one. Modern reform:

• Pure several liability — each defendant pays only their share (about a dozen states).
• Joint and several with apportionment — Restatement (Third) of Torts: Apportionment of Liability § 17 — JSL retained but defendant who pays more than share has contribution claim. UCATA (Uniform Contribution Among Tortfeasors Act, 1955; revised 2002).
• Hybrid — JSL above a threshold (typically 50%); several only below.
• CERCLA — under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9607, strict joint and several liability for hazardous waste cleanup applies unless harm is divisible (United States v. Burlington Northern & Santa Fe Ry. Co., 556 U.S. 599 (2009)).

12. Damages and Remedies

• Compensatory damages — economic (medicals, lost earnings, property damage) plus non-economic (pain and suffering, loss of consortium).
• Punitive damages — to punish and deter.
  • Available for intentional, malicious, reckless, or grossly negligent conduct.
  • Constitutional limits set by Due Process:
    • BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996) — three guideposts.
    • State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003) — refined.
  • Three guideposts:
    1. Reprehensibility — most important factor; consider physical vs. economic harm, indifference to health/safety, financial vulnerability of target, repeated conduct, intentional malice vs. mere accident.
    2. Ratio to compensatory — single-digit ratio normally constitutional; greater ratios suspect except for small compensatories or particularly egregious conduct.
    3. Comparable civil penalties for the conduct.
  • Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) — capped punitives in federal maritime cases at 1:1 ratio with compensatory; reduced Exxon Valdez punitives from $2.5Btoroughly$500M.
• Statutory caps — most aggressive in medical malpractice.
  • MICRA (California Medical Injury Compensation Reform Act, 1975) capped non-economic damages at $250,000.
  • Held constitutional in Fein v. Permanente Medical Group, 695 P.2d 665 (Cal. 1985).
  • Updated by AB 35 (effective 2023) — phased increases reaching $750,000fornon-deathcasesand$1,000,000 for death cases by 2033.
  • Several state caps struck under state constitutions (Illinois, Georgia, Missouri); upheld elsewhere.
• Equitable remedies — injunctions (especially in nuisance), restitution, constructive trust, replevin.
• Wrongful death / survival —
  • Wrongful death: statutory cause of action for beneficiaries (spouse, children, parents) for their own losses (loss of support, consortium, services).
  • Survival: tort cause of action survives the decedent, recoverable by the estate (medicals, pain and suffering before death, etc.).
  • Statutory in every state — early Lord Campbell’s Act 1846 (England) model.
  • Federal: FELA, Jones Act, DOHSA.

13. Tort Reform

A persistent legislative and judicial movement from the 1970s onward:

• Damage caps — non-economic, total, punitive.
  • Most aggressive in medical malpractice.
  • State-constitutional challenges vary in success — struck in Illinois, Georgia, Missouri; upheld in California, Texas, Indiana.
• Medical malpractice reform — caps (MICRA model), pre-suit screening panels, certificates of merit (affidavit of meritorious claim from qualified expert before filing), statutes of repose.
• Expert evidence gatekeeping:
  • Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) — trial-judge gatekeeping; five non-exhaustive factors (testing, peer review, error rate, standards, general acceptance).
  • General Electric Co. v. Joiner, 522 U.S. 136 (1997) — abuse-of-discretion review.
  • Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) — extends to non-scientific expert testimony.
  • Codified in Federal Rule of Evidence 702 (amended 2000, again 2023).
  • Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (“general acceptance”) remains the test in a minority of states (NY, CA, PA, NJ until 2018, IL until 2002).
• Class Action Fairness Act of 2005 (Pub. L. 109-2) — expanded federal diversity jurisdiction over class actions.
  • $5 million aggregate, minimal diversity, more than 100 class members.
  • Removed many state-court class actions to federal court.
  • Home-state and local-controversy exceptions retain certain cases in state court.
• MDL practice — 28 U.S.C. § 1407, Judicial Panel on Multidistrict Litigation.
  • Consolidates pretrial proceedings in federal cases sharing common factual questions.
  • Modern mass-tort practice runs through MDL — over 70% of pending federal civil cases are in MDLs (2024 JPML statistics).
  • Bellwether trials structure settlement negotiations.
  • Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998) — MDL court cannot try transferred cases absent consent; must remand to originating court.

14. Statutory and Regulatory Overlays

Tort doctrine increasingly operates against a background of federal regulation:

• CPSC (Consumer Product Safety Commission) — recalls, safety standards under the Consumer Product Safety Act, 15 U.S.C. § 2051 et seq.
• FDA — drug and device approval; preemption questions:
  • Riegel v. Medtronic, 552 U.S. 312 (2008) — premarket-approved Class III medical devices preempted.
  • Wyeth v. Levine, 555 U.S. 555 (2009) — brand-name pharmaceuticals not preempted.
  • PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011), and Mutual Pharm. Co. v. Bartlett, 570 U.S. 472 (2013) — generic drugs preempted.
• NHTSA — automobile safety; the Takata airbag recalls remain among the largest in history (over 67 million inflators).
• EPA — environmental and chemical (toxic-tort overlay through CERCLA, RCRA, TSCA).
• OSHA — workplace safety; workers’ compensation as the exclusive remedy for most occupational injuries (immunizing employer from tort suit; third-party suits remain).
• Section 230 of the Communications Decency Act, 47 U.S.C. § 230 — broad immunity for interactive computer services for third-party content.
  • Limits under attack from both ends of the political spectrum.
  • Targeted carveouts in FOSTA-SESTA (Allow States and Victims to Fight Online Sex Trafficking Act, 2018).
  • Gonzalez v. Google LLC, 598 U.S. 617 (2023) — declined to reach Section 230 question.

14.1 Workers’ Compensation

A complete tort-substitute regime for occupational injuries:

• Exclusive remedy — employee surrenders tort claim against employer; receives statutory benefits (medical, indemnity, vocational rehabilitation, death benefits) regardless of fault.
• No-fault — employee need not prove employer negligence; employer cannot raise contributory negligence, assumption of risk, or fellow-servant defense.
• Schedule of benefits — statutory schedules for permanent partial disability; wage-replacement formulas for temporary and permanent total.
• Third-party actions preserved — employee may sue third-party tortfeasors (product manufacturer, premises owner); employer has subrogation lien.
• Intentional-tort exception — many states allow tort suit against employer for truly intentional acts; varying standards from substantial certainty to deliberate intent.

14.2 Constitutional Limits on State Tort Law

The U.S. Constitution constrains state tort doctrine in several ways:

• First Amendment — sets a constitutional ceiling on defamation, IIED, and privacy torts when speech on matters of public concern is involved. New York Times v. Sullivan, Hustler Magazine v. Falwell, Snyder v. Phelps.
• Due Process — caps punitive damages and requires fair procedures (State Farm v. Campbell).
• Commerce Clause / Dormant Commerce Clause — limits state regulation of interstate commerce that may extend to tort liability schemes.
• Full Faith and Credit — requires recognition of judgments and to some extent law of other states (Allstate Insurance Co. v. Hague, 449 U.S. 302 (1981)).
• Preemption — federal regulatory schemes may displace state tort claims.
• Seventh Amendment — jury trial in federal civil cases (state courts not bound; most state constitutions guarantee independently).

15. Cross-Domain Connections

Tort law sits at intersections with:

• contracts-and-ip — limits of contractual disclaimers, warranty/strict liability interplay, IP-related torts (trade secret misappropriation, Lanham Act false advertising).
• criminal-law-and-procedure — same conduct may give rise to both criminal prosecution and tort claim (lower civil standard of proof); civil actions following criminal acquittals (O.J. Simpson civil verdict).
• microeconomics — efficient-precaution analysis (Hand formula as B<PL), Coasean bargaining around nuisance, deterrence theory.
• security — data breach litigation, products liability for software, autonomous-vehicle tort allocation.
• climate-litigation — public nuisance suits against fossil-fuel companies, atmospheric trust litigation.

15.1 Comparative and Foreign Influences

US tort law shares roots with English common law but has diverged significantly:

• Loser-pays rule — adopted in most other common-law jurisdictions; rejected in US (the “American Rule”).
• Punitive damages — far more developed in US than elsewhere; rare or unavailable in civil-law jurisdictions; conflict-of-laws issues when enforcing US judgments abroad.
• Class actions — US has the most developed class-action procedure; many countries follow opt-in models with much narrower scope.
• Contingency fees — permitted in US; restricted or prohibited in many other jurisdictions.
• Civil-law tort doctrine — generally codified (France’s Code civil arts. 1382-1386 / now 1240 et seq.; Germany’s BGB § 823 et seq.); jurisprudence under code provisions parallels common-law negligence concepts.

16. Federal vs State Practice

• Tort law is overwhelmingly state law, varying significantly across jurisdictions.
• Federal courts hearing diversity cases apply Erie R.R. v. Tompkins, 304 U.S. 64 (1938) — state substantive law, federal procedural law.
• Federal tort statutes:
  • Federal Tort Claims Act (28 U.S.C. §§ 1346(b), 2671–2680) — waives federal sovereign immunity for negligent acts of federal employees within scope. Major exceptions: discretionary function (Berkovitz v. United States, 486 U.S. 531 (1988)), intentional torts (with law-enforcement carveout), foreign country.
  • Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 — railroad workers; comparative fault, no contributory bar.
  • Jones Act, 46 U.S.C. § 30104 — seamen.
  • 42 U.S.C. § 1983 — constitutional torts under color of state law.
  • Bivens actions (Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)) — federal constitutional torts; severely narrowed in recent years (Ziglar v. Abbasi, 582 U.S. 120 (2017); Egbert v. Boule, 596 U.S. 482 (2022)).
• Erie doctrine central to choice-of-law in federal diversity tort cases.
• Diversity jurisdiction under 28 U.S.C. § 1332 requires complete diversity and amount in controversy > $75,000; CAFA (28 U.S.C. § 1332(d)) relaxes for class actions.

17. The Restatements

Reference works prepared by the American Law Institute, distilling case-law trends. Highly influential, frequently cited by courts.

• Restatement (First) of Torts (1934, 1939).
• Restatement (Second) of Torts (1965, 1977, 1979) — still the most widely cited.
• Restatement (Third) of Torts — split into separate volumes by topic:
  • Products Liability (1998).
  • Apportionment of Liability (2000).
  • Liability for Physical and Emotional Harm (2010, 2012).
  • Intentional Torts to Persons (Tentative Drafts ongoing).
  • Liability for Economic Harm (2020).
  • Concluding Provisions (Defamation and Privacy in progress).

ALI Restatements are not binding law. They are persuasive secondary authority. Their influence depends on the prestige of the reporters (Prosser, Keeton, Wade, James, Schwartz, Goldberg, Zipursky) and on adoption by state supreme courts. The shift from Restatement (Second) § 402A (strict products liability) to Restatement (Third) § 2 (risk-utility with reasonable alternative design) is a recent example of significant doctrinal redirection through restatement work.

18. Procedural Notes for Tort Practice

• Statutes of limitations vary by jurisdiction (typically 1–6 years; discovery rule applies in many states for latent injury and fraud).
  • Personal injury: typically 2-3 years.
  • Medical malpractice: 1-3 years with discovery rule.
  • Property damage: 3-6 years.
  • Defamation: 1 year in most states (shortest of the common torts).
• Statutes of repose may bar claims regardless of discovery (10–15 years typical in product liability, sometimes longer for asbestos and certain occupational exposures).
• Notice-of-claim requirements against public entities — often very short (90 days to 6 months); strictly enforced.
• Joint defendants typically have contribution rights; partial settlements may trigger Mary Carter agreements (secret settlement plus continued participation, governed by jurisdictional rules on disclosure) or Pierringer release issues (release of one settling defendant with full credit to non-settling defendants for settling defendant’s share of fault).
• Discovery and pretrial motions — modern tort practice features extensive discovery, summary judgment, Daubert gatekeeping for expert evidence, and class certification or MDL coordination at the pretrial stage. Cases that survive to trial are a small minority.
• Insurance — most defendants carry liability insurance. Insurer typically owes duties to defend and to indemnify, with bad-faith exposure for refusal to settle within limits (Comunale v. Traders & General Insurance Co., 50 Cal. 2d 654 (1958)).
• Settlement — over 90% of tort cases settle before trial. Structured settlements and Medicare set-aside arrangements common in personal injury.

19. Doctrinal Frontiers (2020s)

• AI and autonomous systems — allocating tort responsibility among manufacturer, software developer, operator, and owner of autonomous vehicles, robots, and AI systems. Open questions about strict-products-liability application to software updates and machine-learning systems.
• Climate-change litigation — public nuisance, fraud, and consumer-protection suits against fossil-fuel companies by states, cities, and individuals. Procedural fights over federal removal continue.
• Cryptocurrency and decentralized systems — tort theories applied to rug pulls, hacks, and exchange collapses (FTX, Celsius, Voyager).
• Cyber and data-breach — class actions following major breaches; standing problem under TransUnion LLC v. Ramirez, 594 U.S. 413 (2021); negligence and breach-of-fiduciary-duty theories.
• Section 230 erosion — Gonzalez v. Google LLC, 598 U.S. 617 (2023), declined to reach Section 230; legislative carveouts (FOSTA-SESTA) and litigation pressure continue.

20. Sources for Further Reading

• William L. Prosser, Privacy, 48 Cal. L. Rev. 383 (1960).
• Restatement (Third) of Torts: Products Liability (American Law Institute, 1998).
• Restatement (Third) of Torts: Apportionment of Liability (American Law Institute, 2000).
• Restatement (Third) of Torts: Liability for Physical and Emotional Harm (American Law Institute, 2010, 2012).
• Guido Calabresi, The Costs of Accidents (1970).
• John C.P. Goldberg & Benjamin C. Zipursky, The Oxford Introductions to U.S. Law: Torts (2010).
• Kenneth S. Abraham, The Forms and Functions of Tort Law (5th ed. 2017).

Adjacent

• _index — Law library map.
• contracts-and-ip — Contract and IP doctrine; warranty interactions; trade secret torts.
• criminal-law-and-procedure — Same-act criminal/civil dual track; O.J. Simpson civil verdict; criminal restitution and civil damages.
• constitutional-law — First Amendment ceiling on defamation and IIED; punitive damages due-process limits; preemption.
• microeconomics — Hand formula, Coase theorem, efficient-precaution analysis.
• security — Data-breach tort litigation, software product liability, autonomous-vehicle liability.