1. Significance of distinction: The distinction among these three major types of defendant conduct is most significant, apart from the basic question of liability, with respect to two issues:
a. Scope of liability: First, if the defendant’s conduct produces far-reaching, unexpected, consequences, will he be liable for these consequences? In general, the more culpable his conduct, the more far-reaching his liability for unexpected consequences. Liability for intentional torts, for instance, extends significantly further than that for the tort of negligence; see infra, p. 10.
b. Damages: Secondly, what measure of damages must the defendant pay once he is found liable? For all torts, he must pay “compensatory damages,” i.e., damages whose purpose is to repay the plaintiff for the harm she has suffered. (Obviously, this objective is virtually never realized in cases of personal injury; can $100,000 really repay the plaintiff for loss of an arm?
i. Punitive and nominal damages: But in intentional tort cases, the plaintiff may also sometimes obtain “punitive damages” and “nominal damages,” both of which are discussed infra, p. 10. Punitive and nominal damages are almost never recoverable where negligence or strict liability is the basis for recovery.
D. Analyzing tort problems: The student should analyze a tort problem by considering three major questions about each possible tort:
1. Basic requirements: Are the basic requirements (the “prima facie case”) for the tort satisfied?
2. Are defenses available? Are there any defenses or justifications which the defendant can raise that would prevent him from being liable (e.g., self-defense as a defense to a claim of assault, or contributory negligence as a defense to a claim of negligence)?
3. What damages? If the prima facie case has been established, and there are no defenses, what elements of damages may the plaintiff recover (e.g., medical expenses, lost income, pain and suffering, punitive damages, etc.)?