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John Marshall Law School, Chicago
Hopkins, Kevin L.

Fall 2011
    A. Definition of a Tort
–    A civil wrong, other than a breach of contract, for which the law provides a remedy.
    B. Purposes of Tort Law:
        1.    To provide a peaceful means for adjusting the rights of parties who might otherwise “take the law into their own hands”
        2.    To deter wrongful conduct
        3.    To encourage socially responsible behavior
        4.    To restore injured parties to their original condition by compensating them for their injury.
        5.    To promote broad distribution of losses.
            E.g. Providing opportunities to companies that has taken a hit by increasing their prices
                    – Ford slightly increased the price of its other cars to pay for damages.               
        Tort Law vs. Criminal Law
            – Tort law is design to restore parties
            – Criminal law is design to punish the guilty
    C. Tort law influence on Insurance
    –  Promotes people to get insurance to help pay for any liability
    –  Tort law is also driven by the fact that people have insurance
    D. Historical Origins of Tort Law:
    –  Started as a no fault system; so fault was not important.
    –  Evolved to a fault-base system; Court looked at the culpability, blame-worthiness. Are you worthy of blame.            
        Writ of Trespass
        –  In the 15th and 16th century, a writ was required in order to get a court system hearing to determine relief.
        –  Allowed to give plaintiff cause of action for his or her injury from the immediate direct application of the defendant regardless of fault.
        – Writ gave the court the power to hear a case.
        Writ of Trespass on Case (Foundation for Modern Tort Law)
        –  Complete opposite of Writ of Trespass
            i.      Doesn’t have time sequence; so direct and immediate result of application of defendant is not needed.
            ii.     Use of force is not required.
            iii.    No presumption that the plaintiff suffered an injury or damages.
            Iv    .   Fault has to be establish
Writ of Trespass
– Time Sequence (Direct and Immediate)
– Damages is presumed
–  Fault is NOT required
*Abolished in the US
*Some aspects exist today
*Anonymous case
– I’m liable if I raise my stick for whatever reason and that stick injures that man behind me.
Writ of Trespass on Case
– Proof of Damages is required
– Proof of culpability (intentional/negligent) is required.
– Injuries do not have to be direct or immediate result of defendant’s action.
    E. Modern Tort Law
        – No writs today
        – Instead, there are cause of action (similar to writs)
    Three levels of Liability
    1.    You act intentionally  
    2.    You act negligently; carelessly
    3.    No fault; strict liability whether there is negligence or intent; Eg. Statutory rape.
                Three levels of Strict Liability
                a.        Animals; especially wild animals e.g. imported from Africa
                b.        Certain kinds of activity (abnormal activity eg. Blasting near adjacent property)
                c.     Products; defective product especially made by manufacturer
    F. Cases leading to Modern Tort Law 
        Weaver v. Ward (transitioned away from Writ of Trespass)
        P and D were in a military training exercise. P ran across the D’s gun as he discharged it, and the D ended up hurting and wounding the P. The court transitioned away from writ of trespass and determined liability based on fault, and eventually finding D not liable.
        Brown v. Kendall (transitioned to Writ of Trespass on Case)
        P’s and D’s dogs were fighting. D attempted to stop the fight by hitting the dogs with a stick. While raising his stick, he accidently struck P. P sued under writ of trespass. The court transitioned to writ of trespass on case and held P the burden of proof to show D was liable for his injuries.
        Cohen v. Petty (No fault = no liability)
        D, with no history of bad health, was driving a car with his wife in the passenger, P and her sister in the back. D felt sick all of the sudden and the car ran into the bank of a culvert causing P and her sister injuries because they were thrown out of the car. . The court ruled that there was no negligence since D had no reason to expect a sudden illness.            
        Spano v. Perini Corp. (Strict liability)
        P’s garage was damaged as a result of a D’s blasting nearby to construct a tunnel.
        => Strict/Absolute liability will apply for damages resulting from an activity like blasting.
    A. Intent
        1.    Definition:
            a. Specific – Willful, purpose with design
            b. General – With knowledge to a substantial certainty
            *Level of fault that makes defendant liable
        2.    General Considerations:
            a.    Children can be held liable           
                Garratt v. Dailey (Establishes General Intent)
Court found that a 5-year old child can have intent with knowledge of substantial certainty when he pulled the chair behind his aunt as she was sitting down.
Other Cases
– A 4-year old child that struck a babysitter, whose throat was crushed, was found liable.
– The court set a floor on a 2-year old that bit an infant          
            b.    Mistake is not a defense             
                Ranson v. Kitner
                D was hunting for wolves and by mistake shot the P’s dog, who looked like a wolf.                          
            c. Insanity is not a defense
                Not a consideration to determine liability especially when children are held liable.                           
                McGuire v. Almy
P nurse was hired to take care of D, who was in good physical health but insane. P unlocked D’s room and entered to prevent D, who was in a destructive mode and threatening to kill anyone that enters, from hurting herself and was struck by D with a furniture piece. The court found D liable for battery since she threatened to kill and acted upon it.
=>   Courts will not bother with how insane a person is; they will only determine whether there was specific or general intent.
            d.    Transfer Intent (applies if)
                1.        The initial intentional tort is one of the five:
                        – False Imprisonment, Assault, Battery, Trespass of land, or Trespass of Chattel
                2.        Initial tort has to be incomplete (to whom it was intended)
                3.        Resulting tort is one of the five intentional tort.
                Talmage v. Smith
D property owner ordered some kids to get off the roof of one of his many sheds. Before one of them came down, D tossed a stick intending to strike one of the boys instead it struck P in the eye, causing total loss of sight. Since there was no intent towards P, the court applied the transfer intent doctrine to avoid injustice in the case P couldn’t recover under battery.
                *Intent can also be transferred from tort to tort.
Mr. Smith only intended to scare Byron Smith and not hit him so he threw a stick in his direction. Unaware of the quickly approaching stick, Byron turned his head in time to be struck immediately in the face. Byron lost several teeth. Can Byron sue for battery?
    1) The initial tort was assault since Mr. Smith only intended scare Byron.
    2)    The initial tort was incomplete
    3) The resulting tort was battery
    => Transfer Intent doctrine applies.
    B. Battery
        1.    Definition: The intentional harmful or offensive contact o

Facie Case
            a.    An attempt by the defendant/Causation
            b. An imminent apprehension of a battery
                – Plaintiff has to be aware of potential battery
                – Mental or cognitive awareness or recognition
                – Includes fear
            b. Intent
            c. Defendant has the apparent ability to carry the battery    
                – From the plaintiff’s viewpoint
                – The tort is completed when Plaintiff’s mind recognizes a potential battery.
        4. Cases
            I De S ct Ox. v. W de S
D came to P’s house to buy wine. The door was shut and D started banging on the door with his hatchet. P’s wife put her head out the window and told D to stop. D saw P’s wife and struck, but didn’t hit her. => Assault                             
            Western Union Telegraph v. Hill
P’s wife went to D’s office to get her clock repaired. D responded “If you will come back here and let me love you and pet you, I will fix your clock” while reaching for her with his hand. P’s wife jumped back thinking he was in reach.  => Assault
    Respondent Superior – When employer is liable for employee’s act when w/in scope of employment.
    Note: Employer wasn’t held liable bcuz D didn’t act w/in scope of his employment.
    In Fisher v. Carrousel, employer was held liable bcuz employee was w/in scope of employment.
            If P’s wife had a black belt in karate. Would the fact that she didn’t have fear prevent an assault?
            => Doesn’t matter, if there is an imminent apprehension of battery => Assault
            Other Cases:
            –  Standing 3-4 ft away, D blows kisses at P while making no effort touch her => NO Assault
            –  P will have to prove an imminent battery to take place when KKK rodes around his shrimp boat to frighten him because he is Vietnamese.
            –  D running towards P and throwing rocks becomes an assault when P has an imminent apprehension of a battery.
            –  Threatening with a gun, loaded or unloaded, is an assault if there was imminent apprehension
            – Plaintiff not knowing a gun was pointed at him was not an assault since there was no apprehension.
            Rule:     Words itself do not constitute an assault.
                        Eg. I’m going to kick your ass
    D. False Imprisonment     
        1. Purpose – a dignitary tort design to protect a person’s dignity and freedom to move.
        2. Definition –    Act with intent to unlawfully restrain/confine another to fix area with no reasonable means of escape with no adequate legal justification.
        3.    Prima Facie Case
            a.    Intent
            b. Unprivileged
            c. Physical Restraint
            d. To fixed or bounded area
            e. With no reasonable means of escape
            f.  Plaintiff has to have awareness of confinement.
        4.    Privilege/Legal Justification
             – When plaintiff is suicidal
            – Threat to family => Involuntary civil proceeding
            – Arrested by police w/probably cause