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John Marshall Law School, Chicago
Hopkins, Kevin L.

Torts Outline- Hopkins
Spring 2013
Chapter 1: Development of Fault Based Liability
A.     Definition of a tort
a.      A civil wrong other than a breach of contract for which the law provides a remedy
                                                  i.      Exception
1.      Some rules rise out of a contractual relationship
a.      Ex: Ford Motor Company w/ defect that causes injury to you- starts off as a contract
B.     Primary functions of tort law (doesn’t take away liberty/freedom- that’s criminal law)
a.       Provide a peaceful means for adjusting the rights of parties who might otherwise “take the law into their own hands”
b.      Deter wrongful conduct (sometimes with punitive damages)
c.       Encourage socially responsible behavior
d.      Restore injured parties to their original condition, insofar as the law can do this, by compensating them for their injury
e.       To vindicate individual rights of redress
f.       Promote widespread distributions of losses by encouraging people to buy insurance
                                                  i.      Insurance system in the back of the tort system
1.      Big business in the US
2.      Whether we like it or not, it does serve a function- when we are the person that crates these situations it serves a great purpose for us
C.     Historical Origins of Tort Law
a.       Theories
                                                  i.      1. Originated w/ liability based upon “actual intent & actual personal culpability”
1.      Fault = culpability/blameworthiness
2.      Acted in a way that makes me worthy of blame
                                                ii.      2. Originated by imposing liability on those who cause physical harm
1.      gradually developed toward acceptance of moral standards as the basis of liability
2.      Strict liability (no fault) à fault
b.      Writs (England- Kings Bench)
                                                  i.      Writ of Trespass
1.      Provided court with jurisdiction, legal ability to hear and try a case.
2.      If your injury was the result of direct immediate application of force from D to you
a.      Regardless of fault
                                                ii.      Writ of Trespass on the Case
1.      It could apply in all other situations that where not the result of immediate application of force
2.      Writ of T/C came about to eliminate the harshness of the only 1 writ that you can recover from
                                              iii.      Previously there were only 2 avenues to gain relief
D.     Modern Day Tort Law
a.       No writs, instead there is a cause of action
                                                  i.      Writ of Trespass on the Case still has somewhat of a role in modern day tort law (transferred intent)
b.      Situations where you aren’t touched by D but still injured
c.       Examples
                                                  i.      Defamations- not touching person but they are still injured
                                                ii.      Misrepresentation- falsify information to get you to sign a K
d.      3 levels of Liability
                                                  i.      You act Intentionally
                                                ii.      You act negligently
                                              iii.      No fault, strict liability
e.       3 levels of strict liability
                                                  i.      Animals (wild animals- ex: imported from Africa)
                                                ii.      Certain kinds of activity (abnormal activity- ex: blasting)
                                              iii.      Products (defective product especially made by manufacturer)
f.       Fault: culpability & blameworthiness
E.     Cases leading up to Modern Tort Law
a.       Hulle v. Orynge (King’s Bench 1466)
                                                  i.      Shows us writ of trespass applied during this time period
1.      If injuries of P were a result of direct immediate application of force from D, D was liable (consistent with strict liability)
b.      Weaver v. Ward (King’s Bench 1616)
                                                  i.      Military training exercise. P ran across the D’s gun as he discharged it.
                                                ii.      Shows us they were starting to transition away from Writ of Trespass
1.      Determined liability based on fault, eventually finding D not liable
c.       Brown v. Kendall (Massachusetts 1850)
                                                  i.      Dogs were fighting, D attempted to stop the fight by hitting one of the dogs with a stick. While raising the stick, he accidently struck P
                                                ii.      Transitioned to writ of trespass on the case
1.      Held that P held the burden of proof- needed to show D was liable for injuries
2.      Showed trial court erred with instructions- trumps everything else
d.      Cohen v. Petty (D.C. 1933)
                                                  i.      D, with no history of bad health, was driving a car with wife, P, and P’s sister. D felt sick all of a sudden & the car ran into a ditch. P & sister sustained injuries.
                                                ii.      No fault = no liability
1.      Court ruled that there was no negligence since D had no reason to suspect sudden illness
e.       Spano v. Perini Corp. (NY 1969)
                                                  i.      P’s garage damaged as a result of blasting by D nearby while constructing a tunnel
                                                ii.      Strict Liability
1.      Strict liability will apply for damages resulting from an activity like blasting
Chapter 2: Intentional Interference with Person or Property
A.     Intentional Torts Analysis
a.       What is the tort at issue? What’s the protected interest/policy that society has deemed important enough to protect?
b.      Can P establish the prima facie elements for the cause of action
                                                              i.      Have all of the elements been satisfied (e.g. are there facts to support the presence of each element?)
c.       Does D have a defense or privilege?
                                                              i.      If so, the D, whose conduct technically satisfies the prima facie elements of a tort, will not be held liable
B.     Intent
a.      An act is done intentionally if it is done:
                                                              i.      Willfully with purpose or design; OR
                                                            ii.      With knowledge to a Substantial Certainty that the result (harm) would occur
                                                          iii.      Example of where the court remands case because they did not look at both potential elements (cannot conclude no intent unless you look at BOTH elements)
1.      Spivey v. Battaglia (Florida 1972)
a.       Trial court only looked at knowledge
b.      This case also shows offensive contact explained later in battery cases
                                                                                                                                      i.      P is shy & married à off limits à touch was unwarranted à offensive contact
c.       Statute of limitations is an issue here
                                                                                                                                      i.      Trial court should oftested negligence
b.      Plaintiff has to establish intent (they hold the burden) when bringing an intentional tort cause of action
c.       Transferred Intent:
                                                              i.      Doctrine developed to allow for an extension of liability in situations where the defendant has intended tortious conduct towards one person and a different tort is completed on the same person OR where the initial tort or a different tort is completed on a new victim
                                                            ii.      General considerations
1.      The initial tort must be incomplete
2.      Both the initial tort and the resulting tort must fall within the 5 torts that fell under the writ of trespass
a.       If so, the law will presume that the completed tort was “intended” by the actor
                                                          iii.      Intentional torts that can transfer (5 that fell under writ of trespass)
1.      Assault
2.      Battery
3.      False Imprisonment
4.      Trespass to Land
5.      Trespass to Chattels
                                                          iv.      Example
1.      Talmage v. Smith (Michigan 1984)
a.       Property owner ordered some kids to get off the roof of one of his many sheds. D tossed a stick intending to strike on of the boys but instead struck P in the eye, causing total loss of sight.
b.      Since no intent towards P, court applied transfer intent doctrine to avoid injustice in the case P couldn’t recover under battery
d.      Accidents are NEVER intentional
e.       Mistake is NOT a defense
                                                              i.      Ranson v. Kitner (Illinois 1889)
1.      D was hunting for wolves and mistakingly thought a dog was a wolf… held liable
f.       Children ca

because no apprehension
                                                            v.      Threatening w/ a gun, loaded or unloaded, is an assault if there was imminent apprehension
                                                          vi.      D running towards P while throwing rocks becomes an assault when P has apprehension
                                                        vii.      Standing 3-4 feet away, D blows kisses at P while making no effort to touch her à no assault
e.       Defenses
                                                              i.      Consent
                                                            ii.      Justification
                                                          iii.      Self-defense
                                                          iv.      Defense of others
E.     False Imprisonment
a.       Definition
                                                              i.      Intentional direct or physical restraint of someone’s physical liberty without that person’s consent or legal justification
b.      Test
                                                              i.      D acts w/ intent to restrain the movement of the P w/o legal justification/consent
                                                            ii.      P is confined to a fixed/bounded area
                                                          iii.      No reasonable means of escape available
                                                          iv.      P is aware of confinement at time of confinement
1.      Parvi v. City of Kingston
a.       Police leave @ golf course
b.      Knew at time of confinement that dignity for being free is violated
c.       General Considerations
                                                              i.      Can be restrained by words/acts which they fear to disregard
1.      No tort action if they are consenting
a.       Hardy v. LaBelle
                                                                                                                                      i.      No facts indicating that she was restrained against her will- was able to leave whenever she wanted to.
b.      Staying in room to clear name- no action or false imprisonment
                                                            ii.      If convicted after arrested = cannot sue for False Arrest/False Imprisonment
                                                          iii.      Physical as opposed to moral restraint is required for False Imprisonment
1.      This does not mean actual physical force is required.
                                                          iv.      Longer the restraint à higher the damages
                                                            v.      Arresting without probable cause = unlawful
1.      Probable cause or reasonable suspicion – law is being violated while in their presence
2.      Enright v. Groves
a.       If she was in car, may be lawful to ask for license before talking about the unleashed dog but she met him half way
b.      Arrested her for not giving license… not for the unleashed dog.
                                                                                                                                      i.      No law saying have to provide license if walking around (in car maybe different story)
                                                          vi.      If one has the duty to do something, and duty results arguably in restraint of moving… the breach of that duty can result in a false imprisonment cause of action
1.      Whittaker v. Sandford
a.       Refusing to provide one w/ the means to overcome a physical barrier can constitute restraint such as can give rise to a claim for false imprisonment
d.      Defenses