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John Marshall Law School, Chicago
Hopkins, Kevin L.

Tort:  a civil wrong for which the law provides a remedy
Five Functions:
1.      Discourage people from “taking the law into their own hands”
2.      Deters wrongful conduct
3.      Encourages socially responsible behavior
4.      Compensates; restores P to pre-tort condition
5.      Promotes the distribution losses
Writ of Trespass – provided recovery for injuries to P or P’s property caused by direct/immediate application of force by D towards P
·         Damages resulted from the immediate/direct use of force by defendant
·         No fault was required
Writ of Trespass on the Case – provided recovery for injuries to P or P’s property that was caused indirectly/not by immediate/direct application of force
·         Modern Torts – nuisance, conversion, fraud, defamation, malicious prosecution, negligence, privacy, interference with contractual relations, etc.
Strict Liability – liability due to the decision made by the legislator in which no intent is needed and there is no defense for you – we currently operate under a fault based system which allows D a way out
·         Conduct that triggers strict liability:
o   Product liability
o   Inherently dangerous (blasting)
o   Animals
·         Must have intent (can’t be an accident)
·         P has to prove that D acted with intent
·         Fault = blame worthiness
Intentional Conduct à Reckless Conduct à Negligent Conduct
TEST: (either/or)
1.      D acts willfully, or with purpose, or with the goal to cause a tort
2.      D acts with knowledge to a substantial certainty that his conduct will result in a tort
5 Types:
1.      Battery
2.      Assault
3.      False Imprisonment
4.      Trespass to Land
5.      Trespass to Chattels
General Considerations
·         A child can be held liable for an intentional tort if the child acts with intent to cause a tort to another (Garret)
·         Mistake of fact – will not negate/destroy intent (Ranson)
·         Insanity – an insane person is liable when he/she acts with intent to cause a tort (McGuire)
Transferred Intent Doctrine – legal fiction extending liability when intent is transferred to another object or person
·         Intended 1 tort and another is completed on that person
·         Initial or different tort falls on new victim
·         Intended/completed tort must be 1 of the 5
·         Initial tort must be incomplete
*See problem set handout
Negligence ß ————————————– à Intent
                        (Foreseeability)                     (Knowledge to a substantial certainty)
Defined – harmful or offensive contact with P’s person
Policy – to protect one’s interest in freedom from intentional and unpermitted contacts with P’s person
Test: (both elements required)
1.      D acts with the intent to cause a harmful OR offensive contact with another, AND
2.      A harmful OR offensive contact results/occurs
·         Can occur if done to anything connected with P’s person
·         Crowded world theory – some physical contact permitted
·         Physical harm is unnecessary
·         Egg shell defendant – If you aggravate a pre-existing condition by accident, you are still liable because you intended the action  (kicking hypo)
·          D need not be aware of what would normally be offensive (sleeping beauty)
·         After someone refuses help, contact is a battery (unless incapacitated)
            Defined – to act with intent to cause apprehension of a harmful or offensive contact
Policy – to protect one’s interest in freedom from apprehension of a harmful or offensive contact with another (A mental invasion, rather than a physical invasion)
Test: (all required)
1.      D acts with intent to cause a reasonable apprehension of an imminent battery (harmful/offensive contact)
2.      P experiences apprehension of an imminent battery and the apprehension is reasonable (well founded belief)
3.      D has the apparent ability to cause the imminent battery
·         Don’t confuse apprehension with fear or intimidation
·         Words alone cannot constitute an assault – but, words with conduct are enough (a threat combined with some act)
·         Can occur even if no battery can take place, as long as there is a reasonable fear (unloaded gun, reaching across desk but too far away)
·         Apprehension must be immediate
                  Defined – the intentional unlawful restraint of another
Policy – to protect one’s interest to be free from unlawful restraints of movement (dignitary tort)
Test: (all required)
1.      D acts intending to restrain the P against his/her will;
2.      To a fixed or bounded area;
3.      Has no reasonable means of escape;
4.      P has to know of means of escape
·         P must be aware of confinement
·         Can restrain through inaction (must show D had obligation to act)
·         Words are sufficient (“If you leave, I’ll kill you”)
Defined – to act with purpose or knowledge to a substantial certainty that the    
conduct will result in severe emotional distress
Policy – protect one’s interest to be free from serious, intentional & unprivileged invasions of mental

to exercise dominion and control over the chattel of another, AND
2.      The act is/results in a substantial interference with the possessor’s rights to possession
                 Factors to determine seriousness
·         Extent and duration of actor’s control and/or resulting interference
·         Actor’s intent to assert a right inconsistent with the other’s right of control
·         Actor’s good faith
·         Harm done to chattel
·         Inconvenience and expense caused
1.      Acquiring possession (stealing)
2.      Damaging/altering property
3.      Using it
4.      Receiving it
5.      Disposing of it
6.      Miss-delivering it
7.      Refusing to surrender it
·         Bailee who delivers goods to an imposter is liable to the Bailor/owner
·         If Bailee is holding goods (valet parker) – cant be held liable for accepting stolen car because then people wouldn’t be willing to operate parking garages
·         Remedy – forced sale of chattel (D must pay the full value to P)
·         Owner must be completely deprived of the use (documents taken/used but returned before you needed them – not conversion)
·         Mistake of fact is no defense
·         Can occur when one is authorized to use chattel in a manner exceeding authorization
·         Good faith – acting in good faith and under a mistake does not prevent liability
·         Land cannot be converted
·         Anyone in possession of a chattel at the time of conversion can maintain an action for it (doesn’t have to be owner)
Necessity of Demand; Return of Chattel
·         Return – when a converter offers to return the converted goods and the owner accepts, the return does not bar the action for conversion
·         Return must be taken into account to reduce damages recovered
·         If chattel is in same condition as it was when taken, the recovery may be reduced to nominal damages
·         If the P refuses to accept the offered return:
o   The D cant force the goods back upon him to reduce damages (old rule)
o   The court might require P to take back if they were taken by a mistake and undamaged (minority rule)