Select Page

John Marshall Law School, Chicago
Bernabe, Alberto

TORTS Bernabe Fall 2014

I. Introduction

A. Torts, the goals of tort law and the theories of liability

1. Introduction p1-4

2. Brown v. Kendall p6-10:

-Dogs fighting.

-Introduces concept of negligence, tort law no longer JUST intentional actions.

-Plaintiff has burden of proving that Defendant’s conduct negligent. Defendant’s conduct that which must be evaluated.

3. Spano v. Perini p13-15

-NYC Blasting; force causes damage to Plaintiff’s garage.

-Neither Intentional Tort, nor Negligence, but…


4. Note 3, p.15

5. Abraham 1-20

B, The concept of damages

1. Introduction p519

2. Notes 1-4 p519-520

3. Notes 5-27 p531-539

4. Notes 1 & 3 p547-548

5. Damages to property p548-550

6. Punitive damages p550-551; Notes 3 & 7 p562-563

7. Chemerinsky online

II. Liability for damages caused by intentional conduct

A. The concept of intent

– Intent: underlying common element of all intentional torts. If plaintiff wants to claim an intentional tort, must prove that defendant’s act was volitional.

– Intent proven in 2 ways.

(1) Willful purpose: Defendant must have desired to cause some physical or mental effect on Plaintiff.

(2) Substantial Certainty: Defendant knew ‘with substantial certainty’ that tortious event would result from his conduct.

1. Substantial Certainty

-Garratt v. Dailey p17-20

– kid pulled chair out from babysitter, causing her injury. Jury found that kid did not mean harm.

-Issue: Can Plaintiff bring cause of action for an intentional tort when she cannot prove the intent to harm?

-Holding: YES. If Defendant acted with SUBSTANTIAL CERTAINTY that pulling the chair would result in Plaintiff falling, satisfies element of intent.

– DEF’s desire to harm different from DEF’s desire to cause prohibited contact. Both satisfy intent.

2. Transferred Intent

-Talmage v. Smith p28-29

-Defendant threw stick at direction of a boy who was on his roof, missed him, but hit another boy who was out of DEF’s sight, unaware he was there.

– Issue: Whether element of intent is satisfied when Defendant’s conduct was not against the Plaintiff but against someone else.

-Holding: YES. Doctrine of Transferred Intent; a Defendant acting with the intent required to establish liability for an intentional tort to one person will be liable to some other person with whom the DEF did not mean to be involved if the DEF’s actions affect that other person.

-can transfer intent between 5 intentional torts (Battery, assault, false imprisonment, trespass to land, trespass to chattels).

3. Understanding Torts 2-6 (recommended)

B. Some examples of causes of action based on intentional conduct

1. Battery: 4 ELEMENTS

1-Volitional Act,

2-INTENT: with intent to cause a contact with another person that is harmful or offensive,

3-CAUSATION: causes such a contact directly or indirectly,

4-INJURY: the contact is either harmful or offensive

-offensive contact=contrary to a reasonable sense of dignity.

Types of Touching that Constitute Battery

– Unconsented.

– Objective standard for offensiveness: brushing by someone on the El vs. grabbing someone’s ass on the El

– Touching something other than Plaintiff’s body: When Defendant touches Plaintiff with an object, when DEF causes PTF to come into contact with something (like the ground), or when DEF touches something intimately associated with PTF, ie what the PTF is touching.

– Fisher v Carrousel Motor Hotel p35-36: Black guy at a conference, employee grabs plate away from him and calls him an offensive racist term

-Issue: Whether Plaintiff can bring a cause of action for battery when DEF does not contact the person directly, but rather touches an object that Plaintiff is holding.

-Holding: YES. Indirect contact satisfies contact element so long as it is offensive or harmful.

d. Understanding Torts p6-9 (rec’d)

f. A note on “vicarious liability”

– Definition: in some circumstances, a non-negligent person must pay for consequences of others’s actions. Why? Most times when the one doing the act is employee.

1)Best Torts Roadmap

2) Abraham p190-192

2. Assault: Interest protected: emotional well-being, protect against fear.

-3 ELEMENTS of Assault.

1-VOLUNTARY Act: DEF willfully and voluntarily acts;

2-INTENT: to cause Plaintiff to expect imminent apprehension of harmful or offensive contact,

-Intent required for assault is to make PTF feel fear, expectation, or apprehension.

– Different from intending to touch PTF.

3-CAUSATION: Causes such apprehension either directly or indirectly.

-Threat must be immediate to satisfy intent for assault.

– DEF’s Capability: must seem capable of fulfilling the threat. PTF must have reasonable belief that DEF will carry out threat.

-Western Union Telegraph v. Hill p37-39: Clock repairman drinking, said wanted to ‘pet’ her, reached at woman customer across counter top, she recoiled.

-Issue: Whether it must be shown that DEF capable of committing battery to satisfy reasonable apprehension

-Holding: YES. For there to be reasonable apprehension, must prove that DEF. capable of fulfilling threat.

b. Notes 4 & 7 p39

c. Understanding Torts p9-14 (rec’d)

3. Intentional infliction of emotional distress: 4 Elements

1-Intentional or Reckless Act

-Intentional: PTF must prove that DEF intended to caus

NTENT to cause interference with PTF’s chattel,

3-CAUSES destruction or serious interference with chattel directly or indirectly.

3) Restatement Torts 222A p85-86: What Constitutes Conversion: intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. Important factorsàextent and duration of dominion or control, actor’s intent to control inconsistent of other’s right to control, actor’s good faith, harm done to chattel, inconvenience and expense to other.

4) Restatement Torts 223 p86: Ways of committing Conversion

-acquiring possession, ie stealing chattel

-damaging or altering chattel, ie intentionally breaking

-using chattel, ie

-receiving chattel, ie purchasing a stolen chattel

-disposing of chattel

-misdelivering chattel, ie delivering it to wrong person

-refusing to surrender chattel

Pearson v. Dodd p81-84: Sen. Dodd’s ex-employees took files after hours, gave to journos to make copies, then returned. Journos then used info to write stories.

-Issue: Whether Sen. Dodd can bring a cause of action for Conversion when DEF/journos used info from the Xeroxed docs that were returned without Sen. Dodd knowing that they were even gone.

-Holding: NO. a) Sen. Dodd was NOT substantially deprived of his property (docs), since they were returned without his knowing they were gone, thus not inconvenienced by the docs absence. And b) the info from the docs that was used in the newspaper not for monetary gain, invention, commerce; thus info does not qualify as something that can be converted. No real monetary value to the info on docs, so there is no remedy Court can give to PTF.

**NOTE on Conversion and Trespass to Chattels. When figuring which cause of action, factors are 1-extent of contact, and 2-duration of contact. DIFFS:

*Trespass to chattelàMinor interference with PTF’s property. Remedyàsmall.

*ConversionàDEF inflicts significant harm to PTF’s interest in his property. RemedyàFair market value of item that was converted, ie taken or used.

5) Problem #1 Supp. p1

6) Understanding Torts p18-21 (rec’d)