Select Page

Torts
John Marshall Law School, Chicago
Bernabe, Alberto

 
Torts Bernabe Fall 2015
 
        ­  Tort­ a civil wrong, other than breach of K, for which the law provides a remedy 

        ­  Tort law: evaluating conduct to determine if there is liability 

        ­  Damages­ that which the P is seeking as a remedy; compensation for the value of the injury 

‐ Goals of tort law:
o Deter conduct that tends to put others at an unreasonable risk of injury
o To compensate injuries
o Encourage social responsibility; we want people to be responsible for their acts
o Dispute resolution mechanism: provide a peaceful means for adjusting rights of people
who might otherwise “take the law into their own hands”
‐ Burden of proof: (2 separate burdens in tort law)
o Burden of argument: P must supply in complaint itself enough allegations from which it
can be concluded that P meets the elements of the cause of action
Motion to dismiss: “P cannot meet this initial burden of proof”
o Burden of proof: Eventually P has to prove his case to the jury
             Brown v. Kendall (1850) – Chief Justice Shaw says the burden of proof is now on 
the P 

             Summary judgment­ procedural mechanism that allows a party to say to the court, 
“We don’t need a trial.” The case can be decided w/o a trial. If the case can be 
judged summarily then there is no need for fact finding (no need for a jury) 

‐ 3 theories of tort liability:
o 1) Theory of liability based on intent
o 2) Theory of liability based on unintentional conduct
Negligence
Brown v. Kendall (1850) – 1st time tort liability was based on unintentional conduct o 3) Theory of liability based on strict liability
Strict liability­ liability w/o the need to prove fault
Recognizing a cause of action even though the P cannot show intent or negligence
(Spano v. Perini)
Abnormally dangerous activities
o * Plus: the law of bad luck
When you’re out of luck; the law provides no remedy
Damages
                        ­  Nominal damages­ Consist of a small sum of money awarded to P to vindicate rights, make the 
judgment available as a matter of record in order to prevent D from acquiring prescriptive rights, 
and carry a part of the costs of the action. Amount of award, so long as it is trivial, is unimportant. 

                        ­  Compensatory damages­ Intended to represent the closest possible financial equivalent of the loss 
or harm suffered by P, to make P whole again, to restore P to the position P was in before the tort occurred. 

                        ­  Punitive damages­ Additional sum, over and above the compensation of P, awarded in order to punish D, to make an example of D, and to deter D and others from engaging in similar tortuous conduct. 

                        ­  “Special” vs. “general” damages: Lost earnings and medical and other expenses are treated as special damages subject to objective measurement of the economic loss, while pain and suffering and emotional distress are treated as general damages whose loss­ although real­ is fundamentally non­economic. 
Intentional torts (liability for damages caused by intentional conduct) 

‐ Intent:
o Voluntary conduct w/ the purpose or desire to cause ‘x’…or:
o Voluntary conduct w/ knowledge to substantial certainty that conduct would cause ‘x’
(Garratt v. Dailey)
                        ‐  Transferred intent­ If the P can prove that the D acted voluntarily w/ the purpose or desire to cause 
(battery, assault, false imprisonment, trespass to land, or trespass to chattels), but committed one of these 5 original trespass torts on someone else, then the element of intent may transfer (Talmage v. Smith) 

                        ‐  Vicarious liability­ recognizes the possibility of someone being liable for the conduct of somebody else (i.e., employer being held liable for employee’s conduct occurring w/in scope of employment) 

                        ‐  Damages resulting from intentional harm: 

o Nominal damages may be awarded even if P cannot show actual harm
o Punitive damages may be award

is deprived of the use of the chattel for a substantial time 

             Bodily harm is thereby caused to the possessor or harm is caused to some person or 
thing in which the possessor has a legally protected interest 

o The P must be aware that the chattel is being used w/o their authorization
o Important consideration­ whether the chattel is returned and available to the P when the P
goes to use it
­ Conversion­ the intentional exercise of dominion or control over a chattel which so seriously interferes with the right of the P to control it that the D may justly be required to pay the P the full value of the chattel.
o Greater degree of interference with the property right than for trespass to chattels
o Interference is of such a degree that the court will provide a greater remedy for it: full
market value of the chattel at the time the chattel was converted Not sentimental value or use value
o Basically the D having to buy the P’s item
‐ Trespass to land
o Intentional interference with the P’s property right; causation; injury o An injury is shown by merely showing that there was an interference
If there was an interference­ then there is an injury
o Any intentional, unauthorized entry on land would give rise to a cause of action for
trespass to land.
Privileges in cases of intentional conduct
‐ Privilege­ a defense that will be raised by the D in cases of intentional torts
o Those arguments that can be made by the D in response to the P’s allegations, but that those arguments are not attacking the sufficiency of any of any of the elements of the cause of action