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John Marshall Law School, Chicago
Hopkins, Kevin L.

Fall 2016 – Torts – Prof. Hopkins

Chapter 1. Development of Liability Based upon Fault

Intro: Tort Law (function & purpose)

Civil wrong, other than a breach of contract, for which the law provides remedy.
Area of US civil law that imposes duty on persons to act in a manner that will not injure other person.

The purpose of Tort law

The major purpose of tort law:

To provide a peaceful means for adjusting the rights of parties who might otherwise “take the law into their own hand”;
To deter wrongful conduct;
To encourage socially responsible behavior;
To restore injured parties to their original condition, insofar as the law can do this, by compensating them for their injury;
To vindicate individual rights of redress.
To promote the broad distribution of loses through the purchase of liability insurance.

Fault: a basis for tort liability. Synonyms) culpability, blameworthiness.

E.g.) intentional conduct, negligent conduct.
Negligence -> Reckless -> Intentional

Jurisdiction: Power of ability of a court to hear and decide a legal matter.

E.g.) cases or lawsuit

Writ: in its earliest form, a writ was simply a written order made by the English monarch to a specific person to perform a specific action.

Writ of Trespass includes assault, battery, false imprisonment, trespass to land, and trespass to chattels.

Historical Origins of Tort Liability ( two theories)

Liability was initially imposed on the basis of the D’s “fault”, and then gradually moved to imposing liability without fault. Fault <-> No fault
Liability was imposed on those who caused physical harm irrespective of fault. No fault <-> fault


In Hulle v. Orynge, Orynge cut the thorns that is in his land, and some of them inadvertently fell onto Hull’s land. Orynge went to Hull’s land for the purpose of cleaning them. Hull sued Orynge for trespass. The court held that Orynge is liable for damages caused to Hull’s land.

In Weaver v. Ward, two trained soldier were participating in a military training exercise with their guns. Ward accidently fired his gun and it injured Weaver. Weaver brought an action for trespass by assault and battery and the court concluded that Ward is responsible for damages he caused. The court reasoned that when a person’s negligence causes accidental injury to another, he is liable for damages.

In Brown v. Kendall, two dogs were in fight; in order

are based upon the defendant’s conduct).

Plaintiff must show that intent has been established in two ways:

by showing that the defendant acted “willfully,” or with “purpose” or “design” to cause a specific tort (See Garratt v. Dailey); or
by showing that the defendant acted with knowledge to a substantial certainty that such conduct (i.e. tort) would occur.(See Garratt v. Dailey).

General Considerations:

Liability: no intentional tort liability without “intent”.
Mistake of Fact: mistake cannot negate intent.
Insanity: mentally ill persons can be liable for committing an intentional tort.
Transferred Intent Doctrine (Talmage v. Smith)

Extended liability; the D 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 brand new victim.

Initial tort must be incomplete
Both initial tort and the resulting must fall within the five tort.