Select Page

John Marshall Law School, Chicago
Hopkins, Kevin L.

Torts Outline
Tort – is a civil wrong, other than a breach of contract, for which the law provides a remedy.
Tort Law – the body of law that governs the rights of private citizens and parties to obtain compensation from those that have caused them injury or damage
Formula to Solve Torts:
1. What is the Tort/issue? I.D. the Tort, also the Pub. Polciy
2. Can P establish the Prima Facie case: satisfy the elements of test?
3. Does D have a defense or privilege?
Levels of Intent Liability:
Willful/wanton and reckless conduct
Standard for intentional torts, punitive damages
Breach of a duty of care
Strict Liability
“No Fault” liability
                                                              i.      dangerous animals, dangerous activities, products liability
Hierarchy of Torts (most burden to prove to least burden to prove)
[1] HISTORY: Development of Liability Based upon Fault
A.    Criminal Law v. Civil Law
i.        Criminal = focus is to punish for crime: take away liberty, fines and/or imprisonment
ii.      Civil = compensation for injuries.
B.     5 FUNCTIONS OF TORT LAW                               
1) To discourage ppl from taking law into their own hands (self help)
2) Deter wrongful conduct
3) Encourage socially responsible behavior
4) Restore injured ppl to original position, with money compensation
5) Promote the distribution of losses
C.     Historical Basis
i.        Writ = in past was document that gave the King’s Bench jurisdiction over a case.
ii.      Writ of Trespass = applied in actions against intended or unintended injuries resulting from direct and forcible conduct. (strict liability, intent does not matter). No need to prove injury.
iii.    Writ of Trespass on The Case = applied in actions against intended injuries resulting from indirect and not forcible conduct. Must prove injury to court. Not strictly liable, D has burden of proof.
1.      Over time, Writs were replaced by CAUSES OF ACTION
2.      Exception: writ of trespass still used in transferable intent. See Smith
D.    Development of Fault Based Liability
i.        Movement: STRICT LIABILITY (burden proof on D) à FAULT BASED LIABILITY (burden proof on P).
ii.      Anonymous(writ of trespass) à Weaver(mentions of fault) à Brown à … à Cohen à Spano v. Perini(Fault based liability, but exceptions where strict liability apply).
iii.    STRICT LIABILITY = now applied when participating in abnormally dangerous activity, you bear the risk. (Product Liability, Dangerous Activity, Dangerous wild animals).
[2] Intentional Torts
A.    Intent
i.        Intent – highest level of fault
B.     7 Intentional Torts
1) Battery
2) Assault
3) False Imprisonment
4) Emotional Distress
5) Trespass/Land
6) Trespass to Chattels
7) Conversion
C.     Questions of Law v. Questions of Fact
              i.      Judges decide questions of law
            ii.      Juries decide questions of fact
D.    Establishing Intent (Garratt v. Dailey Test)
1.      Show person acted purposely, willfully, or with design.
2.      Show person acted w/ knowledge of substantial certainty that their actions would result in conduct. (Spivey v. Battaglia)
a.       Intent may be inferred by circumstances. Ex. Wallace v. Rosen where school teacher found not liable for battery when pushed woman during fire drill.
E.     Transferred Intent
i.        If Δ attempts to commit one of the 5 intentional torts historically under the writ of trespass against one person, but commits any one of the 5 against another, intent transfers and Δ is liable to the injured party
ii.      Torts under the Writ of Trespass
(1) Assault       (2) Battery       (3) T/L             (4) T/C             (5) F.I.
iii.    Examples
1.      Δ intends one of 5 upon Π, but commits another of 5 against Π
2.      Δ intends one of 5 upon A, but commits that tort against Π
3.      Δ intends one of 5 upon A, but commits another againtst Π
iv.    Intent continues to move until resulting in action. Other actions must be supported by other

on of an item touched by a person or a person’s clothes in an offensive manor is sufficient to constitute battery. Ex. Fisher where black man had plate taken from his hand in rude way. B/c public policy of battery tort is protection of DIGNITY.
b.      Consent to sex does not bar action for battery in transmission of sexual diseases.
H.    Assault
i.        An assault occurs when D
(1)   INTENT
(2)   Apprehension of battery
(3)   Awareness/ perception that battery is going to occur
(4)   Imminent – immediate, going to occur right now
(5)   Apparent ability to cause the contact (ex. P flinching gives evid.)
ii.      Policy: Preserve DIGNITY and EMOTIONAL TRANQUILITY
iii.    Application
1.      Assault doesn’t require damage. Ex. Man making swing at woman but misses.
2.      AWARENESS: One needs to be aware of assault at time of occurrence to have c/a (can’t be sleeping).
3.      Words in themselves, no matter how threatening, do not constitute an assault.
4.      Words may turn ambiguous actions into assault. Ex. Putting hand into pocket and asking if person wants belly full of lead.
5.      Every battery does not include an assault b/c A requires awareness and B does not.
6.      Fear is not necessary for assault, just awareness of imminent battery. Ex. A black belt has no fear of fighting, but is aware of imminent battery.
7.      The apprehension must be of an imminent battery, not in the FUTURE. Ex. I will kill you tomorrow.
8.      The apprehension can’t be of a conditional battery. Ex. If you weren’t my friend, I would kill you.
I.       False Imprisonment
i.        The intentional/direct restraint of a the physical liberty of a person w/o adequate legal justification
ii.      Test