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Torts
John Marshall Law School, Chicago
Bernabe, Alberto

I. Introduction
A. Torts, goals and theories of liability

1. TORT – a civil wrong, other than a breach of contract, for which the law provides a remedy; a person who breaches a tort duty may be liable to pay damages in a lawsuit

2. Goals of Tort Law:

a. To provide a peaceful means for adjusting the rights of parties who may otherwise take the law into their own hands

b. To deter wrongful conduct

c. To encourage socially responsible behavior

3. Brown v. Kendall
Facts – Action of trespass for assault and battery. Two dogs owned by plaintiff and defendant were fighting. Defendant tried to separate by beating with a stick, backed up toward plaintiff and hit plaintiff in the eye causing injuries.

Issue – (Trial Judge) Whether it was necessary for the defendant to interfere in fight b/t dogs, whether the interference was in the proper manner and what degree of care was exercised by each party

(Shaw) Whether damages sustained by the plaintiff from the stick were inadvertent and unintentional
§ Conduct shows no element of intent
§ Shifted the burden of proof to plaintiff
§ Formed the modern law of torts
§ New theory of liability – injuries based on unintentional conduct or negligence
Rule – Plaintiff must prove with evidence either that the act was intentional or the defendant was negligent
4. Spano v. Perini Corp.
Facts – Plaintiff was owner of a garage wrecked by blasting of defendant. Plaintiffs brought suit for negligence against defendants
Issue – Whether a person who sustained property damage from blasting on nearby property can maintain an action for damages without showing the blaster was negligent?
§ Plaintiff does not prove negligent conduct, looking to expand the law to where plaintiff does not have to show fault
Rule – A party is liable for damages to neighboring property caused by explosives absent any fault, based on strict liability
5. 3 Theories of Liability
a. Intentionally Inflicted Injuries:
Purpose – personal desire on part of actor to produce a particular result
Knowledge – the actor is substantially certain a particular result will occur, even if that end is not desired
b. Negligence – Failure to exercise care
c. Strict Liability – Liability without fault
B. The concept of damages
1. Proof of damages is essential in plaintiff’s cause of action in negligence and strict liability
2. Types of Damages:
a. Nominal – small sum of money awarded to plaintiff to vindicate rights
b. Compensatory Damages – intended to represent closes possible financial equivalent of the loss or harm suffered by plaintiff
c. Punitive Damages – additional sum over and above compensation to plaintiff, awarded to punish defendant, make example and deter
II. Liability for damages caused by intentional conduct
A. The concept of intent – a state of mind about consequences or results
§ Defendant acts deliberately or voluntarily with desire to cause particular result
OR
§ Defendant acts with knowledge to a substantial certainty that the conduct would result in a particular consequence
1. Garret v. Dailey
Facts – Cause of action for battery when defendant pulled chair from sister of plaintiff as she started to sit down. Plaintiff claimed that defendant deliberately pulled the chair out; alleged intent in that defendant acted deliberately or voluntarily with intent to cause batter or that defendant with knowledge to a substantial certainly that the conduct would result in a battery
Issue – Whether Dailey had the intent to injure plaintiff when he moved the chair?
Conclusion – Case remanded for clarification to determine whether defendant know with substantial certainty that plaintiff would sit where the chair had been
§ Difficulty in proving subjective state of mind when the only way to do so requires asking the person
2. Talmage v. Smith
Facts – Defendant had sheds and came across boys sitting on shed. He ordered boys off one shed and boys got off. He saw two boys on the roof of a second shed and upon ordering them to get off took a stick and threw it in the direction of the boys. The stick missed the boy but hit the plaintiff and resulted in total loss of sight from his eye.
Issue – Whether plaintiff can establish the element of intent for battery by establishing the element of intent for assault on someone else?
Defendant: Plaintiff cannot prove intent because he cannot show that defendant acted with desire to hurt him or know that the consequences of the action would hurt him
§ Transferred intent – if torts involved are one of trespass against person or property; allows a plaintiff to establish intent by establishing intent against someone else.
Jury instructions by circuit judge – incorrect in discussing the conduct of the defendant
B. Examples of causes of action based on intentional conduct
1. BATTERY
Elements of:
§ Intent
§ Harmful OR offensive
§ Contact
§ Without consent
§ Causation
§ Harm
a. Garret v. Dailey
b. R2d of Torts s. 13 – Battery: Harmful Contact
– An actor is subject to liability to another for battery if a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact and b) a harmful contact with the person of the other directly or indirectly results
R2d of Torts s 18 – Battery: Offensive Contact
– An actor is subject to liability to another for battery if
a) He acts intending to cause a harmful or offensive contact with the person of the other or a third person or an imminent apprehension of such a contact, and

b) An offensive contact with the person of the other directly or indirectly results.
c. Fisher v. Carrousel Motor Hotel, Inc.
Facts – Plaintiff, African American, was mathematician employed by NASA attending conference at defendant hotel. While standing in line for a lunch buffer, defendant employee approached plaintiff, grabbed plate from his hand and shouted that “Negro could not be served in the club”. Plaintiff was not actually touched but was embarrassed.
Issue – Whether the intentional grabbing of plaintiff’s plate absent evidence of physical contact could constitute a battery? Can plaintiff recover damages for mental suffering without any physical injury?
Court – It is not possible to recover for battery minus any contact but plaintiff may recover for assault.
Rule- It is not necessary for plaintiff’s body to be disturbed because the essence of his grievance lies in the offense to his dignity, in t

nessed beating nor that the beating was administered for the purpose of causing her to suffer emotional distress or in the alternative that defendants know that sever emotional distress was substantially certain to be produced.
d. Notes
· All jurisdictions require that plaintiff prove severe not just emotional distress; frequently characterized as stress so sever no reasonable person could be expected to endure it.
· Original Restatement required the IIED to manifest itself physically, some jurisdictions still require
4. FALSE IMPRISONMENT
a. Big Town Nursing Home, Inc. v. Newman
Facts – Plaintiff, 67 was taken to nursing home by nephew who signed the papers and paid one month’s care. Admission papers stated patient would not be forced to remain in nursing home against will. Plaintiff tried to leave an call taxi but employee told him he could not use the phone. Plaintiff was put in wing with drug addicts and mentally disturbed and was locked and taped in a restraint chair. Doctor wrote SS office to change payment of check.
Issue – Whether plaintiff can prove that defendant directly restrained him without adequate legal justification?
False Imprisonment – the direct restraint of one person of the physical liberty of another without adequate legal jurisdiction.
Elements of:
§ Intentional conduct
§ Resulting in confinement
§ Without authority/consent
§ Emotional distress
b. Parvi v. Kingston
Facts – Police responded to brothers engaged in quarrel and plaintiff was trying to calm them down. All three had been drinking. Plaintiff told police he had not place to go and rather than arrest him they took him to abandoned golf course outside the city limits. Plaintiff wandered onto the highway and was struck by car. He had no recollection of what happened that night
Issue – Whether plaintiff can show he was conscious of confinement at the time it was taking place despite having no recollection of the night.
Conclusion – Court makes distinction between plaintiff’s being aware of the confinement and ability to recall events of the night. No liability for intentionally confining another unless the person knows of the confinement and is harmed by it.
5. FALSE ARREST
Enright v. Groves
Facts – Plaintiff arrested for not providing her license to a policeman inquiring about her dog running around in violation of the city’s “dog leash” ordinance.
Issue – Whether plaintiff can prove her arrest for failure to produce her license lacked legal authority?
False Arrest – arises when one is taken into custody by one who claims to but does not have proper legal authority to arrest.