Torts Outline
I. In General:
A. Tort: Wrong recognized by law as grounds for lawsuit
1. Conduct must fall below legal standard
2. Def. intends harm or takes and unreasonable risk of harm (at fault)
3. Harm must constitute legal injury
B. Tort Law: Aimed at achieving justice and good social policy.
1. Moral responsibility/corrective justice (liability only imposed when it is the “right” thing to do).
2. Social policy: imposing liability is good for society. Not focused on individual.
3. Based on three theories:
a. Intent
b. Negligence
c. Strict liability (no fault. Employer/vicarious liability, product liability).
C. Law must be balanced. Certain enough to restrain judge and jury but flexible enough to allow justice.
II. Intentional Torts
A. Battery (37)
1. Act: Must be act, not just reflex (i.e., bee landing on someone is pure reflex).
-Restatements: muscular reaction is always an act unless reflex.
2. With intent to cause: can be inferred unless there is proof that there was no intent.
Van Camp v. McAfoos (tricycle)
a. Must be fault
b. Strict liability not applicable to children
c. Age doesn’t matter for there to be liability (children can be liable)
Child liability:
-General rule: children can be held liable as long as they had intent. Age only influences intent.
Parental liability:
-General rule: parents not liable unless somehow at fault (no vicarious liability). Exception is if statute allows parental liability or the parent is at fault (tells child to do it). Then damages are usually capped.
Garratt v. Dailey (moving chair)
-To establish intent:
a. act must be done for the purpose of causing the contact, or
b. with knowledge on the part of the actor that such contact is “substantially certain” to be produced.
-Substantial certainty test: Not enough that act itself is intentionally done. Must realize with substantial certainty that contact (or apprehension for assault) will result (i.e., shooting into a crowd – didn’t intend to shoot someone, but could be substantially certain that harm would result).
-Can’t just suspect or be possibility that harm will result, must be substantially certain. On the other hand, if have intent, but not sure contact will result, actor is still liable.
-Age of actor plays no role except in evaluating experience, capacity, and understanding to determine if they had knowledge and was “substantially certain” contact would result. Age only relevant to determining intent.
c. Insanity (Polmatier v. Russ – killed father-in-law): Activities that are the result of irrational and uncontrollable thought disorders by an insane person are still considered “acts” for the purpose of establishing liability for intenti
o physical contact occurred. Intent from battery transfers to assault.
iii. Intent to cause assault satisfies intent requirement for battery
b. Object
i. Restatements: if act is intended to affect third person, but causes harmful contact to another the person is liable to the person affected as if he intended to affect him. Intended to commit battery against A but hit B.
c. Double transferred intent (Hall v. McBryde – shooting)
i. Intended to commit battery against A but act ended up being an assault against B.
B. Assault (59)
1. Act:
a. Mere words usually not enough. Must be accompanied by some behavior.
b. Must be overt act (showing intent and ability to carry out).
2. Intended
a. Substantially certain that act will affect someone.
3. To cause
4. Apprehension of:
a. Contact not required.
b. Person has to see it coming. Must be apprehension (not necessarily fear).
c. If, contact is made and person apprehensive of contact, then assault and battery. Intent requirement for assault met when intended battery and person was aware/ saw it coming.
