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Rutgers University, Newark School of Law
Goldfarb, Sally F.

Prof Goldfarb
Fall 2005
Torts Outline

I. Public Policies Underlying Tort Law
A. Compensation
· accident victims should be fully compensated
· strong public interest in insuring that accident victims obtain financial resources needed to overcome injuries
B. Fault Principle
· only where ∆’s conduct is blameworthy should liability be imposed
· liability should be based on fault
C. Costs should spread broadly
· financial burden diminished by making sure no one person has to pay for it all
D. Cost shifting
· minimize economic burden by shifting to those who can bear it
· promote deterrence by shifting to those in best position to prevent accident
E. Deterrence
· tort rules should discourage persons from engaging dangerous conduct
F. Those who benefit from dangerous acts should bear the burden of the loss
· taking costs into account will help people act in society’s benefit
G. should foster predictability
· clear is better than vague
H. Liability Proportional to Fault
· ∆ should pay equal to her crime
I. tort law should be administered conveniently and efficiently
J. facilitate economic growth
K. discourage the waste of resources
L. cts should accord due deference to co-equal branches of government

II. Basic Intentional Torts
A. Two ways to prove intent
1. purpose: ∆ acts with the purpose of causing the consequence
2. knowledge: ∆ knows w/ substantial certainty that act in Q will cause the result
B. The Concept of Intent
1. Intent to Injure
(a) if ∆ knows that consequences are certain to result, intent is present
2. Intent and Mistake: ∆ liable for mistakes but not accidents
(a) accident: effect was neither intended nor probable make conduct neg
(b) mistake: ∆ meant to commit the act, but not the result
(i) law will hold liable for mistakes
(c) induced mistake: ∆ not liable for mistake induced by π
3. Intent and Insanity
(a) insane ∆ liable if capable of form either of the two requisites of intent
(b) policy those around insane person have ability to keep insane from acting
4. Transferred Intent
(a) if ∆ intends to commit one tort, intent can be transferred to another kind of tort or a different than intended victim
(b) intent can be transferred only among the torts of trespass
(i) battery, assault, trespass to land, trespass to chattel, false imprisonment
(c) engaging in wrongful act carries with it the responsibilities of dams occur
5. Intentional Torts and Children
(a) a parent will be found liable if she directs a child to commit or knowingly assists a child to commit a tort
(b) parent liable for failure to control child w/known dangerous tendencies
(c) actions of child may fall w/in scope of parent’s insurance coverage

C. Battery
1. Prima facie case:
(a) intent
(i) knowledge w/ substantial certainty
(ii) purpose
(iii) intent to offend or harm is not necessary
(b) harmful or offensive contact
(i) harmful: any alteration in structure and function of the body, even if changing in no way affects π’s health
(ii) offensive: would offend a reas person’s sense o/ personal dignity
· unless π is easily offended and ∆ is aware of it
Þ offense can then be determined subjectively
(iii) can be contact w/ anything so connected w/ the body as to be customarily regarded as part of the body
· Picard: touching camera sufficient to show contact for battery
(iv) π does not have to be aware of the contact
(c) no consent
D. Assault
1. intent to cause apprehension of imminent contact that is harmful or offensive
2. Prima facie case
(a) intent to create apprehension of imminent battery
(i) must have present apparent ability to put π in apprehension
(ii) must be one of imminent contact; distinguished from future contact
· there will be no significant delay
· a threat is a future threat if it proposes the use of force at an “appreciably later” time
· not necessary to be w/in striking distance
Þ only so close that striking distance could be met almost at once
(iii) must be contact that is harmful or offensive
(b) apprehension of imminent battery
(i) R 2d: only matters subjectively if π is apprehensive
· if π apprehensive that’s enough
· π need only think ∆ will try to batter, doesn’t matter if π thinks she can stop ∆
(ii) Prosser: reas person must have apprehension o/ imminent battery
· objective not subjective
(c) usually actions, mere words not enough
(i) words coupled by lingering threat, like gun in the lap, could be enough
(ii) conditional threats: if ∆ not privileged to enforce, then could be assault
(d) no consent

E. Intentional or Reckless Infliction of Severe Emotional Distress
1. Prima facie case
(a) conduct must be intentional or reckless
(b) conduct must be extreme and outrageous
(i) outrageous in character, extreme in degree
(ii) goes beyond all possible bounds of decency as to be regarded as atrocious and utterly intolerable in a civilized community
(c) must be causal connection btwn wrongful conduct and emotional distress
(d) emotional distress must be severe
(i) distress must be so severe that no reas person excepted to endure it
2. Abusive Language
(a) not normally considered extreme and outrageous
(i) exceptions:
· carriers, innkeepers, utilities (must show grossly insulted)
· π is known to be sensitive and ∆ knows of that sensitivity
3. Bystanders and Third Persons
(a) Extreme and outrageous conduct directed at a 3d person (by harming a person whom they are watching), ∆ liable for IORIOSED if
(i) intentionally/recklessly caused distress
· to a member of such person’s immediate family who is present whether or not such distress results in bodily harm
· to any other person who is present at the time, if such distress results in bodily harm

F. False Imprisonment
1. Prima facie case
(a) intent
(b) confinement w/in fixed boundaries
(i) there must be no apparent reasonable exit
(ii) confinement not complete if π knows of reasonable means of escape
(iii) ways to confine:
· imposition of physical barriers
· use of force
Þ including forcing a person to follow from place to place
· threatening the immediate application of force
Þ a threat is a future threat if it proposes the use of force at an “appreciably later” time
· assertion of legal authority
· moral threats/economic coercion are normally insufficient for FI
(c) unjustified force, threat of force or legal authority
(i) confinement w/out legal justification amounts to FI
(ii) if a police officer has legal authority (reasonable suspicion of unlawful activity), it is not FI
(d) no consent
(i) if π consents to activity, it is not FI
(e) either aware of imprisonment or harmed by it
2. Defenses
(a) consent

G. Trespass to Land
1. Prima facie case
(a) intent
(i) need not intend to trespass, only to be on, under, or above land
(b) presence on, under, or above land possessed by another
(c) no c

nded to cause serious bodily harm
(b) merchant must reasonably believe person has taken chattel unlawfully
(c) reasonable mistake does not defeat privilege

D. Public Necessity
1. a complete privilege
2. may be exercised by private citizens
3. can use only the amount o/ force reasonably necessary to prevent greater harm
(a) needed to prevent harm to general public
(i) imminent and impending peril to the public
(b) can cause some small amount of property damage to prevent a larger amount of property damage
(c) cannot cause harm greater than what appears to be necessary
E. Private Necessity
1. a partial privilege
(a) privileged to do what you need to do, but liable for damages caused
(b) only a partial privilege because only the ∆ benefits where as w/ public necessity the entire public benefits from the act
2. cannot resist a legitimate exercise of privilege
(a) if privilege is resisted, actor may use force so long as necessity continues
3. private necessity available even in an emergency of the actor’s own making
F. Unlawful Conduct
1. if injury is a direct result of knowing and intentional participation in an unlawful/criminal act, π cannot recover if act is judged to be so serious as to warrant denial of recovery
(a) majority: don’t lose right to sue if consent to illegal act
(b) minority: do lose right to sue if consent to illegal act
G. General Justification
1. used where there are good reasons for exculpating the ∆ for what would otherwise be an intentional tort
H. Immunities
1. parental immunity: normally child cannot sue parent
2. sovereign immunity: normally government cannot be sued w/out its consent
(a) for fed gov and st gov but not municipalities
(b) Federal Torts Claim Act: possible to sue federal government for negligence, but can’t sue for intentional torts

IV. Damages
A. In General
1. Introduction
(a) maximum recovery rule
(i) what is the most possible amount a reasonable jury could award
(b) remittitur can be used to reduce excessive jury award
(i) jdg offers award, π can either accept or take chances w/ new trial
(c) additur can be used to increase excessive jury award
(i) judge increases, ∆ can either accept or take new trial
2. The Collateral-Source Rule
(a) π can recover from ∆ and insurance company
(i) don’t want to relieve ∆ of liability
(ii) excess recovery may help pay atty fees
(iii) not in effect in every juris
3. The Avoidable-Consequences Rule
(a) π required to exercise reasonable care to mitigate damages
(i) if not, ∆ not required to pay excess
(b) ∆ has burden of proof to show π was unreasonable in failing to mitigate
B. Survival and Wrongful-Death Actions
1. Survival
(a) cause of action decedent could have brought had she survived