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Rutgers University, Newark School of Law
Troutt, David Dante

Torts Fall 2010 David Troutt
Introduction to Torts

Garrat v. Dailey –
Substantial certainty is okay to satisfy intent for intentional torts
Minors have requisite state of mind for intentional torts but not negligence (NY has changed this)

Blyth v. Birmingham –
A duty of care is upheld if the injury was not foreseeable

Vicarious Liability
Master/Servant.   Master = Employer, Servant = Employee,
Independent Contractors = person who works for master but not subject to his right to control or to be controlled by him.

Masters are liable for servants acting within the scope of their employment.

See Kohlman v. Hyland – trip to see sister not in scope of employment, but the trip back to work was. Therefore an accident on the way back to work was covered in the scope of employment.

Things to keep in mind re: scope of employment:
1.)    same general business- incidental OK
2.)    is the act commonly done?
3.)    Previous relationships
4.)    Did the master expect it?

If the employee is acting outside the scope of duty the master is not liable unless:
1.)    the master intended the consequences
2.)    the master was negligent or reckless
3.)    the conduct violated a non-delegable duty
4.)    the servant acted to speak or act on behalf of the master and reliance resulted.

Strict Liability
An actor is liable for any harm resulting from conduct of abnormally dangerous materials even if the utmost of care is used. Strict liability does not trump comparative fault – the conduct of the actors can still be compared.

Exner v. Sherman –  P injured by explosion. D used dynamite. Held: for P. dynamite is a dangerous substance warranting strict liability. See Fletcher v. Rylands, supra.

Intentional Torts
1.)    Battery
2.)    Assault
3.)    IIED

1.) Intent, See Garrat v. Dailey – substantial certainty is ok. Intent transfers from victim to victim in intentional torts in battery.

2.) to cause a harmful or offensive contact

Fisher v. Carousel – bodily contact not dispositive. Extensions of the body are sufficient. D grabbed plate out of P’s hand. Held: battery.

White v. Idaho (minority) – intent to cause a contact is sufficient, intent need not to be harmful or offensive. D jokingly struck P’s back, P suffered severe injuries. Held: Battery.

3.) Not consented to or otherwise privileged. (See defenses and assumption of the risk, supra.)

Ellis v. D’Angelo –
Infant liable for torts if he can carry out the requisite intent.
Consequences n/a. Intent is paramount – not awareness of consequences.
Does not extend to negligence. No vicarious liability from child to parent.

Beauchamp v. Dow Chemical – (Apply to Corea Corp Exam)
1.) P harmed by vapors from D’s business.
2.) P argued injury substantially certain to follow from the activities.
3.) Beware the difference between substantial certainty and substantial risk.
Held: For P – do not want employers to be able to cost out harm to workers. If no intent – workers comp only. If substantial certainty, then tort damages.

State v. Davis
Slave owner cut rope. Held: battery by extension of body.

Carnes v. Thompson (transferred intent) – the intended person need not be harmed – anyone will suffice if intentional. (Cf. Palsgraf).

Jones v. Fisher (damages) – punitive damages available when act is done maliciously.


1.) Intent
2.) an act creating a reasonable apprehension
3.) of immediate harmful or offensive contact to P’s person.
4.) Causation

I De. S – D feigned a hatchet strike on P’s head. Held: For P. no trespass – but an immediate apprehension of harmful or offensive contact.

Read v. Coker (mere words/overt act) – D tucked up sleeves and gathered around P. said they would break his neck if he didn’t leave the shop. D

s a matter of law.

Effective consent can turn into ineffective consent – consent can be withdrawn or if the act has somehow exceeded the scope of consent.

Effective                                                                                 Ineffective

How communicated                                                                          Vitiated
-Scope Exceeded
-Express                                                                                                          -Consent Withdrawn
-Manifest                                                                                             -Prohibited     
-Implied                                                                                              -Incapacitated
-Pressured                                                                                           -Coerced
-Imposed                                                                                             -Mistake/Fraud

Obrien v. Cunard – P claimed battery by unwanted vaccination. D said P consented. P held out her arm in line with everyone else getting the shot. Held: For D. a reasonable person would have deemed consent was given to D.

Kirschbaum v. Lowery – P sued for assault. P invited D to her home – saying husband would not be there. Held: For D. P consented to the contact implicitly.

Wright v. Starr –P has burden of proof re: her consent.