Torts Outline

Browne-Barbour Torts I Fall 2011 Outline

Chapter 1: Development of Liability Based Upon Fault

1. § 1. Interest

a. The object of any human desire

2. § 2. Act

a. An external manifestation of the actor’s will and does not include any of its results, even the most direct, immediate, and intended.

3. § 3. Actor

a. Either the person whose conduct is in question as subjecting him to liability toward another, or as precluding him from recovering against another whose tortious conduct is a legal cause of the actor’s injury

4. § 4. Duty

a. The fact that the actor is required to conduct himself in a particular manner at the risk that if he does not do so he becomes subject to liability to another to whom the duty is owed for any injury sustained by such other, of which that actor’s conduct is a legal cause.

Chapter 2: Intentional Interference With Person or Property

1. Intent

a. § 8(a): the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it.

b. Types of intent:

i. Specific intent

1. All consequences which the actor desires to bring about by his actions

ii. General intent

1. If actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead with the act.

2. Objective test is required (Ex: 5 yr old moves chair and person falls and is injured. Would a reasonable 5 yr old know with substantial certainty that the person would make contact with the ground when the chair is moved?)

iii. Transferred intent

1. Actor must intend to commit one of the five intentional torts

2. Ex: A throws a stick intending to hit B but misses and hits C with the stick. Even though A did not intend to hit C, will be liable for battery.

3. If actor intends to commit one of the five intentional torts but does not and commits another tort that is not one of the five intentional, transferred intent does not apply.

c. Mental illness, mistakes, acts performed in good faith will not vitiate intent so long as the actor intended the consequences of his act.

i. Mental illness not liable for torts requiring malice of which one is incapable of forming the necessary intent (i.e. lacking the intelligence required in a deceitful act)

ii. If a caretaking responsibility has been assumed with a mentally ill person, an action of negligent supervision may be taken. Familial relationship is not enough, must take on responsibility.

d. Voluntary intoxication does not vitiate intent (involuntary intoxication may).

2. Battery

a. § 13 Battery: Harmful Contact (pain or bodily damage)

i. An actor is subject to liability to another for battery if:

1. (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

2. (b) a harmful contact with the person of the other directly or indirectly results

b. § 18 Battery: Offensive Contact (damaging to a reasonable sense of dignity)

i. An actor is subject to liability to another for battery if:

1. (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

2. (b) an offensive contact with the person of the other directly or indirectly results

ii. An act which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

c. Elements:

i. An affirmative act

1. Act must be voluntary

2. Involuntary or unconscious acts do not qualify

ii. Intent

1. Purpose/knowledge to cause harmful or offensive touching; OR

2. Substantial certainty that harmful or offensive touching will occur; OR

3. Transferred intent

iii. Harmful or offensive touching

1. Objective standard.

2. Extreme sensitivities of the individuals will not be considered unless D knew of the sensitivities.

3. Actual awareness at the time of the touching is not necessary.

4. Touching must be with the person or any object which may be considered a natural extension of the individual’s body (Fisher v. Carrousel)

5. D does not have to come in contact with the person, a glove can act as the agent for battery

6. Occurs without consent or justification (i.e. a boxing match)

iv. Causation

1. P must prove that D’s voluntary act caused the harmful/offensive touching

d. In battery, actor does not need to be rude, or angry, or exhibit bad behavior.

e. Does not matter if the resulting injury of the contact is foreseeable

i. Ex: Boy kicks another boy in shin. Intended no harm, and kick was so slight that P did not feel it. However, the kick opened up an infection and P suffered damages. Boy who kicked is liable even though injury was not foreseeable.

f. If one causes the harm, they are liable regardless of motive

i. Ex: woman falls at skate rink and manager w/ first aid training attempts to help but makes