Torts
Browne –Barbour
Fall 2014
CASES AND RESTATMENTS:
Hulle v. Orynge (case of thorns) Strict Liability- a man should conduct himself not to harm others and when he does he is liable for the injury
Weaver v. Ward (King’s soldiers) Liability began to involve fault: ∆ had to prove innocence
Brown v. Kendall (separating two dogs with a cane-injured third party): Burden of proof shifted over to Π: then the ∆ has to disprove
Cohen v. Petty (fainting at will while driving only negligent if you had prior notice of possibility) the idea of negligence emerges with a “moral blameworthiness”
Rest 2d §283C: not negligent if an accident occurs unless you had prior knowledge of the likely hood that unexpected would happen….ie fainting while driving…or heart attack
Spano v. Perini Corp (demolition using dynamite) strict liability when:
1) Abnormally dangerous activity
2) Defective product
Scope of Liability: Culpability Increase then Liability Widens
Intentional Torts have the highest culpability so the scope of liability is widest for unexpected
Damages of Torts is compensatory….try to repay for the damage can get punitive and nominal damages only for intentional torts Restat 2d §908 punitive damages for malicious and outrageous conduct
When accessing damages intentional tortfeasor is liable for all consequences of his actions Restat 2d §435B
Analyze each tort with: 1) Prima Facie elements?
2) Defenses?
3) Damages?
Intent: The desire to effect a physical contact or mental effect on another person.
Restat 2d §18(1)
Talmadge v. Smith (throwing rocks at boys on shed) intent transfers from the assault (scaring) one boy to the battery of another boy.
Can transfer from planned victim to actual victim (intend to hit A but actually hit B)
Can transfer from planned tort to actual tort (intend to assault A but actually batter A)
At the minimum have to know with “substantial certainty” result would occur
Restat 2d §8A
Garratt v. Dailey (kid pulls chair out from underneath aunt) Intent includes the fact that actor knows with substantial certainty result will happen even if the actor did not desire the result
Act v. Consequence….Only require intent to cause the act. The intent to cause the consequence is irrelevant and the actor must be liable for the consequence if he intended the act.
Vosburg v. Putney (playground kick) the intent to effect the act (kick the other boy) makes the actor liable even if he did not intend the consequence (causing severe harm) intent to harm irrelevant.
Mcguire v. Almy (crazy patient batters nurse) insane individuals that can form an intent to cause physical contact are liable for their acts
Battery
Battery is the intentional infliction of a harmful or offensive bodily contact Restat 2d §§ 13, 18
Prima Facie Elements of Battery:
1) Intent to a) cause a harmful or offensive bodily contact or;
b) cause an imminent apprehension of a battery (intent to commit assault is good for battery too it doesn’t matter that tortfeasor does not actually intend for contact to occur) {Restat 2d §13C example of dumbass trying to scar friend with golf club and swings it close to his head and actually hits him….did not intend harm, did not intend to hit…just intended to scare….enough for battery!}
Does not require the intent to cause harm.
2) Harmful or offensive contact
a) harmful is causing injury and/or pain
b) offensive is damagi
it imminently
Primia Facie Elements of Assault:
1) Intent to a) cause an imminent apprehension of harmful or offensive contact or
b) intend to cause the harmful or offensive contact itself
Hypo: ∆ runs up behind Π and is trying to shoot her in the head. Π turns around at the last minute and sees the gun. ∆ lowers the gun. ∆ had the necessary intent for assault even though he was trying to sneak up on her and never had the intent to put Π in apprehension.
This is a good example of intending to cause the contact itself but failing then it’s an assault.
Assault is an attempted battery AND trying to put someone in apprehension.
Restat 2d §34 No hostility, malice or intent to cause harm need for the necessary intent for assault.
Illustration 1) golf club example of ∆wanting to cause apprehension in Π swings at him but something goes wrong and ∆ hits Π. Π is momentarily apprehensive that he is about to be battered so the ∆ is liable for assault and battery.
Restat 2d §33 example if ∆ throw a stone at Π1 and Π2 is standing nearby. If Π2 is put in apprehension of being hit by that stone. ∆ is liable for assault to Π2. Even though he never intended to cause apprehension in Π2
Restat 2d §31 example of a gangster threatens. Under normal circumstances words alone are not enough and you have to have an overt act coupled with words but if gangster is known to kill his words alone may be enough.
