BAUMAN, J. TORTS 1, FALL 2010
Intro to Torts
3 types of tort liability
o Intentionally caused harms- based on some fault by ∆
o Negligently/carelessly caused harms- based on some fault by ∆
o Strict liability: makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability; often applies to those engaged in hazardous or inherently dangerous ventures (owning a tiger rehabilitation center).
§ imposition of liability on a party without a finding of fault (such as negligence or tortious intent)
§ π need only prove that the tort occurred and that the defendant was responsible
§ neither good faith nor the fact that the ∆ took all possible precautions are valid defenses
§ ∆ often liable for the reasonably foreseeable consequences of his act or omission (as in nuisance)
o In old common law system
§ π must obtain a Writ- form complaint that described what happened in your particular case
§ Explain why your case falls within the description of the Writ
§ If you picked the wrong writ, you lost
o Writ
§ Trespass vi et armis- with force and arms
· Direct commission of violence by the defendant against the plaintiff
· Harm caused directly by the defendant
§ Trespass on the case-
· Harm cause indirectly
Prima Facie Case
o Intent: purpose or desire to accomplish a particular result, and knowledge that a result is substantially certain to occur
§ Act by ∆ must be volitional movement (voluntary act)
· Does not include seizures, or someone pushing you into another
· Need not intend actual injury (pushed you and you broke arm; intended harmful or offensive contact)
§ Specific Intent: ∆’s purpose is to bring about consequences
§ General Intent: ∆ knows with substantial certainty that consequences will result
o Causation
§ The result giving rise to liability must have been legally caused by ∆’s act or something set in motion thereby.
§ The causation requirement will be satisfied where the conduct of ∆ is a substantial factor in bringing about the injury.
o Fault includes intention or negligence
§ lack of ordinary care = negligence, or intentionally caused harm
§ ∆ was thus at fault and had to pay damages
§ fault is the reason one is liable for damages
o Transferred intent: conduct was directed at one person and effects someone else
§ Applies to torts in the writ of trespass: assault, battery, trespass to land, trespass to chattel, etc.; if you intend any of those they can transfer to another
· Intent can transfer from person to person, where A intends to hit B, misses, and hits C by mistake
· Intent can transfer from tort to tort, at least in some circumstances
· One may threaten with harm or confinement
1. The transferred intent doctrine applies where the D intends to commit a tort against one person but instead:
a. Commits a different tort against that person, or
b. Commits the same tort as intended but against a different person, or
c. Commits a different tort against a different person.
2. The intent to commit a tort against one person is transferred to the other tort or to the injured person. (person to person; tort to tort)
3. Transferred intent may be invoked only where the tort intended and the tort that results are: assault, battery, false imprisonment, trespass to land, or trespass to chattels
INTENTIONAL TORTS: FITTED CAB
A note about Intentional Torts:
· Not everything amounts to an intentional tort, though it might be something else.
· We worry about ∆’s state of mind in intentional torts; what was ∆ thinking when s/he engaged in the conduct
o Different states of mind = different consequences; usually purpose behind action to accomplish a certain result
o Without a motive, ∆ was substantially certain result would occur, which is for intentional tort
· Intentional Infliction of Emotional distress, for example, includes reckless conduct; but it is conduct that creates a high risk of producing the result even though its short of substantial certainty
I. Battery: intentional infliction of a harmful or offensive bodily contact
a. Elements of battery: An actor commits battery if he acts intending
i. To cause a harmful or offensive contact OR
ii. Cause imminent apprehension of such contact AND
iii. Harmful or offensive contact actually results
1. Imminent: immediate future
b. π has to provide evidence of each element and bears burden of proof to convince jury of what happened
i. You must infer the state of mind of intent from the surrounding situation
ii. It is not enough to just intend contact
c. ∆ in battery case need not have intended to do harm, as the crux of battery claim is an absence of consent on the battery of the π
i. flood gates: the court is not sure where the case would end up; but if they allow this case and this principle, other litigations like this where it is applied will be absurd, so they don’t want to go down that road (Shaw v. B&W Tobacco)
ii. individual personal autonomy (π’s person): you have the right to agree to be touched. If you don’t agree, the touch is a violation of your personal autonomy which what you have a right to
1. Fisher v. Carrousel: lunch tray was sufficient
a. Verbal harassment with no grabbing of the plate= no contact = no battery
b. Taking the plate without verbal harassment= not offensive = no battery
i.e. A mentally disturbed individual goes into a crowded gym, pulls out a gun, and begins to fire into the crowd. After arrested he insists he didn’t mean to hit anyone, and didn’t care if he hit anyone or not.
· It is battery – it is substantially certain that someone would be harmed (knowledge of result is substantially certain to occur) – this satisfies the intent element
i.e. Landowner does some target practice. On an open field, he hit a hiker on public property just beyond his property, beyond the tree he was aiming at. Is it battery?
· He knew that it could happen; but its not battery because he has to know its substantially certain it will occur
d. Causation: ∆ is liable for direct and indirect contact.
i. Indirect: It will be sufficient if ∆ sets in motion a force that brings about harmful of offensive contact.
1. dug a hole, π f
i. Enters the land in possession of another, OR
ii. Causes a thing or third person to do so, OR
iii. Remains on the land, OR
iv. Fails to remove the land a thing that he is under a duty to remove
b. Physical Invasion:
i. ∆ need not enter onto land
ii. Land: on, below, or above surface; includes air space and subsurface space to the height and depth π can make beneficial use of such space
iii. Must be physical object: light is not enough
iv. Trespass can occur by means of a physical invasion of microscopic particles if the result is interference is right of exclusive possession
c. Protects ones interest in right to
i. possession of property
1. Microscopic invasion interferes with exclusive possession of property because you are supposed to be in control of your property; who can come and go
2. Someone coming on it without permission interferes with your exclusive possession
3. π must show actual damage to the property
ii. Enjoyment of land: nuisance
1. Nuisance was cause of action traditionally used for transitory issues like chemicals and smells because it interferes with your use and enjoyment
2. If no physical object enters land, cause is usually treated as nuisance
a. Private nuisance: substantial, unreasonable interference with another private individual’s use or enjoyment of property he actually possesses or to which he has a right of immediate possession
§ Offensive, inconvenient, or annoying to an average person in the community (objective)
§ Severity of the inflicted injury must outweigh the utility of D’s conduct
§ Difference from Trespass to Land: Trespass to Land= interference with landowner’s exclusive possession by a physical invasion of the land; Private Nuisance= interference with use or enjoyment
b. Public Nuisance: act that unreasonably interferes with the health, safety, or property rights of the community
iii. These two things are not mutually exclusive: you can have either or both
d. Intent: knowledge that it was substantially certain to occur
i. Intent to trespass not required; intent to enter is sufficient
1. Mistake as to lawfulness of the entry is no defense as long ∆ intended entry upon that particular piece of land
