Torts Outline

Torts Outline
Professor Joseph
Fall 2009
 
Introduction
·         Tort: A tort is a civil wrong, other than a breach of contract, for which the law provides a remedy.
o   Tort law (civil system) deals with monetary damages unlike the criminal system which incarcerates criminals. It involves both common law and statute based law. (Statutes trump common law.)
·         4 Purposes of Tort Law
o   Provide a peaceful means for adjusting the rights of parties who might otherwise “take law into their own hands.”
o   Deter wrongful acts.
o   Encourage socially responsible behavior
o   Restore injured parties to their original condition – insofar as the law can do this through monetary rewards.
·         Liability Based on Fault – Someone must be at fault to some degree in order to be liable for a tort.
o   Contributory Negligence: if the P is at all in fault, he or she cannot recover at all. If P contributed to the injury at all, they cannot recover.
o   Comparative Fault: This came to limit the contributory negligence rule. Now the P can recover whatever % the other party is at fault. i.e. if the P is deemed to be 10% at fault, P can only recover up to 90% of the damages from D.
o   Fellow-Servant Rule: if an EE commits a tort against another EE, P cannot recover against ER, unless the tort occurred during the course of employment.
o   Cases:
§ Cohen v. Petty – driver suddenly becomes ill and passes out while driving, crash injuries people. Court found no liability on the part of the driver because such an episode has never happened to the D, therefore he had no reason to expect it. If this sudden fainting had happened in the past, court would likely interpret differently.
§ Spano v. Perini – Absolute Liability
·         Blaster causes damages to nearby property without physically invading the property, D liable despite no physical invasion. Old case (booth) blaster must have physically invaded – no longer the case.
 
Intentional Torts
·         Prima Facie Elements of Intentional Torts: Only applies to the 5 intentional torts from the original writ of trespass: (battery, assault, false imprisonment, trespass to land, trespass to chattels)
o   Volitional Act M
§ Must have made a choice to do an act.
o   Intent (term of art, defined legally) – Intent is based on the intent to cause the invasion of the protected interest, not the intent to cause the harm. If you intentionally invade a protected interest, you’re liable for all of the harm that it causes.
§ Purpose Intent – act must be done for the purpose of causing the “invasion of the protected interest” (i.e. harmful or offensive touching in battery)
·         Purposeful intent opens the door to punitive damages on top of both compensatory and nominal damages.
§ Substantial Certainty Intent – the act is done with the knowledge that the contact or apprehension is substantially certain to be produced.
·         Substantial certainty intent allows for the recovery of compensatory and nominal damages.
§ Transferred Intent – Talmage v. Smith – D attempted to commit assault on A by throwing a stick, but committed a battery on B
·         When the D intends any one of the 5 torts of the original writ of trespass and it results in any other of the 5 torts, the D is liable for any damages that occur, even if the plaintiff was not the intended target of the tortuous act, or if the tort intended is different from the tort that occurred.
§ Minors and incompetents are liable for their tortuous acts.
·         Garret v. Daily – 5 year old boy held liable for battery – pulled chair out from under P. A minor just needs the capability to have the intent – this may be interpreted differently if the D was 1 or 2 years old.
·         McGuire v. Almy – insane woman held liable for battery.
§ Mistakes – Ranson v. Kitner, liable for mistakes.
·         D kills P’s dog while wolf hunting. D did not intend to invade the P’s protected interest (dog/chattle) but he “put some force into the world” that cause the P to lose a chattle.
§ Vicarious Liability – ER can be held liable for EE’s tort if it arises out of employment.
o   Invasion of a Protected Interest
o   Causation
§ The invasion of the protected interest must have caused the damage. You are liable for all the damages that flow from your invasion of a protected interest. “Thin skulled plaintiff” – you are liable for damages that occur to the plaintiff regardless if he or she has some particular ailment etc. that you are unaware of. You must take the plaintiff as you find him.
·         Cause in Fact –
·         Extent of Liability –
o   Damages
§ Compensatory Damages (actual damages)
·         Monetary damages that are awarded to P to recover actual or real loss or injury, these may include pain and suffering.
§ Nominal Damages
·         This is a small insignificant amount that is awarded to vindicate the right of the plaintiff, here the law recognizes the invasion or breach of duty. This occurs when the damage is very insignificant.
§ Punitive Damages
·         Purposeful Intent. These are awarded if the act is outrageous in nature.  It is an award over what will compensate the P in order to punish the D. The wrong done was aggravated by circumstances of malice, fraud, or wanton or wicked conduct by D.  
 
 
Intentional Interference with Person or Property
 
·         Battery – the intentional infliction of harmful or offensive bodily contact.
·         Restatement (2nd) of Torts (1965)
o   Harmful Contact
§ An actor is subject to liability to another for battery if:
·         He acts intending to cause a harmful or offensive contact with the person or the other or a third person, or an imminent apprehension of such contact, AND:
·         A harmful contact with the person or the other directly or indirectly results.
o   Offensive Contact
§ An actor is subject to liability to another for battery if:
·         He acts intending to cause a harmf