Torts – Andrew Simons – St. Johns Law – Fall 2010Purposes of Torts (who should bear the risk of loss)1.) Provide compensation for injured parties2.) Deterrence for bad behavior3.) Encourage civilized conduct4.) Have a civilized forum for disputesI. FaultA. Weaver v. Ward (burden of proof is more than half and on the plaintiff)B. Brown v. Kendall (burden of proof is on plaintiff)
Only way plaintiff can recover is when the defendant did not exercise ordinary care and the plaintiff did exercise ordinary care
C. Cohen v. Petty (an unforeseeable illness will not result in negligence)D. Spano v. Perini (no evidence of direct negligence, yet the activity was inherently dangerous, so the defendant is automatically liable) Who should bear the cost of any resulting damage? Strict/absolute liability – same thing.II. Intentional Torts Intent= Substantial certainty – experience, capacity, and understanding of course material. (Garrat v. Daily)
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A. Intent
Good faith does not excuse intent or reasonable mistake (shooting a dog because it was thought to be a wolf).
Mistake is intended and accident is not.
Child and mental handicapped can have intent. By itself, no excuse.
Transferred Intent
Intent follows the bullet
Can apply to battery, assault, false imprisonment, trespass to land, and trespass to chattels. (physical Torts)
Defendant is liable even when plaintiff is not target
B. Assault
Assault is the imminent, apprehension of a battery that is intended
Children can be liable for battery and assault. (5 yr. old case).
They are held to the substantial certainty of a reasonable person of that age (not excluded from liability as matter of law because of age).
There are privileges (reasonable and not excessive)
When there is no possibility of battery, there is no action for assault (Western Union)
C. Battery
Battery is an intentional, unconsented to touching, intended for harmful or offensive contact
Substantially certain harm will ensue
NY Rules:
Unconsented touching and no harm required but intent to touch with harm.
Crowded world
Implied consent
Absent expression to the contact, consent is assumed to all those ordinary contacts which are customary and reasonably necessary to the common intercourse of life, such as a tap on the shoulder to attract attention.
There are extensions to the body (cane, plate). (i.e. things that are connected) ***See Fisher v. Carrousel Motor Hotel Inc.***
D. False Imprisonment
False imprisonment
1) The direct, physical restraint of someone
2) Without consent or legal justification
Lack of recollection by falsely imprisoned person is not a defense for defendant.
You must be conscious of false-imprisonment at the time it occurred. If you were not conscious, there could not have been a lack of consent.
Nominal damages can be proven in battery, assault, and false imprisonment.
Jokes are not a defense for false imprisonment
Being lured into a confined area is not false imprisonment if option to leave existed.
Powerful incentives like losing one’s job does not render behavior involuntary
Police officer arrest
Must reasonably believe the suspect to have committed the offense
ome
Visitor must be aware that he no longer has the possessor’s consent
Privileged entry can be limited to purpose
ex. two children permitted to play in neighbor’s yard
· Ignited charcoal burner in garage causing $28,000 in damages
o Treated as trespassers
G. Conversion
Intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the full value of the chattel
Factors Include:
Time of control of object taken
Intent to assert right in fact inconsistent with others right of control
Actor’s good faith
Harm done to chattel
Extent and duration of resulting interference
Inconvenience and expense caused to the other
Literary property, scientific invention, or secret plans formulated by defendant for the conduct of commerce are protected under conversion
Sentimental or personal value will not constitute as conversion
Damages
Value of the property converted – usually the market value
What the property could have been sold for in the open market by a willing seller to a willing buyer
Punitive damages may be allowed when the conversion was malicious but not when it was done innocently
Good faith does not constitute defense for conversion
