Torts-
“Sue everybody! And sue them on everything you got.”
Professor Brian Tamanaha
St. John’s University School of Law
v General
· Burden of proof ALWAYS falls on the plaintiff and it is preponderance of the evidence
· Tort is a civil, not criminal in nature, not arising from a contract wrongful act recognized by law to shift loss for wrongs within society
· Purpose of Tort law: Compensation, Corrective Justice (responsibility and vindication), Deterrence, and Economic Efficiency(Maximizing Wealth)
· Tort law deal with allocations of losses
· Losses lie where they fall, unless the law provides the remedies
¨ Losses only shift when there is a recognized cause of action
v Intentional Torts
Ø Intent(Subjective Test relating to the actor who commits any intentional tort)
· Acting for the purpose of causing the harmful contact(Act must be volitional and not accidental)
– or –
· Knowledge with substantial certainty that harmful contact will follow (No need to know or infer the extend of harm)
§ TransferredIntent
· Between torts (intended to assault, committed battery)
§ Battery
§ Assault
§ False Imprisonment
§ Trespass to Land
§ Trespass to Chattels
§ Conversion
· Between parties (intended to hit A, hit B)
§ Mistake Doctrine – Mistake (either in identity of person or property or in believing that there is a privilege) is not a defense for intentionally committed acts.
§ Insanity and Infancy – Neither insanity nor infancy are defenses for intentional torts by itself. However the actor condition is a factor in determining the presence of subjective intent
Ø Battery
§ Duel v. Singular intent
· Duel intent- more weight is shifted on the plaintiff to prove that there was an intent to harm
¨ It allows more people to be left off because they didn’t understand the consequences of their actions
· Single intent- less weight on the plaintiff to prove intent and thus more people are being held liable
¨ You intent to inflict contract of a type that is harmful or offensive
Ø Type- what is generally understood to be harmful or offensive
§ Does no use the singular intent in the Gatorade and anti-freeze example
· Intentionally infliction of harmful or offensive contact of the other or a third person, or an imminent apprehension of such contact
¨ Person is defined as anything that it intimately touching another person on his body or attached to it
Ø Ex. Cane in hand
– or-
Plate in hand
· A harmful contact with the person of another directly or indirectly results
§ Direct contact is not required – spitting on someone or touching the object held by another is enough
§ The harm does not have to be physical; mental suffering is enough for battery as long as there had been a physical contact
§ Awareness – plaintiff does not need to be aware of the harmful contact at the time
Ø Assault
· An act intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact,
– and –
· The other is thereby put in such imminent apprehension
§ Imminent – something happening right now or in close period of time; conditional threat not an assault depending on the circumstances and would a reasonable person expect such apprehension
§ Apparent ability – Only an apparent ability to cause harmful or offensive contact is required to establish assault, even if the actual ability is later found to be lacking
§ Not every battery includes and assault – apprehension is required for assault, but not for battery
§ Words negating intent to immediate touching –(Not Assualt)“I would really love to throw this eraser at you” but no motion is made to throw it”
Ø False Imprisonment
· An act intending to unlawfully restraint of a person within boundaries for any period of time without their consent,
– and –
· they have to be cognizant of therestraint an
ation of authorization must be:
· Posted to give reasonable notice
· Previously agreed to – or –
· Reasonable in time
Ø No actual damage is required – nominal damages are assumed (Except in the case of particular matter, where substantial damages to land are required)
§ Airspace apart from immediate reaches of the land is public domain
Ø Requirements for particulate matter cases
§ Intentional interference with plaintiff’s exclusive rights (Intent is as to the acts that lead to invasion)
§ Reasonable Foreseeability (as to the trespass itself)
· Ex. Boy shoves another onto someone’s land
¨ Boy who shoved has trespassed and the boy who fell did not
§ Substantial damages result
Ø Trespass – Invasion of interest of exclusive possession
Ø Nuisance – Invasion of interest in use and enjoyment
Ø Trespass to Chattels
· Intentional dispossessing, using, OR intermeddling with possession or physical condition of a chattel in possession of another, resulting in actual damage s such as
§ He dispossesses the other of the chattel, OR
§ Chattel is impaired in condition, quality, or value, OR
§ Possessor is deprived of chattels use for substantial time, OR
§ Bodily harm is caused to the possessor, OR harm is caused to some person or thing in which the possessor has a legally protected interest
§ Intermeddling is valid; one does not have to challenge the ownership, just interfere
§ Actual damage is required – No nominal damages (De minimus) for harmless trespass to chattels (unlike to land)
§ Rarely used anymore. Largely replaced by conversion
