TORTS I OUTLINE
Professor Joseph
INTRODUCTION
· Torts: civil wrongs, civil wrongdoing for which the law provides a remedy; based on moral responsibility
o Does not include damages that arise out of breach of K
o Determines who will pay for the injury – had evolved in the last 50 years
o Civil law, although it does overlap with criminal law
§ An act can be a violation of criminal law and actionable under civil law
o The law is mostly established through common law on the state level
o Injuries: personal, accidental, to property, intangible (to reputation)
o Underlying policy is bodily integrity
o Π ALWAYS has the burden
· Three Types of Tort Law
o Intentional torts – intentional interference with personal property; intended to cause harm
o Negligence – conduct which creates an unreasonable risk even if it is not intended
o Strict Product Liability – conduct subject to strict liability without thought to intent or negligence
· Intentional versus Unintentional
o Intentional: must prove intent (a particular event was substantially certain to follow); actual damages do NOT need to be proven
o Unintentional: negligence, you do NOT need to prove intent (only that there was a foreseeable risk with substantial certainty/knowledge or apprehension of a risk); actual damages do need to be proven
§ Spivey v. Battaglia(1972) – liability for assault and battery is based on intent and since there was no intent, this was negligence
· Facts: Δ gives Π a friendly and unsolicited hug. The Π is paralyzed. Δ may only be liable for negligence since there was no intent – not certain the events were substantially certain to follow.
· Purposes of tort law:
o Deter wrongful conduct
o Encourage socially responsible behavior
o Peaceful means for adjusting the rights of parties who make take the law “into their own hands”
o Compensate those who are injured; try to restore injured parties to their original condition
· Two Common Writs – basis of tort law
o Original Writ of Trespass: for direct and forcible injuries; direct invasion of Π’s person or property
o Writ of Trespass on the Case: indirect invasion of the interest
§ Sometimes for tangible injuries to person or property
§ Ex: A log falls on the road; if the log hits the Π while walking, trespass. If the Π trips and falls on the log after it lands, trespass on the case.
o Strict Liability: you are liable for ANY consequences of your actions; do not need proof of negligence OR intent – being liable regardless of trespass
§ Anonymous from King’s Bench – one is always negligent
· Facts: If timber from a newly built home falls on a neighbor’s property, the neighbor has an action against the homeowner for damages incurred by the fallen timber.
o English Common Law: if you do damage, you must pay for it. Policy reasons include bodily integrity.
§ Spano v. Perini (1933) – intentional setting of explosives/blasting results in absolute liability and NO proof of negligence is necessary **still exists as good law** – Δ is liable regardless of trespass
· Apply strict liability to blasting because it is an abnormally dangerous activity
· Facts: Π’s property is destroyed from the Δ’s dynamite blasting. Δ is liable.
· Liability MUST be based on legal fault
o Weaver v. Ward (1616) – Δ might not always be negligent in trespass if the injury was accidental and occurred without his fault; in this case the Π was liable
§ Facts: Δ injures Π with his musket. Δ is not liable because Π ran in front of Π’s gun when it was discharging.
o Brown v. Kendall (1850) – Δ is NOT at fault if his actions were legal and proper
§ Contributory Negligence – if Π is at all negligent, they are barred from recovery (we now use comparative fault)
§ Facts: Δ tries to separate his dog and the Π’s dog with a stick. Π is hit in the eye. Court rules the Δ is NOT negligent
o Cohen v. Petty (1933) – Δ is NOT negligent if he is suddenly struck with an illness he had no reason to anticipate *still exists as good law*
§ Facts: Δ crashes with Π in the car. Before accident, Δ states that he feels sick and faints. Π sues Δ and court rules for Δ because Δ could not have anticipated this.
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INTENTIONAL TORTS
· Intentional Torts: intention to bring about a consequence; a Δ is liable for all consequences of intentional injury whether they were foreseeable or not
o Intent must be proven
o Actual damages do not need to be proven
o 7 intentional torts: battery, assault, false imprisonment, infliction of emotional distress, trespass to land, trespass to chattels, conversion
o Government immunity does NOT apply to intentional torts
PRIME FACIE ELEMENTS (apples to the 5 original torts ONLY, those w
and battery and the court rules for the Π.
o EXCEPTION: a minor can also be held liable for their intentional torts (Garret v. Dailey involved a 5 year old boy)
o **INTENT DOES NOT HAVE TO BE HOSTILE***
· INVASION OF A LEGALLY PROTECTED INTEREST: harmful or offensive – this is usually rooted in public policy; when a individuals act are in an un-consented or unprivileged manner
· CAUSATION: need a causal relationship; “in fact” caused by the invasion of the protected interest à Δ is liable for anything that flows from violating the protected interest; liable for direct consequences of the action
o Causation includes everything that results from the tortous act
o Δ is liable for anything that flows from violating protected interest
o When a Δ intentionally causes a Π to undergo an intentional tort and the resulting injuries are more extensive than a reasonable person would expect, the Δ will still be liable for those injuries
o Caused by Δ’s act or something set in motion by the Δ
· DAMAGES
o Compensatory Damages aka actual damages “out of pocket”
§ Economic loss, monetary damages à to recover for actual/real loss or injury AND
§ Non –economic loss à Includes pain and suffering
o Nominal Damages aka if no injury is suffered
§ small amount awarded to Π where no substantial loss or injury is to be compensated, by the law recognizes invasion of rights
§ only when compensatory and punitive damages cannot be recovered
§ vindication of a right
o Punitive Damages: aka punishment damages – usually if the act is outrageous
§ Wrong done to Π was aggravated by circumstances of violence, malice, fraud, or wanton conduct on the part of the Δ
· *Defenses are consent and privileges*
BATTERY
· Intentional infliction of a harmful or offensive bodily contact without consent or privilege to do it (HARMFUL/OFFENSIVE BODILY CONTACT + NO CONSENT)
ELEMENTS
· Volitional Act: harmful touching