Spring 2005 Sargentich Torts Outline
Tort: any wrongful act, damage, or injury done willfully, negligently, or in circumstances involving strict liability, but not involving breach of contract, for which a civil suit may be brought.
1) Five Forms of Liability for Infliction of Physical Harm
a) Battery
i) The intentional infliction of a harmful or offensive bodily contact upon another, but only if:
(1) The act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person, and
(a) The act must be done for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced.
(b) The tricky part here is that intention does not always mean just purpose – in some situations, knowledge can be enough, even if there’s no purpose to cause harm.
(c) The substantially certain requirement is a high one – even a “grave risk” is not enough to meet it.
(d) There’s a question of how far the intent requirement goes. There’s no doubt that it does not extend to the specific injury. There probably has to be at least knowledge that the contact would be harmful or offensive, if purpose does not extend that far.
(2) The contact is not consented to by the other or the other’s consent thereto is procured by fraud or duress, and
(3) The contact is not otherwise privileged.
ii) ∆’s youth comes into play only so far as it contributes to his experience, capacity, and understanding as they relate to the requirements for intent.
iii) See Garratt v. Dailey p. 7
(1) ∏, an arthritic woman, was visiting her sister, when ∆ her five-year old nephew, pulled a chair out from near her and sat in it a few feet away. ∏ was in the process of sitting at that point, and despite ∆’s attempt to return the chair to its rightful position, was unable to prevent ∏’s fall, resulting in $11,000 worth of medical damages.
b) Negligence
i) Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or, doing something which a prudent and reasonable man would not do.
(1) There is an implied point that the reasonable person has a variety of presumed values, such as respect for others’ lives, safety, and property.
(2) All negligence tests are balancing tests, methods of computing how much value a person’s personal interest should be given when weighed against the harm to others.
(a) One method is to examine the problem economically, attempting to maximize social gain.
(i) The Hand Formula states that a ∆ should only be found liable in cases of negligence when the burden of adequate precautions (B) is less than the probability of the accident (P) times the gravity of the potential injury (L). B < P*L.
1. Hand himself admitted that these factors are almost never accurately quantifiable. Rather, they should be used as guiding principles to help during analysis.
2. The value of the intruder’s operation is taken into account in the B side of the formula – if the operation is enormously valuable, then restricting it in any fashion might be a very high burden.
(b) Another method is to examine the problem morally, making sure that people don’t have their rights tread upon, even if it might result in a net social gain.
(3) A good negligence strategy is to imagine a wedge timeline, with the pointed part being right before the accident. Was ∆ negligent generally speaking in their manner of business, or their construction? Were they negligent in their particular actions on that particular day?
(4) Experts or businesses are typically not held to the standard of a reasonable lay person – they’re held to the standard of a reasonable person in their position.
ii) See Blyth v. Birmingham Waterworks Co. p. 11
(1) ∆ was hired by the city to install water pipes eighteen inches below the surface, and keep them flowing with water. These pipes were periodically punctured by plugs which could be removed to serve as fire hydrants. After 25 years of operation, during a particularly bad frost, a large amount of ice built up on a particular plug, which popped out, resulting in a substantial amount of water damage to ∏’s house and chattels. The trial court lef
r forms of liability, worker’s compensation is a legislative institution, implemented by statute in every state, with more than one at the federal level.
ii) Basic Principles
(1) An employee is automatically entitled to certain benefits whenever the employee suffers a “personal injury by accident arising out of and in the course of employment.”
(2) Negligence and fault are immaterial. An employee’s contributory negligence does not lessen his recovery, nor does an employer’s freedom from fault lessen his liability.
(3) Coverage is limited to employees, and does not extend to independent contractors.
(4) A variety of benefits are provided, including a fraction of lost wages and typically full medical expenses.
(5) The employee gives up his right to sue the employer for damages.
(6) The employee can still sue third-parties responsible, although the damages recovered first go to reimburse the employer for compensation outlay.
(7) Administered by administrative commissions, with relaxed rules to further the intent of the process.
(8) The employer secures its liability through a variety of insurance mechanisms, passing the cost along to the consumer by including it in the cost of the product.
iii) Underlying Philosophy — financial and medical benefits should be provided for the victims of work-connected injuries in the most efficient, most dignified, and most certain way, by allocating them to the consumer of the industry’s products.
iv) See Whetro v. Awkerman p. 27
(1) One ∏ was a gardener-caretaker who was injured when a tornado struck the building inside which he was employed, and the other was a salesman on a business trip, injured when the tornado struck the motel he stayed in.
(2) The court here rejects:
