TORTS I OUTLINE
Professor Silver
Fall, 2009
TORT: a wrongful act according to the law that is regressible to the victim
the state is considered the victim of a CRIME
But a TORT is addressed, not by the people, but by the individual
who suffered the injury
STRICT LIABILITY
-liability w/o fault
-fault consists of carelessness or intent
INTENTIONAL TORT: tort w/ intent
-Assault, battery, false imprisonment, inflicting emotional distress,
Trespass
NEGLIGENCE: carelessness w/ harm
INTENT:
1) PURPOSE à to bring about harm/act
2) or KNOWLEDGE àto a substantial certainty that it will occur
***INTENT IS A DESIRE OR KNOWLEDGE TO A SUBSTANTIAL CERTAINTY***
DIFFERENCE BETWEEN INTENT IN TORTS AND INTENT IN CONTRACTS
–in contracts, intent is only based on outward manifestations (objective)
–in torts, don’t want to know what he appears to mean, but what he really means (subjective)
Main idea of torts is FAULT.
Is fault necessary?
Do we compensate even if there is no fault?
Fault is inescapably intertwined with morality
Volitional Act
Voluntary act – the invisible element that is present in all intentional torts
Mens rea- The mental requirement
Non-volitional act
Involuntary Act – an involuntary act does not count as an act so no tort
Types
A kick while your sleeping
Reflex
What is missing?
INTENT Your choice to act on every level regarding that movement
Unconsciousness – because here there is no volitional movement
Reflex – where there is no time to think and choose there is no volitional movement therefore no wrongful conduct.
Control by outside forces
“Stare Decisis”
“Let the decision stand”
The use of past cases for judgment on current cases (i.e. Precedent)
It is a guideline that courts use the same law in factually similar cases
Development of Liability Based Upon Fault:
Difference between intent and fault
Someone can be at fault without intent
If one intends to harm, you are at fault
Exceptions – public necessity: Destroying a building to save the town from fire
2 Ways of committing FAULT:
1) Carelessness
2) Intention (meant to bring about harm)
Three Types of Torts
Intentional – liability attaches because of intent to do harm
Unintentional torts/Negligence
Strict Liability – no fault, but you have liability
INTENTIONAL INTERFERENCE WITH PERSON OR PROPERTY
Intent
1. purposeto do the act or…
2. Knowledgeto a substantial certainty
i.e. the Δ must have desired a harmful or offensive contact or believed that such contact was substantially certain to result from his act.
Where is knowledge to a substantial certainty?
Where is desire?
Garratt v. Dailey (boy who pulls the chair from the old lady)
The manifestation of intent is the motivation, desire, or objective to cause harm and/or knowledge to a substantial certainty that action will cause a certain harm
Sent it back to the lower court to determine if he had knowledge to a substantial certainty
Although difficult to determine in a child, the child must have the cognitive ability to know that his actions will cause harm, or he has the motivation to cause harm
It doesn’t matter if the D knows a grave risk will occur, unless he realizes that to a substantial certainty the harm will occur, he will not be held liable
AGE:
When court said that 5 year old can form intent, they are on a SLIPPERY SLOPE.
Must draw the line somewhere
Spivey v. Battaglia (unfriendly, unsolicited hug)
Defendant did not act with the requisite intent because he was acting with the intent that would cause a result that would not be offensive
In order to have intent a reasonable man would have to believe that the particular results of his actions will substantially certain to follow
However the D could be liable for the unintended results through negligence b/c knowledge to less than a substantial certainty is not intent, but it can still be negligence
McGuire v. Almy (crazy person hurts nurse)
Mental illness does not negate intent
The law will not inquire into his particular mental condition with a view to excusing him if it should appear that delusion or other consequence of his affliction caused him to entertain that intent or that a normal person
bility
If A crosses B’s land, A had intent and acted to cross the land (Trespass to land)
If he encounters C there and hits him, also a battery b/c he had intent and acted
Hypo #2: A intends to shoot B (intent to batter B); then C runs over B, does intent transfer?
NO, b/c 2 separate people w/ intent and act: can’t glue them together
transferred intent is only done when it involves A’s act and A’s intent.
BATTERY
Elements:
1) Intent to commit the act
a) Purpose or
i) Transferred intent
b) Knowledge to a substantial certainty
i) Recklessness isn’t an intentional tort
2) Harmful or Offensive Contact
a) Contact can be Direct or Indirect
i) Incidental contact is not battery
(1) unless you know of someone’s extra sensitivity to contact
(2) Hypo about person on airplane that tells someone they hate to be touched
b) Harmful
i) D doesn’t have to know the particular harm that occurs, just that some harm will occur
c) Offensive
i) Must be known to person who is being offended
ii) don’t Have to be conscious of the battery at the time it happens, can be conscious later
iii) Direct or indirect offensive contact
(1) indirect as long as it is Closely Associated
iv) Must be reasonably offensive and offense must be taken by the victim
v) When words are mixed w/ contact can be offensive, not words alone
(1) Fisher v. Carrousel Motor Hotel
Wallace v. Rosen (Fire drill in school, Mom Falls down stairs because teacher touched Wallace)
RULE: simply touching on the back does not constitute battery
In a crowded world, physical contact is assumed; one is going to be touched whether they like it or not. Some forms of contact are incidental contact
