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Stanford University School of Law
Sykes, Alan O.

Torts Sykes Autumn 2017


Class prep

Know case outcome and what the facts are
Try to understand what the broader legal principle/rule is that each case provides
Think about the policy issues

Was the court right or wrong? Why? What normative frame would you bring to the case (morality, incentives, etc.) Focus on legal questions.

What are Torts

Types of torts

Intentional, negligence based, and strict liability

Intentional: person is at fault if they intentionally did something that caused harm

Intent standard must be met

Negligence: Liability that attaches if the defendant behaved carelessly

Most common torts (car accidents, medical malpractice, etc.)

Strict liability: the defendant is liability if a) they engage in an activity where strict liability is applicable and b) that action causes some sort of harm

Ex: setting off explosions with dynamite and someone gets hurt as a result

Intentional Torts

Vosburg v. Putney

Putney “kicked” Vosburg (not known for what rationale and it was very light; V did not even feel the kick initially)
Later felt much pain after the kick when an infection there was healing previously
Sues for assault and battery (separate torts)

Defense was “general denial” (don’t admit anything, just putting court on notice that I will argue every fact of law)

First trial says $2800, goes on appeal because of mistake, goes back down for $2500, reversed again because of error under rules of evidence

Vicarious liability: companies are responsible for the torts of their employees on duty

Does this mean parents are liable for the torts of their children under common law? No (with some exceptions such as state statutes that make vehicle owners liable for any issue with the car, or if parents also commit the negligence tort)

Negligence and strict liability torts can be erased by filing bankruptcy, but intentional torts stay with you forever
Could have future benefits to show that Putney at fault and parents will likely pay it to get the obligation off his back
Have to show causal connection between action and harm

Medical expert testimony that the bacteria was receding until hit revivified it as well as the claim that nothing else had hit his leg in that time to cause it
Could Vosburg have won without expert testimony?

Accepted answer is no because a case cannot be won if the level of expertise/knowledge required is above that of the average person without an expert to give testimony

Contributory negligence is not a defense to an intentional tort
Medical malpractice could also be a part of Vosburg’s cases, but it does not absolve Putney of his intentional tort
Appellate Litigation

Separates issues of fact from issues of law

Issues of fact is if a reasonable person/jury would find it believable
For issues of law, it is easier to reverse and judge in an appeals court

Intent requirement

In this case, Putney did not intend to harm Vosburg (special verdict is where court propounds a series of questions to the jury to answer whereas general verdict is telling them to go and make a decision)

Affirmed by jury in special verdict

Assault requires intent to do harm, so not met; but, also a case of battery
Being “in fault” implies negligence, which Putney was not; so, his action must have been unlawful which means that intention is unlawful

Implied license shows a consent to being in the environment you’re in and the consequences as such (ex: being at recess or playing dodgeball and being touched or hit by balls respectively)
Role of restatement

RST – battery: harmful contact if an actor 1) acts intending harmful or offensive contact and 2) the acts results in harm (dual intent standard)

Since Putney meant to be offensive and harm resulted, he is liable
What is the person cannot understand the consequence to follow?

RTT – battery: intent required is the intent to cause contact with the person of another. The actor need not intend to cause harm or offend (single intent standard)

Removed offensive part of dual intent

Difference is the same as singular vs dual intent argument

Which do you like better?


Liable for all outcomes from the act of battery
Directness test

If you commit an intentional tort, you are liable for every damage that occurred

Offensive Battery

Offensive Contact (RST S18)

An actor is subject to liability to another for battery if 1) he acts intending to cause a harmful or offensive contact with the person of the other or third person, or an imminent apprehension of such a contact and 2) an offensive contact with the person of the other directly or indirectly results
An act which is not done with the intention stated in Subsec1a does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm

Compensory vs. punitive damages

Issue is what does the plaintiff want for the former, issue of what it takes to punish the defendant for the latter
Ceiling on damages?

Transference of Intent Doctrine

Can include a third party (Smith fires at Jones but hits Daniels)

Necessity of Act by Defendant

To make the actor liable for a battery, the harmful bodily contact must be caused by an act done by the person whose liability is in question



An actor is subject to liability to another for assault if 1) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and 2) the other is thereby put in such imminent apprehension

Tuberville v. Savage

Assault, Battery, and Wounding
Plaintiff threatened defendant, who retaliated by beating up the plaintiff and said that the plaintiff had assaulted him

Court decides it was not assault

Intentional Torts Against Property


Unauthorized and therefore unlawful entrance onto property
To real property

Traditionally, there’s nominal damages

Ex: black soot sent onto your property destroying your crops over time, but there was no intent for this

Entry on land must either be intentional or must be substantially certain that it would happen (cannot be accidental due to wind or else it’s another tort)

Intangible trespassing

Don’t need _____ damages

Tangible trespassing
Landlord cannot grant intrusion on possession even though he is owner; it falls down to the possessive owner

Trespass to chattels

Does not necessarily involve stealing or act of dominion (but it could); it only refers to something that affects your ability to use your property

Ex: vandalism

Does not award nominal damages

If we did, there would be a plethora of cases for it

Must be actual harm to the chattel for damages
Intel Corp v. Hamidi

Damage in lost employment time, but the computer system itself did not take actual damage

Irreparable harm

Damages wouldn’t be enough to fix the problem, so the issue is stopped ahead of time to avoid it


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 other the full value of the chattel
In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important:

The extent and duration of the actor’s exercise of dominion or control
The actor’s intent to assert a right in fact inconsistent with the other’s right of control
The actor’s good faith
The extent and duration of the resulting interference with the other’s right of control
The harm done to the chattel
The inconvenience and expense caused to the other


Most conversions are also trespass to chattels (and vice versa) but that is not always true

Ex: vandalism


Prima facie case- burden of elementing the cause of action

Ex: in a battery case, the intent must be shown, the harm must be shown, causal connection must be shown, and reasons for damages must be shown to make out a prima facie case
Defendant may still not be liable due to affirmative defense
Obligation of proof can fall on both sides


Mohr v. Williams

Not an assault
Performed without cons

Smith returns fire and hits bystander accidentally. Is he liable to the bystander?

Transferred intent idea- (Morris v. Platt); it might be negligent to fire willy nilly.

Restatement (2d) section 75
Restatement (2d) Section 76: You have privilege to defend third person if you correctly or reasonably believe that the circumstances would give person a privilege of self-defense. And his intervention is necessary for the protection of the 3rd person

Might be harder to judge the level of the threat in a situation between others

Defense of property (3 categories)

Defending real property when not there in person
Defending real property, are there in person
Defense of chattels that are being stolen/threatened by someone
Courvoisier v. Raymond

Facts: Courvoisier (Defendant), a jewelry storeowner, shot Raymond (Plaintiff), a police officer, because Defendant believed the cop was a rioter and his life was in danger by the cop’s approach.
Issue. During a riot, is one justified in shooting another in an act of self-defense if he believes the other person to be one of the rioters?
Held. Yes. Judgment reversed.
If the jury believed that Defendant would have been justified in shooting one of the rioters and that Defendant mistook Plaintiff for one of the rioters, then Defendant would be entitled to a judgment in his favor, as long as, the circumstances of the shooting were excusable leading up to and surrounding the commission of the shooting.
Self-defense is universally recognized as a justification for intentionally inflicting harm. In this case, the jury instruction did not allow the jury to fully consider Defendant’s version of the shooting.

Bird v. Holbrook

Facts: Bird (Defendant) set a spring gun trap in his garden to protect his tulips. The spring gun trap injured Holbrook (Plaintiff) innocent trespasser.
Issue. Is Defendant permitted to set a spring gun trap to protect his property?
Holding: No. Judgment for Plaintiff.
One who sets spring gun trap for the purpose of catching an intruder without posting a notice is liable for damages. In this case, Defendant placed the spring gun trap for the purpose of doing injury. Defendant decided not to give notice of the spring gun trap because if he did, he would not catch the thief. Defendant intended the gun to be discharged into the victim.
Concurrence. (J. Burrough) Notice of the spring gun trap should have been given. If the Defendant wanted only to protect his property from thieves, then he would have set the spring gun trap only at night. Plaintiff was only a trespasser. If Defendant were present he would not even be allowed to take Plaintiff into custody. No man can do indirectly that which he is forbidden to do directly.
Defendant placed of a spring gun in his house to protect his property. If the spring gun is tripped, it would not be able to distinguish between the innocent trespasser or the intentional trespasser. Here, Defendant is held liable, and Plaintiff happens to be an innocent trespasser. It is not clear how the court would have held had Plaintiff been an actual burglar.
What if it had been barbed wire instead of gun? OK, because it’s primarily a deterrent. In this case they hid signs the gun was there.
RST Section 85: use of Mechanical Device Threatening Death or Serious Bodily Harm.

Only able to use automatic thing if, had you been there, you would’ve been privileged to use that thing (deadly force not permissible in defense of property only, even if notice was posted, considered excessive)