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Temple University School of Law
Rahdert, Mark C.

Rahdert torts fall 2015
A.    Definition- any (usually) compensable civil action outside K
tort is a civil wrong or injury caused by a breach of duty that arises by operation of law rather than agreement.  What is a civil wrong?  A wrong that courts or legislatures have determined are actionable.  What is a breach of duty?  When someone has a legal duty towards you (other than in a contract) that they breach.
Torts v. contracts
 a. In contracts, interaction begins with something consensual that both parties chose to
 b. contract law is mostly statutory, torts is primarily non-statutory and comes from common law
Torts v. criminal law
 a.    Criminal law is public punishment – threat to public safety, public welfare
 b.    Torts – a personal responsibility, and mostly not about punishment, but about compensation.
B.     Remedy is usually damages, occasionally an injunction
C.     Why have torts?
                   1.      Compensate the injured party
             2.      Prevent violence
             3.      Civil justice
 4.      Deter conduct
Shifts cost
Compensates injured party
Dispute resolution
Social deterrent from undesirable conduct
Mostly state law
Judge made, common law (CL)
Legislature codifies CL after established “Black-letter law” (BLL)
There were two writs:
a.    Trespass vi et armis  – DIRECT 
b.    Trespass on the case – CONSEQUENTIAL
unholy trio of assumption of risk, contributory negligence, and fellow-servant rule
INTENTIONAL–Brown v. Kendall 3, two dogs each belonging to the parties were fighting. D took a stick to beat them apart, in doing so, on swinging the stick back, hits P in the eye
—P must prove D’s lack of due care in lawful action for recovery. 
—Accidents do not necessarily imply culpability
NEGLIGENT–Hammontree v. Jenner 6, D had an epileptic seizure and lost consciousness while driving his car and crashed into P’s store; doctor says it’s safe for D to drive
—negligence, not strict liability (unless Legislature says so)
STRICT LIABILITY–Langan v. Valicopters, Inc 10, D’s pilot sprayed pesticide while over P’s organic farm
—agent participating in abnormally dangerous activities subject to liability no matter how careful. Strict liability is limited to risk inherent in dangerous activity (2RT § 519)
§520 factors to determine
High degree of risk
Gravity of harm
Risks cannot be eliminated by exercise of reasonable care
Not common usage of activity
Inappropriate place of activity
Value of activity to community
Whether Strict Liability or Negligence applies is a determination of balancing of conflicting social interests
(i)           Risk of Harm vs Utility of the Activity – Risk/Utility Test
(ii)         Langans will never be able to sell organic if dusting continues, and D will continue to profit
(iii)       Equitable balancing of social interests only if D pays for consequences of their act.
3rt foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors
activity is not a matter of common usage
Comparison between 2nd and 3rd Restatements
The third restatement eliminates the social value of the activity as a factor.
The third restatement emphasizes commonness of activity.  
Third restatement simplifies the second restatement.
BATTERY—RST § 13 harmful contact, 18 offensive contact
(1) INTENTIONAL ACT (D’s subjective)
Intent = purpose/substantial certainty that risk will result—Garrat v. Dailey 16, five yr kid pulls chair from under P
Transferred intent–vicarious liability—Keel v. Hainline 25, D throws eraser hits wrong kid
Transferred intent is applicable in battery, assault, false imprisonment, trespass to land, trespass to chattels
Intent to make contact, not to do injury—Lambertson v. U.S. 32, meant to play a joke, ride piggyback
MOTIVE is irrelevant
Unprivileged– offensive–Mink v. U of Chicago 26, administers drugs to pregnant moms without consent
Crowded world–Wallace v. Rosen 19, teacher contacts P in fire drill, P’s implied consent to contact, not offensive
liable for all consequences of his intentional tort, whether foreseeable or not
Vosburg v. Putney 23, kid intentionally kicks P in school, aggravates prior injuries    
Offensive: violation of the order and decorum of the classroom; if playground—implied consent
Eggshell skull rule/thin skull rule
(4) TO VICTIM’S PERSON/OBJECT (constituted by anything within close proximity)
No actual physical, direct contact is necessary, it need only be intended,
Fisher v. Carrousel Motor Hotel 30, D forcefully grabs P’s plate + shouts racial taunts
2RT §18–intimately connected with body/customarily regarded as part of othe

a. Duration          b. Intensity         c. External evidence
Policy- necessary to prove severity prevents frivolous litigations
Harris v. Jones 46 — Womack test 2RT 46
D was supervisor of P. P has a speech impediment and D ridicules him for it, causing him extreme nervousness that increases the stuttering. P had been under care of physician for 6 years.
Not severe, not liable—a certain toughening of the mental hide is a better protection.
Yates v. John Marshall Law School 51 — frivolous litigation
Hustler Magazine v. Jerry Falwell 53, a parody of ad with sexual double entendre aimed at D with disclaimer
Public figures/officials–actual malice—falsehood + reckless regard
TRESPASS TO LAND (+nuisance= indirect or intangible interference with owner’s use and enjoyment of land)
intentionally enters or causes direct and tangible entry upon the land in possession of another [The requirement of intention is satisfied by the deliberate act of entry itself – it is not necessary for the defendant even to be aware that s/he is interfering with the plaintiff’s real property rights.] (1) The right to exclusive possession of land;
(2) The right of physical integrity of the land itself
(3) The right to the use and enjoyment of the land;
–overflights are trespasses if (a) in the “immediate reaches” of the land and (b) interfere with use and enjoyment.
–underground cable or conduit; Percolation of liquids underground.
Dougherty v. Stepp 57
Every unauthorized (unprivileged), therefore unlawful, entry into the close of another, is a trespass
Simple (substantial) interference with the plaintiff’s right of exclusive possession of the chattel is sufficient to establish the tort. (Minor – or what the law often calls “de minimis” interferences are unlikely to arise to the level of a tort.)
knowledge that the item in question belongs to the plaintiff also is not required.