Select Page

Torts
Temple University School of Law
McClellan, Frank M.

I. Perspectives On Tort Law
 
LEGAL THEORIES
Tort law provides monetary compensation to redress plaintiff’s claim that defendant injured him, interfered with his property, invaded privacy, or invaded another legally protected interest. It determines who bears the burden for an injury and what forms of injury are compensable.
 
No promise of pay for damages
No regard for criminal prosecution
 
Containment of risks vs. freedom to take action
 
Early tort law was very restrictive, bound by legal formalism. Plaintiff had to show that he had sustained a physical contact on his person or property, due to the activity of another and injury had to fit into an existing writ. Today cases are examined within the social context. 
 
1. Law and Economics: “It is that sufficient sum should be exacted from the defendant to make repetition of the misconduct unlikely.” DETERRENCE based on a Cost/Benefit analysis centered around efficiency. Is the cost ($$, lives, injuries, etc.) of making the effort of protective conduct less than that of paying out damages to suit?   If so, it is beneficial to do so. It ideally spawns a system which is efficient in the way it resolves conflicts. Note: Don’t want to over-deter desirable conduct.  
           A. Applied to McDonald’s hot coffee case: Jury awarded sum = to two days worth of coffee sales to plaintiff, hopefully providing the necessary cost/benefit deterrence against the same potential future act.
2. Corrective Justice: Some type of wrongful conduct is necessary. “Provides victims with the legal weapons necessary to right wrongs. “The party at fault must make the victim whole.” “Injustice occurs when, relative to this baseline, one party realizes a gain and the other a corresponding loss. (Closed system?) The law corrects this injustice when it re-establishes the initial equality by depriving one party of the gain and restoring it to the other party. Large punitive damages to force change results in compensation for the individual while improving society. Social values determines the standard of reasonableness. 
            A. Applied to McDonald’s hot coffee case: Jury placed a monetary value on the plaintiff’s damages and recouped them from McDonald’s.
3. Critical Race Theory: Often there are rules that appear equitable, that when probed reveal discriminatory bias.
4. Critical Feminism: “Supposedly” women recover less from tort cases, tort reform has a greater impact on women.
5. Pragmatism: Practicality rules the decision. “Every abstract conception should be understood in relation to its consequences for human activity and consider the perspectives of the party before them.
6. Social Justice: Social control over powerful corporate interests. Allows public to hold industry “accountable” and results in a public benefit. 
Note: Perspectives on tort essentially define relationships to determine how a duty is owed.
 
Reasonable
Law and Economics: It’s reasonable to maximize profit in a capitalist society.
 
Determine Liability. If Liable, the plaintiff is awarded compensatory and/or punitive damages. Punitive damages can (and often are) limited by the type of tort.
 
II. Intentional Torts
 
A. Intent
 
w Don’t need an intent to harm the person, just an intent to cause the contact
w If you know with substantial certainty that the result will occur, this is the same as intending the result, but recklessness is not enough
w Act must be intentional or certain, but the consequences of the act do not have to be so
w Transferred intent: Intent can be transferred between five torts (battery, assault, false imprisonment, trespass to chattel, and trespass to land) and different victims within these five torts. For example, if A intends to assault B, but accidentally commits battery against B or another party C, A is liable for the battery. Hall v. McBryde
w Mistake Doctrine: Under the mistake doctrine, if a defendant intends to do acts which would constitute a tort, it is no defense that the defendant mistakes, even reasonably, the identity of the property or person he acts upon or believes incorrectly there is a privilege. If, for example, A shoots B’s dog, reasonably believing it is a wolf, A is liable to B, assuming B has not wrongfully induced the mistake. Ranson v. Kitner (IL 1889).
 
Bazley v. Tortorich (LA 1981)
 
P injured by co-employee when struck by a car when on the back of a garbage truck. Tries to claim that a voluntary act equals an intentional act. Wants to get out from

ictim of offensive touching, not someone else
w Conditional threats depends on legal rights: does D have legal right to make P act? If no, then can be assault.
 
Castiglione v. Galpin (LA 1976)
 
Ps are employees of water board sent to Ds house to turn off water because of an unpaid bill. D threatens to shoot Ps if they did this, and brought a gun out of his house (either pointed it at them or laid it across lap).
 
Holding: Threats coupled with the ability to carry out those threats that cause another to be in fear of being battered constitute an assault.
 
Holcombe v. Whitaker (AL 1975)
 
Whitaker and Holcombe marry, but he’s still married to another woman, also having a relationship with another. P says get our marriage annulled, or divorce first wife and stop seeing other woman. D says no, and “if you take me to court I’ll kill you.” P then receives threatening phone calls, D pounds on door. Moved, calls resume, someone breaks into her apt.
 
Holding: Court holds that a threat of bodily harm if a condition is not met accompanied by some action that demonstrates the ability to carry out that harm constitutes an assault. (Does threat of harm have to be immediate- yes, but it’s not in this case).
 
Notes: Apprehension must be of an “imminent” harmful or offensive contact. Thus a threat to harm in the future is not an assault. Conditional Threat: Can’t attach a condition, such as “you can go another way, but if you go this way, I’ll beat you up.” That is still considered an imminent apprehension of harm.
Faint Hearts: If an act is intended to put another in apprehension of an immediate bodily contact and succeeds in so doing, the actor is subject to liability for an assault although his act would not have put a person of ordinary courage in such apprehension.