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Temple University School of Law
Sperino, Sandra F.

I. Tort
a. Defined
i. A civil wrong, other than a breach of contract, for which the law provides a remedy. This area of law imposes duties on persons to act in a manner that will not injure other persons. A person who breaches a tort duty has committed a tort and may be liable to pay damages in a lawsuit brought by a person injured because of that tort.
b. Difference between Tort (Civil) and Criminal Law
i. Burden of Proof
1. Criminal – Beyond a reasonable doubt
2. Civil – Preponderance of the evidence
a. Jury has to be convinced over 50% that winning party is correct
ii. Parties
1. Criminal – State v. Defendant
2. Civil – Private/Public Plaintiff v. Private/Public Defendant
iii. Rights of defendant
1. Criminal – Indigent defendant gets a free lawyer
2. Civil – Normally not allowed to appoint a lawyer
iv. Type of Remedy
1. Criminal – Fine, imprisonment, restitution
2. Civil – Money damages, injunctive relief
c. Purpose of Tort law
i. Provide a peaceful means for adjusting the rights of parties who might otherwise “take the law into their own hands”
ii. Deter wrongful conduct
iii. Encourage socially responsible behavior
iv. Restore injured parties to the original condition, insofar as the law can do this, through compensation
d. Origin and Development of Torts (Civil Law)
i. Developed through the Common Law
1. Made by judges – court opinions
a. Develops over time – by judges
b. *Civil Law Countries by contrast are ruled predominantly by statutes
c. Common Law is very dynamic
i. Learning the black letter law is not what we’re here to do
ii. Places a necessity on analytical tools
II. Categories of Torts
a. Intentional Torts – need tortfeasor (?) – i.e. defendant
i. Battery
ii. Assault
iii. False Imprisonment
iv. Intentional Infliction of Emotional Distress
v. Trespass to land
vi. Trespass to Chattels*
vii. Conversion
b. Strict Liability – very dangerous acts
c. Negligence – most common
i. Medical malpractice
ii. Car Accidents
III.Overview of Lawsuits
a. Pleadings
i. Complaint/petition
1. Plaintiff files allegations
2. Asks for a remedy
ii. Answer
1. Defendant’s response
2. Lays out defense
iii. Motion to Dismiss
1. Ex: Statute of Limitations
iv. Pre-Trial
1. Discovery – exchange of information
a. Very expensive
b. Individual Deposition
i. Lawyer’s fees, court reporter, tape etc
2. Motion for Summary Judgment
a. Parties agree on set of facts
b. Procedural mechanism that settles suits
c. Only 2-5% of federal cases go to trial
v. Trial
1. Jury Instructions
2. Types
a. Bench Tried Case
i. Decide legal issues and makes ruling
b. Jury Trial Case
i. Sometimes unanimous decisions needed
vi. Appeal
a. Intent
i. Defined
1. 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
ii. Restatement
1. External manifestation of the actor’s will
iii. Characteristics
1. Rarely comes up in tort cases
2. Usually not argued
3. Voluntary
4. Ill-will, malice
5. Intend for contact, cause harm
6. Intent is measured by whether you intend the action not the consequence
7. If action was intended, you are liable for the consequences even if they are far beyond what you expected
8. The intent to bring about the consequences of the act. The bullet or the automobile hits someone. Liability for the intentional torts is premised on the intent to bring about the consequences (e.g. for battery, a harmful or offensive touching).
iv. Case Book Cases
1. Garratt v. Dailey
a. Synopsis – Little kid pulled chair from under adult – adult fell and sustained injuries
b. Issue – Whether pulling the chair out constituted battery even though there was no malicious intent
c. Case’s Contribution to Intent Discussion
i. Restatement (first) Torts – Character of Actor’s intent
1. It is not enough that the act itself is intentionally done and this, even though the actor realizes or should realize that it contains a very grave risk of bringing about the contact or apprehension. Such realization may make the actor’s conduct negligent or even reckless but unless he realizes that to a substantial certainty, the contact or apprehension will result, the actor has not that intention which is necessary to make him liable under the rule stated in this section.”
ii. Applicable to other cases – Must examine knowledge of potential injury, not just intent
iii. Trial court needed to expand definition of intent – substantial certainty knowledge that injury will result – even if prefaced by saying that you did not mean it
iv. Policy Implications
1. People are liable if they have the knowledge that a potential action of theirs might very well cause injury
2. Spivey v. Battaglia
a. Synopsis – Co-worker hugged fellow worker despite her not wanting to be hugged
b. Issue – Whether the hug was battery or negligence
c. Case’s Contribution to Intent Discussion
i. Was not Battery because there was no substantial certainty that the severe damages would occur as a result the seemingly innocuous contact
ii. Court is trying to determine whether when the defendant hugged her, was he intending a harmful or offensive contact?
3. Tallmage v. Smith
a. Synopsis – owner of sheds threw stick at boy to get them off his property…hit another boy who lost his eye
b. Issue – Whether the unintended consequence of hitting the boy constituted battery
c. Case’s Contribution to Intent Discussion
i. Transferred Intent – despite only wishing to scare one boy (assault) the fact that he harmed (battery) another boy still makes one liable for battery
ii. Actor intends to commit tort against one individual can still be liable if act c

or intentional touching of a person against his or her will in a rude, insolent, or angry manner.
i. Intent can transfer from victim to victim or from one intentional tort to another intentional tort (NOT IIED)
1. Example – Three Stoogies
a. Pie scenes
j. Hypothetical
i. Brian is facing forward. Without looking behind him, he reaches back and grabs the chair. Ruth was about to sit down, but Brian did not see her, because he did not look.
ii. Will Brian be held liable for an intentional tort of battery?
1. “It is not enough that the act itself is intentionally done and this, even though the actor realizes or should realize that it contains a very grave risk of bringing about the contact or apprehension.”
a. Might be negligence…not intentional tort
k. Hypothetical #2
i. Randomly goes out and shoots an arrow. It ricochets off fence and strikes neighbor
1. *not intentional tort – Is negligence though
l. Hypothetical #3
i. Boy kisses girl
ii. Good motive, but still had reason to believe girl would be offended
m. Hypothetical #4
i. Guy comes from country where kissing is ok
ii. Rulings – still should have known that in this country there was a reasonable certainty that the girl would be offended
n. Case Book Cases
i. Cole v. Turner
1. Case’s Contribution to Battery
a. That the least touching of another in anger is a battery
b. If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently it will be no battery.
c. If any of them use violence against the other, to force his way in a rude inordinate manner, it is a battery; or any struggle about the passage, to that degree as may do hurt, is a battery
ii. Wallace v. Rosen
1. Synopsis – teacher made contact with teacher in hall during fire drill
2. Issue – Whether the teacher was guilty of battery for touching the parent during the fire drill
3. Case’s Contribution to Battery
a. “Crowded World Concept” – A certain level of acceptance must be given to the fact that there are many people in a limited space so some contact will occur
iii. Fisher v. Carrousel Motor Hotel, Inc.
1. Synopsis – guest gets plate yanked from his hands and is yelled at
2. Issue – Whether the grabbing the plate and yelling constituted assault and battery
3. Case’s Contribution to Battery