Torts Outline

Torts Thomas Fall 2017

Introduction

General

Reasons for tort law: deterrence, peace of mind, justice, fairness, public policy, process (value is attached to the process itself).

· What is tort law: Torts are wrongs recognized by law as ground for a lawsuit. It involved conduct below some legal standard. A harm is required. The aim is to vindicate individual rights and redress private harms.

· Economic analysis: social policy consideration, economically sound decisions are good for society (Efficiency v. Fairness). (Justice v. Policy).

Intent

Intent to produce a consequence that makes a civil wrong. It is a state of mind that must be connected the key element of the tort

Elements- A person acts with the intent to produce a consequence if they have a:

Desire-

Intent is satisfied if the defendant desires the consequences of his acts. The test is subjective, meaning that the court must conclude that the defendant, in his own mind, did in fact desire the consequences constituting the tort.
Desire is hard to prove because you can’t get inside peoples heads and to account for lapses in time

KSC-

knows to a substantial certainty that it will occur.
An objective standard that an average person would be substantially certain that the element will occur
Must be substantial certainty, can’t be likely or very likely

Transferred-

The transferred intent doctrine has been applied to five intentional torts (battery, assault, false imprisonment, trespass to chattel, and trespass to land).
Two Forms of Transferred Intent:

person-to-person transferred intent- A tortfeasor intends a tort on one person, but commits a tort on another. This is known as
tort-to-tort transferred intent- A tortfeasor intends one tort but accomplishes another.

EX: A intends to hit B but barely misses

The intent was to cause battery but A missed and the tort transfers from Battery to Assault

Special Cases of Intent

Children-Generally can have intent but at some point they are too young
Mental Capacity-Generally not an excuse, but certain kinds would undermine intent

EX. A here’s voices but still knows that the contact is offensive then intent is satisfied

A knows that shooting B will cause offensive contact and still shoots him

EX. A hits B believing that B is superman

No desire to cause offensive contact because he didn’t think he would get hurt
No KSC because A believes that it wont cause offensive contact

Comments-

Under transferred intent, if the defendant intends any of these five torts, but his acts, instead or in addition, result in any of the other five intentional torts, the defendant is liable, even though he did not intend the other tort provided the harm is direct and immediate.
***Thomas doesn’t think property torts should transfer to personal torts.***
Harms that are tortious if causes intentionally may not be tortious if caused unintentionally

Recklessness:

A person acts recklessly in engaging in conduct if:

The person knows of the risk of harm created by the conduct or knows facts that make the risk obvious to ‘another in the person’s situation, and
The precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk.
The term willful misconduct” sometimes refers to conduct that displays a “reckless disregard for risk” or a “reckless indifference to risk”
Less than intentional, but more than negligence
Used infrequently – punitive damages & IIED
Requirements (Restatement)
Precautionary burden was slight compared to the risk

Factors that are not decisive: likelihood of harm

The probability of harm is not a rigid prerequisite for a finding of recklessness

If a high probability of harm is not always a necessary condition for finding of recklessness, neither is it always a sufficient condition for such a finding.
A risk of serious bodily injury is not a firm prerequisite for a finding of recklessness

Scope of Liability for Intentional and Reckless Tortfeasors – Restatement 3d § 33:

Actor who intentionally causes physical harm is subject to liability for that harm even if it was unlikely to occur
Discusses the factors to be considered in determining exactly what the tortfeasor is liable for. This is greater if he acts intentionally as opposed to negligently.
Notwithstanding Subsections (a) and (b), an actor who intentionally or recklessly causes physical harm is not subject to liability for harm the risk of which was not increased by the actor’s intentional or reckless conduct.

Intentional Tortfeasors and assessing moral culpability include:

whether the tortfeasor acted with the purpose to cause harm or only with the knowledge that the substantially certain to occur; the maliciousness of the tortfeasor’s intent and the seriousness of the harm intended.

For reckless Tortfeasors: the relevant consideration would include

The extent to which the tortfeasor knew of & appreciated the danger and the extent of the gap between the harm risked and the precautions required to prevent the harm.

3 levels of culpability: More culpable you are, the more likely to get compensation

High culpability-easy to justify compensation: Intentional harms.
Medium culpability- compensation for actual harm (supports deterrence):
Negligence-acting in an unreasonable way. (Ex: Driving too fast)
No nominal damages for anything but actual damages. No damages=no money.
Low culpability- compensation limited to abnormally dangerous activity (loss-spreading): Don’t act unreasonably, just happens to hurt someone. The only nominal fee that will result are the things that are extraordinarily dangerous, but doesn’t act unreasonable. (Ex: Handling dynamite)

Intentional Torts

Assault

Elements of Assault

Volitional Act

What is the act giving rise to the plaintiffs claim

Imminent Apprehension of offensive Contact

Plaintiff must be aware of the threat from the defendant’s act
Needs to be immediate and apparent
EX.

D attacks P in sleep. No Apprehension by P
Words alone are not enough. But can be with an a weapon

Intent

Desire
KSC
Transferred Intent- Does not go up stream and transfer from property to people (try to hit a cat and a random dude was in the yard sleeping-no intent, unless you tried to hit a person with the shoe and it hits another

Examples

D punches P in the face-

Not Satisfied- P gets blindsided by D
Satisfied- P saw it coming

D sends P a text saying “Im going to kill you”

Not satisfied- If D is not near P
S