TORTS I OUTLINE
I. Development of Liability Based Upon Fault
a. ∂ tort – civil wrong or injury caused by a breach of duty that arises by operation of law rather than agreement
i. harm which has resulted, or is about to result from it, must be capable of being compensated in an action at law for damages, although other remedies may also be available
ii. torts consist of the breach of duties fixed and imposed upon the parties by the law
iii. POLICY: deterrence, compensation, historical development (precedent), moral aspect of D’s conduct, convenience of administration, capacity to bear or distribute loss, prevention/punishment
iv. ∂ civil wrong – a wrong that courts or legislatures have determined are actionable
v. ∂ breach of duty – when someone has a legal duty towards you (other than in a contract) that they breach
vi. Writs & the common law – used to need a writ from the King to have a claim in court
1. ∂ writ of trespass – actionable due to direct harm, involving serious and forcible breaches of the King’s peace
a. The writ is criminal in character
b. D is fined; if fine not paid, D is imprisoned [beginning of “damages”
c. Involved forcible, direct, and immediate injuries to person or property
d. Required no proof of actual damage
e. Not concerned with fault
f. Progenitor to battery, assault, and false imprisonment
2. ∂ writ of trespass on the case – actionable on non-immediate (indirect) harm
a. Supplemental action to write of trespass
b. Afforded remedy for obviously wrongful conduct resulting in injuries which were not forcible and direct
c. Damages had to be proved for liability to be imposed
d. Wrongful intent or negligence had to be proved
e. EX: Anonymous – D, while fixing house, drops log and injures P. D held liable for accidental injuries.
3. Distinction between writs
a. Immediate application of force to person or property of P v. injury through some obvious and visible secondary cause
b. If a log is thrown on a highway, the person hit by the log has an action for trespass and the person who later stumbles over the log has an action for trespass on the case
c. The emphasis is on causal sequence, not on a distinction between intentional and negligent conduct
vii. Now, fault-based view of law [burden shift to P]
1. POLICY:
a. Protection of growth of industry
b. Fairness to defendants (not fair to hold one liable in absence of fault)
c. Fairness to plaintiffs (no need to depend on correct writ selection)
d. Promotion of economic efficiency
i. ELEMENTS (One of the following)
1. Purpose of producing the consequence
a. For direct & immediate consequences; liable for reasonable foreseeability
2. Knowledge to a substantial certainty that the consequence will ensue from the actor’s conduct
a. P’s sensitivities don’t matter unless D knows.
b. SUBJECTIVE TEST: What did this particular defendant desire or believe?
c. EX: Garratt v. Dailey – D, a child, takes P’s chair. P falls when she tries to sit down where chair was. D held liable for knowledge to a substantial certainty of the consequence that P would fall.
d. EX: Spivey v. Battaglia – D jokingly grabs P, a coworker by the neck, causing injury. D may be liable for intentional tort if he knew to substantial certainty that his touch would be offensive. He would be liable for negligence if there was a foreseeable risk.
i. RULE: Negligence and intentional torts are mutually exclusive.
Described by Prosser as “(1) it is a state of mind (2) about consequences of an act (or omission) and not about the act itself, and (3) it extends not only to having in
