Torts Outline

Torts Outline – Matthew Lindsay – Spring 2014

Tort law is in place:

– To right a wrong or wrongs

– To compensate injured parties

– To deter bad conduct

Tort law differs from criminal law. It is for private citizens to seek fulfilment for the wrongs done them by other private citizens. Common law for torts is being actively collected, disbanded, affirmend, cleaned up in general, by legislative “tort reform.”

Two major types of torts: Intentional and Unintentional.

– They are judged differently

– Generally, if it is clear what the single wrong is, and there is no question as to liability, then the judge rules. If there is ambiguity about some point in the case, the judge clarifies the issue and a jury rules.

Intentional Torts

ASSAULT

CONCEPTS and RESTATEMENTS

– 2 types

o Failed battery

o Causing apprehension

– Cannot commit against not human

o Donald Trump throws aquanet at a trashcan – NOT ASSAULT

o Donald Trump throws aquanet at a mime – ASSAULT

–

§21. Assault

1) An actor is subject to liability to another for assault if

a. He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, AND

b. The other is thereby put in such imminent apprehension

2) An action which is no done with the intention stated in Subsection (1,a) does not make the actor liable to the other for an apprehension csue thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm

§22. Attempt Unknown to Other

Illustration: A, standing behind B, points a pistol at him. C overpowers A before he can shoot. B, hearing the noise turns around and for the first time realizes the danger to which he had been subjected. Now, A is not liable to B.

Which is to say that knowledge of being assaulted is an element.

§24. What constitutes apprehension

Illustration: A, a scrawny individual who is intoxicated, attempts to strike with his fist B, who is the heavyweight champion pugilist of the world. B is not at all afraid of A, is confident that he can avoid any such blow, and in fact succeeds in doing so. A is subject to liability to B.

Is this saying that B can choose whether or not A is liable, or does it mean that A is not necessarily liable, but if battery occurs, then Assault may just be tacked on the charge, too? How much does the intent of A weigh, even if B does not feel the apprehension A intends him to feel?

§28. Apprehension of unintended bodily contact

Like, even though no harm may happen, but someone creates an air of possibility – even if they don’t touch you, don’t harm you, then you can sue them for Assault? Mongoose case?

ELEMENTS

– No Contact

– Imminent threat of harm

– ??Intent to contact??

VOCABULARY

CASE ILLUSTRATIONS

Brower v. Ackerly, 943 P.2d 1141 (Wash. App. 1997)

– FACTS: threat to do something in the future

– ASSAULT? NO

– RULE: must be in a position to inflict the harm immediately

Langford v. Shu, 128 S.E.2d 210 (N.C. 1962)

– FACTS: Langford is scared by mongoose-in-a-box

o Trick played by kids, not the mother, but mother knew they were going to do it, egged the kids on

– Assault? Yes

– RULE: §21.1)b)

Battery

Battery: action with intent to cause harmful/offensive contact

– Intent

– Contact

– Harmful

What needs to be proven for each of these elements?

· 2 things you can intend: to cause contact and to cause offense. One is objective.

· 2 ways to show it’s offensive: sub= personal, objective= out of setting.

…Intent just to touch is not quite enough. Murky in Vosberg, but often the key to seeing if the touch was offensive OBJECTIVELY. Eg. Push in football isn’t, but in a classroom, probably. On the street, who knows. The context is pretty important.

– This does not make the question easy: it is not enough for ct to define it offensive just because the person says it is, SUBJECTIVELY, to them.

§18: a bodily contact is offensive if it offends a reasonable sense of personal dignity.

1. An actor is liable for battery if

a. He acts intending to cause a harmful or offensive contact with another person

b. An offensive contact with that person actually results

– “reasonable sense” = SUBJECTIVE

– Therefore usually a close, arguable answer. “correct” answer is less important than determining reasoning from the full context.

– Intent for contact between a body and a foreign object is included in this

o Eg. Kid pulling out chair so you fall: BATTERY

o Eg. Kid licks your fork and makes you sick: BATTERY

– Victim’s awareness of the contact?

o Awareness at the time does not interefere with ability to claim battery, as long as you can prove it was them

§ Drunk at a party

§ Magic Johnson case

o EG. Kid licks fork, but you don’t get sick. Still BAT