I. Overview of Torts
A tort is a civil wrong, other than a breach of contract , for which the law provides a remedy.
Purposes of tort law:
· Deters wrongful conduct
· Encourages socially responsible behavior
· Peaceful means to solve the problems so parties don’t take matters into their own hands.
· Restore injured parties to their previous condition as much as the law can for the injury suffered.
· Policy behind evolution of tort law: Find the best right in the majority of the circumstances to right a wrong done to someone.
Trespass
Direct; immediate
No fault/intent required
No actual damage
Example: log thrown into road is hit by log. Person can maintain trespass against thrower, since the injury was direct and immediate
Trespass on the case
Indirect
Damages
Fault/intent
Example: after log is thrown into road person comes along a hits it. Trespass in case because it was indirect.
Liability without fault
Weaver – if you cause damage to someone whether there is intent, it is an accident, or whatever you are liable for the damages.
Towards Liability based on Fault
If you unintentionally hurt someone while acting in a lawful manner then not held liable unless defendant is chargeable with:
Fault
Negligence
Carelessness
Want of prudence.
Driver not held liable in accident if:
Suddenly stricken with illness
No reason to anticipate it
Impossible to control
Strict Liability
Blasters are held strictly liable for any damage done.
II. Intentional Torts – Intentional Interference with Persons or Property
1. Battery – judged with an objective view.
· Intent
· Harmful or offensive contact
· There must be actual contact.
· (substantially certain of contact – Garratt) – apply to intent if the intent is not certain.
· Expansion of body or intimate space. (Fisher – plate was part of body).
· Do not have to show actual physical damages in battery case.
· An offense can include pranks.
· Insane people are liable for their torts (including battery).
· It is a transferable tort. Example: If you throw a stick at someone just to scare them and the stick instead hits someone that you were not intending to scare you will be held liable for battery even though you did not intend to batter.
2. Assault – objective view
· Intentional offer to touch another
· Rude or offensive manner which produces
· Feelings of imminent apprehension or danger
· Present apparent ability
· It is an incomplete battery
· There is harm done and plaintiff can recover for damages even if there is no other harm done.
· Unlawful attempt to commit a battery, incomplete by reason of some intervening cause.
· Must have knowledge of the impending assault
· Future threats do not constitute assault
· Words alone do not constitute an assault. Must be accompanied with actions that give the words force.
3. False Imprisonment – objective view
· intent
· direct restraint
· of physical liberty of another
· against their will
· w/o adequate legal justification
· person has to be aware
· subjective in turn the key cases
· there cannot be a reasonable safe means of escape
· If there is a reasonable safe means of escape but it is unknown then it is still false imprisonment
· If you take an unreasonable means of escape and hurt yourself only you are responsible
· Arrested on one issue convicted of another is false imprisonment
· You have to be conscious and aware that you are being falsely imprisoned
· Police officer can detain someone but it has to be for the law he broke.
4. Intentional Infliction of Mental Distress – objective view
· Intent (or reckless) – must be knowledge that such conduct would result in the emotional distress
· Mental suffering
· Extreme or outrageous conduct
· Serio
cumstances
§ Fraud deceit or faulty information (Demay – pregnant case)
§ Under duress
§ If plaintiff does not have the capacity to consent (minor child)
· Withdrawal of consent means that physician must conduct new informed consent discussion, cannot continue to rely on previously given consent
· Right to refuse treatment not limited to those who are suffering from terminal conditions
· Patient competent to make decisions entitled to refuse blood transfusion even if that decision is fatal
b. Self Defense
· Usually no deadly force
· Proportional response
· No retaliation/ if risk has passed you can’t go after them.
· No retreat required
· Reasonable mistake allowed
· Burden of proof is usually on the plaintiff to show that a police officer used unreasonable force.
· Reasonable belief that the force is necessary to protect oneself
c. Defense of Others
· Same as self defense
· If you come to the aid of the aggressor then you are liable.
d. Defense of Property – Katko
· Proportional response.
· No deadly force or great bodily harm if just property
· If warning then you can usually use more force (barbedwire).
· Reasonable mistake allowed
e. Necessity
· Public Necessity
1. Do it in good faith
2. Protect public interest
3. Exigent circumstances
4. Actual necessity or apparent necessity
5. Anyone can do it if necessary
6. Reasonable under the circumstances.
7. Does not extend to the taking of life
