Torts Outline – Professor Malloy (Fall 2007)
I. Aims
A. Economic: Balance between number of injuries and D’s freedom
B. Corrective Justice: Set of rules that achieves justice for individual cases
C. Social Utility: Set of rules that works toward good of society
[A1] II. Trial Procedures
A. Procedure/process can influence substantive outcome
B. Damages
1. Jury allowed to decide what portion of injury is due to incident
2. Damages can include
a) Medical expenses
b) Pain and suffering
c) Lost wages or earning capacity
3. People’s lives valued differently based on calculations including earnings potential, life expectancy, lifestyle choices, gender, race/ethnicity, etc.
4. Damages must be proven for negligence, but not for intentional torts
5. Tortfeasor liable for all consequences, even unintended
C. Conflicting evidence about facts goes to the jury to determine the facts and judge credibility of witnesses
D. Apportionment of damages:
1. Comparative fault: P’s fault reduces damages
2. Joint and Several liability: P gets 100% recovery from at least 1 D
3. Several liability: P can only get appropriate % from each D[A2]
Intentional Torts
Analytical Framework
1) ID possible intentional torts
2) Consider prima facie case for each tort from step 1
-Apply intent to result, not action
3) Consider defenses to torts that pass step 2
* P has burden of proof for proving elements of prima facie case
* Fault is required
* Children can be held liable for intentional torts
* Complaint must allege all elements of prima facie case or it will be dismissed
* Damages don’t have to be proven
I. Battery – D acts with intent, causing P to be harmfully and/or offensively touched.
-Policy: Battery allows recovery for invasion of freedom from unwanted bodily contact
A. Elements
1. Act: there must be a voluntary action by D
*Example: If D touches P as a result of a seizure, there is no intent.
2. Intentional: D’s act must be intentional
3. Touching: D’s action must cause contact with P
4. Harmful or Offensive: the contact must be harmful or offensive
B. Intent
-Policy: Intent required for intentional torts in order to confine intentional tort liability to cases where D’s act with high level of fault.
1. Subjective Test
a. Purpose/Desire: D acted with purpose to harmfully/offensively touch P
b. Substantial Certainty: D did not act with purpose of harmfully or offensively touching P, but D should be substantially certain that such touching will result.
*Example: Runner throws cleats into stand of spectators out of frustration. He is liable for battery even though he may not have intended to hurt anyone.
i. Think of children, large crowds, Cheney hunting, etc.
2. Doctrine of Transferr
c.
3. Extended personality
a. Touching extends to extended personality i.e. books, hat, coat, etc.
II. Assault
-Policy: Narrow protection from mental distress arising out of apprehension of immediate physical aggression
A. Elements
1. Act with intent, but no touching required for assault
2. Reasonable Apprehension of harmful or offensive touching
3. Imminent: D’s threat is imminent
B. Intent
1. No touching required for assault
a. Touching à Assault AND Battery
2. D must act with purpose or substantial certainty of causing apprehension
3. Transferred intent doctrine applies
C. Reasonable apprehension of harmful or offensive touching
1. Objective Standard
2. Same definition of harmful/offensive touching applies as under battery
3. Awareness: P must be aware of threat
4. Threat must be to P’s own person only
[A1]Tension exists between these objectives
[A2]Tort reform trend toward several liability to alleviate unfair distribution among D’s
[A3]Difference between jxns
[A4]Majority rule
[A5]Some variation exists in most states
