I. General Tort Overview
a. Tort law is an unpermitted violation of someone’s rights
b. Tort law is based on common law
i. The rules consist of judges decisions; very few statutes passed by the legislature
ii. There is a lot of variation among the states about the tort law
c. There are three types of torts
i. Intentional (multiple intentional torts)
ii. Unintentional
1. Recklessness
2. Negligence
iii. Strict liability
d. Case Overview
i. Plaintiff: presents prima facie case; the elements of the tort
ii. Defense: negates the prima facie case
1. Derivative defense: show the plaintiff hasn’t established the prima facie case
2. Affirmative defense: defendant shows that even if the plaintiff establishes all of the facts in the complaint, the defendant still isn’t liable
iii. Burden: The burden in torts cases is “Preponderance of the evidence”
1. 51% likely
2. More likely than not
iv. Legal Theory
1. A statement of the type of tort the plaintiff claims the defendant committed
v. Factual Theory
1. A statement of what caused the plaintiff’s injury, including a statement of what the defendant did or did not do in the context of significant circumstances related to the injury
vi. Joint and Several Liability
1. Joint liability
a. Each of the Ds are liable for the full amount
b. P can sue either one and get the full amount
2. Several liability
a. Each D must pay their share
3. Joint and several liability
a. P can pick one and get the full amount from one OR
b. P can sue them both and have each pay half
c. Do this so that if one of the Ds is judgment proof and one can, P can still recover their money because the risk goes to the other D and not the P
4. When a plaintiff wins a tort claim, they need to file suit afterward to get an order for the defendants to pay. P can bring suit against one or all in joint and several liability.
5. If P sues just one, then the sued D can go after the other D for contribution.
e. Tort Approaches
i. Instrumental Approach – Protect society from harm
ii. Corrective Justice Approach – Resolve disputes as to be fair to people in disputes and the categories the parties fall into
f. Children CAN be sued for torts – age varies from jurisdiction to jurisdiction
II. Policy
a. The Reasonable Person Standard
i. Reasonable man v. reasonable person v. reasonable woman
1. Reasonable person standard assumes there is a societal consensus
a. Does this exist?
2. Alternatives
a. Reasonable woman, Italian
b. Not practical alone or in combo with the reasonable person
3. Pros
a. Seems relevant to jurors
b. Does not promote stereotypes
4. Cons
a. Does not apply to the individual case
b. Forces assimilation
b. Policy Arguments
i. Refer to hand out sheet
III. Intentional Torts
a. Intent element and a conduct element
i. Intent
1. Purpose or desire, OR
2. Know with substantial certainty
ii. Conduct
b. Extra Sensitive Plaintiff
i. Conduct is objective so: would a reasonable person feel apprehension?
1. If no, the defendant is not liable UNLESS
2. The defendant knew about the extra sensitivity (case law to support this in assault but is also likely in battery)
c. Battery
i. Protects people against a harmful or offensive contact
ii. Elements
1. Intent
a. Purpose or desire to harm or offend, OR
b. Purpose or desire to create an imminent apprehension of a harmful or offensive contact, OR
c. KSC a harmful or offensive contact would occur, OR
d. KSC that an imminent apprehension of a harmful or offensive contact would occur
2. Conduct
a. A harmful or offensive contact
b. Contact can occur with an item closely associated with the body
iii. Intent (Subjective standard)
1. The act must be an external manifestation of the actor’s will
2. Don’t have to intend to harm someone or the harm that resulted but must intend the contact
a. Courts want to protect from the invasion of someone’s interest; in this case the interest to protect yourself from bodily harm
3. Dual Intent (Minority Rule): Some courts have a dual intent requirement which changes the prima facie case for intent. Must show that you intended the contact and harm.
a. Example of differing results are the “friendly hug cases”
b. Makes it easier for the defendant to escape liability and more difficult for the plaintiff to prove liability
iv. Contact (Objective standard)
1. Conduct element has to be a voluntary act by the defendant
a. An act is a muscular movement unless it is purely reflexive
b. Defendant needs to know he is acting and did so on his own
v. Definitions
1. Injury – the invasion of any legally protected interest of another
2. Harm – the existence of loss or detriment in fact of any kind to a person
3. Offensive – Offend a reasonable sense of personal dignity
vi. Cases
1. Waters Case
a. Child placed firework in the shoe of another child
b. Had been previously setting off fireworks
2. Polmatier Case
a. Son-in-law beats father-in-law with a beer bottle, goes to get a gun, shoots the father-in-law
b. Son-in-law says he was crazy; discussion of intent if not voluntary
3. Nelson Case
a. While being hit with gun by defendant, gun went off and shot plaintiff
b. Didn’t intend harm caused but knew with substanti
ntiff was actually distressed
1. This is severe; not just upset; need to have evidence
v. Transferred intent
1. You can transfer intent if:
a. You are present and a family member
b. You are present and suffered bodily harm
2. Presence
a. Some suggestion that the defendant needs to know that you were present as well
vi. Cases
1. Zalnis Case
a. Women bought a car, dealership noticed it undersold, harassed her to get the car back
b. IIED
c. Abuse of authority
d. Susceptibility
2. Dana Case
a. Photographed patrons at marina and distributed videos
b. Distribution was important because without distribution there can be no humiliation, i.e. no distress
c. Recklessness
3. Miller Case
a. Doctor accused mother of doing drugs during her pregnancy
b. Abuse of authority
c. Don’t need expert testimony for emotional distress
vii. Policy
1. Why be able to recover nominal damages for trivial offenses in physical and property torts and not recover for more egregious mental torts?
a. Prevent fraudulent claims
b. Judicial efficiency (slippery slope)
c. Disproportionate to culpability though
IV. Intentional Tort Defenses
a. Consent
i. Needs to be knowing, informed, and voluntary consent to invasion
ii. One who enters into a sport, game, or contest may be taken to consent to physical contacts consistent with the understood rules of the game (reasonable person). It is only when the notice is given that all such conduct will no longer be tolerated that the defendant is no longer free to assume consent.
iii. Express or explicit consent
1. You can contract in consent
iv. Implied or implicit consent (objective):
1. Reasonable person would have believed that there was consent
v. Consent is negated if:
1. Fraudulently obtained
2. Mistake by consenting party: The plaintiff is mistaken about the nature and quality of the invasion consented to
3. Conduct that occurred was beyond the scope of the invasion consented to
vi. Cases
1. McQuiggan case
a. Paperclip fight at Boy Scout meeting
b. Consent
c. Retracting consent
d. Implied consent
2. Hogan case
