Torts Outline
Intentional Torts
I. Basics of Tort Law
a. Goal of torts law – minimize the social costs of a certain class of harm.
b. Social costs consist of
i. Costs of injuries themselves – medical expenses, loss of wages, loss of support, pain and suffering, lost profits
ii. Administrative costs – running the system.
iii. Precaution costs/avoidance costs – resources society spends in order to avoid certain injuries.
c. Policy is to minimize the costs would be the least sum of the three costs above
d. When we assign responsibility for doing something that prevents an accident, we want to assign responsibility to the person who is in the best position to avoid the injury at the lowest cost.
e. No value need be attached to socially useless conduct. If conduct is not valuable, we might as well throw all of the costs on the person.
f. Ex Ante – looking at costs before hand. Serves the purpose of creating appropriate incentives. Better reasoning in torts cases
g. Ex Post – looks at situation after harm has occurred and tries to make reasonable judgment between characters.
II. Battery
a. R2 – §13 Battery: Harmful Contact
An actor is subject to liability to another for battery 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. a harmful contact with the person of the other directly or indirectly results.
b. R2 – §15 What Constitutes Bodily Harm
Bodily harm is any physical impairment of the condition of another’s body, or physical pain or illness.
c. R2 – §18 Battery: Offensive Contact
1. An actor is subject to liability to another for battery 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. An offensive contact with the person of the other directly or indirectly results
2. An act which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.
d. R2 – §19 What Constitutes Offensive Contact
i. A bodily contact is offensive if it offends a reasonable sense of personal dignity.
e. Liability is imposed for all harms caused by the harmful or offensive contact. You have to show causation, but you don’t have to show foreseeability.
III. Defenses to Intentional Torts
a. Consensual Defenses (Mohr v.
ergency endangers the life or health of P, consent is implied from the circumstances.
o Consent of parent is necessary for an operation on a child. Substituted consent becomes more ambiguous with adult incompetents who lack capacity to make decisions on their own behalf.
c. Canterbury v. Spence (210) – Ct reverses directed verdict for D and rules for a new trial. Back surgery performed by D showed P’s condition to be worse than expected, D’s condition after surgery was never the same. Major issue is D’s failure to give informed consent – Duty to Disclose. Before patient can be touched by surgeon, he has to give consent. Before patient can give intelligent consent, he has to be informed about risks. Ct measures informed consent by objective standard.
i. D wants defense of custom – what physicians usually do. Ct rejects absolute defense of custom – says custom is evidence of informed consent, but it need not be conclusive. Content of informed consent is that which is “reasonable under the circumstances.” Under the “reasonableness” test, custom tends to carry a lot of weight, even though this court doesn’t make it decisive.
