Torts Outline

 
 
Course listserv?
Close book, use PC or blue book, need to download software if use PC
 
Learn Public policy
 
Reasoning
rules or principles
 
Which tort system goal was achieved
effects of the case as precedent
 
Nature of Rule of Law
impartial, absent by passion/prejudice
absent of force
 
3 basis of liability
intentional:
if the result is intended or substantially certain to occur
study of the probability of harm
negligence:
N if unreasonable
If the actor’s conduct merely creates a foreseeable risk of harm, which may or may not be realized, then the conduct is negligent or reckless depending upon the magnitude of the risk
strict liability: frame of mind doesn’t matter
engage “abnormally dangerous”: ex) blasting gun
 
 
The line between negligence and intent is drawn when the known danger ceases to be only a foreseeable risk which a reasonable person would avoid, and becomes a substantial certainty.
 
each of 3 cases have different costs
 
I. Development of Liability Based Upon Fault
A. Definition of Tort: a civil wrong, other than a breach of contract, for which the law provides a remedy
B. Purposes of tort law:
1.      to provide a peaceful means for adjusting the rights of parties who might otherwise “take the law into their own hands”
2.      to deter wrongful conduct
3.      to encourage socially responsible behavior
4.      to restore injured parties to their original condition, insofar as the law can do this, by compensating them for their injury.
C. Purposes of tort law:
 
Weaver v Ward, King’s Bench 1616
F: The P and D were skirmishing with their muskets against one another, and the defendant wounded the P.
IH: The D committed no N when he hurt the P. No man should be excused of a trespass except it may be judged utterly w/o his fault.
A: The D did not hurt the P with a felonious mind.  The action was not the D’s fault.
 
Brown V Kendall, SJC MA 1850
F: 2 dogs owned by the P and D were fighting.   The D tried to separate them by beating them with a stick. The D raised his stick over his shoulder and injured the P in the eye.
IH: The P must prove the intention was unlawful or the D was at fault if he failed to exercise extraordinary care. 
A: If the act of hitting the P was unintentional, on the part of the D, and one in the doing of a lawful act, then the D was not liable.
 
Cohen v Petty, Court of Appeals of the DC 1933
F: 4 occupants were in the care and the D was driving. The vehicle hit the abutment of a culvert and ran into the bank, throwing the P and her sister through the roof of the car onto the ground.
IH: Is the D liable for his action even though he had no anticipation of his sickness.
 
Spano v Perini Corp., Ct of Appeals NY 1969, P
F: The P Spano owned garage which also housed another P’s automobile. 
IH: Whether a person who has sustained property damage caused by a blasting on nearby property can maintain an action of damages without showing that the blaster was negligent. Strict liability.
A: No N had been proven against the Ds; thus no damage.
 
Spivey v Battaglia, SC FL 1972, P20
F: Battaglia put his arm around the shy Spivey in a “friendly unsolicited hug” during the lunch hour at the Battaglia Fruit Co. The P suffered pain in neck and ear, and was paralyzed on the left side of her face/mouth.
I: Whether petitioner’s action could be maintained on the N count, or whether respondent’s conduct amounted to an assault and battery as a matter of law, which would bar the suit under the 2-yr statute (which had run).
H: An assault and battery is not negligence, for such action is intentional, while negligence connotes an unintentional act.
N: 2 frames to frame battery
 
Ranson v Kitner, AC IL 1889
F:
IH: Good Faith mistakes aren’t going to protect you as a defendant
 
Short article refer to book
 
McGuire v Almy, SJC MA 1937
F: P was a RN and took care of the D-mental patient, who is usually in a locked room. The D warned P that he was going to kill him while D was throwing furniture around his room. The P entered D’s room and the P tried to grab D’s hand which was holding D’s leg, but instead D struck P’s head with her hand.
IH: The jury found that the insane person, D, must have been capable of entertaining intent, and willing to follow through on the intent. Jmt for the P on the verdict.
 
           
Cole v Turner Nisi Prius (writ), 1704
F:
IH:
That the least touching of another in anger is a battery.
If 2 or more meet in a narrow passage, and W/O any vi