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University of Kentucky School of Law
Healy, Michael P.

Michael Healy / Torts / Fall 2012
I.        Chapter 1: Introduction
A.       General
1.       Ancient History of Tort Law
a.        intentional torts could give rise to criminal liability
2.       The Aims of the Law of Torts
a.        4 goals:
i.         prevention of self-help; to prevent people from taking law into their own hands
ii.       retribution against wrongdoers
a)       corrective justice
iii.     deterrence of wrongdoers
a)       allocative justice
iv.     compensation for the victims of wrongdoers
a)       distinguishes tort law from criminal law
b)      distributive justice
3.       The Theoretical Structure of Tort Law and Its Capacity to Expand to Cover New Situations
a.        General Theory – remedy for every wrong
b.       Particular Theory – new situations must be proven to be closely similar to traditional torts; looks at past cases
4.       The Historical Development of the Modern Law of Torts—Development of the Concept of Fault
a.        Introduction
i.         assize of novel disseisin – right to possession of real property could be tried before royal court and disputed matters of fact would be decided by a jury
ii.       trespass q.c.f. – unlawful entry into land
iii.     trespass d.b.a. – carrying away of chattels from land
iv.     querela – informal complaints
v.       Forms of action: (had to choose right one until about 1800)
a)       trespass – π was injured as an immediate result of some conduct of D;
i)        damages may be assumed; don’t need to prove actual damages
b)      trespass on the case – π’s injury was a consequential effect of D’s actions;
i)        π must prove damages
ii)      must demonstrate D fault by negligence or intentional conduct
vi.     Squib case – D threw firecracker into street and π was injured when it exploded after being kicked away by first person it came close to
a)       2-1 vote, was trespass because D set injury into action
vii.   D has 2 choices:
a)       plead the general issue – argue the facts upon which case hinges; put π to his proof
b)      special plea of justification – D has the burden of persuasion
b.       The Case of Thorns [D cut thorns off bush and they fell onto π’s property] i.         regardless of fault, the party that is injured can recover damages
c.        Weaver v. Ward [D discharged weapon and accidentally hit π] i.         D is responsible for damages unless he can prove π caused damages though his own negligence
d.       Brown v. Kendall [D hit π with stick while trying to break up dog fight] i.         moves American law toward looking at blameworthiness for basis of imposition of liability; corrective justice
ii.       Blame:
a)       intentional tort; or
b)      failure to take reasonable care; negligence; carelessness
iii.     if D takes reasonable care in actions and does not intend to injure, D is not liable
iv.     industries only have to pay for injuries when they didn’t use reasonable care to avoid them
v.       ordinary care –kind and degree of care, which prudent and cautious men would use, such as required by necessity to guard against probable danger
II.      Chapter 2: Intentional Torts
A.       The Concept of Intent
1.       Notes
a.        A person acts with the intent to produce a consequence if:
i.         The person has the purpose of producing that consequence (desire a result); OR
a)       use the word desire on the test!!
ii.       The person acts knowing with substantial certainty that the consequence will (not could) result from the conduct [subjective standard] a)       showing substantial certainty is not enough; person must be aware of the substantial certainty
b.       Reckless conduct:
i.         the D knows of the risk of harm created by the conduct or knows facts that make that risk obvious to anyone in the D’s situation; and
ii.       the precaution that would eliminate or reduce that risk involves burdens that are so slight relative to the magnitude of the risk as to render the D’s failure to adopt the precaution a demonstration of the D’s indifference to the risk
c.        Definitions:
i.         gross negligence – negligence that is especially bad (less than reckless)
ii.       willful misconduct – conduct involving an intent to cause harm
iii.     wanton (intentional) misconduct – recklessness
2.       Jackson v. Brantley [D’s horses escape, was leading them back along a highway (2 were untied), headlights startled one and it ran into the road and was struck by π’s car] a.        D is liable because he knew consequences were substantially certain through previous experience where the same thing had happened
3.       Notes
a.        fault – usually means tortious conduct that is intentional, reckless or negligent
i.         all that is necessary is that the actor should have intended to do what he did, not that he have actually intended
ii.       Garratt v. Dailey [boy pulls chair from under aunt; battery action] a)       judgment for π because boy knew with substantial certainty that pulling the chair out would cause the aunt to fall
4.       Beauchamp v. Dow Chemical Company [employment agent orange case] a.        only way to get award above worker’s comp coverage is to prove intent
B.       Battery and Assault
1.       General
a.        Intent to batter is also intent to assault and vice-versa
i.         ex: transferred intent – golfer intends to scare caddy by swinging club near him; club head flies off and hits caddy [intent to assault, but battery occurs] b.       Battery
i.         D intends harmful or offensive contact, or intends assault, AND
a)       harmful – D must intend to harm
b)      offensive – what is reasonably offensive to the community
i)        if you openly resist to contact, and it occurs anyway, consider offensive
ii.       harmful or offensive contact occurs
c.        Assault
i.         intent to cause apprehension of an imminent harmful or offensive contact, or intent to batter; AND
ii.       apprehension (perception) of an imminent battery
2.       Masters v. Becker [battery; kids playing on truck, D pries π’s fingers off and she falls] a.        offensive contact was the prying off fingers from the truck
3.       Brzoska v. Olson [battery; AIDS dentist] a.        need actual exposure to disease causing agent to have harmful or offensive contact
4.       Dickens v. Puryear [assault; π shared sex and drugs w/ D’s daughter; D lured π to woods, tied him and beat him, threatened if π did not leave town D would kill him] a.        that which is threatened or apprehended must be imminent to constitute assault
i.         threat was for some time in the future, not immediately
C.       Transferred Intent
1.       General
a.        Torts as to which intent can transfer:
i.         assault; batter; false imprisonment; trespass to land or chattels; conversion
b.       if D acts with tortious intent, D is liable to the victim who suffers injury, even if that person was not the intended victim
2.       Singer v. Marx [boy throws rock and hits different girl than intended to hit] a.        D is liable b/c even though he didn’t intend to hurt π, he intended to hurt someone
D.      Trespass to Land
1.       General
a.        Trespass to land:
i.         intent

of force – Volenti non fit injuria
iii.     in cases where underlying conduct is illegal:
a)       majority – π may bring claim, regardless of consent (consent is NOT a defense)
b)      Restatement (and the minority) – consent bars claim (consent is defense)
i)        exception: where law is intended to protect a class from giving imprudent consent (ex: minors)
iv.     Fraud: when π consents as a consequence of mistake as to nature of what π is consenting to, and D is aware of the mistake, consent doesn’t bar claim
a)       if fraud relates to inducement to consent, claim is still barred
b.       Hellriegel v. Tholl [boys horsing around at lake, broke 1 boy’s back] i.         consent can sometimes be inferred from the circumstances
ii.       by participating in the horsing around, the boy consented to it
c.        Mulloy v. Hop Sang [π requested hand not be amputated, Dr. said “would have to see when operation starts,” π never replied, Dr. took that as consent and amputated it] i.         patient not responsible to pay for surgery he didn’t consent to
ii.       failure to respond did not constitute consent b/c he had already explicitly stated not to amputate hand
d.       Notes
i.         substituted consent – in absence of some express statement of the patient’s wishes, courts will consider evidence presented by close relatives and friends as to what π would have wanted
3.       Self-Defense
a.        General
i.         Self-defense requires
a)       reasonable (an objective standard) belief by D of need to exercise self-defense privilege; AND
b)      reasonable belief as to amount of force needed to be used
i)        privilege is exceed if too much force is used
ii)      can only use deadly force if person has reasonable basis for fearing serious bodily injury or death (minority also requires retreat)
b.       Defense of Person
i.         Lane v. Holloway [young man (D) and old man get in fight; D strikes π with enough force that surgeon thinks it is caused by hard object] a)       D cannot use self-defense because used force out of proportion with threat that was posed
ii.       Notes
a)       general rule – provocation is irrelevant to compensatory damages
iii.     Silas v. Bowen [Bball player threatens gets shot in foot by scared lot owner] a)       D can use self defense b/c he feared serious bodily harm by the threatening, angry man who seriously overpowered and outsized him
iv.     Restatement:
a)       permits self-defense w/ non-deadly force w/out retreat
b)      permits self-defense w/ deadly force if in own dwelling
c.        Defense of Property
i.         Brown v. Martinez [boys stealing melons, property owner shoots away from garden to scare boys, hits a boy he didn’t see] a)       use of deadly weapon in protecting property is more than reasonable force
ii.       Recapture/recovery of property (this is an application of defense of property)