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University of Kentucky School of Law
Healy, Michael P.

Healy Fall 2013



I. General

A. Some Early History

1. Components of Tort Law

a) Claimant/Injured Party: Plaintiff, individual or other party.

b) Remedy: Damages paid to Plaintiff to compensate for injury

i. In some cases, punitive damages paid to Plaintiff to deter wrongful conduct

c) Burden of Proof: Preponderance of the evidence

i. More likely than not

ii. Greater than 50% likelihood

2. English forms of actions

a) Trespass: direct/immediate injury to plaintiff

i. No need to prove actual injury

ii. No need to prove defendant’s fault in causing the injury

b) Trespass on the case: Consequential/indirect injury to plaintiff

i. Must prove actual injury/harm

ii. Must allege and prove defendant’s fault in causing the injury

3. Why did a difference between the 2 matter?

a) Scott v. Shepherd: (The “squib case”)

i. Defendant threw firecracker into the street and it explodes and plaintiff loses eye.

· Trespass on the case because it was an indirect injury

1) Firecracker moved by multiple people

B. The Aims of the Law of Torts

1. 4 “Theories of Justice”

a) Prevention of self-help—Not a significant concern of modern law

b) Retribution against wrongdoers—“Corrective Justice” (law should correct for wrongdoing)

c) Deterrence of wrongdoing—“Allocative Justice” (Modern law and economics takes this approach)

d) Compensation of injured parties—“Distributive Justice” (Those injured should be compensated through the legal system)

i. Broader idea than just compensation.

ii. This is the principle justification of the tort system.

C. The Historical Development of the Modern Law of Torts—Development of the Concept of “Fault”

1. The Case of Thorns: Defendant cur thorny branches on his property and they fell on the plaintiff’s property

a) Trespass—Direct injury

i. Doesn’t matter if defendant meant for them to fall on plaintiff’s land or not, he is still liable.

2. Weaver v. Ward: 2 soldiers fighting—defendant’s gun misfired and hit plaintiff because plaintiff ran across the gun after it was fired.

a) Trespass action—immediate and direct injury

i. In order to avoid liability the defendant must be utterly without fault—plaintiff has burden of proof.

ii. Defendant is liable even though he claimed it was an accident.

3. Brown v. Kendall: Defendant grabbed stick in effort to break up dog fight, but struck the plaintiff instead when he moved.

a) Trespass action—direct injury

b) Liability can only be imposed if Plaintiff proves that the defendant failed to use due care.

c) Scope of liability for unintended injury?

i. Defendant intended harm/injury

ii. Defendant failed to exercise reasonable care/was negligent

4. Burden on the plaintiff


I. The Concept of “Intent”

A. One intends a result

1. Person has the purpose of producing/causing that result (desired)

2. Person acts knowing with substantial certainty that the result will occur

a) “may, could, might” ≠ substantial certainty

B. Jackson v. Brantley: Horses on highway hit by the defendant

1. In order to avoid liability Defendant must show that the accident was unavoidable in that he couldn’t get the horses on a lead and that he didn’t know the car would come around the curve.

2. Strongest argument for Plaintiff: substantial certainty that this accident could happen

3. Object of intent that gives rise to intent: Placement of the horses on the highway

4. Determining intent for the wreck: Knowing with substantial certainty that the result would occur (had previous experience with this)

5. Defendant intended to put the horses on the highway (bridled and unbridled) hoping the unbridled ones would follow the bridled ones on the highway.

6. Knowing that there is a risk is not the same as knowing something will happen

a) Defendant knew of chance, but not with substantial certainty

C. Intent: wanting something to happen

1. Intent is a legal conclusion, not what someone testifies as to what their state of mind was

D. Recklessness: Don’t know a result will happen, but there is a great risk for it to happen and actor is not willing to take precautions to prevent it from happening

E. Negligence: Fail to take reasonable precautions to prevent something from happening

F. Two Types of Intentional Torts: [a=intent b=tortious consequence (don’t have to prove a specific result)]

1. Battery:

a) Intent to cause harmful or offensive contract or apprehension of imminent harmful or offensive contact.

b) Harmful or offensive contact occurs.

-Interest in bodily integrity protected by this tort (awareness of contact not required)

2. Assault

a) Intent to cause Plaintiff’s apprehension of an imminent harmful or offensive contact or intent to cause harmful or offensive contact (intent to batter)

b) Plaintiff apprehends imminent offensive or harmful contact.(battery_

i. Perception or comprehension that it is about to happen

· Fear is not necessary.

G. Beauchamp v. Dow Chemical Company: Worker’s compensation does not prevent allega

was loose)

i. Intent to swing driver at caddy

ii. Caddy has reasonable apprehension of imminent battery

iii. Sufficient intent? Yes

iv. There is sufficient intent for Assault

v. There is a Battery: Intended assault, resulted in harmful contact

· Contact required for a battery



B. Not every batter includes assault, not every assault includes battery

III. Transferred Intent

A. Singer v. Marx: Defendant struck Plaintiff with a rockàappeared he was aiming for third party?

1. Plaintiff can succeed on a battery claim without proving that the defendant intended to batter the plaintiff.

a) Transferred Intent: Intend tortious consequence with one person, but consequence occurs with someone else.

i. Defendant is still liable for battery to the person struck.

B. Applies to:

1. Assault

2. Battery

3. Trespass to land

4. Trespass to chattel

5. Conversion

6. False Imprisonment

IV. Insanity

A. White v. Muniz: Defendant in assisted living—exhibiting erratic behavior (she had the mind of a child)

1. In general, the legal system accepts looking into circumstances/minds of children

2. In general, the legal system does not accept looking into the mind of mentally disabled people.

3. Defendant did not appreciate the offensiveness of her conduct

a) Mentally incapacitated person was not acting wrongfully because she didn’t know what she was doing.

4. Insanity is not a defense for an intentional tort in the US

a) Cannot be defended under Corrective Justice (which would impose liability if conduct is considered wrongful or blameworthy)

5. The American Rule is not explained or motivated by Corrective Justice

a) Distributive Justice: Innocent plaintiff injured by the objectively apparent intentional tort

i. This allows for recovery.

B. Others:

1. Seizures: No Battery—no intent to cause a harmful contact

2. Hallucinations: Battery—Harmful contact intended.