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University of Kentucky School of Law
Price, Melynda J.

Prof. Price Torts Fall 2015

Purposes of Torts

Provide peaceful means for adjusting rights of parties who might take law into their own hands
Deter wrongful conduct
Encourage socially responsible behavior
Compensation- Restore injured party to original condition

Development of Liability based on Fault

Trespass and Case- English and Early American Rules

D is liable for actions that result in injury to another without regard to intent or carelessness

Hulle v. Orange

History- Strict Liability in Early English Law
Policy- protect bodily integrity
Burden of Proof on D.

D might not be liable for a purely accidental injury occurring entirely without his fault:

If action was an inevitable accident
If D exercised a reasonable amount of care
Weaver v. Ward- D and P were soldiers. D discharged weapon injuring P in military exercise.

D not liable if P ran across gun while discharging OR
Accident was inevitable

Not making a distinction between intentional and unintentional behavior.

Fault Based liability

Liability grounded in blameworthy conduct. Blameworthy conduct is intentional OR a failure to exercise due care.

Brown v. Kendall- D struck P in eye while trying to break up fighting dogs.

Holding: If D exercising due care, act was lawful, injury resulted from pure accident or was involuntary and unavoidable, then D not liable.
Distinguished intent from care.
Burden of Proof on P

D is not liable for negligence when action is a result of D’s involuntary action which D had no reason to anticipate.

Cohen v. Petty- P injured in crash. Driver D was overcome with sudden illness. D never fainted before.

Holding: D not liable. Crash was a result of D’s sudden illness and D had no reason to know he would suddenly become Ill.

D knew he was subject to epileptic seizures => liability because D had knowledge of illness
D fell asleep at the wheel => liability because falling asleep foreseeable

Strict Liability

Absolute Liability- Abnormally dangerous activities require no showing of negligence

Spano v. Perini- Dynamite damages garage and cars

Intentional Torts

General Rule of Intent: Desire for harm OR knowledge with substantial certainty that a harm will likely occur AND nature of tortious consequences defines the type of intentional tort.

D’s state of mind determines whether tort is intentional

D intends which D desires [specific intent] or knows with substantial certainty [general intent]

D’s intent may be inferred from facts, notwithstanding D testimony
D’s motive, the feeling that motivates D’s act, is irrelevant: D may be trying to help or to be funny or to hurt

Nature of tortious consequences of D’s act, which defines the type of intentional tort

Ex. Garrat involved a harmful or offensive contact, so the intentional tort is battery.

Absence of intent to injure does not absolve D of liability if D had a knowledge with substantial certainty that harm was likely to occur.

Garrat v. Dailey- 5 year old D pulled chair out from P and caused P to fall and injure herself.

Age was only relevant in deterring whether he had knowledge with substantial certainty that harm was likely to occur.

D doesn’t have to intend harm as long as act was intentional AND harmful .

Wagner v. State- P attacked by mentally disabled D.

D is liable for mistakes even if D is acting in good faith

Ranson v. Kitner- D hunting for wolves, D killed P’s dog because D thought it was a wolf

Intent + tortious consequences

D intended to kill the dog and the tortious consequences were the fact that the dog died

When two parties are free from moral blame, place liability on party who made the mistake.
Mistake may limit recovery of punitive damages.

Insane person liable for torts to same extent as sane person.

Exception: Mentally ill people can’t meet elements based on fraud or deception.
McGuire v. Almy- P caretaker of D, D struck P causing injury.

Policy reasons

Encourage vigilance on those responsible for insane
Fair result for blameless P
Don’t have to interrogate extent of personsmental illness

Proving knowledge with substantial certainty is difficult
Easier to prove desire for harm

Transferred intent- When D acts with tortious intent, D is liable for tortious consequences that result, even if intended person or property are not effected.

Exception: Transferred intent only applies to:

Battery assault, false imprisonment, trespass to land, trespass to chattel.

Talmage v. Smith- D threw stick intended for A and hit B. D still liable even though he hit the wrong person.

General Rule of Battery- Intentional infliction of a harmful or offensive contact with P.
Rule: Least touching in angry, rude, inordinate,manner is battery.

Cole v. Turner

Crowded World Theory- Consent is assumed to all those ordinary contacts which are customary and reasonably necessary to the common intercourse of life.

Wallace v. Rosen – D touched P during firedrill and D fell down stairs.

D’s touching of P to get attention during fire drill was not battery.

Touching P’s body is not necessary for battery. Intentional grabbing of an object from one’s hand is a battery.

Fisher v. Carrousel Motor Hotel- D snatched plate out of P’s hand.

Plate was connected to the person and was considered part of the person’s body for the purposes of battery.
Physical injury was not required
Essence of battery is the offense to the person’s dignity because of the unpermitted touching.

General Rule- Apprehension of imminent contact

Words alone are not enough for assault
Preparation for assault is not assault.
Ide S et Ux v. W de S- D hit door with hatchet, did not hit P but P was apprehended by the fear of being struck.
Protection ofmental interest
Assault and battery can be stand


Slocum v. Food Fair Stores of Florida- P verbally insulted by D’s employee. P sued for mental suffering or emotional distress and an ensuing heart attack

P’s claim fails to meet objective standard
Grocery store is an invitee relationship not common carrier so D not held to higher standard

Not mere emotional distress but “severe” emotional distress
Objective standard => measured against what society would tolerate

Serve emotional distress to person of ordinary sensibilities, in absence of special knowledge or notice

Common carrier

Hold themselves out to public to transport goods or people
Play critical role and have no right to refuse service from customers
Treated differently because of important relationship to public
Held to a much higher standard

Public figure can only state claim for IIED if D either knew that his speech was false or regularly disregarded whether it was true.

Hustler v. Falwell- Cartoon about Jerry Falwell
Protected by First Amendment

Elements of IIED

Conduct must be intentional or reckless
Conduct must be extreme and outrageous
There must be a causal connection between the wrongful conduct and the emotional distress
The emotional distress must be severe.

In determining whether the conduct is extreme or outrageous, factor in circumstances of the individual case.

Harris v. Jones- P had speech impediment. D approach P over 30 times at work and verbally and physically mocked him.

Court found all elements, except 4th.
Conduct was not severe because bad behavior is not enough to be severe

Whether an actor’s conduct is extreme and outrageous depends on the facts of each case, including the relationship of the parties, whether the actor abused a position of authority over the other person, whether the other person was especially vulnerable and the actor knew of the vulnerability, the motivation of the actor, and whether the conduct was repeated or prolonged.

If D is not aware of a third party’s presence, then D does not meet the intent elementof IIED. Third party cannot recover unless third party suffered physical injury.

Taylor v. Vallelunga- girl witnessed beating inflicted on her father by D. She suffered severe fright. She seeks IIED damages.

D did not know the girl was there, D could not have intended to cause ED.
Transferred intent does not apply
Some courts require that P must suffer ED or another