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University of Kentucky School of Law
Price, Melynda J.



Fall 2015

(Torts Outline)

“Demurrer”=call for dismissal based on lack of law breaking

Chapter 1: Development of Fault-Based Liability

-Civil, not criminal part of the law

-Very fact driven study and most tort claims are in State courts

Purposes of Torts-difficult due to high rising cost of liability insurance

Provide peaceful means to an end
Requiring alternate dispute resolution (mediation)
Deter wrongful conduct
Encourage socially responsible behavior
Restore parties to their original condition
Vindicate individual rights of redress

Historical side notes

Still liable even if the harmful action was careful, lawful, and without intent: (Hulle v. Orynge [stick and timber on another’s house, from the Bench in England])(1466)

If there is no fault, there is no liability on part of the defendant:

-Court recognizes shift from Hulle v. Orynge to lack of fault for entirely accidental occurrences; showing a shift toward intent focus now; distinction between case (no intent) and trespass (with intent); now finding fault and liability instead of guilt; no liability when D “utterly without fault” but D required to prove circumstances alleviating him of fault [no act by defendant or inevitable accident with reasonable amount of care (somewhere between strict liability and negligence)](Weaver v. Ward [two soldiers with horseplay, one accidentally shooting the other])(1616)

3 bases of tort liability

Intentional Conduct

Did D intend harm?->If doing a lawful act and uses ordinary care, is not liable for injuries to another party; () P uses stick to try and break up dog fight and hits P in eye in process; D must exhibit blameworthy behavior or have unlawful intent to injure and P must prove this)

Negligent Conduct that creates an unreasonable risk of causing harm

Did D exercise due care?->Unreasonable risk of causing unintended harm () D faints at the wheel and causes accident/P’s injuries; D not responsible for unforeseeable, involuntary risk and no prior knowledge that risk would occur)

Conduct neither intentional or negligent but that subjects actor to strict liability because of public policy

Particularly dangerous activities, even if precautions are taken, D still liable () D, as blaster, should bear the burden of damages, with or without intent here)

Chapter 2: Intentional Torts


1) the desire to cause harm OR

2) knowledge with substantial certainty that such harm would occur.

Case of Children: Intent is satisfied here if the child desired the harm OR when child is substantially certain that the harm would occur and cause a harmful consequence:

() Child (D) knew harm was substantially certain when he caused elderly lady (P) to fall by removing chair from under her?
Forseeable risk or knowledge or risk doesn’t necessarily mean liability- While no harm necessarily desired, knowledge with substantial certainty that harm would occur; D liable here if he knew, as a child, harm would occur with substantial certainty-remanded

Unforseeable risk: still has liability if knowledge and substantial certainty that harm would occur

() “Friendly, unsolicited touching” in this case where co worker hugs D and D paralyzed; very bizarre occurrence and knowledge with substantial certainty isn’t found here; maybe enough for a negligence claim but not enough for A and Battery here.

do not negate liability where D intends the consequences of his act

() D hunting wolves and shoots P’s dog in mistake; while a mistake, desire for harm still there and D still held liable

Insane and Intoxicated people are generally held liable for their intentional torts; Capacity to complete the torts AND acting upon that intent are both required.

()- (D insane person injuring her RN, P-liable because desire for harm/intent was formed here;
Voluntary intoxication does not generally negate intent
Courts focus less on punishing and more on repairing and restoring D
If fraud, malice, or deceit by P here, D generally not liable

Doctrine of Transferred Intent: Act intended against one party instead injuries a 3rd party transfers the intent and liability to the 3rd party

() Kids climbing on sheds and D intends to hit A but instead hits B, D liable if P proves D intended to hit someone;


Intention to cause harmful (Restatement § 13) or offensive bodily contact (Restatement §18) with person OR
imminent apprehension of contact AND
harmful contact occurs.

Crowded world, contact is assumed and touching without violence or intent to harm is not battery [touching is key here, and early case that defines battery is (Cole v. Turner)-spitting in face does qualify as battery as it exudes some touching) and the crowded world logic from the aforementioned case]:

()-Fire drill where teacher touches student’s mom in school to get her attention; student’s mom falls and is injured;
Higher level of proof for offensive contact vs. lower level for harmful contact
Time, place, circumstances and relationships of parties should all be taken into account when it comes to assessing battery claims.

Indirect contact with the body (i.e. when P is holding objects, clothes, etc.) can be including in bodily contact. No actual damages are necessary. Mental suffering can suffice.

()-D snatches plate out of P’s hands while making a racial slur; if racial slur only, no battery found due to lack of contact, .
Indirect battery can be claimed if a 3rd party injured

Assault: (§ 21)

Creation of OR intent to cause a harmful or offensive contact with another person or third party or an imminent apprehension (different than fear) of such contact AND
The other is put in such imminent apprehension (different than fear).

P can recover even if there was no physical contact. P has the right to be free from apprehension, not necessarily fear.

()-D comes to P’s tavern to purchase wine. P’s wife stuck head out of the window and D threw hatchet at P, missing. Contact here is perceived (apprehension), not just fear. .

Words, preparation are not enough to prove assaul

()- D employee used offensive language to a customer, P, who claimed IIED and bodily harm resulted; not severe enough and no duty of courtesy from a grocery store;

Sometimes, unique nature of business relationships requires a higher standard for duty of care (common carriers); hotels, RR, theaters, etc

Liability only for conduct exceeding all bounds for which RPP could tolerate
Law does not protect timidity unless D has knowledge of P’s sensitivity
HYPO: Repetition of acts could be enough to be considered severe, even if one occurrence of the act couldn’t get you there on its own.

Age can also affect severity


RR employee calls passenger a name=liable
Hotel Bar, where you aren’t a guess=not enough for special Common Carrier relationship.

OUTRAGE: Must be extreme and outrageous, mere insults, threats/annoyances are not enough.

()- P says boss knew of his speech impediment and maliciously/cruelly ridiculed him which caused nervousness that increased his physical defect;

BYSTANDER RULE: 3P recover for IIED if (1): D knows of Ps presence, (2) Bystander suffers bodily harm, (3) Conduct directed @ family member or a person there was a close relationship w/ (intimate relationship requirement)

()- Father is beaten up by D in P’s daughter’s presence; P (daughter) says IIED and

Must be intent for IIED, acting with purpose to cause IIED

Must show the 1. act is done for the purpose of causing the distress or 2. With knowledge on the part of the actor that severe emotional distress is substantially certain to be produced by his conduct.
Doctrine of Transferred intent does NOT apply to IIED except to corpses

Trespass to Land

Intentional and unauthorized entry onto land of another OR
Remaining beyond the time invitation to be on the land is revoked OR
Failing to remove something one has a duty to remove

Every unauthorized and unlawful entry into the property of another is trespass even if there is no damage

() –
Protects the right to exclusive protection of land
Mistake is NOT a defense if the necessary intent is there, even if there’s no property damage.

It is trespass to pass over, or cause an object to pass over, the land of another, even if there has been no touching of the soil

( – D is responsible if item is in D’s control when enters land
D is hunting and shot his gun across P’s land. Space above land also belongs to owners and can constitute trespass;