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University of Kentucky School of Law
Healy, Michael P.

FALL 2016
General Stuff
Theories of Liability
Corrective Justice
Allocative Justice
Distributive Justice
Aims of Tort Law
Prevention of self-help
Retribution Against Wrongdoers
Corrective Justice
Deterrence of Wrongdoing
Allocative Justice
Compensation of Injured Parties
Distributive Justice
Old Forms of Action
Began around 1250
Immediate/direct injury to plaintiff
Injury was assumed/plaintiff didn’t have to prove actual injury
Trespass on the case
Began mid to late 1300s
Indirect/consequential injury to plaintiff
Plaintiff had to prove fault (intent or negligence)
Thorns: Thorns fell on plaintiff’s property, plaintiff recovered since thorns fell on his property
Brown v. Kendall: liability can be imposed when fault/wrongful conduct occurs if injury was intended OR if negligence/lack of due care occurs
Plaintiff must prove blameworthy conduct
Intentional Torts
 Intent: desire for particular consequence OR act knowing w/ substantial certainty that a particular consequence will occur
Object of Intent: what is it that defendant must intend for there to be liability
Defined by applicable law
Usually the tortious consequence
Defined by applicable law
Different Degrees of Likelihood of Consequences of defendant’s action:
Substantial certainty- Intent
Great risk of consequence to which defendant is indifferent- recklessness
Unreasonable risk of consequence- negligence
Intent to cause plaintiff’s apprehension of an imminent harmful/offensive contact OR intent to cause a harmful/offensive contact
Plaintiff’s apprehension of an imminent harmful or offensive contact
Fear is NOT required, only the perception that a harmful/offensive action will occur
Intent to cause a harmful/offensive contact OR intent to cause plaintiff’s apprehension of an imminent harmful/offensive contact
Harmful/offensive contact occurs to plaintiff
Intent to batter basically guarantees assault
Objective standard: what a reasonable person would think in the situation
Subjective standard: what the person who made the statement actually intended
Transferred Intent:
Defendant meant for the action to occur, but it happens to another, then intent is still present
Exists for:
False Imprisonment
Trespass to Land
Trespass to Chattel
Trespass to Land:
Intentional, unconsented entry onto land possessed by another, by person’s self, object, or a 3rd party
Intentional remaining on land of another after permission to enter is revoked
Liability doesn’t require proof of actual injury
Mistake is NOT a defense
Trespass to Chattels:
Intent to dispossess another of chattel or to use/intermeddle w/ chattel of another
Dispossession/intermeddling/use occurs & causes impairment to the condition, quality, or value of chattel; or dispossession of use for substantial time
Must be proof of actual damages
Mistake is NOT a defense
Intentional interference w/ chattel of another that is so serious that payment of chattel’s full value is just remedy
Insanity: Not a defense & doesn’t relieve liability for intentional torts
Also works for mental disability of an adult
Based off distributive justice—innocent person shouldn’t pay for actions of an insane person
Objective standard is used to determine plaintiff’s consent
What would reasonable person have understood given the circumstances
If consent is to illegal conduct
Majority view: Claim is not barred; consent is not a defense
Minority/Restatement: Consent is a defense, so no liability
Exception when law is intended to protect class that includes plaintiff from giving impudent consent
Effect of Fraud
If fraud goes to nature of what was consented to, then consent is vitiated; it is not a defense
If fraud goes to the inducement of consent, but plaintiff knew that to which plaintiff was consenting, defense is not vitiated; consent bars the claim
Defense is limited to scope of consent
Defendant’s conduct may exceed & then would be liable
Two issues to be considered:
Defendant must have a reasonable belief (based on circumstances) as to need to exercise privilege
Defendant must have a reasonable belief as to the amount of force to be used to defend self
Privilege allows for the use of reasonable force under the circumstances
Use of deadly force is permitted if defendant has reasonable apprehension of death or serious bodily harm
Minority requires retreat before using deadly force. Some of these states don’t require retreat if defendant is on defendant’s property.
Some statutes define scope of privilege (eg. Stand your ground law)
Defense of Others:
Restatement: Defendant may exercise privilege to defend a 3rd party when defendant reasonably bel

Person must act reasonably under the circumstances
Reasonable person has constructive knowledge, even without actual knowledge of certain facts.
Example: knowing that bald tires are dangerous & that vehicles tires are bald
Children’s Standard: allows for children to try new things & mess up badly
Child’s conduct is negligent if it doesn’t conform to that of a reasonable person of the same age, intelligence, & experience except as provided by (b) & (c)
A child less than 5 is incapable of negligence
The child’s standard doesn’t apply when the child has engaged in a dangerous activity that is characteristically by adults
Only examples involve use of motorized device
Mental disabilities are not accounted for in negligent torts if the person is an adult
Emergency situation are accounted for in the reasonable prudent standard, but not if the situation was created by the person’s own actions
Hand Formula:
Defendant has breached the reasonable prudent standard when-
Burden of safe precautions < P(likelihood of injury)*L(Amount of expected Loss) P*L part of the formula is based on reasonable foreseeability (before the accident occurs) Plaintiffs in these cases want a low B & high P*L Oversimplifies negligence, but provides insight into how they work Almost never a case where the numbers can be put into both sides Accepted by Restatement (3d) § 3 which states that the formula identified by variables for the jury Principle description of negligence as an allocatively just rule of law Role of Judge & Jury in Deciding Standard of Care: Juries often make legal conclusions Traditional Role of Judge/Jury as to Elements of Negligence Claim- Duty: Court Breach: Jury Causation: Jury Injury: Jury Restatement § 285: Determination of Standard of Care/Breach: Established by legislature (very rare) Adopted by a court from the legislative standard (common & often difficult) Established by judicial decision