WRIGGINS
TORTS
FALL 2010
CHAPTER 1: AN OVERVIEW OF MODERN TORT LIABILITY
Three categories of tort liability:
(1) (actions based on) Intentionally inflicted injury (includes a diverse array of intentional torts)
(2) (actions based on) Lack of care or failure to exercise case (including negligence and recklessness)
(3) (actions based on) Strict liability (liability imposed despite state of mind or exercise of care)
A. Intentionally inflicted injury
Three requirements:
(1) Act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a 3rd person
(2) the contact is not consented to or the other’s consent is procured by fraud or duress
(3) the contact is not otherwise privileged
Purpose intent v. Knowledge intent: All that is needed to meet (1) is knowledge intent (ie. The act is done knowing that such contact or apprehension is substantially certain to be produced. It does not have to be done with the intent of causing the contact or apprehension.)
B. Actions based on lack of care
(1) Negligence
Negligence – is the breach of duty to exercise reasonable care on behalf of another
Negligence – is conduct which foreseeably subjects another to an unreasonable risk of harm
What needs to be proven to establish negligence? (1) an actual duty of reasonable care, (2) forseeability of harm, (3) the burden of cautions to eliminate or reduce the risk of harm
(2) Recklessness
Objectively – extreme lack of care
Subjectively – carelessness accompanied by conscious indifference to a known risk of serious harm
Defenses to actions based on lack care (negligence and recklessness): (1) contributory negligence, comparative negligence, and comparative fault, (2) assumption of the risk
C. Strict liability conduct
Strict liability – frequently applied to cases involving harm caused by: (1) defective products, (2) abnormally dangerous activities, (3) dangerous animals, (4) employers of persons who commit tortuous acts within the scope of their employment (respondeat superior)
Defenses: (1) assumption of the risk and (2) comparative fault
Strict liability v. Absolute liability – absolute liability does not allow the above defenses
Compensatory and punitive damages are allowed.
D. An introduction to insurance
“Liability insurance pays amounts which the insured persons (the owner of the policy and others specified in the policy) become liable to pay to accident victims.”
1st party insurance – insurance that covers the insured’s own loss (ex: health insurance)
3rd party insurance – you are sued by a 3rd party; the liability insurance pays that 3rd party
CHAPTER 2: BASIC INTENTIONAL TORTS
A. Concept of intent
Varieties of intent:
(1) Purpose intent – defendant acts with the purpose of causing the consequence
(2) Knowledge intent – defendant knows with substantial certainty the act will cause the consequence
1. Intent to injure
Degrees of Probability:
(1) Knowledge – actor knows consequences are substantially certain
(2) Recklessness – probability of consequences is less than substantially certain
(3) Ordinary negligence – probability amounts only to a risk that the result will follow
2. Intent and Mistake
Mistake is not a defense/immunity to liability for damages. Conduct based upon a mistake induced by the plaintiff, however, does not ordinarily give rise to liability.
Volitional-act requirement: There is no tort liability for an involuntary act.
3. Intent and insanity
The mentally handicap are not immune from tort liability solely because of the fact that they are insane.
4. Transferred intent
Doctrine holds that if defendant intended to cause any one of the five trespassory torts (below), then defendant “intended” to cause any invasion that befalls the intended victim or a third party. (ex: If A shoots to frighten B (assault), but actually hits B, then A has intentionally committed battery.)
Torts that descended from the writ of trespass: (1) battery, (2) assault, (3) false imprisonment, (4) trespass to land, (5) trespass to chattels.
Parent liability for torts of minor children: (1) At common law parents are not liable, but (2) parental-liability statutes may transfer liability to parents for some torts
B. Battery and Assault
(1) Battery – intentional infliction of unconsented bodily contact that is harmful or reasonably offensive. Battery also occurs when contact exceeds the scope of consent.
Damages fo
ional distress, with substantial certainty that such distress would occur, or with reckless indifference to circumstance highly likely to precipitate distress for the plaintiff (or at least for the class of persons of which plaintiff is a member).
D. False imprisonment
Elements of:
(1) Intent to confine
(2) Unconsented detention within boundaries fixed by defendant, without reasonable exit apparent
(3) By unlawful force, threat of force, or assertion of legal authority
(4) (Plaintiff must have) Knowledge of confinement or harm
1. Unconsented intentional confinement within boundaries
Modes of confinement:
(1) Imposition of physical barriers
(2) Use of force
(3) Threatening the immediate application of force to the plaintiff’s person, to members of plaintiff’s family, or to plaintiff’s property
(4) Assertion of legal authority
E. Trespass to land
Elements:
(1) Intentional
(2) Without consent or privilege
(3) Entry on, under, or above the land of another
F. Trespass to chattels and conversion
Definition: Intentional exercise of dominion or control over another’s personal property
Distinction:
Conversion – major interference with plaintiff’s rights (complete or very substantial deprivation of possessory rights in the property)
Trespass to chattels – relatively minor interference
Damages:
Conversion – full market value of the chattel (sometimes mental distress damages and punitive damages)
Trespass to chattels – actual diminution in the value caused by the interference
CHAPTER 3: DEFENSES AND PRIVILEGES
A. Consent
Consent is a total bar to liability and prevents the existence of a tort.
Burden is on the plaintiff to prove a lack of consent for each of the basic intentional torts, except trespass to land.
Three kinds of consent:
