Torts Outline

TORTS OUTLINE
Hershovitz 580, Fall 2016
 
What is Tort  Law up to?
Corrective Justice
Backward-looking; compensate harm suffered; vindicate; settle disputes; Plaintiff-focused
Law & Economics
Forward-looking; deter future bad behavior; regulatory; Defendant-focused; incentives; internalization of negative externalities
 
INTENTIONAL TORTS
Battery
Requires an actual touching of the victim, either direct or indirect, by the wrongdoer (“tortfeasor”). The wrongfulness resides in the “intentional touching” not the causing of physical harm. (1 year: Statute of Limitations)
 
Aim of Battery liability
The underlying interest of tort liability for battery is to control access to people’s bodies; the tort creates a protective zone or space around the body.
 
Battery: Prima Facie Case: Actor A is subject to liability to other person P for battery if:
acts
A intends to cause a contact with P;
The contact is of an offensive or harmful type; and
’s act causes P to suffer a contact that is harmful or offensive
 
1.  A acts voluntarily
2.  Intending to cause contact
Must intend the contact, do not need to intend the harm
Intent = desire or substantial certainty that you will cause contact.
3. The contact with P is a harmful or offensive type
Harmful or offensive to am ordinary person not unduly sensitive to personal dignity—objective, not subjective
Contact can be both direct and indirect (smoke in Leichtman)
The actor (defendant) need not be present at the time of the “touching”—if you set up a trap for someone to fall into and then leave, this still counts as conduct
What is offensive is contextual, context dependent
: If you are on notice that someone is offended by a certain conduct, you need to respect that.
Must violate prevailing social standards of acceptable touching
Extended Personality: Contact constitutes battery when engaged with anything connected with the body, customarily regarded as part of the person (ex: clothing)
Smoke, or stick, or car can count as tools to make contact.
4.  A’s act causes P to suffer a contact that is harmful or offensive
The contact actually needs to happen
Don’t actually need to be offended or hurt
Actual damages not required
No proof of actual harm is required for the plaintiff to recover—can recover nominal damages to vindicate right to physical autonomy.
Transferred Intent: if intended to batter X, but batter Y instead à still liable
If you hit a lamp and it falls on person X, still battery
Eggshell Skull Rule: The tortfeasor is liable for all injuries that result as a consequence of the contact, whether the injuries were foreseeable or not.
“You take your plaintiff as you find him.” (Vosburg v. Pitney)
Burdens of Production and Persuasion are on the plaintiff to prove a tort has been committed.
The plaintiff need only to prove allegations by a preponderance of the evidence—meaning evidence that is sufficient to permit a factfinder to conclude that the allegations “are more likely than not true.”
Circumstantial Evidence used to establish that the defendant acted with the requisite intent.
Judges and juries required to determine the mental state of the actor at the time of acting.
Plaintiff will have to rely on evidence pertaining to the defendant’s outward conduct (behavior) to support an inference that the defendant acted with requisite intent.
Remedy for Battery
Compensatory Damages “to make the plaintiff whole”
Medical bills, pain & suffering
Punitive damages available when D's conduct particularly egregious, reprehensible, and malicious (even when a P cannot claim significant compensatory damages.)
: Why allow punitive damages for battery?
Bribe and detection theory: Punitive damages encourages Ps to bring socially undesirable conduct to the courts attention even if that conduct did not result in compensable damages.
General deterrence: Punitive damages will discourage battery. But do people think about potential tort damages when they are angry to commit a battery?
Specific deterrence: Ds who have suffered the sting of punitive damages will at least think twice before committing the same tort again.
Keeping the peace: Punitive damages discourage the victim of a dignitory tort from violent self help. The idea is that punitive damages obviate the need for vigilante justice because they allow satisfactory retribution in a civil setting. By drawing the line at touching, tort law creates an incentive to keep conflicts to words and to avoid escalation. (Irrationality of rage argument still applies; do people think about tort suits when they respond to a battery?)
Does the keeping the peace argument make sense today? Are people so averse to violence in the modern world that tort law no longer needs to create an extra incentive against vigilante justice? (wimps argument).
: Some conduct is so reprehensible that it should be punished regardless of its affect on other people… but isn't this the point of criminal, not tort, law?
Civil recourse:  Courts should provide fora in which an aggrieved P may restore his standing in the community by bringing the offensive behavior of a D to the attention of the public. Think of a battery suit replacing a duel.  This understanding of torts also helps explain what was going on in Mussivand
But battery does not provide redress for verbal humiliations, which seems to undermine the idea that providing a forum to restore community standing is what the courts are up to.
 
Assault
Occurs when a person intentionally acts so as to cause another to apprehend that he is about to suffer a certain kind of contact. (1 year: Statute of Limitations)
 
Aim of Assault liability
The underlying interest in tort liability for assault is to protect mental tranquility—people have the right to be free from fear or apprehension of unwanted contact.
 
Assault: Prima Facie Case: Actor A is subject to liability to other person P for assault if:
A acts,
Intending to cause in P the apprehension of imminent harmful or offensive contact with P; and
’s act causes P reasonably to apprehend such a contact
 
1.  A acts voluntarily
2.  Intending to cause