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Torts
University of Mississippi School of Law
Percy, E. Farish

Tort_Percy_Fall_2016

Torts- A civil wrong, not based on a contract, for which the law provides a remedy. (Appellate judges

write torts based on what is good public policy based on their own common sense. The legislature sometimes sets public policy.)

What is the remedy?

…Damages

◦ Nominal (only for certain intentional torts)

◦ Compensatory/Actual (compensate victim for injuries or damages)

▪ Economic-damages you can put a dollar sign on (Medical expenses, lost wages, property damage

▪ Non-economic (Pain and suffering/emotional distress, loss of enjoyment of life)

◦ Punitive

▪ Requires some degree of fault other than run-of-the-mill negligence

▪ Limited to gross negligence

▪ Have to prove clear and convincing burden of proof

• Injunctive Relief

Sources of Tort Law:

• Statutes

◦ State- Mississippi Code Annotated (*most common)

◦ Federal

• Common Law (Judicial Opinions)

• Restatement (not binding; persuasive authority)- tells what the rule is in the majority of

States

Why Recognize Torts:

• Incentive to do what is right

• Compensate victims

• Deter wrongful conduct and encourage responsible conduct

• Prevent people from taking the law into their own hands

What is the basis for liability under tort law?

• Fault

◦ Intentional Torts (You meant to cause someone harm)

◦ Negligence (unintentional but unreasonable)

• Liability without Fault

——————-Intentional Torts—————-

—————A. Torts Involving Personal Injury————–

1. Battery—————————————————————

-Restatement section 1- A person acts with the intent to produce a consequence if: a) the

person acts with the purpose of producing that consequence; or b) the person acts knowing

that the consequence is substantially certain to result.

– He intentionally meant to harm the Plaintiff…Or he acted with substantial certainty that something bad will occur (acting recklessly is not the same thing)

-You are responsible for the actions or consequences caused by your mistake.

• Intoxication does not negate intent- Drunk people will be held liable for torts they commit.

– The least touching of another in anger is battery.

– Consent of touching is assumed in all ordinary contacts which are reasonably necessary in today’s crowded world.

What about unforeseen and unintended consequences?

• If D had requisite intent to cause tortious contract, then D is liable for all the consequences, even if they are unforeseen and unintended.

• Examples:◦ A trips B. B suffers a bizarre fall sideways, falls down a flight of stairs and is seriously injured.

Doctrine of Transferred Intent- intend to hit one person with a stick but hit a bystander; still

liable for the accidental tort of battery on the bystander.

Negligence v. Battery

• SOL usually longer for negligence. • Generally, insurance doesn’t cover intentional torts (i.e. battery).

• Harder to hold employer vicariously liable for intentional tort. If you are negligent in the scope

of your employment, then your employer is liable. • Punitive damages are more likely to be recovered in intentional tort cases. • Government hasn’t waived immunity from intentional torts of it’s employees. IF it’s a battery, you can not recover from the government for it’s employees actions. • Employee can sue employer for intentional torts that happened within the scope of their employment even if employer is immune from negligence claims due to workers compensation law. (i.e. if the employer didn’t keep certain machinery up-to-date in maintenance.) • Contributory negligence not a defense to intentional torts.

Single v. Dual Intent (Look at slides from TWEN)

• Single intent – Meant to make the contact and contact was harmful or offensive

• Dual Intent – Meant to make the contact and meant it in a harmful or offensive way or acted with

substantial certainty that it would happen.

Other Issues Concerning Intent in Battery:

• What if D was acting in good faith?◦ Ex: girl hurt arm at skating rink and D attempted to set her arm over the girl’s objection.

• What if P is unaware of the contact?◦ Ex: a physician molests a patient under anesthesia; prince kisses Sleeping beauty◦ D is liable.

• Does P have to prove actual damages?◦ No. P may recover nominal, actual, and/or punitive damages (for battery).

What type of contact is sufficient for battery?

• Contact between D and P◦ Ex: D hits P; D trips P

• Contact between D and extension of P’s body◦ Ex: pulling coat lapels; knocking off hat; grabbing plate

• Contact between an object and P caused by D◦ Ex: D throws a rock at P; D shoots P; D throws a bucket of cold water on P,;D runs over P

• Contact between a third person and P caused by D◦ Ex: D pushes third person into P

2. Assault —————————————————————

Every battery does not commit an assault. For assault, the person has to have imminent apprehension of

contact or the person intends to cause harmful contact.

Restatement Defining Assault — Rest

at is above (air space) and below your property.

2. Trespass to Chattel (Chattel is personal property.)————————

Trespass to Chattel- There must be damage to chattel, the owner must be deprived of use, or bodily harm must result from the trespass.

Section 217 – Ways of Committing Trespass to Chattel

◦ A trespass to chattel may be committed by intentionally:

(a) dispossessing another of the chattel, or

(b) using or intermeddling with a chattel in the possession of another.

• Section 218– Liability to Person in Possession

◦ One who commits a trespass to chattel is subject to liability to the possessor of the chattel,

if, but only if,

(a) he dispossesses the other of the chattel;

(b) the chattel is impaired as to its condition, quality or value;

(c) the possessor is deprived of the use of the chattel for a substantial time, or

(d) bodily harm is caused to the possessor, or harm is caused

3. Conversion (ex: breaking car window and stealing laptop)———————–

Difference between conversion and trespass to chattel: EX) Take your computer and return it the next

day – trespass to chattel. Take your computer for two weeks during exams – conversion. Take your

computer and run over it with a car – conversion.

———C. Privileges/Defenses to Intentional Torts———-

Affirmative Defenses

• Consent (Express and implied)• Self-Defense• Defense of others• Defense of property• Recovery of property

• Necessity• Authority of law• Discipline• Justification

1. Consent————————————————————

Defined:

• Most privileges are “defenses,” meaning that the defendant has the burden of pleading and proving them

Consent is an affirmative defense to intentional torts in most jurisdictions (D has to prove it).

• Is consent a defense or is lack of consent an element of the tort itself?◦ Some courts treat consent as a true defense; others hold lack of consent is something the plaintiff has to plead to and prove.

Express Consent- “I will allow you to do this.”