TORTS OUTLINE
I. Development of Liability Based Upon Fault
a. What is a tort?
i. A civil wrong other than a breach of contract for which the court will provide remedy in the form of action for damages.
b. Implications
i. A person who breaches a tort duty has omitted a tort and may be liable to pay damages in a lawsuit brought by a person injured because of that tort.
c. Major purposes
i. To provide a peaceful means for adjusting the rights of parties who might otherwise “take the law into their own hands”
ii. To deter wrongful conduct
iii. To encourage socially responsible behavior
iv. To restore injured parties to their original condition, insofar as the law can do this, by compensating them for their injury.
d. The purpose of insurance
i. The “crises” that have occurred in tort law often have been precipitated by difficulty in obtaining or affording liability insurance.
e. Tort v. criminal
i. Criminal
1. 2 agencies
a. Govt. (prosecutor) v. civilian (person)
2. Object
a. Punish the defendant
b. Does not pay any money to the victim
f. QUALIFICATIONS
i. Equity will grant injunction before any damage occurs
1. Injunction: a writ (order) issued by a court ordering someone to do something or prohibiting some act after a court hearing.
ii. Restitution of something wrongfully taken
1. To get object back
iii. Self-help by injured party
1. Rather than seeking damages
2. Kicking someone off your property
3. Self-defense
4. Battery gives rise to action.
iv. All give rise to action for damages
g. TYPES OF WRONGS
i. Interference with Persons
1. Assault
2. Battery
3. False Imprisonment
4. Mental Distress
ii. Property
1. Trespass to land
2. Trespass to chattels
iii. Intangible Interests
1. Defamation
2. Interference with contract
h. Tort cases in 1960 – 1980
i. Significant expansion of tort liability
ii. Granting new remedies
iii. More liberal decisions
iv. Larger judgments
i. Allocation of Losses
i. Law of torts is concerned with allocation of losses arising out of human activity
ii. Example
1. Drivers owns and operates cab; driving and runs into pedestrian; injuring pedestrian
2. If pedestrian sues driver, she has potential to recover damages
a. Lost wages, medical expenses are easy to discern
b. Pain and suffering are not as easy
3. Loss is allocated to driver
4. Court either permits or denies recovery
5. Court allocated loss one way or the other.
j. Policies Underlying Tort Law
i. Instrumentalist Model (Economic Theory)
1. Influencing people’s behavior
2. Use liability rules to create incentives for actions to behave in such a way as to minimize costs
ii. Corrective Justice Model
1. Impose Liability to connect injustices by shifting from innocent victims to culpable tortfeasors.
a. Reflects society’s values
b. Grows out of the norms of the community (just and fair)
iii. Which approach the court adopts can lead to differing opinions.
k.
e person by his act does intentional damage to the person or property of another he is liable for that damage in the same circumstances in which a normal person would be liable…the insane person, in order to be liable, must be have been capable of entertaining that same intent and must have entertained it in fact.”
iii. Intent v. Negligence – Wallace v. Rosen (teacher bumps and injures P during a fire drill at high school)
1. The mere knowledge and appreciation of a risk-something short of substantial certainty- is not intent. The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another person may be negligent, but it is not an intentional wrong.
2. The line has to be drawn by the courts at the point where the known danger ceases to be only a foreseeable risk which a reasonable person would avoid, and becomes a substantial certainty in the mind of the actor (INTENT)
Battery
I. 3 States of Mind to Establish Battery
a. Intent to Cause Harmful Contact
b. Offensive Contact
c. Immediate Apprehension of Such Contact
II. What Harmful Bodily Contact Constitutes
a. Any physical impairment of the condition of another’s body, or physical pain or illness.
III. What Offensive Touching Constitutes
a. Any direct or indirect touching that would offend a reasonable sense of dignity
b. No actual harm has to occur
c. There must be contact
i. Includes objects closely associated with the person
IV. Intent
a. Purpose
b. Substantial Certainty
V. Dobbs: Battery
a. Intending to cause bodily harm or offensive contact; immediate apprehension of such contact.
b. An accidental touching may count as negligence, but not a battery
