Torts Outline

 
Torts
Professor Zellmer
Fall 2012
 
 
Zelmer Said it:
Acting carless or negligent (Spivey) – there is a liability
Actions are intentional or carless, but there is no harm, no liability is assumed. NO HARM, NO LIAB.
Actions are reasonable and there is no harm (Brown, Coehn) – there is no liability
Prima facie case
– Act
– Intent
– Causation
Intent
Proving intent
1.       Actual intent or purpose OR
2.       Know with substantial certainty actions could cause harm
                                                 i.    Specific intent: person acts with purpose/desire to do harm
                                                ii.    General intent: person acts with knowledge that it is substantially certain will do harm
1.    Garratt v. Dailey: Kid pulled chair out from under elderly woman, who fell & broke her hip (general intent). Held: if child has the capacity, experiences maturity to know that the act would have that consequence, then can act with the requisite intent—age should be taken into account as a factual matter in determining intent
1.       Intent
                                                              i.      Hulle V Orynge: (Generality)
                                                             ii.      A person may be held liable for an action, even without intent. (Strict Liability – liability without fault)
a.       A person acts with the intent to produce a consequence if:
                                                            iii.      The person acts with the purpose of producing that consequence OR
                                                           iv.      The person acts knowing that the consequence is substantially certain to result
b.      Intentional Consequences and intentional Harms
                                                               i.      This section focuses on intent in the sense of the intent to cause a harmful consequence.
                                                             ii.      In this regard it can be observed that people all the time voluntarily engage in conduct
1.       Golf club swinging
2.       Driving car
c.       Purpose and substantially certain knowledge: coverage and relationship
                                                               i.      A purpose to cause harm makes the harm intentional even if harm is not substantially certain to occur
                                                             ii.      Knowledge that harm is substantially certain to result is sufficient to show that the harm is intentional even in the absence of a purposeto bring about the harm.
d.      Relationship between intent and negligence
                                                               i.      A person’s conduct is not intentionally harmful leaves open the possibility that the conduct is tortious under some other theory
e.      Substantial certainty: Limits
                                                               i.      This application should be limited to situations in which the defendant has knowledge to a substantial certainty that the conduct will bring about harm to a particular victim, or to someone within a small class of potential victims within a localized area.
                                                             ii.      The test loses its persuasiveness when the identity of potential victims becomes vaguer and when, in a related way, the time frame involving the actor’s conduct expands and the casual sequence connecting conduct and harm becomes more complex.
f.        Insurance exclusion
                                                               i.      Because the express and implied exclusions for intentional harms from the coverage provided by liability-insurance policies may not be completely congruent with tort law categories, the proper interpretation of these policy provisions and public-policy doctrines is ultimately a matter for contract and insurance law, not tort law.
Culpability – Blamable; involving the breach of a legal duty or the commission of a fault.
Burden of Proof – Falls on Defendant
Weaver V Ward (Soliders gun discharged on accident, hitting defendant)
BURDEN OF PROOF – defendant must show he was utterly without fault
 
Transferred Intent
Intent can be transferred between:
1.       Battery                                 2. Assault
3.    False Imprisonment        4. Trespass to chattel
5.    Trespass to Land
Talmage v Smith (Defendant throws stick at boys on his roof)
The intent to cause harm to one party may be transferred if the result of the action harms another TRANSFERRED INTENT EXAMPLE
Man goes to burn down a house (trespass to chattels) and accomplishes battery (sleeping man killed by smoke inhalation)
Ranson v Kitner (Hunting wolves, accidentally kill dog)
Intentional consequences for intentional harms. (Trespass to Chattel)
 
An assault takes place when someone makes “an unlawful attempt to commit a battery”.  The court says that “there must be an intentional, unlawful, offer to touch the person of another” and that the other person must have “a well-founded fear of an imminent battery”.  Finally, the perpetrator must possess “the apparent present ability to effectuate the attempt”
 
Assault
1.       Intend to cause harmfu