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University of North Carolina School of Law
Ardia, David S.

Tort Law: Aims, Approaches, and Processes

Four goals in tort law:




Social utility

Example: Prosser v. Keeton where court decided damages based upon social utility. Thurlow stole watch from Prosser and sold to Keeton. Would be unreasonable to place a burden on Keeton to inspect the legitimacy of a product before buying; therefore, Keeton is the rightful owner of the watch.

**These goals exist because in a lawless society that does not provide protection for injury, the person who suffers injury, bears the injury with no form of remedy. **

Legislation addresses liability from the following perspectives:

Strict liability

(you are always held liable for an injury you caused regardless of your justification),


(you didn’t act reasonably)


(you intended to commit harm).


Steps of a Law Suit:

Incident (e.g. accident)àcase is filed/settled/can go as pro se litigant, or have attorney take case for contingency fee based upon you winning)àdispositive motions (e.g. motion to dismiss); SJ; DVàone appeal to intermediate court


Compensatory Damages: goal is to put plaintiff as close to her original position as possible)

Medical Expenses (past and future)

Look at the amount of bills in proportion to how much the defendant is liable.

Rely on expert witnesses; documents and bills.

Lost Wages

Experts come in to determine 25% disabled then how much unable to work (same for working capacity)

Lost earning capacity (not seen in Holden case)

Pain and suffering

No market for this; difficult to determine

Note: damages are determined by the fact finder and they are only to be overturned when the findings shock the conscience

Battery: Elements and Fault

I. A Battery a volitional act (Garrat v. Dailey) done with the intention (fault: VanCamp v. McAfoos) to cause a harmful or offensive contact, AND a harmful and offensive contact results (Snyder v. Turk)

a. In order that an act may be done with the intention of bringing about a harmful or offensive contact the act must be done for the

i. (a) purpose of causing the contact OR

ii. with (b) knowledge on the part of the actor that such CONTACT (not necessarily the harm) is SUBSTANTIALLY CERTAIN to be produced (Garratt v. Dailey: court remanded case to consider whether defendant had subjective knowledge that his actions would cause plaintiff to hit the ground)

è Note: Substantially certain means more than a high likelihood. If there is question of whether or not a person was substantially certain to cause the contact; may not be an intentional tort; but may be a tort under negligence or SL

iii. Dual intent rule (subjective test): In most jurisdictions, intent requires an intent to (1) make CONTACT AND (1) an intent that the contact be harmful or offensive (White v. Muniz; Alzheimer patient did not have intent that contact be harmful).

iv. Single Intent Rule: only need intent to make contact, don’t need intent to cause harm (look up case)

v. Transferred Intent Rule: “ . . . if a person intended to inflict serious bodily injury while trying to hit another person, but missed and accidentally hit someone else instead, such intent is TRANSFERRED to the actual victim” (Stoshak v. East Baton Rouge Parish School)

è Note: transferred intent transfers from person-to-person or from intentional tort-to-intentional tort, not from object-to person. In the latter case, can be responsible under negligence theory UNLESS the person had SUBSTANTIAL CERTAINTY that contact would be made with plaintiff.

b. Harmful/Offensive contact is contact that is offensive to a reasonable (objective) sense of human dignity (Snyder v. Turk; frustrated surgeon case that forced nurses head down during surgery)

i. This type of contact (offensive contact) can be made even if the contact would not be offensive to most persons (Cohen v. Smith; man touching pregnant lady case).

ii. Offensive contact includes any harmful or offensive invasion of your personal space; if one makes contact with something intimately connected to the plaintiff, this can be considered as a battery (Fisher v. Carrousel Motor Hotel, Inc.; case where plate was knocked out of plaintiff’s hand).

II. If defendant reasonably believed the plaintiff consented to the touching, there can be no liability (Mullins v. Parkview Hospital, Inc.; case where medical practitioner performed medical procedure believing he had the right to do so).


I. Assault is effectuated when one acts intending to cause a harmful or offensive contact with the person of the other or an imminent apprehension of such contact (imminent apprehension = objective standard; determined by fact-finder)

a. Intention (same as battery); defendant must have:

i. PURPOSE of causing the contact OR

ii. KNOWLEDGE that the contact is SUBSTANTIALLY CERTAIN to be produced

b. Imminent apprehension of such contact

i. Imminent apprehension must be one which would NORMALLY be aroused in the mind of a reasonable person (objective standard).

ii. Restatement Second of Torts: “Words alone do not make the actor liable for assault unless together with other actions or circumstances they put the other in reasonable apprehension of imminent contact”


I. False Imprisonment is a (McCann v. Wal-Mart Stores, Inc)

a. (1) conduct

b. (2) that is INTENDED to do and does in fact

c. (3) confine another (Objective Standard: would a reasonable person believe she was confined? E.g. size of the person confining, was plaintiff surrounded? Etc., etc.)

i. counts for ANY appreciable amount of time no matter how short

d. (4) within boundaries fixed by the actor (Extent of confinement)

i. Does NO

ime and the place of the taking OR highest market value in reasonable time of conversion; or replevin (return the item)

III. Trespass to Chattels (somewhat short of full conversion)

a. Elements:

i. Defendant INTENTIONALLY (purpose/knowledge: substantial certainty)

ii. Without justification or consent

iii. Physically interfered

iv. With the use AND enjoyment of personal property in plaintiff’s possession

1. School of Visual Arts v. Kuprewicz: California court held that spam interfered with plaintiff’s possessory interest in the e-mail system; some courts skeptical of this view.

v. And plaintiff was HARMED thereby

1. Harm: harm to owner’s materially valuable interest in the physical condition, quality, or value of the chattel, or if the owner is deprived of the use of the chattel for a substantial time.


Restatement Third; IIED Elements:

(1) an actor

(2) who by extreme and outrageous conduct

i. Repeated behavior that is carried out over a period of time

1. (GTE Southwest: court held plaintiffs had valid IIED claim because of repeated intimidation and harassment and humiliation of employees)

ii. An abuse of power by a person with some authority over the plaintiff OR

iii. Is directed at a person to be especially vulnerable

àNote: there is a higher degree of protection for religious organizations/and free speech issues; “threat of divine retribution is not actionable: Molko v. Holy Spirit Association; page 516

(3) intentionally or recklessly (defendant disregards high probability to cause infliction of emotional distress) do NOT use purpose/knowledge definition from the other intentional torts

(4) causes severe emotional disturbance to another is subject to liability for that emotional disturbance (e.g. improperly disposing of dead bodies)

i. Homer v. Long: in order for defendant to be liable for intentionally and recklessly imposing emotional distress on the plaintiff, the plaintiff must be an immediate family member who is PRESENT at the time of the conduct regardless of bodily harm. (There is no transferred intent for IIED)

(5) and if the emotional disturbance causes bodily harm, also for the bodily harm