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University of North Carolina School of Law
Corrado, Michael L.

Fall 2010
Functions of Tort Law:
Corrective Justice: Award monetary compensation for someone harmed
Optimal Deterrence:  Deter excessively risky activities
Some losses are worth avoiding (negligence), others are not (strict liab)
No values are dictated
Loss Distribution:  Losses are not always subjected to D (If he has insurance, if a corp, etc.)
Compensation:  Pay those who have suffered
Reclass of Social Grievance:  Examples are asbestos and Breast Implant cases
Mixed System
Ways of Looking at the aims of Tort Law:
Backward-Looking:  Important thing is what happened.  Fairness determinative factor. (You owe me)
Forward-Looking:  Important thing is not the facts (justice) but it is a means of regulation to control society.  (If we let you get away with this what will happen?)
Cost Spreading:  Declining marginal utility of money – The more you have, the less it means to you or hurts to lose it.  Tort law is about minimizing losses overall.  (Insurance idea – Everyone pays a little rather than one person paying a lot)  Applies to commercial settings only.
Internalizing Costs:  Injuries inflicted by that industry are part of the costs of that industry.  If you don’t force that industry to eat the cost, it would screw up the economics of the industry.  (Gov’t buys steel for auto makers, GM produces too many cars)  If you make the industry responsible for the costs of injuries, injuries will go down.
I)       Intentional Torts – Liability not imposed for negligence, but only upon proof of the D’s intention to invade the legally protected interest of another.
A)    Battery – Involves actual physical contact
Restatement of Torts Def. – An actor is subject to liability to another for battery if:
1. He acts intending to cause a harmful or offensive contact with the person, or imminent apprehension of such contact    AND
2. An offensive or harmful contact with the person directly or indirectly results
1)      Contact – There must be some physical contact with the P, or at least something that is in contact with the P.  Contact may be with some object set in motion by the D, such as a weapon.
(i)     Harmful –
(ii)   Offensive – P need not suffer physical harm, bodily autonomy and dignity protected as well.
(a)    Alcorn v. Mitchell:  D spit on P after trial (Dignitary harm)
2)      Intent –
(i)     3rd Restatement
(a)    A person intentionally causes harm if the person brings about that harm either purposefully or knowingly:
(i)     Purpose – A person purposefully causes harm if the person acts with the desire to bring about that harm
(ii)   Knowledge – A person knowingly causes harm if the person engaged in an action knowing that harm is substantially certain to occur
(ii)   2nd Restatement
(a)    An actor is subject to liability to another for battery if he acts intending to cause a harmful or offensive contact with the person, or imminent apprehension of such contact
(i)     If D acts with intent to cause a harmful or offensive contact, it does not matter that the probability of harm or offense is low; liability is imposed if what was intended occurs.
(iii) Vosburg – D must intend the consequences against which the law protects the P, but need not have a malicious intent or even any understanding that what he is doing is wrongful
(a)    D did not mean to harm P, only to touch. D is still liable for all injuries resulting directly from wrongful act, whether or not they could be foreseen by him
(iv) If the D does not intend contact there must be a near certainty that it will occur to impose liability.
(v)    Transferred Intent – Although the D must intend a harmful or offensive contact with another person, the individual who actually suffers the contact need not be the person whom the D intended to harm or offend.
B)    Assault – When the D, intending to cause a battery or to threaten one, puts the P in fear of an imminent harmful or offensive contact.  Fear is not required, only anticipation of such contact is required.
1)      Imminent – Threat must be immediate in terms of time and close in terms of space.
2)      Actual – Threat must be actual rather than potential
3)      Extra-Sensitive P – Ordinarily, there is no liability for the making of threats that would not satisfy the demands of assault if made to a typical person, even if the extra-sensitive P did actually regard a battery as imminent.
(i)     Exception – If/when the D knows of the P’s extra-sensitivity
C)    False Imprisonment – Restriction of the P’s freedom of movement, not harmful or offensive contact.  Narrowly defined set of rules to compensate D, prevent future losses of freedom, and deter self-help.
1)      Total Confinement – Partial confinement is not sufficient
(i)     Bird v. Jones:  D stopped P from going through part of highway restricted for boat race.  Imprisonment must be more than loss of freedom of choice, must include restraint within some limits defined by will or power exterior to our own.
2)      Conscious Awareness – If I am asleep and someone locks my door, it isn’t FI.
3)      False – Act must not be justified or due to privilege.
D)    Intentional Infliction of Emotional Distress – Intention of D must go beyond distressing P as well as going beyond the reasonable bounds of decency. 
1)      Extreme Outrageousness
E)     Trespass –
1)      Real Property: Every unauthorized entry, no matter if actual damage is done, is unlawful and therefore a trespass (Dougherty v. Stepp). 
2)      Chattels: In order for someone who intentionally intermeddles with another’s chattel to be subject to liab:
(i)     His intermeddling must be harmful to the possessor’s materially valuable interest in the physical condition, quality, or value of the chattel   OR
(ii)   The possessor is deprived of the use of the chattel for a substantial time
1)      Consent – Even when consent is given, the defense does not apply when the scope of the consent is exceeded.  Consent may b

njury, there is an action
(c) CORNERSTONE case for negligence in U.S.
(ii) Brown v. Collins – (NH, 1893 – D driving horses when they were frightened and crashed into P’s post)
(a) Negligence now the standard
(b) Reject Rylands case b/c Strict Liability would throw a serious obstacle in the way of progress and improvement (Social implications)
B) Historical Interpretations – England
1) Case – Negligence needed
2) Trespass – Strict Liability
(i) Fletcher v. Rylands (1868 – D’s reservoir flooded P’s land).
(a) Strict Liability for cases involving
(i) Non-natural uses of land
(ii) If you bring anything onto your land which could escape and is likely to cause damage if it escapes
(b) Blackburn (Judge) distinguishes this case from other accidents by describing the inherent risk in being on road compared to prop flooding
(c) CORNERSTONE case for England
(ii) Powell v. Fall – (1880 – D’s hay caught fire and burned P’s house down)
(a) It is just and reasonable that if a person uses a dangerous machine, he should pay for any damages that result (S/L)
(b) Ct says business in better position to handle cost so they will decide if activity is worth potential damages
(c) Statutes do not make it lawful to damage prop without liability
C) Modern Interpretations
1) 2 sides of S/L versus Negligence
(i) S/L is a tax on industry and progress
(ii) Negligence liability is a subsidy to industry
(a) Negligence becoming more common b/c of Industrial Revolution
2) Stone v. Bolton (England, 1950 – Lady hit in front of house by well-hit cricket ball)
(i) If the accident was a reasonably foreseeable risk, then D’s were under a duty to prevent it
(ii) No acceptance of risk by passerby (Like Blackburn argument in Fletcher)
3) Bolton v. Stone (England, 1951 – Appeal from previous case)
(i) Changed foreseeability requirement to what a reasonable person would do (If risk is so small that a reasonable person would not have prevented it, then there is no liability)
(a) Court distinguishes foreseeable risk from substantial risk
(b) Case distinguished from Rylands b/c ball is not Likely to cause injury
4) Sudden Illnesses – S/L or negligence
(i) Hammontree v. Jenner (CA, 1971 – D had epileptic seizure while driving car which then crashed into P’s shop)
(a) Negligence governs accidents caused by medical conditions
(b) D could be negligent if they have common seizures versus 1 in 14 years