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University of Oklahoma College of Law
McNichols, William J.

I. Development of Liability Based Upon Fault

A. A tort is a civil wrongother than a breach of K for which the law provides a remedy

B. Purposes of Tort Law:
i. To provide a peaceful means for adjudicating 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, and
iv. To restore injured parties to their original condition, insofar as the law can do this, by compensating them for their injury

C. Purpose of Punitive Damages:
i. To deter morally reprehensible behavior of a particular defendant and discourage others from doing the same in the future.
ii. It’s like a criminal punishment or fine.
iii. It is an incentive for a plaintiff to bring a suit and an incentive for lawyers to take the case. It can also help finance socially beneficial litigation that a plaintiff might not otherwise be able to afford.
iv. It is alleged that compensatory damages are systematically insufficient. Money is merely a benchmark for what the harm is.

D. Common Law Forms of Action:
i. Writ of trespass-
a. Direct force hit
b. Tangible injuries (regardless of intention to cause injuries)
c. Don’t have to prove injury (criminal)
ii. Writ of trespass on the case-
a. tangible injuries to person or property (intended but not forcible or direct); must prove injury (civil)
b. This lets you recover on something not so immediate
c. This is the root of modern negligence claims
iii. Clarificatio

i. Intentional tort
ii. Negligence
iii. Strict Liability

F. Case Illustration
i. Anonymous (1466)—Archaic law
§ If you, in the process of defending yourself, injure someone else—still liable
ii. Weaver v. Ward (1616)—There were these muskets . . .
§ Accident is not an excuse (defense) to an action for trespass to the person.
§ Trespass is only excused if the harm inflicted utterly without fault (harm is inevitable and committed without negligent)
iii. Brown v. Kendall (1850)—Two dogs fighting
§ If an act is unintentional, then the plaintiff can collect on an action only if the defendant acted without ordinary care and the plaintiff acted with ordinary care.
§ Plaintiff has burden of proof
§ Ruling will vary with:
1. circumstances of a case
2. Degree and care which prudent and cautious men would use as determined by the case
2007 View of non-intentional Tort
Holmes’ view/reasoning
§ Foreseeability of result
§ Judging by strict, strict, circumstances
§ Subjective to circumstance
§ Only way to judge is by exact same circumstance
iv. Cohen v. Petty “Oh Tree, I feel sick!”
§ Modern common law ruleà car accidents decided under Brown negligence rule
§ Unforeseen illness à not negligence
v. Spano v. Perini
Absolute liability for intentionally engaging in dangerous activity