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University of Oklahoma College of Law
Kutner, Peter B.

Prof Kutner
Fall 2012
Tort law began by imposing liability on those who caused physical harm and gradually developed toward the acceptance of moral standards as the basis of liability.
A.    The Early Common Law System and Forms of Action
Common Law Pleading System:
In early English Law, remedies for wrongs were dependent upon the issuance of writs to bring the defendant into court and answer for his or her actions (lawsuit).  The Plaintiff would request a writ from the King’s court based upon a particular form of action.  If the plaintiff brought a claim and fit it into the particular form of action for which he obtained a writ, then the defendant could be held liable for money damages.  However, if the plaintiff sued upon the wrong writ, then his or her claim would be dismissed and he or she would lose no matter how wrong the defendant’s actions may have been or how severe the resulting injury was.
Once the Plaintiff obtained a writ and stated a claim, there was 3 ways in which a defendant could respond:
1.      Pleading the General Issue: basic denial of the facts. The court would then have to try the case and determine the facts.
2.      Demurrer: similar to a “Motion to Dismiss”.  Defendant accepts the facts as stated in Plaintiff’s claim and contends that the plaintiff has no legal action (e.g. claim that plaintiff sued under wrong writ).
3.      Special Plea: The defendant accepts the plaintiff’s facts and cause of action and, by alleging additional facts, attempts to show the court that there was a valid legal excuse for the action thereby relieving the defendant of liability.
If the defendant chooses to make a “special plea,” then the Plaintiff can also respond in the same 3 ways:
1.      Pleading the General Issue: basic denial of the facts asserted by the defendant in his special plea. The court would then have to try the case and determine the facts.
2.      Demurrer: similar to a “Motion for Summary Judgment”.  Plaintiff accepts the facts as stated in Defendant’s special plea and contends that the defendant is still liable.
3.      Special Plea: The plaintiff alleges additional facts in an attempt to rebut the facts asserted by the defendant and show the court that the defendant should still be held liable.
Forms of Action
Under the old system, there were basically two “writs” or forms of action in tort law:
1.      Writ of Trespass: action for all forcible, direct injuries resulting from a defendant’s actions whether or not they were intended. Trespass required no proof of actual damages (e.g. trespassing onto one’s land) and liability could be imposed without regard to defendant’s fault. If the injury was the immediate result of a defendant’s actions, then a trespass would lie, no matter who was at fault or what was intended.
2.      Writ of Trespass on the Case (Action on the Case): action for all injuries in which the defendant was negligent and his actions were not the immediate or direct cause of the injury. If the injury was only a consequential result and not direct result of the defendant’s action, then an action on the case would lie.  However, actual damage and negligence were requirements to be proved in order to maintain a writ of trespass on the case.
Most of modern tort and contract law developed from action on the case.
B.     The expansion or growth of the writs of trespass and action on the case into modern tort law
In the early cases, the standards applied by the courts remained as written above. If the injury to one’s person or property was the direct or immediate result of the defendant’s actions, then Trespass would lie and, if the injury was the indirect or consequential result of the defendant’s negligent actions and the injury or damage could be proven, then an action on the case would lie.  Under both circumstances, the plaintiff would have to properly plead the correct action under the proper writ and prove that the elements required to sustain such action are present (e.g. immediacy for trespass; negligence and actual damage for action on the case).  Trespass did not require proof of actual damage or negligence (Case of the Thorns) and, the injury had to the immediate result of the defendant's actions or else an “action on the case” would lie (Hutchins v. Maughan).  However, if the injury results after the interference of one or more intervening actors, but those intervening actors were acting out necessity for their safety due to an action of the defendant, then the injury is still believed to be the immediate result of the defendant’s actions and the defendant would still be liable for trespass (Scott v. Shepherd).  The essential criterion for trespass was immediacy; willfulness and lawfulness were irrelevant (Leame v. Bray).
Hypothetical: If a defendant shoots a plaintiff with a gun and, while the plaintiff is in the hospital being treated for the gun wound, he contracts pneumonia, can the plaintiff sue the defendant for the costs incurred in treating the pneumonia under a writ of trespass even though the pneumonia was not an immediate result of the gunshot? Yes.  The defendant would be liable for trespass due to the gunshot and, if you are liable for a trespass action, then you are also liable, under trespass, for all consequential damages arising from the original action.
If the facts of the case supported the requirements for both trespass and action on the case, (i.e. immediate injury, negligence and actual damages) then the Plaintiff could file an action under whichever writ he chooses: Trespass or Action on the Case (Williams v. Holland).  The plaintiff only has to prove the requirements of the action he chooses to file.
As tort law progressed, it was recognized that a defendant would not be liable, even in a trespass action, for a purely accidental injury occurring entirely without his fault or negligence.  However, the burden of proof rested upon the defendant to prove that he was not at fault (Weaver v. Ward). If the action or injury was accidental (unintentional) and not the result of the defendant’s negligence, then there can be no liability even if the injury is the immediate result of the defendant’s actions. The critical issue or criterion became negligence. No Negligence – No Liability (Stanley v. Powell).
In Parrot v. Wells Fargo & Co., it was established that the Plaintiff bears the burden of proving the defendant’s negligence, which is defined as follows:
Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or do something which a prudent and reasonable man would do (i.e. what a “reasonable person” would do in the “ordinary course of business”). Parrot v. Wells Fargo & Co.
Modern law has almost entirely abandoned the artificial classification of injuries as direct or indirect, and looks instead to the intent of the wrongdoer or his negligence.  Actions for injuries to the person or to tangible property now require proof of intent to inflict them, or a failure to exercise proper care to avoid them.
Common Law Pleading Systems were abolished in 1938 and we now have a system of Civil Procedure by which you can plead a set of facts and assert many forms of action.
Modern Intentional Torts are derived from the old trespass actions:
(1)   No damage is required
(2)   The defendant must have taken some sort of action (i.e. you cannot have an intentional tort based upon a “failure to act” or “breach of some duty.”
                  Modern Unintentional Torts come from the old action on the case:
(1)   You must prove damage
(2)   The plaintiff can argue that the defendant had some duty of care and, as a result of the defendant’s breach of that duty, the plaintiff was injured.
            Tort:         A private or civil wrong, other than breach of contract, for which the Court will provide a remedy in the form of an action for damages.  The defendant has a

the plaintiff’s hand.  The is still a prima facia case for battery.  However, if there is an excuse or good reason for grabbing the item from a person’s hand, such as the plaintiff was stealing the item, then there may be a defense to liability for battery.  Nevertheless, there is a prima facia case for battery. 
Does the bodily contact have to occur with something tangible, or can it occur with something intangible, such as a gas or smoke?  It depends.  A poisonous gas would create the harmful or offensive bodily contact needed for battery, however, cigarette smoke probably would not.  It would depend upon the facts.
Transferred Intent: When one intends to commit harmful or offensive bodily contact (battery) on person A but the harmful or offensive bodily contact (battery) actually occurs on person B, then the intent can be transferred to person B and the defendant can be held liable to person B for battery. (Talmage v. Smith)  The actor does not even need to know or suspect the presence of person B in order to be liable under transferred intent.
2.      Assault: An actor is subject to liability to another for assault if he acts intending to cause an apprehension of harmful or offensive contact with the person of the other or a third person, and an imminent apprehension of such a contact results.
A.    Required Intent for Assault: Whether or not there is assault depends upon the apprehension of the Plaintiff, not the secret intentions of the person committing the assault.  The defendant can act intentionally to cause apprehension & actually cause apprehension, even though the gun isn’t loaded.  It is the act to cause apprehension that makes one liable for assault and it makes no difference whether or not the defendant actually intends to cause harmful or offensive bodily contact. (Allen v. Hannaford)
B.     Required Act for Assault: In order to have assault, you have to show that the Defendant did some act to indicate that the harmful or offensive bodily contact (battery) will or could result imminently.  There has to be apprehension that the battery could occur imminently.  It doesn’t matter that whether or not the defendant actually intends to do the battery, but there must be apprehension of immediate danger.  You do not have to prove that you will be battered, but that there was sufficient conduct by the defendant to cause immediate apprehension on the part of the plaintiff. Threats themselves are not assault.  There has to be an act by the defendant to indicate that the harmful or offensive bodily contact will ensue immediately, which justifies the Plaintiff’s apprehension. (Cucinoti v. Ortman)
If the defendant’s words indicate that he had intent to do the act at that present time, then you have assault.  If they indicate intent to do the act at a later time, then there is no assault. Even though the defendant’s conduct may establish assault, his words could eliminate assault if they provide that there was no intent to commit harmful or offensive bodily contact at that time. There has to be apprehension of immediate harmful or offensive bodily contact, not apprehension that the harmful or offensive bodily contact will result at some later time. (Tuberville v. Savage)