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University of Oklahoma College of Law
Kutner, Peter B.

Development of Liability
Tuesday, August 20, 2013
12:51 PM
·         Trespass v. Action on the Case
·         Scott v. Shepherd (1773) (Supp. 2)
·         D must express a force that directly causes immediate (not consequential injury to P)
·         Blackstone’s dissent
§  Immediate damage would be trespass
§  Consequential damage would be action on the case
·         Intermediaries putting an object at rest may affect the “immediacy.”
·         May also be effected by the unlawful act of D.
·         Hutchins v. Maughan (1947) (Supp. 4)
·         An act of force exerted by D resulting in the immediate injury of P is trespass
·         An act of D which results in the consequential injuries to P is action on the case
·         Leame v. Bray (1803) (Supp. 6)
·         An immediate force exerted by D and extended through his instrumentality and results in immediate injury to P is also trespass
·         Willfullness not necessary but could result in trespass
·         Williams v. Holland (1833) (Supp. 7)
·         There has to be legally wrongful conduct (negligence) and actual damages for action on the case
·         If there is an injury resulting from immediate action and negligence, because of “negligence” you could argue trespass or action on the case.
·         Case of the Thorns (1466) (Supp. 8)
·         Actions which directly harm others, though lawful and of good intent, are grounds for trespass if they were avoidable. 
·         Defendant had three options to respond to the complaint:
§  General Denial – “not guilty”
§  Demurrer – accept facts were true but there was no legal dispute
§  Special Plea-  admits to P’s facts but adds new facts of his own which are a defense
·         Weaver v. Ward (1616) (CB 6)
·         A defendant might not be liable for trespass for a purely accidental injury occurring entirely without his fault. 
·         Burden of proving this rested upon the defendant.  
·         Stanley v. Powell (1891) (Supp. 8)
·         Though injuries could be immediate, there is no trespass without negligence
§  Virtually eliminated the differences between trespass and action on the case
·         Parrot v. Wells, Fargo & Co. (1872) (Supp. 10)
·         Negligence
§  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.
·         Party alleging negligence bears the burden of proof.
Intentional Torts
Friday, November 15, 2013
11:14 PM
·         Intent Defined   
·         Elements of intentional torts
·         Acted with intent
·         No liability for non-actions
·         Causing certain result
·         What is intended has to loosely correspond with the result
·         Transferred intent
·         Applicable when tortfeasor acts with intent to commit tortious conduct to “A” and it results in that same tortious conduct, but to “B”
·         Only applies to assault, battery, and sometimes false imprisonment
·         Interchangeable intent
·         Applicable when tortfeasor acts with intent to commit tortious conduct to “A” and it results in a different tort to “A”
·         Purposeful intent
·         Acting purposely to bring about a certain result
·         Knowledgeable intent
·         Knowing to a substantial certainty that a result will occur absent an act of God
Friday, November 15, 2013
11:15 PM
·         Elements of battery
·         An act by defendant
·         Intent to cause harmful or offensive bodily contact, or i

negate intent because the person intended to shoot an animal. 
o    No transferred intent between people and animals
·         If hunter shot dog while in thinking it was a wolf, this would not negate intent because the hunter intended to shoot an animal. 
·         McGuire v. Almy (1937) (CB p. 24)
·         Insane persons capable of entertaining intent are liable for battery and other intentional torts
o    Plaintiff must prove that D formed requisite intent
·         Assumption of risk is NOT a defense to intentional battery
o    Consent is
·         Fisher v. Carrousel Motor Hotel, Inc. (1967) (CB p.36)
·         Not always necessary to make contact with plaintiff’s body, can be any extension of their person
o    An object they are holding is sufficient, but must be closely connected with them. 
Friday, November 15, 2013
11:18 PM
·         Elements of Assault
·         D’s Intent – imminent apprehension of offensive/harmful bodily contact
·         P’s Result – imminent apprehension of offensive/harmful bodily contact
o    Intent to commit battery but failing to make bodily content
o    Plaintiff must know of it
·         Apprehension is an anticipation of what will happen in the future
o    Does not equate to fear
·         It is not necessary for the defendant to have the actual ability to carry out the threatened contact
o    Different from criminal assault because D would need both intent and ability