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University of Oklahoma College of Law
Kutner, Peter B.

Torts I: Professor Kutner- Fall 2013
I.  Development of Liability
Tort law developed to impose liability for those who cause physical harm to persons and property; has expanded overtime to include moral standards as the basis of liability
·         Common Law: frequently used to mean general law that is primarily based on the decisions of judges in cases. 
o   Distinguished from the law derives from statutes, written constitutions, codes, and other forms of legislation
§  Valid legislation prevails over common law
o   Legislation in common law countries typically established detailed rules, often directed to specific factual situations. 
o   Early Pleading System: remedies for wrongs were dependent on issuance of writs to bring the defendant into ourt and answer for his or her actions (lawsuit)
·         PL request writ from King’s court based upon particular form of action.
o   If claim fit into the particular form of action for which he obtained a writ, then the defendant could be held liable for money damages. 
o   H/E, if PL sued upon wrong writ, he or she would lose no matter the wrongful conduct by the DF or severity of injuries. 
§  Old System, Two “Writs”:
ú  Writ of Trespass: action for all forcible, direct injuries resulting from DF’s actions whether or not they were intended.  Trespass required no proof of actual damages (trespassing onto one’s land) and liability could be imposed w/o regard to DF’s fault.  If injury was result of a DF’s actions, then a trespass would lie, no matter who was at fault or what was intended
ú  Action on the Case: action for all injuries in which the DF was negligent and his actions were not the immediate or direct cause of the injury.  If injury was a “consequential result and not direct result of Df’s actions, then an “action on the case” would lie.  H/E, actual damages and negligence were requirement to be proved in order to maintain the action on the case writ.
·         Most of modern tort and contract law developed from action on the case
·         Expansion of “Writs of Trespass” and “Action on the Case” into Modern Tort Law:
o   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 be the immediate result of the defendant's actions or else an “action on the case” would lie (Hutchins v. Maughan). 
ú  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). 
ú  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 su

ere 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.
o   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.”
o   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.
o   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 duty to the plaintiff as a matter of law and not mere agreement.
o   Vicarious Liability: An employer is liable for the actions of an employee when the employee is acting within the scope of his or her employment.
·         Functions of Tort Law:
o   1.  Protect people from (1) Bodily Injury, (2) False Imprisonment, (3) Emotional Distress and (4) Damage to Real or Personal Property.
o   2.  Allocation of Loss: if the Defendant is liable for a tort, the Court will shift the burden from the Plaintiff to the Defendant to the extent possible (i.e. equalize the injured’s suffering to money damages and force the Defendant to pay that amount to the Plaintiff).