Select Page

University of Oklahoma College of Law
Meazell, Emily

Development of Liability Based Upon Fault:
A tort is a civil wrong, other than a breach of contract, for which the law provides a remedy.
Major Purposes of Tort Law: 1) To provide peaceful means for adjusting the rights of parties who might otherwise “take the law into their own hands.”2) To deter wrongful conduct. 3) To encourage socially responsible behavior.4) To restore injured parties to their original condition, insofar as the law can do this, by compensating them for their injury.
Historical Origins Tort Law: One theory is that it originated with liability based upon “actual intent and actual personal culpability,” with a strong moral tinge. And from that it slowly evolved and assumed external standards that took less account of personal fault.
The more accepted and common theory is that tort law began by imposing liability on those who caused a physical harm, and gradually developed toward the acceptance of moral standards as the basis of liability. Regardless, it is evident that at one time, the law did not hold one accountable for the moral responsibility of the defendant. “The thought of man shall not be tried.” Chief Justice Brian (1468). Nor did the law take into account the actor’s intent, holding damages from self-defense, etc. still actionable for recovery (1681).
1)      Intentional Interference with Person or Property
a)      Intent:
i)        Definition: With purpose or substantial certainty.
ii)       Garratt v. Dailey gave us the intent test. “A battery would be established if . . . he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been.”
(1)    Even a child can form intent.
(2)    The age of the actor only plays a role in determining experience and capacity to form intent.
iii)     Substantial Certainty means pretty dang certain that X is going to happen if actor does Y.  
iv)     Spivey v. Battaglia provides and example of how Battery is not met when the actor did not have the intent to cause the harm. That case was instead negligence.
v)      Mistaken intent does not negate intent. A good faith mistake does not matter (dog instead of dog). All that matters is that the actor had the intent to make the contact (Ranson v. Kitner).
vi)     Insane people can be found to have the intent necessary to cause harm, and therefore can be held liable for intentional torts. McGuire v. Almy. Critics to this case say that liability should rest in fault, but the court found that fault is not a prerequisite to liability, and the general common law among most courts is that insane people are accountable.
vii)   Transferred Intent – Talmage v. Smith: If the defendant has the intent to cause contact with one individual, but makes contact with another, he is still liable.
(1)    Five Transferrable Torts – Battery, Assault, False Imprisonment, Trespass to Land, Trespass to Chattel.
(a)    Intentional Infliction of Emotional Di

iable if a) he acts intending to cause a harmful or offensive contact, b) an offensive contact occurs, c) “An act which is not done with the intention stated in Subsection 1a does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.”
c)      Assault: Although assault and battery are commonly grouped together, the key distinction is that assault does not require contact, battery does.
i)        Elements:
(1)    Act: Intentional, unlawful offer to touch in a harmful or offensive manner that causes the fear or apprehension of that contact and the apparent and present ability to affectability to actually make such contact.
Restatement 2nd, § 25 – The plaintiff does not have to be afraid that the defendant will actually cause the harm in order for the defendant to be held liable for assault. The example given is A comes behind B and sounds a buzzer sounding like a rattlesnake. B isn’t afraid of A hurting him, just afraid of the ‘rattlesnake.’ A is liable, even if not physical harm occurs.