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University of Oklahoma College of Law
Kutner, Peter B.

TORTS I-Kutner

Civil Law- Tort law, K law, Commercial law, family law (must have a preponderance of the evidence)
Criminal Law- Beyond a reasonable doubt
Public Law- Criminal law, Con law, Admin law, Tax law, etc
Equitable Remedies- injunction, specific performance, etc
Tort Law- is state not fed law
– Civil wrong for which the court provides a remedy
– A wrongful act that results in injury/damage/loss/harm to another person or his property
-Doesn’t have to be physical or actual

Interest in tort law: Bodily injury, Tangible property (real or personal), Defamation, Privacy, Fin Interest (misrepresentation, etc), Abuse of process/ wrongful prosecution, Civil right (right to vote, etc), Family relations
Conduct: Intentional, Negligence, Neither (no fault)

Allocation of losses: tort law shifts liab to D bases on conduct and the type of interest or loss

I. Trespass v. Case:


Action for direct and immediate injuries
All injuries whether or not intended
No proof of damage required
Falls under criminal law
Has similar requirement to the modern battery
If the Act is immediate and willful trespass must be used
You can recover for consequences of the trespass

i. If you get shot and get sick because of it you can recover for both injuries
3 requirements for trespass:

P suffered damages (don’t have to prove actual damages)
D acted wrongly
D acted negligently and P did not act negligently (must show D was negligent)

Weaver v. Ward: “no man shall be excused of a trespass unless it may be judged utterly w/o his fault”
: Therefore there may be cases where the D is w/o fault
: Don’t have to have willful intent o commit trespass

Leame v. Bray: Doesn’t matter if the act was willful or not
An action will only lie if the act was immediate and the result of the original force from the D, and the P was injured

Scott v. Shepard: squib case: When one begins an “unlawful act” that ends in an accident, injured can bring a charge of trespass, even though action went through several steps before the accident occurred. Starting of action is enough to consider it immediate.
Issue: did the injury received by the P arises from the force of the original act of the D or a new force by a 3rd party
Ruling: all subsequent acts were a continuation of the first force

B. Trespass on the Case:

Action for consequential injuries
All intended injuries
Actual damage must be proved
Required proof of culpability


Must have actual damages
Fault or wrongful misconduct (ex. negligence)
P would have to plea and prove negligence and prove damages

Hutchins v. Maughan: death of dogs who ate the bait: should be regarded as consequential, not immediate b/c the person who laid the bait did not give it to the dogs directly.
Issue: was the injury occasioned by or just consequential of the lying bates
Argued the bait was inherently dangerous… Ct ruled it would not be dangerous if locked up in a closet
Therefore it is like the log lying in the road… a log would not be dangerous on the side of the road Þ consequential injury not immediate

Williams v. Holland: Issue: does the P have an action on the case when the facts would suggest trespass?
Where the injury is caused by carelessness and negligence (i.e. not willful) the P even, if the act is immediate, may file for action on the case rather than trespass

Case of the Thorns: Even if a man does a lawful thing if damages are done to another that could have been avoided then the man has to answer for it

Stanley v. Powell: Lack of negligence is a defense for trespass… no liab if not negligent (Weaver v. Ward)
: D proved the act was an accident and not owing to negligence or want of due caution

C. Defendant’s Pleas:
1. General Plea: denying factual allegations of P’s charges – “not guilty” plea
2. Demurrer: says what P says was true but there was no cause of action based on those facts
3. Special Plea: “yes, I did it…but…I had the right to do it b/c of this.”
: Admitted the P’s cause of action but alleging the facts are such he should not be liable
: P had to respond w/ a general denial or demurrer (could either accept the D facts or deny them)

Gibbons v. Pepper: D’s horse ran over the P against the will of the D b/c it was frightened. The D used a special plea admitting there was a trespass, so he was held liable for it. Ct says if A takes the hand of B and hits C, A is the trespassor.
Strict liability: ultrahazardous activity (abnormally dangerous – like explosives); harm due to defective products.

3 possibilities o

w/ the ground made him liable. Age of child was only important to the extent to determine if he had the required knowledge to know that his act of removing the chair would cause her to make contact w/ the ground

When you can’t find intent (i.e. acted for a purpose to cause bodily contact) knowledge w/ substantial certainty that the contact will occur is good enough

3. What is Offensive or Harmful Contact? What an ordinary person, not too sensitive, would consider offensive.
5. Transferred Intent: If A intends to make harmful contact w/ B, but makes the contact w/ C, who A thinks is B, then A is liable for battery. A intended to make contact w/ the thing. Even if A is mistaken w/ what the thing is, A is still liable.

Ranson v. Kitner: D was hunting and mistook P’s dog for a wolf and shot it. Ct held D could still be liable for a mistake-intended to have bullet strike animal, hit wrong one though.

D had the intent to hit the animal even though it wasn’t what he thought
To have the intent necessary to commit battery to a person you must intend to make contact w/ a person and not an animal or other chattel
Just like if you miss an animal they can’t recover for assault i.e. you must intend to hit a person to have the necessary intent to commit batter or assault

Talmage v. Smith Man threw a stone at a boy on a shed but hit the one he didn’t intend to and claims he didn’t see. The fact the injury was to the person not intended does not relieve D of any responsibility.

Transferred intent makes him liable for assault only the boy he tried to hit and battery on the one he did hit
Act was reasonable and not excessive force Þ no recovery
Act unreasonable is therefore unlawful Þ recovery

5. Insane Persons: They are held liable for their actions if they intended to make offensive contact, regardless of their mental capacity.