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University of Oklahoma College of Law
McNichols, William J.

Torts I Outline: McNichols
I.                     Necessary Background Information:
a.        A tort is a civil wrong other than a breach of K for which the law provides a remedy
b.       Purposes: (1)
                                                               i.      To provide a peaceful means for adjudicating the rights of parties who might otherwise take the law into their own hands,
                                                             ii.      To deter wrongful conduct,
                                                           iii.      To encourage socially responsible behavior, and
                                                           iv.      To restore injured parties to their original condition, insofar as the law can do this, by compensating them for their injury
c.        Common law forms of action: (3)
                                                               i.      Writ of trespass- direct and forcible injuries (regardless of intention to cause injuries); don’t have to prove injury (criminal)
                                                             ii.      Writ of trespass on the case- tangible injuries to person or property (intended but not forcible or direct); must prove injury (civil)
d.       Bases of Liability
                                                               i.      Intentional tort
                                                             ii.      Negligence
                                                           iii.      Strict Liability
II.                   Development of Liability Based Upon Fault:
a.        Anonymous
                                                               i.      If a man does a thing he is bound to do it (so that) no injury or damage is inflicted on others
                                                             ii.      A person is liable for injury directly caused by his actions. A person acts at his own risk. You do it, you pay.
1.       facially strict liability
b.       Weaver v. Ward
                                                               i.      Accident is not an excuse (defense) to an action for trespass to the person. Trespass is only excused if the harm is inflicted utterly without the D’s fault (harm is inevitable and committed without negligence by the D).
c.        Brown v. Kendall
                                                               i.      To recover damages in a cases of inadvertent personal injury, P must prove fault (i.e. lack of ordinary care) to recover for ordinary harm caused by inadvertent contact with another person
                                                             ii.      Dicta from the case est’s that no action will lie if both P and D act without ordinary care
                                                           iii.      In an action for damages for an unintentional and inadvertent injury to the person, the P has the burden of proving either that the intent was unlawful or that the D was at fault because he failed to use ordinary care
                                                           iv.      A D is not liable if: 1) P and D both used ordinary care; 2) D used ordinary care but P did not; or 3) neither P nor D used ordinary care. (D’s care >= P’s care)
                                                             v.      P bares the burden of proof
                                                           vi.      First case to consider fault in a prima facie case
d.       Cohen v. Petty      oh Tree I feel sick
                                                               i.      Automobile acdnts are decided under Brown’s “fault principle”
                                                             ii.      Loss of control of an automobile because of a sudden and unforeseeable illness is not negligence
                                                           iii.      “It is undoubtedly the law that one who is suddenly stricken by an illness, which he had no reason to anticipate, while driving an automobile which renders it impossible for him to control the car, is not chargeable with negligence.”
e.        Spano v. Perini         blasting case/ultra hazardous
                                                               i.      Strict liability applies to cases where the character of the activity is “ultra hazardous” [Rest I] or “abnormally dangerous” [Rest II]                                                              ii.      One who engages in a dangerous activity, in an area where it is likely to harm neighboring property should be liable for resulting property damage, even if the greatest care is used, and whether or not there is an accompanying trespass
                                                           iii.      The question isn’t whether it was lawful or proper to engage in blasting but who should bear the costs of any resulting damage. In essence, the person who did the blasting must pay for any and all unintended damages incurred.
III.                 Intentional Interference With Person or Property
a.        Prima Facie Case for Intentional Tort:
                                                               i.      Act
                                                             ii.      Intent
                                                           iii.      Cause
                                                           iv.      Injury
b.       INTENT:
                                                               i.      In tort law, a conseq is intended if the actor has substantial certainty that it will result (not merely that it might result→negligence)
                                                             ii.      Holmes observed: even a dog knows the difference b/t being tripped over and being kicked
1.       it is a state of mind—this must be present at the time the act is conducted
2.       about conseq’s of an act or omission and not about the act itself, and
3.       it extends not only to having in the mind a purpose or desire to bring about given conseq’s but also having in mind a belief (or knowledge) that given conseq’s are substantially certain to result from the act [Rest II and III] a.        not just foreseeable—must cross the line into substantially certain to occur
b.       will occur= intentional
c.        might occur= negligence
c.        intend to touch (D’Angelo majority)
d.       know w/substantial certainty contact will occur (Garratt v. Dailey)
e.        intend harmful or offensive contact (D’Angelo minority) not good law
f.         intending an act which is unlawful (Vosburg) negative treatment
g.        All bizarre conseq’s (Spivey) bad law!
h.       Transferred intent (Talmage v. Smith)
                                                               i.      Garratt v. Dailey Little Brian Dailey pulled chair out from under arthritic, elderly woman
1.       A person intends a harmful or offensive contact if he or she acts either for the purpose of bringing such contact or knows with substantial certainty that such contact will occur (might=negligence; would=intentional tort)
2.       intent exists when a person knows that a conseq will occur even if he does not desire it to occur
3.       subjective view of intent
4.       the same standard applies to adults and children, but the child’s age may affect what knowledge the child actually had
                                                             ii.      Spivey v. Battaglia Bad Law
1.       Ds conduct was not a battery where he did not intend all the “bizarre conseq’s” which resulted from his friendly, but unsolicited hug
2.       Rule applied: A person will be held in law to have intended a particular result if a reasonable person would be substantially certain that the particular result will occur. Knowledge of a particular risk (i.e. that the risk is foreseeable) is not sufficient to constitute intent. The action would be one of negligence—this is a minority rule
3.       majority view is that intent standard is subjective
                                                           iii.      McGuire v. Almy D was mentally insane and a&b P
1.       an insane person is liable for her torts
a.        where an insane person by his act does intentional damg to the person or property of another he is liable for that damg in the same circum in which a normal person would be liable
b.       the ct did not addr what degree of capacity was needed, merely that the person be capable of entertaining the same intent as a “normal person”
2.       a rule imposing liability tends to make more watchful those persons who have charge of the D and who may be supposed to have some interest in preserving his property
a.        the one who causes the harm should bear

ion to the contrary, consent is assumed to all those ordinary contacts which are customary and reasonably nec to the common intercourse of life, i.e. elevator tap on the shoulder (Wallace v. Rosen—fire drill case)
                                                            ix.      a stranger is not to be expected to tolerate liberties which would be allowed by an intimate friend—“friendly, but unsolicited hug”
                                                              x.      Ellis v. DeAngelo Sal DeAngelo—the little pitbull
1.       child is responsible for an intentional tort if he has the capacity to intend and has the requisite intent for a particular tort
2.       “A Minor, or person of unsound mind, of whatever degree, is civilly liable for a wrong done by him, but is not liable in exemplary damages unless at the time of the act he was capable of knowing that it was wrongful.”
3.       Rest § 316 – A parent is under a duty to exercise reasonable care to control the minor and to prevent the child from harming others.
                                                            xi.      Lambertson v. US piggy back ride and meat hook case
1.       the essential element of the action for battery is the intent to make contact not to do injury
2.       US is immune from intentional tort actions
                                                          xii.      Vosburg v. Putney “exciting” kick to the knee case
1.       There was a battery because D’s act of kicking was unlawful. Battery requires either an unlawful intent (or other fault). But if the kicking of P was an unlawful act, the intention of D to kick him as also unlawful. An intent to harm is not necessary for battery
2.       the act was unlawful bcz it was done w/o P’s consent AND was in violation of the order and decorum of the classroom—unlike playground contacts
3.       Wrong doer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him
l.         Assault
                                                               i.      Definition: a person has a right to freedom from imminent apprehension of a harmful or offensive contact w/the person, as distinguished from the contact itself, if this right is infringed upon, it is assault
                                                             ii.      Another Definition (CB 38)- an intentional, unlawful, offer to touch the person of another in a rude or angry manner under such circum as to create in the mind of the party alleging the assault a well-founded fear of an imminent battery, coupled w/the apparent present ability to effectuate the attempted if not prevented
1.       D has requisite intent if he intends to commit an assault and/or if he intends to commit a battery
2.       words in and of themselves, no matter how threatening, do not constitute an assault
                                                           iii.      Prima Facie Case for Assault in Tort
1.       act
2.       intent (this does not req that the person have the capability to perform)
a.        intent to create apprehension
b.       intent to make contact
c.        intent must be actual intent, not substantially certain
3.       cause
4.       injury- imminent apprehension of contact
a.        don’t have to have actual damg to recover under assault (I de S et ux v. W de S) great grandparent of assault cases
b.       P must be aware at the time
c.        Capability to perform the battery is not enough