Select Page

University of Oklahoma College of Law
Richter, Liesa

Torts Outline
I)       General Information on Torts
A)    General information about Torts
1)      Tort – a wrong between 2 parties.
2)      3 major headings of tort law
(a)   Intentional
(b)   Negligence
(c)    Strict Liability
3)      3 categories of money damages
(a)   Nominal – small in amount.
(b)   Compensatory – reflect harm actually suffered including out-of-pocket expenses.
(c)    Punitive damages – designed to punish D for wrongdoing and may be substantial.
4)      Adjudicatory process of torts
(a)   Investigation
(b)   Pleadings
(c)    Trial
(d)   Appeal
5)      Complaint – document containing the P’s claim for relief and short statement of the facts upon which claim is based.
6)      Motion to Dismiss – complaint fails to state a claim upon which relief can be granted.
7)      Motion for Summary Judgment – when all pleading and supporting affidavits have been filed (post discovery but pretrial), the judge determines whether any genuine factual disputes remain. It is a method testing in advance of trial whether a dispute as to material facts exists. Asserts that the other party has raised no genuine issue to be tried and asks the judge to rule in favor of the motioning party.Either party may file a motion for summary judgment.  
8)      Motion for Directed Verdict (in fed crt – motion for judgment as a matter of law) – granted if judge concludes that the P has failed to prove one or more elements of the prima facie case (or that o jury could possibly find other than for D).
9)      Judgment Notwithstanding the Verdict (JNOV) (in fed crt – renewed motion for judgment as a matter of law) – the losing party made a mtion for directed verdict earlier, that party may renew the motion by asking the judge to enter judgment for that party.
10) Prima facie – elements that the P has to prove.
11) In tort case, the P has the burden of proof (“Preponderance of the evidence” or “more likely than not”).
12) When a jury is involved in a trial, the 3 functions of 1) fact finding, 2) law declaring, and 3) law application are split between the judge and the jury; with the judge declaring the law & the jury finding the facts & in most cases applying the law to them. The jury receives instructions from judge with a description of the facts that must be found by the jury in order to support recovery for P.
13) The only issues an appellate crt may decide in torts are issues of LAW.
14) Common law and case law or precedence is what tort law is based on.
15) Tort law is state based law.
16) Loser becomes the appellant.
II)     Intentional Torts
A)    Battery – intentional, unprivileged, and either harmful or offensive contact with the person of another.
1)      Rules (primary authority [cases in own jurisdiction] should be used before restatement).
(a)   Restatement (Second) §13 Battery: Harmful Contact
An actor is subject to liability to another for battery if
a)      He acts intending to cause a harmful or offensive contact with the person of the other or a third person (transferred intent), or an imminent apprehension of such a contact, and
b)      A harmful contact with the person of the other directly or indirectly results.
(b)   Restatement (Second) §18 Battery: Offensive Contact
An actor is subject to liability to another for battery if
a)      He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact, and
b)      An offensive contact with the person of the other directly or indirectly results.
(c)    Restatement (Third) §4 Liability for Physical Harm
“Physical harm” means the physical impairment of the human body or of real property or tangible personal property. The physical impairment of the human body includes physical injury, illness, disease, and death.
(d)   Restatement (Second) §19 What Constitutes Offensive Contact
A bodily contact is offensive if it offends a reasonable sense of personal dignity. COMMENT: In order to be offensive to a reasonable sense of personal dignity, it must be one which would offend the ordinary person and as such one not unduly sensitive as to his personal dignity. It must be a contact which is unwarranted by the social usages prevalent at the time & place at which it is inflicted.
2)      Prima Facie Case
(a)   Intent
(b)   Contact
3)      Cases
(a)   Vosburg v. Putney
·         Facts: While in a schoolroom during school hours D (Putney, 10) lightly kicked P (Vosburg, 14) on right leg. P did not feel the kick immediately, later felt pain in his leg and the injury deteriorated requiring P to undergo surgery. P lost the use of the leg and sued D. P had received a previous injury just above the knee on the same leg in January of that year by coasting, which appeared to be healing at the time of the last injury. The theory of at least one medical witness was that the limb was already in diseased condition and this kick was the exciting cause of the destruction of the bone.
·         Issue: Could D be held liable for battery despite finding that he did not intend to harm P?
·         Rule: Intent to harm isn’t necessary to prove unlawful intent – if the intended act is unlawful, the intention to commit it must necessarily be unlawful. The unlawfulness of the intent can’t be judged by the intent of the actor, but must be judged by the nature of the act itself. Intent to harm is sufficient to prove unlawful intent (although not necessary). Crt says that P must show either that the intention was unlawful or that the D is in fault.
·         Notes: Egg shell plaintiff à (if the plaintiff fell apart like an egg shell, your still responsible if you’re the wrongdoer) only applies once fault or responsibility for wrongdoing has been found to belong to the D. Wrongdoer responsible for all injuries caused by the intentional act, whether or noth the level of injuries could be foreseen.
(b)   Garratt v. Dailey
·         Facts: D (Brian Dailey; age five years, nine months) was visiting with Naomi Garratt, and her sister, Ruth Garratt (P), at P’s home. P went to sit down in wooden chair, D deliberately pulled it out causing her to fall and injure herself. D claims he was using chair for himself and when he noticed P attempting to sit down, he attempted to move it toward the plaintiff but due to his small size and lack of dexterity, he was unable to get the lawn chair under the plaintiff in time to prevent her from falling. (P comes outside, D moves chair & sits, D then realized P about to sit where chair had formerly been, failed to get it back, P fell and hurt herself).
·         Issue: Was there intent on the part of D? Did the trial crt err in dismissing claim b/c no intent?
·         Rule: The intent necessary for the commission of a battery is present when the person acts, knowing, with substantial certainty, that the harmful contact will occur. Case should be remanded for clarification of the finds specifically cover the the question of Brian’s knowledge, b/c intent could be inferred here from. If the crt finds that he had such knowledge, the necessary intent will be established. If Brian did not have such knowledge, there was no wrongful act by him.
·         Notes: Subjective knowledge of the actual actor – did 5 year-old Brian think that she would fall? Objective standard – the reasonable person’s standard.
Hypo – business owner carrying box and leaves it in doorway. P falls and sues. Substantial certainty?
·         No, high probability, but not enough. Still some accountability à negligence.
Hypo – Naomi pull chair from under Brian to save sister. She didn’t do the act with purpose to hurt Brian but she knew with substantial certainty that he would fall in which there was intent based on the constructive intent of the 2 prong intent system.
Hypo –

(d)   Hypo – homeowner on Halloween has trick-or-treater dressed up and threatens them with a light saber – Can homeowner argue assault?
(i)     Could say trick-or-treater desired to put you in imminent apprehension. Could say you were genuinely apprehensive.
(ii)   Limit on ability to claim assault – reasonable person wouldn’t be afraid in the same situation.
(iii)What interests is society trying to protect? Right to be free from fear or apprehension – business of society runs better if protected from this fear.
(e)    Hypo – R goes to G and says she dislikes something he does. If he doesn’t change it by Friday, she’ll beat him up. Wants to make him fear being beaten. Assault?
(i)     Needs to create imminent apprehension – needs to be soon/now – not in the future. Must be without significant delay. Future threats not good, but probably won’t provoke response by P b/c people can change their minds
2)      Cases
(a)   Read v. Coker
·         Facts: Read upset from being fired, shows up at the store and Coker’s employees mustered round the plaintiff, tucking up their sleeves and aprons, and threatened to break his neck if he did not leave; and, fearing that the men would strike him if he did not do so, P left.
·         Issue: Did the judge err in not instructing the jury that to constitute an assault, there must be an attempt, coupled with a present ability to do personal violence to the party?
·         Rule: An assault is committed when there is a threat of violence exhibiting an intention to assault (i.e., do physical violence to another), coupled with a present ability to carry the threat to execution. Crt decides that you can desire and cause imminent apprehension without attempting to actually contact. Looking at behavior you can guess their purpose.
o   Are words enough? No – more than words, actions occurred here.
o   Does the conditional nature matter (P could choose to leave and avoid altercation)? No – can’t just go around threatening people to get what you want.
(b)   Beach v. Hancock
·         Facts: P and D were in an angry altercation, D stepped into his office and brought out a gun, which he aimed at P in an excited and threatening manner, the P being three or four rods distant. The evidence showed that D snapped the gun twice at P and that P did not know whether the gun was loaded or not (in fact was not).
·         Issue: Did the trial judge err in instructing the jury that in assessing the damages, it was their right and duty to consider the effect which the finding of light or trivial damages in actions for breaches of peace, would have to encourage a disregard of the laws and disturbances of the public places.
Rule: An assault is an unlawful attempt, coupled with an apparent present ability, to place another in apprehension of imminent harm.Crt found that P was in imminent apprehension at the time of the incident even though the
D acts for purpose of causing contact (Subjective Intent)
D acts   w/knowledge to a substantial certainty that contact is to occur (Constructive Intent)