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University of Oklahoma College of Law
Kutner, Peter B.



Fall 2010

I.) Action on Trespass-

A.) Rules-

· Must be immediate and not consequential.

· If object causing harm comes to rest before injury, then the harm is consequential and not immediate.

· If harm is willful and immediate then it must be trespass.

· If immediate then intention or degree of violence of harm is irrelevant.

B.) Examples

Scott v. Shepherd (1773)- Squib thrown in crowd, two other men threw squib before igniting. Squib blew up in Scotts face. Trespass b/c squib never at rest.

Hutchins v. Maughan (1947)- Hutchins’ dogs ate poisoned bait but there was not trespass because the bait was laid before the dogs entered Maughan’s land. The bait (object causing injury) was at rest.

Log in road example- If a man throws a log in the road and it falls on another man then act is immediate and an action on trespass. If man throws log and another man trips over it then it is not immediate and there is an action on case.

Hypo- Man shot and put in hospital. While in Hospital contracts pneumonia. Have cause of trespass against shooter? Yes, b/c if immediate injury had then there is a trespass and all consequential injuries are trespasses

Leame v. Bray (1803)- Bray drove accidently drove carriage on wrong side of road. Ran into Leame. Action on trespass, it didn’t matter it was on accident.

Weaver v.Ward- One soldier accidentally shot another during military training. Action of trespass of assault and battery, the fact that it was an accident not a defense for trespass. This case suggests there are cases where the defendant is w/out fault.

II.) Action on Case

A.) Rules

-Must have fault or wrongful conduct.

-Must prove injury or damage.

– Cannot be willful.

– Must be carelessness and negligence.

B.) Examples

Williams v. Holland- Holland crashed into Williams carriage. Holland was not unlawfully driving BUT was being negligent.

III.) Trespass to Property.

A.) Rules- Trespass even if act is lawful or uninformed. Only need intent to walk on land. Do not need to prove damages.


Case of the Thorns- Person walked onto another person’s land. No harm except the grass stepped on but still trespass.

IV.) Defenses to Trespasses

A.) Rules- 5 is not liable for trespass when they are not negligent. The burden of proof for negligence is on the plaintiff. Vastly different than the trespass cases of common law.

B.) Examples-

Stanley v. Powell- Hunter (5) accidently shot ammo carrier (π) while aiming for a quail and bullet ricocheted off tree. 5 was not negligent b/c it was an accident.

Parrot v. Wells, Fargo- Trunk blew up and destroyed π’s building that 5 was renting. 5 had no reasonable idea that trunk was explosive and acted in normal manner for situation. 5intentionally struck trunk with hammer but was not intentionally negligent.

V.) Common Law Pleading System

1.) π selects 1 type of action on writ (Case or Trespass)

-Writ declares facts and why facts fit the cause of action. If facts ~ fit elements of COA then π could lose.

2.) 5 would plead and had 3 choices but could only make 1

A.) “Pleading the general issue”- a general denial of what the π pleaded and alleged

t to strike an animal, not the body of a person.

Wallace v. Rosen- ▲ touched ∏ on back to ask her to move. ∏ feel down stairs. ▲ was not liable b/c not done out of anger and from an objective view, touch was socially acceptable conduct.


A.) Rules- Battery is based on intent.

-Negligence and Battery are not mutually exclusive.

-Things attached to the body are considered part of the body because an offensive act upon them is an interference with the dignity of the persons body.


Must have intent to make harmful or Offensive Contact.

Only intent needed is to have physical contact with another person’s body.

Normally, look @ ▲ object or purpose in committing an act. Intent Act Result.

-Harmful Contact: When there is an injury to the person

Note 1 pg. 34Baldinger v. Banks- 6 year old shoves 4 year old and 4 year old injures elbow. 6 year old liable b/c acted with certain intent to touch the body of ∏

-Offensive Contact: infringes on a reasonable sense of dignity. The

general/objective view of what would be considered offensive. Does not have to be intend specific harmful/offensive act.

EX- Doctor operates on wrong leg of patient, not intending to harm offend is still socially recognized offensive contact