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Torts
University of Oregon School of Law
Weiner, Merle H.

Torts Outline

I. General[NGN1] a. Definition: Torts are wrongs recognized by law as grounds for a lawsuit. D’s wrong must result in a harm to another person. Made up of state and common law, and civil wrongs [Note: No Fed Law] b. tort law aims at vindicating individual rights and redressing private harms
c. 3 common questions
i. what conduct counts as tortuous or wrongful
ii. did the conduct cause the kind of harm the law will recognize
iii. what defenses can be raised against liability
d. Aims of tort law come under 2 large systems of thought
i. corrective justice (or moral responsibility)
1. Fault:
a. individual accountability for fault
b. freedom to act without fault
c. Injury not alone, must have fault
2. Strict liability
a. coincides with corrective justice if everyone knows that strict liability will be enforced (ex. damaged incurred while borrowing something should be paid for regardless of fault)
b. people are entitled to all the gains for their decisions, why not take responsibility for all the loses?
c. special kinds of fault – deviation from community norms
3. Tort law begins here even if modified by pragmatic, process, policy considerations
4. Deterrence
a. an act that is wrong – is still wrongfully even though it is economically useful in society
ii. social policy – good-for-all-of-us view
1. Legal Process
a. easy for judges and juries to apply in a practical way
b. not leave too much to judge/jury discretion
2. Compensation of victims
a. might contradict requirement of fault
b. some D are good “risk distributors” (ex. companies that can raise prices)
3. Limiting compensation to cases of fault
a. judges feel very committed to corrective justice and only turn to social policy when the two ideals coincide
b. risk distribution should be addressed by Legislatures
c. elimination of deterrent effect
d. tort system is expensive – there are cheaper ways to achieve compensation
4. Deterrence
a. might want to forgive D who cause harms by their socially useful activities
5. Economics – Efficiency
a. finding the right balance between number of injuries and freedom to act
iii. Process Values
1. Due Process
a. trial before verdict
b. party entitled to know other’s claims
c. party able to present its side
2. Rules
a. without visible rules, the verdict may be just, but the process of adjudication would be suspect
3. Goals
a. people should feel a humane element – be able to tell their story, relate a sense of injustice
b. efficient decision making – timely
4. Rules too lose
a. what arguments would lawyers make
b. how could you tell if a judge was doing a good job
5. Rules too tight
a. no flexibility to achieve justice
6. Facilitating lawyers investigation and arguments
7. Provable facts
a. rules detract from good process when they cannot be proved with reasonable confidence or proved within a reasonable time
8. Directed Verdict: assumes the truth of the evidence supporting the facts essential to the claim giving the nonmovant the benefit of all reasonable inferences from the evidence and refers the application of a reasonable-minds test to such evidence [Demurrer] II. Intentional Torts
i. ∆ is liable for all damage which results from his intentionally tortuous conduct, whether foreseeable or not
ii. Intentional Torts are NOT strict liability torts
iii. Strict Liability: injury and causation alone suffice to hold D liable to P. No intent to harm or negligence is required to hold D liable
iv. Showing an intent to harm or offend is required for a battery

a. Battery:
“A battery is an act with the intent to cause a harmful or offensive contact and a harmful or offensive contact results”
i. Definition
1. an intentional act which causes unconsented-to harmful or offensive contact with P’s person
2. Intent to touch and intent to harm or offend.
3. Actual touching and any harm or offence.
ii. Elements
1. Act – requires volition
a. a bus jolts and you shove someone – this is not a battery
b. Non-Acts: Sleepwalking, seizures, reflexes, third parties/force of motions
2. Intent [DUAL] a. Intent to touch
b. Intent to cause a harmful or offensive contact
Level
i. Act with Intent to touch (purpose)
ii. Substantial certainty: Act with knowledge that a harmful or offensive contact is substantially certain to result.
1. Age affects knowledge – Small child might not know with certainty the contact would result.
a. Transferred Intent
i. between people
ii. between torts – (battery to assault)
iii. Non-tortuous intent does not transfer
3. Harmful/Offensive contact
b. objective test – reasonable person standard
c. harmful or offensive contact can cross
i. if an act was intended to be harmful, but was offensive – it counts
ii. if an act was intended to be offensive, but it was harmful – it counts
iii. Unconsented to touching is presumed offensive
iv. If tortfeasor knew of the person’s nonconsensual view of the contact or sees the contac

ensive contact with P’s person
ii. Elements
1. Intent to cause an imminent apprehension of harmful or offensive contact.
a. Must act with purpose or Knowledge substantial certainty that apprehension will occur.
b. Intent can transfer to another tort
c. Not mere intent to frighten

2. Apprehension = awareness of an imminent touching that would be a battery if completed. Not just fear.
a. words alone usually don’t qualify, but they can (dark room, I’m going to rape you)
b. subjective to the person under apprehension
c. Generally words alone are not enough [ Cullison v. Medley where the defendant threatened to “jump astraddle” while simultaneously grabbing and shaking his gun = assault] d. Look at context
e. Reasonableness is a Question for the jury- whether the apprehension was one which would normally be aroused in the mind of a reasonable person
3. imminent (almost immediate)
a. No significant delay – not harm in the future
b. Need lots of facts – consider time, geography, conditions
4. Conditional Language
a. Negates reasonable apprehension of imminent contact (if you don’t leave town, I’ll kill you)
b. Negates intent to have the P apprehend an imminent touching.
5. Can’t have assault without being aware (person sleeping)
6. Damages
a. Nominal
b. Actual [Pain and suffering can be substantial even if no physical contact or pecuniary loss] c. Punitive

c. False Imprisonment
i. Definition
1. “false imprisonment occurs when a person confines another intentionally without lawful privilege and against his consent within a limited area for any appreciable time, however short”
2. P must be aware of confinement at the time or must have sustained actual harm
ii. Elements
1. Intent
a. To confine
b. Bad motive not necessary
2. Confinement
a. does not need to be “physical” (McCann v. Walmart)
i. confinement by duress

[NGN1]Damages: what is the difference between compensatory, nominal, pecuniary, punitive, ect? Are these important to know?