Select Page

University of Pennsylvania School of Law
Klick, Jonathan



FALL 2012


Note: Restatement in torts is valuable, not binding, some states look to it for guidance.

A. Torts: Civil claims for damages caused by someone else’s actions

· What is tort?

· Area of law that deals in harm btw parties that don’t have a contractual relationship

· If you have contract and harm supplier, that’s not a tort

· But if when your driving you hit someone, you don’t have preexisting/contractual relationship with them. The law needs to fill this gap.

Focus of tort system is incentive/deterrence. – Also what it does best

– Lots of evidence suggests that when ppl are left to their own devices, they create level of risk far > socially optimal

If Private Benefit > Private Cost, person wants to do the activity; Tort law should cause actors to internalize full social costs of their activities, finding them liable when societal costs of their activities, measured by harms inflicted on others > societal benefits.

o From a society’s standpoint you want rules that make people take into account these sorts of things.

o Absolute deterrence is not the ideal – want to optimize risk, not completely eliminate- How would reasonable person perceive the risk?

– Evidence supports deterrence model (or, people are sensitive to liability exposure)

o NJ introduced tort reform; accidents & deaths went up significantly. Insurance fraud can’t make up for this; shows effects of deterrence function

– Tort system should guide actors towards socially optimal solutions, where marginal costs of further accident prevention measures = marginal benefits in terms of lives saved or injuries and harms forgone.

B. Secondary aim is compensation & social insurance

o Insurance against losses (very expensive/inefficient way to get insurance; first party insurance 5-10x more cost-efficient)

o Diversify risk (lower “volatility” à average risk to an individual lower; similar to benefit of insurance pool)

o Income redistribution (some evidence suggests > jury awards in poor areas, but mixed results.

– Corrective justice more focused on moral balance btw two parties.


Redistribution. “There’s never been a greater vehicle for redistribution than a Bronx jury,” Bonfire of the Vanities

2 Studies on correlation of jury awards & demographics

1) Cornell in 1970’s, found no stat sig corr, used ppl listed in the area

2) Found correlation, took away ppl in jail, not available for jury

Bottom Line: At least some evidence to support redistributive effect of juries in poorer area

-Tort considered bad vehicle for redistribution b/c where the $$ goes kind of by chance.

C. Efficiency

– Tort system should guide actors towards socially optimal solution, where marginal costs of further accident prevention measures = marginal benefits in terms of lives saved or injuries and harms forgone.

– Tort law should cause actors to internalize full social costs of their activities, finding them liable when societal costs of their activities, measured by harms inflicted on others > societal benefits.

D. Redundancy of Tort System

1. Tort + regulatory system + criminal law are complementary and overlapping

2. Separation of powers

a. Regulatory enforcement is cheaper but inflexible

b. Civil framework (torts) is expensive but flexible

i. Use regulatory background as a floor, but allow for customization and context

ii. Civil liability is a backstop system b/c of details too hard to legislate

c. Tradeoff b/w benefit of easily read regulatory rule and flexibility of civil liability system

I) Intentional Torts

o In general, harms need not be foreseeable for D to be liable under intentional torts (distinction from negligence)

A) Physical Harms:

1. Assault

i. Restatement §1. INTENT

1. A person acts w/intent to produce a consequence if:

a. The person acts w/purpose of producing that consequence; OR

b. Person acts knowing the consequence is substantially certain to result


ii. Restatement §13. BATTERY

1. Intentional infliction of harmful or offensive contact w/ the person of P.

1. D must act, 2. Act must be intentional, 3. Act must cause contact w/ the victim, 4. Intended contact must be harmful or offensive to victim.

iii. Restatement §19. OFFENSIVE CONTACT

1. Contact is offensive if it offends a reasonable sense of personal dignity

a. Reasonable person standard: socially acceptable?

b. Context-dependent

2. If responsible for the actà responsible for harm, even if not foreseen.

Vosburg v. Putney (WI 1891)

Holding: Battery requires intent—the intent to cause the offensive contact, not to bring about the harmful consequence. A wrongdoer is liable for all injuries directly resulting from a wrongful act regardless of whether harm itself was intended/foreseen. (egg shell skull rule)

Facts: D kicked P under the table during school; exacerbated previous injury, P later lost the use of leg. D says was unintentional because he did not know the result would occur.

Intent that matters isn’t intent to do the harm, it’s the intent to do the prohibited thing.

Context Matters: happened in class, not proper context for kick. If was playground, who knows?

i. Egg shell skull rule (Vosburg): if someone is particularly susceptible to harm, that does not change anything w/regard to a wrongdoer’s intent or responsibility; tort law treats that person the same

“Take your victim as you find them,” If they are particularly wimpy, and you do a lot of damage, well then too bad for D.

-This is good from admin standpoint. Otherwise would have to figure out how wimpy each person is, now kind of just use the avg value.

– Rule technically applies only to intentional torts, but the concept extends throughout tort law—if you negligently harm someone, you are liable for all their medical bills even if very rare

ii. Transferred intent: actor tries to batter one person and causes a harmful contact to someone else è liable to actual victim

Garrat v. Dailey. D pulled chair out from underneath P. P fell and suffered damages. Held, D is liable for damages. There was intent to do the act as well as causation.

White v. University Of Idaho Piano teacher touched student on back, causing damage. Held, there was battery even though D had not meant to do harm.

o Sometimes even if act not prohibited, if in the context its likely to do harm, then its prohibited.

o Note: Incompetents and minors can make volitional movement and will be liable for intentional torts

2. Trespass to land

Premise of protecting property from intruders is very important

Dougherty v. Stepp

Held: The entry constitutes trespass, not the harm; if little harm, may be lower damages, but every unlawful entry is a trespass

Facts: D entered P’s land w/a surveyor, claiming land as his own; didn’t mark trees or injure land in any way

Trespass to land takes place on surface and any intrusion above or below surface of land

Policy: protect P’s interest in exclusive possession of land; property is of special status so even w/o harm, D is liable if there is an intent to enter

-Courts say its important to have strict tresspass rules. If insignificant tresspass, might still be appropriate to give nominal damages

2. Defenses to Intentional Torts

A) Consensual Defenses

Mohr v. Williams- P getting surgery on left ear; D found issue in right ear, P already under anesthesia; decided to operate.

Rule: Can’t assume consent unless its an emergency si

nsportation Co- D’s ship moored to P’s dock; storm came, D couldn’t leave; damage to dock b/c of ship

Rule: D responsible for damage even though it was unforeseen.

– Rules incentive people to engage in cost/benefit analysis, knowing they will have to pay damages.

– Courts are concerned with situations in which bargaining power is unfair, e.g. in emergencies/times of necessity; there is holdout concern. Courts tend to invalidate such contracts as made under duress.

C. Emotional and Dignitary Harms

1. Assault

§21. Assault

1) Actor is subject to liability to another for assault if:

a) Acts intending to cause harmful or offensive contact w/ person of other or 3rd party, or an imminent apprehension of such a contact, AND b) Other is thereby put in such imminent apprehension

§24(b) Distinction between apprehension and fright: P doesn’t have to believe that the actor will immediately cause harm, just has to be an act that can reasonably result in the threatened harm.

I. de S. and Wife v. W de. S- D strikes door w/ hatchet, but doesn’t actually hit P

Rule: D still liable for assault; want to deter this kind of behavior.

People have to tie damage claims to real damages, otherwise opens floodgate to too much litigation

Tuberville v. Savage- P picked up sword and said if judges were not there he would have hit D; there was a threat but no actual harm

Rule: Intent as well as the act makes an assault; here there was no intent and no act

2. Offensive battery


a. Liable for offensive battery if acts intending to cause harmful or offensive contact with another or a third person, OR an imminent apprehension of such a contact (fear), AND an offensive contact results

2. Requires actual intent to cause offensive contact

a. Contact is offensive if offends reasonable sense of personal dignity (context)

b. Protection also covers contact w/anything so closely attached to P’s person that it is regarded as a part thereof and which is offensive to a reasonable sense of person’s dignity (like a cane)

Alcorn v. Mitchell- P deliberately spat in D’s face at end of trial for tresspass

Rule: Law should preserve the public tranquility and deter personal violence If there is malice/willfulness damages should be awarded, and this is exactly what happened here.

3. False Imprisonment

Bird v. Jones- P impeded from going in a specific direction but could have gone another way.

Held, there was no false imprisonment. False imprisonment requires a fixed boundary; plaintiff must be prevented from leaving a place. Mere loss of freedom isn’t enough.

Damages – tort is complete upon confinement, and so recovery may be had even though plaintiff suffers no special damages. Plaintiff may recover damages sustained in a reasonable attempt to escape. Compulsory and punitives are available

Coblyn v. Kennedy’s, Inc.- P, an elderly man, was stopped for suspicion of shoplifting; P felt he had no other choice than to comply with store employees’ command.