Austin – Fall 2016
The Definition of a Tort
A tort is a wrongful act or an infringement of a right leading to civil, legal liability
Three Broad Categories of Torts
Intentional Torts: An intent to harm or offend is required
Fault or Negligence: Based on a failure to use due care or to act as a reasonably prudent person
Strict Liability or Liability Without Fault: Requires causation and a social purpose to compensate or deter or imposes liability on a party without a finding of fault
Categories of Policy Concerns
Efficiencies regarding deterrence
Efficiencies regarding compensation
Morality, particularly notions of moral blameworthiness and responsibility to others
Cultural or social norms or expectations
Policy Approaches to Torts
Law and economics
Law and political science
Legal practice and process
Law and society or cultural studies
The basic elements of torts consist of (1) the act, (2) the intent, and (3) the harmful or offensive conduct
Comparing Subjectivity and Objectivity
Subjective: A value to a single person but is still protected by the law
Objective: A world value, and whenever the word reasonable appears, that is the objective requirement.
An intent to harm or offend is required
Definition of Intent
Rule: An actor intends the consequences of his conduct (1) if his purpose or desire in acting is to bring about these consequences or (2) if he knows with substantial certainty that these consequences will result
The common law of intentional torts originally dealt with violence between individuals. Such tort actions aimed to prevent breaches of the peace.
Intentional misconduct is considered evil and is not socially sanctioned
Though violence is still a concern, intentional torts increasingly address dignitary or emotional wrongs. They remedy illegitimate exercise of social power, abuses of public and private authority, and improper attempts to control the perception or standing of members of other status groups
The common law of intentional torts operates on a terrain where group norms or culture influences behavior. Conflicts arise when the group norms are stronger than the law
Conflicts arise where the norms or culture of different groups conflict. In such cases, the law may be called upon to settle disputes
The question remains, however, whether torts directed at behavior that offends societal or group norms reinforce the status quo hierarchy or alters it.
The motive is irrelevant in tort law. It is about the intent or knowledge that the particular defendant has
Transferred Intent: For Battery, Assault, False Imprisonment, and Trespass to Land
From Supplements: Where the defendant intends to commit a tort against one person but instead commits a different tort against that person, commits the same torts as intended but against a different person, or commits a different tort against a different person, the intent to commit a tort is transferred to the other tort or to the injured person
Van Camp v. McAfoos
Facts: The plaintiff appealed a decision dismissing her action for battery against the defendant, a three-year-old child who drove a tricycle into the plaintiff right leg, causing an injury to the Achilles’s tendon.
Rule: In order to establish a cause of action for battery, the plaintiff must plead claims and prove facts establishing the defendant’s wrongful acts. Although the defendant won this case, children are not precluded from liability for battery.
Policy Concerns: Children are not precluded from liability for battery. But culturally, parents have a duty to help children understand right from wrong.
Types of Intentional Torts
Rule: A battery is an intentional infliction of a harmful or offensive contact or touching of the person of another or anything attached to or identified with another’s body
Rule: Acting with the desire or purpose of bringing about contact that is harmful or offensive or acting with knowledge that contact is substantially certain to occur, with that contact being harmful or offensive
Under this view, a victim need only prove that a voluntary movement by the tortfeasor resulted in a contact which a reasonable person would find offensive or to which the victim did not consent
This view is not predicated on some notion of morality. Intent is inferred from the circumstances and the nature of the consequences
Rule: Acting with the desire or purpose of bringing about contact that is harmful or offensive or acting with knowledge that contact is substantially certain to occur, with that contact being harmful or offensive and acting with the desire of purpose to harm or offend
This view is grounded in the sociology and mores of the society
It is irrelevant that the actor does not appreciate the legal significance or wrongfulness of his or her act or that the actors assumes that his or her actions are benign and not harmful
Contact: The touching must involve contact with the person or something closely associated with the person.
If the contact is harmful, causing pain or bodily damages, it is considered a battery. Battery also covers contact that is merely offensive.
It is not necessary that the plaintiff have actual awareness of the contact at the time.
hat a person is subject to liability for battery when acts intending to cause a harmful or offensive contact, and when a harmful or offensive contact results. In order to determine what is harmful or offensive contact, the court must determine what is appropriate conduct under the circumstance
Even though the defendant claimed he lacked an intent to harm, the plaintiff still suffered some injury, and he breached the duty and endangered the health and safety of plaintiff
Policy Concerns: In this case, doctor is in a place of power, and people in a place of power have a duty to treat their employees with respect and to keep their employees healthy and safe
Cohen v. Smith
Facts: The pregnant plaintiff’s religious beliefs prohibited her from being seen unclothed by a male and she notified the hospital, who assured her that her beliefs would be respected. During her cesarean section, a male nurse on staff at the hospital observed and touched her body.
Rule: The right to refuse medical treatment, if violated, can serve as the basis for a claim of battery.
Liability for battery emphasizes the plaintiff’s lack of consent to the touching. “Offensive contact” is said to occur when the contact “offends a reasonable sense of personal dignity.”
Although it may have be necessary to be seen unclothed or touched by members of the opposite sex during medical treatment, the plaintiff had not accepted the procedure and had informed hospital staff. Courts have consistently recognized an individual’s right to refuse medical treatment even if it would increase the individual’s likelihood of death
Policy Concerns: The importance of the right to bodily integrity and personal autonomy
White v. Muniz
Facts: The defendant’s grandmother lived in an assisted-living home and the plaintiff was struck on the jaw by the plaintiff’s grandmother as she was changing the grandmother’s diaper.
Rule: Insanity does not prevent a finding that she acted intentionally or intended the contact but a mentally disabled person may not have the ability to intend that contact to be offensive or harmful
The inability to intend the contact to be offensive or harmful has implication for jurisdictions that require dual intent
Insanity is not a defense to an intentional tort but is a characteristic, like infancy, that may make it more difficult to prove the intent element of battery