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University of Pennsylvania School of Law
Klick, Jonathan

2008 Klick Torts Outline
I.      Background
a.    Scope and Purpose
                                                            1.      Body of law to redress civil injuries (harm that occurs) that are NOT Criminal or Contractual. To be used where parties did not come up with an agreement ex ante (because: people didn’t know each other, not a foreseen contingency, too trivial to discuss prior).
                                                            2.      Balancing Act: Concerned with the allocation of losses resulting from the activities of people. Balance the utility of a particular type of conduct against the harm that it may cause, judged by the prevailing social and economic mores of the time.
b.    Competing Goals for Tort Law
                                                            1.      Fairness (between those who receive benefits and those who bear the burden; among beneficiaries; among cost bearers)
                                                            2.      Form of Social Insurance (provide for redress; make people whole)
                                                            3.      Incentives (Deterrence) for social optimization
                                                            4.      At the Margins: Create system where we encourage others to consider when they are putting others at risk.
                                                            5.      Externalities: Recognize externalities; consider cost-benefit for third parties
                                                            6.      Tort law: internalize cause of your actions so you make efficient outcome
                                                            7.      Least Cost Avoider: to the extent that we want the law to influence behavior and promote efficiency, place the burden on the party for whom taking precautions necessary to avoid cause of action would be least costly.
                                                            8.      Others:
a.       Wise allocation of human and economic resources
b.      Reliability
c.       Compensate properly
d.      Distribute losses
e.       Deter risk conduct
f.        Minimize Fraud
g.       Be efficient
c.     Common themes
                                                            1.      No way to resolve differences in first principles. Lots of different objectives. Evolutionarily moving towards efficiency (Posner).
d.    The Basics in a Nutshell
Tort: Wrong against an individual
Crime: Wrong against the state
Value of Common Law System: Tendency towards efficiency and wealth maximization
§         Posner: Primary concern for judgment now what will happen for future generations (therefore, law down speeding rule – do if cost justified)
§         Ruben: Common law/adversarial system has tendency towards efficiency and is conducive for wealth in following sense:
§         Litigation market – lots of incentives for people to litigate in light of bad rules
§         Good rules will be “fit” enough to last
Three Types of Torts:
Strict Liability
Using Cases As Tools: Data Point to Infer What the Law Is
e.     The Trolley Problem and basic philosophy concerns
                                                            1.      Girl in Well Scenario: Must undertake costs to institute precautions. We do not impose more than average precautions, whether or not someone is wealthy.
                                                            2.      Common theme in torts: No way to resolve differences in first principles. Lots of different objectives. Evolutionarily moving towards efficiency (Posner).
Look at outcomes (not concerned with intents)
Concerned with how consequences affect individual’s welfare
Welfare: Utilitarian (Bentham)
Utility is the maximization of pleasure, minimization of pain. Add up incremental utility change; count everyone equal
Welfare: Veil of Ignorance (Rawls)
Mini-Max principle: make worst of f best off. Multipying utilities
Good and bad; support system that cultivates people to make “right” decision
II.   Intentional Torts
a.    In General
                                                            1.      These are intentionally inflicted harms. Essentially you only have to probe that a Δ intended the initial action and that harm occurs. This has nothing to do with duty and care.
                                                            2.      What it covers:
a.        Physical harm to person and property. 
b.      Dispossession of land and conversion of personal property. 
c.       Assault (threat to use force against a person)
d.      Affronts to personal dignity and emotional tranquility
                                                            3.      Intent – Liability based on the D’s intent (knowledge or belief that certain results are substantially certain to follow from the D’s conduct). Intent determined from an objective basis (i.e. actual knowledge or belief, or lack thereof, on part of D is immaterial if a reasonable person in the position would have believe that certain results were substantially certain to follow form the conduct of the D. Intention to do the act (and the act has to be unlawful) – you have to intend to do the act that causes the harm, but not necessarily the harm itself.
                                                            4.      Unlawful act = intentional tort
                                                            5.      What defines an unlawful act? Look to case law.
                                                            6.      Context Matters – did the victim consent to the unlawful act by being somewhere? Ex: playground rough-housing.
                                                            7.      For damages the full extent of foreseeability of damages doesn’t matter.
a.       Egg shell skull rule, you take victims as you find them.
b.    Common threads
                                                            1.      Intention to do the act (and the act has to be unlawful) – you have to intend to do the act that causes the harm, but not necessarily the harm itself.
                                                            2.      Strict Liability – If you intended the act then the harms are your fault.
                                                            3.      Causality – needs to be established – would the consequences have happened anyway without the intentional act? No – then your fault, Yes – then not your fault.
c.      Battery
                                                            1.      Trespass to person, a nonconsensual touching.
                                                            2.      Cases
Vosburg v. Putney, 50 N.W. 403 (Wis. 1891) p. 4
Facts: Δ kicked π in the leg in a classroom setting. π had a prior injury to the leg that was healing. After the kick, π became very ill and as a result no longer has use of the injured leg. 
Procedural Posture: π claims assault and seeks damages. π won first trial and damages of $2800, reversed for error, new trial, π won $2500, Δ appeals.
Issues: Does intent matter? Should damages (and charges) reflect “foreseeable damage” or actual damage?
Holdings: One only needs to intend the tort, the consequences are the fruit of the initial action so even if they weren’t intended, def. is liable for all damages.
Reasoning: If the intended act is unlawful, then the intent is unlawful. Precedent dictates responsible for all damages (egg shell skull rule).
Dicta: Context matters, classroom vs. playground; can’t assume consent in the classroom.
Klick thoughts: Why Sue When There Is No Chance of Recovery? Deterrence, Revenge, Encourage a settlement, Publicity, Litigate Negative Value Cases to Get a Reputation (ex. Doctors litigating to show not afraid to go to court)
Garratt v. Daily

tices over Intel’s e–mail system. D. Breached no computer barrier; removed people from list when asked. D caused no physical damage or functional disruption to the company’s property (computers)
Procedural Posture: trial court grants SJ in favor of Intel, def. appeals, court affirms, def. appeals again and here, SJ is denied.
Issues: Does sending e-mails over a private system constitute trespass to chattels?
Holdings: No.
Reasoning: No damage of the property since didn’t dispossess Intel of e-mail system. Therefore there is no trespass to chattels. “We conclude that CA law the tort does not encompass, and should not be extended to encompass, an electronic communication that neither damages the recipient computer system nor impairs its functioning” (p. 15); actual damage must occur.
Dissent: In fact he was trespassing on something akin to private property (an intranet), and this ruling leaves Intel with no recourse until he does cause the system to crash.
Dicta: If this is really a problem why don’t we just legislate (see discussion on p. 17). This is a very subjective area.
Blondell v. Consolidated Gas Co.
Ds attached governors to company’s gas meters. Court held that it was trespass because meters were P’s property and the acts were unauthorized. You are liable if intermeddling is harmful to P’s material interest in the physical condition, quality, or value of the chattel, or if P is deprived of valuable time with the chattel.
Modern Form of Trespass- Cyberspace: eBay v. Bidder’s Edge
BE used spiders to repeatedly search eBay’s website. Court found electronic spiders DO constitute trespass because they could slow down the system with their repeated inquiries (“exceeded the scope of consent”). Also spyware, when it has the potential to corrupt or slow down computer DOES constitute trespass to chattels.
Cases Generally Follow the Hamidi Model:
Trespass: Sotelo v. DirectRevenue: denied D’s motion to dismiss when his “spyware” was capable of corrupting P’s data and tracking internet use
NO Trespass: Jetblue Airways Privacy Litigation: D could take names off passenger list because it did not diminish the value of the information.
Trespass: Pestco v. Associated Products – Trespass when D took trade secrets
f.     Conversion
                                                            1.      Conversion is the civil analog to theft. Someone who is not owner of something takes possession of it; alters it (sells, etc.); acting intentionally.
                                                            2.      If you take something that is not yours, either explicitly or implicitly, you are guilty of conversion, whether it enriched you or not doesn’t matter.
                                                            3.      Knowledge that the taken item is not yours is not necessary for conversion. The only thing necessary is that you intend to take that thing.
                                                            4.      Unwarranted Interference – Conversion rests on unwarranted or unwanted interference by D., acting as owner over P’s property (1 Bigelow on Torts).
Absence of bad faith cannot excuse the trespass BUT damages are where