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.
a. Wise allocation of human and economic resources
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:
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.
1. Trespass to person, a nonconsensual touching.
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.
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
Facts: Boy pulls a chair out from under the path of an elderly woman, she misses the chair and is injured.
Holding: doesn’t matter, he is held liable for her injuries because he intended to pull out the chair.
Reasoning: Court gives as a definition of battery “intentional infliction of harmful bodily contact upon another.” The boy’s action in removing the chair (even though he didn’t touch the woman) counted because he was ruled to have “substantial certainty” that his action would cause her to fall.
Take Aways from Other Battery Cases
Transferred intent: Meant to do something unlawful, but missed and hit someone else. Rule: Unlawul Act – Still Liable
Case with kid and little chair: Did kid tend to do something where woman would come in contact with ground? Still a battery. Causation and Intention to do the act.
White v. University of Idaho (Case with the Piano Teacher): When the piano teacher touched student on back, causing damage (rib needing to be removed), court found that it was battery even though D had not meant to harm.
Wagner v. Utah (Insane person in Walmart): Battery can be committed by insane person because only required mental state was intention to make contact with P.
d. Trespass to Land
1. Tresspass: Every unauthorized entry of a person or thing on the land in the possession of another is a trespass.
a. If the D intends to be on the P’s land, whether by mistake, ignorance of ownership, boundary of the land, claim of right, etc. he is liable of trespass even without damages.
2. You do not need to prove damages in order to prove a trespss.
a. For every unlawful entry the law infers damages, even if it is only the treading down of grass.
b. Exception: Intangible trespasses are hard to prove without some damage.
3. Land is considered so important that in the event of no “real” damage, nominal damages can be awarded in trespass of real property. This will not apply to
space. D. Took over lease of the building; was informed of the barrels existence. Def. told other men they could have it as long as they cleaned out the room.
Procedural Posture: P. Sued D. for conversion of $2,000 worth of wine. Trial court rules for def., reversed on appeal.
Reasoning: Def. sold something that was not his -> conversion. Intent and presence or absence of malice is irrelevant. All that matters is did you intend the action that resulted in the conversion, here, he intended to get rid of the contents of the storage unit, thus responsible for the damages.
Moore v. Regents of the U. of Cal., 793 P.2d 479 (Cal. 1990) p. 26
Facts: Pl. cells were removed as part of treatment for an ailment, doctors then used them without consent in lucrative medical research. Before operation, D knew P’s cells were lucrative
Reasoning: No court has declared cells fair game for conversion torts to date. Not ready to extend the tort to cover them at this point. Also, Moore cannot establish possession/ownership/interest in the cells. Finally, excised cells should be dealt with statutes. Patients disclosure is a better avenue for relief. Slippery slope is conversion is allowed, would be a disincentive for medical research.
Dissent: Def. interfered with right to decide what should be done with excised cells so conversion should stand, non-disclosure is not an appropriate remedy because there is no way to retain affirmative interest in cells.
Side Note: No court has ever held conversion liability for human cells in research; policy goals of disposing of human byproducts more important; Moore did not retain possession and conversion would be based on continuing ownership interest.
Kremen v. Cohen
Facts: Registered domain name (sex.com), swindler (Cohen) sent a letter to Network Solutions to obtain domain name. Network Solutions converted name to Cohen. Cohen then fled to Mexico
Policy Least-Cost Avoidance: To extent that we want the law to influence behavior (efficiency, right allocation of resources, etc.); have law put onus on party that can take that precaution at lowest coast (Calibrese’s idea, 1960s).
Other Conversion Cases
Trespass when D had taken possession without claiming ownership: Fouldes v. Willoughby – Ferryman moved horses before setting sail. Simply moving chattels, without intention to make further use of them, is trespass not conversion.
Good and Bad Faith Conversions: Maye v. Tappan – Reconfirms tough standard in conversion cases. P told D he owned land; D dug up gold. Court held “immaterial” whether D acted willfully or not. No such thing as a good or bad faith conversion. Note: Measure of damages does depend on the D’s mental state (fairness: allow D to obtain credit for extraction). For damages – figure out what gold is worth.
III. Intentional Torts – Defenses
1. Person has consented to the harm, therefore, it is a defense against the intentional tort.
2. Depends on circumstances (Emergency? Consent Form? To protect a class of persons?) and Jury Findings
3. Common law dictates that you consent to actions that arise in the normal course of the event, regardless of the end result (for example, see sports cases discussion on pp. 47-50).
4. Issues that Negate Consent
a. Informed consent – consent must be informed and mistake in fact will vitiate apparent consent. Lack of consent is grounds for negligence.
b. Intent may be expressly or manifestly implied
c. Mistake of Fact – Mistake as to the nature of D’s conduct; Negate Consent
d. Mistake of Law – renders consent vitiated
e. Fraud – No consent
Nondisclosure of material fact – ca