TORTS
Professor Heriot
Spring 2007
& Introduction to Torts. 3
& intentional torts. 4
Battery.4
Assault5
Intentional Infliction of Emotional Distress (IIED)6
False Imprisonment6
Privileges. 7
& Negligence..….10
Duty… 10
Breach..15
Unreasonableness. 16
Per Se Negligence Doctrine. 17
Res Ipsa Loquitur18
Actual Cause. 19
Proximate Cause. 21
Defenses. 27
Contributory Negligence. 27
Assumption of Risk:28
Comparative Negligence:29
Uniform Comparative Fault Act29
Immunities. 30
Governmental Immunity. 30
Charitable Immunity:31
Family Immunity:31
Damages. 31
& Trespass and Nuisance.. 32
Trespass. 32
Nuisance. 32
& Strict Liability.. 35
Elements:35
Animals 35
Abnormally Dangerous Activities. 35
Products Liability Cases. 36
Defenses. 36
& Products Liability.. 37
Negligence. 37
Warranty. 37
Strict Liability. 39
Defenses:42
& Torts against dignity and Privacy.. 42
Defamation. 42
Invasion of Privacy. 43
& COmmercial Torts. 44
Misrepresentation/Deceit44
Interference with Business Relations. 47
& Damages.………… 49
Damage Types. 49
Determining Damage Awards. 50
Insurance. 51
& General Consideration items. 52
Vicarious Liability. 52
Multiple Defendant Issues. 54
Wrongful Death & Survivor Actions:55
Minors 55
Immunities. 55
Governmental Immunity. 55
Charitable Immunity:56
Family Immunity:56
& compenstation systems: Alternatives to Tort. 56
Worker’s Compensation. 56
No-Fault Insurance. 58
Social Insurance. 58
Introduction to Torts
A. Defined:
1) A civil wrong committed by one person against another,
2) Usually arises outside of any agreement between the parties
B. Categories: 3 broad categories, with individually named torts within them
1. Intentional Torts
1) Battery
2) Assault
3) False imprisonment
4) Intentional Infliction of emotional distress
2. Negligence
3. Strict Liability
1) abnormally dangerous activities
2) selling of a defective product
*Heriot: torts either involveForceorFraud
C. Rationale for Tort law:
1. Instrumental: tort law is an instrument for achieving broader social goals (will society derive future benefits from the punishment of the offender?
*Heriot: an incentive to treat other’s property/persons as we would our own
2. Non-instrumental: corrective justice approach
Exam Answer Format
1. Tort
2. Parties to litigation
3. Prima Facie case (elements)
4. Defenses
5. General Consideration items
6. Damages
“Π will argue that Δ committed a _____. To establish the prima facie case, Π will need to prove 1…2…and 3.” The go through each element.
intentional torts
I. Battery
a. Defined: intentional, unprivileged and either harmful or offensive contact with the person of another
i. §13 Harmful Contact
ii. §18 Offensive Contact
b. Elements
i. Act (assume volitional, an act of will)
ii. Intent to make harmful or offensive contact OR create imminent apprehension of harmful or offensive contact
iii. harmful or offensive contact occurs
iv. causation
v. harm/damages: compensatory and punitive recoverable
c. Intent: Intent to make contact, not necessarily inflict injury, never stands alone in analysis
1) D intended to cause a harmful or offensive bodily contact; or
2) D intended to cause an imminent apprehension on P’s part of a harmful or offensive bodily contact.
Vosburg v. Putney, intent to commit wrongful acts = intent
F: Eleven year old D kicked fourteen year old P in shin while in school. Kick was the “exciting cause” of infection and bone destruction in P’s limb, effecting the loss of the use of his limb.
R: A person is responsible for all injuries that are a direct result of his wrongful action.
Garratt v. Dailey, act + substantial knowledge of consequence = intent
F: G is an arthritic old lady. D is a kid. G started to sit down, but D moved the chair she was going to sit in before she could sit down, and she fell and was injured. She sued D for battery.
R: If the defendant “knew with substantial certainty” that his actions would cause harmful contact, then the defendant is liable for battery.
i. Transferred intent: D has requisite intent if they injure B but intended to injure A
ii. Eggshell Skull Doctrine: “take you victim as you found them” – D is liable for all consequences resulting from his conduct, even unusual damages due to a pre-existing vulnerability or medical condition
d. Harmful or
elderly, pregnant, super-sensitive AND Δ knows
2) Actual Distress (i.e medical aid)
c. Intent: 3 possible types
1) intent
2) knowledge with substantial certainty
3) recklessness
d. Transferred Intent: limited application, must be an immediate family member who is present and whom D knows is present
Wilkinson v. Downton
F: Pranksters told P that her husband was in the hospital, P seriously injured
R: D’s act was reasonably expected to cause harm & thus was extreme and outrageous.
IV.False Imprisonment
a. Defined: intentional infliction of confinement; requires real confinement but can be a large area and need not be stationary
b. Elements:
i. intentional (Δ must intend or know with substantial certainty)
ii. act or omission by Δ that confines Π
iii. in a bounded area (no reasonable known methods of escape
iv. Π knew of restraint
v. causation
vi. damages
c. Means: restraint may be physical means, by threat, or assertion of legal authority
d. Special cases:
– Merchants can stop someone in or outside the store if they have reasonable grounds to believe that person is stealing
– Deprogramming: where should the line of parental authority should be drawn?
– Imprisonment is not actionable where necessary to protect person or property
– Parental Authority allows imprisonment where necessary to promote welfare of the child or to discipline
e. Consent: not false imprisonment if P consents
Bird v. Jones
F: plaintiff tried to enter a portion of the public highway which was barricaded off
R: Area must be fully enclosed within some limits defined by an outside power to be false imprisonment.
