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University of South Carolina School of Law
Fox, Jacqueline R.

Professor Fox

Torts Fall 2011

Day 1 8/18

Key Terms

1. Tort- a civil wrong, other than a breach of contract, for which the law provides a remedy. Torts impose duties on persons to act in a manner that will not injure other persons.

2. Tortfeasor- a person who commits a tort and may be liable to pay damages in a lawsuit by a person injured by that tort.

3. Demurrer-Pleading in a lawsuit that objects to /challenges a pleading of the opposing party

Main purposes of tort law:

1. To provide a peaceful means for adjusting the rights of parties who might otherwise “take the law in their own hands”

2. To deter wrongful conduct;

3. To encourage socially responsible behavior

4. To restore injured parties to their original condition; insofar as the law can do this through compensation

5. To vindicate individual rights of redress

Two common law writs that became tort law:

1. The writ of trespass-primarily concerned with intentional physical injury and was also tied with criminal law via a fine paid to the kind in addition to damages for plaintiff.

2. The writ of trespass on the case-special writ drawn to fit a particular case and used for non-direct and non-forcible injuries to persons or property. The criminal aspect disappeared in 1697 and made torts an exclusively civil matter.

Sample Cases and Notes

Hulle V Orynge (1466 GB)

Facts: a man erects a building and timber from the construction damages a neighbor’s house; the neighbor is entitled to damages. A man also has a claim against another who inadvertently hits him with a stick while that person in the midst of self-defense.

Weaver v Ward (1616 GB)

Facts: Weaver brought an action of trespass of assault and battery against Ward. Ward fired his musket during a militia drill and inadvertently injured Weaver.

Reasoning: The incident was deemed accidental/inevitable and the defendant was not found to have committed negligence.

After Williams v Holland (1833) the old trespass terms are now limited to actions involving intent such as: battery, assault, and false imprisonment.

Brown v Kendall ( Massachusetts SC, 1850)

Facts: There was an action of trespass for assault and battery. During a dog fight between both parties’ dogs the defendant struck the plaintiff while trying to break up the fight. The trial judge instructed the jury that the unless the defendant could prove that breaking up the dog fight was a necessary act, then he would have to prove that he took extraordinary care to harm the plaintiff. The jury found against the defendant and he appealed

Issue: What degree of care was exercised by the defendant to avoid the injury?

Reasoning: what constitutes ordinary care will vary with the circumstances of cases. The plaintiff must show that the defendant had unlawful intention or was in fault. The injury to the plaintiff was a pure accident. The burden of proof should have been on the plaintiff to prove that the defendant did not exercise due care. Those facts which are essential to enable the plaintiff to recover, he takes the burden of proving.

Holding: original trial overturned new trial requested

This case is an early example of the rule: liability must be based on legal fault.

Cohen v Petty (District of Columbia court of Appeals, 1933)

Facts: Cohen was riding in a car with the plaintiff (petty), the driver suddenly fainted and crashed the car causing injuries. Plaintiff cited excessive speed and reckless driving of the plaintiff as cause of the accident. Wife and the other witness of the defendant stated that he said he felt ill minutes before the crash and noted that he fainted.

Issue: was the trial judge correct in taking the trial away from the jury?

Reasoning: The defendant was stricken with an illness he had no reason to anticipate. The defendant did not show any negligence prior to the illness and the crash was caused solely by the illness.

Holding: Original verdict affirmed.

Linked cases Lobert v Pack (defendant not liable because of lack of violation in crash)

Bushnell v Bushnell (falling asleep at the wheel without being overcome by illness can be negligence) If car problem leads to unconscious driving accident; if the car problem is foreseeable it is negligence (Kohler v Sheffert)

If the driver knows of a prior condition such as epilepsy or narcolepsy they could be subject to liability (Eleason v Western) but is excusable if the condition is unknown (Moore v Capital Transit)

Rule: Reasonable Foreseeability

Spano v Perini Corp (Court of Appeals New York; 1969)

Facts: the defendants unleashed a construction blast that damaged the plaintiff’s garage. At trial the plaintiff won, but upon appeal the decision was revered.

Issue: Reconsider the rule that blast damages had to be accompanied by proof of negligence or

actual physical invasion of property.

Reasoning: The explosion was dangerous and liable to cause damage to the property or persons in the vicinity. In such a case (of extreme danger) the blasting company has absolute liability.

Holding: The appeal should be reversed.

Strict liability (absolute liability): Has been imposed on abnormally dangerous activities such as blasting and also in the manufacturing of defective products.

Strict liability-Absolute legal responsibility that does not imply negligence, carelessness, or fault.

The Three possible bases of tort liability:

A. Intentional Conduct

B. Negligent conduct that creates an unreasonable risk of causing harm.

C. Conduct that is neither intentional nor negligent but that subjects the actor to strict liability because of public policy.

Intentional Torts:

Elements of Tort:

1) fault

2) intent

3) damages

4) causation

Normative – moral right and wrong (aspirational goal)

Descriptive – the way it is, the statute

3 bases of tort liability:

1) Intentional conduct- substantial certainty, intent to cause action (esp for assault)

2) Negligent conduct that creates an unreasonable risk of causing harm

3) Strict Liability: reserved for very dangerous activities; conduct that is neither intention or negligent but that subjects the actor to strict liability because of public policy

-children can have intent

*you can be doing something lawful and without intent and still be held responsible

*Possible that a person might not be liable for an accidental injury that occurred without that person’s fault

*what is reasonable under the totality of the circumstances? Ordinary care depends on circumstances.

-if the act was unintentional and lawful, plaintiff must prove absence of ordinary care

-ordinary care: the degree of care that prudent and cautious persons would use under the circumstances to avoid causing harm to others

*A driver who is suddenly stricken by an illness that he had no reason to anticipate is not chargeable with negligence

*Absolute liability in almost all blasting cases

-strict liability: imposing liability without proving fault (absolute liability)

-typically applies to abnormally dangerous activities and products liability cases

Chapter II. Intentional Interference with Person or Property


Types of Intentional Torts: Battery, Assault, False Imprisonment, IIED, Trespass to Land, Trespass to Chattel, Conversion

(Intentional Torts Elements: Act, Causation, Intent)

A) Intentional torts require intent on behalf of the tortfeasor

B) Intent: denotes that the actor:

1) Desired to cause the consequences of his act OR

2) Believes the consequences are substantially certain to result from act (recklessness is NOT enough)

a) If a tortfeasor knows with substantial certainty that a particular effect will occur as a result of his action, she is deemed to have intended that result.

b) Anything less than substantially certain means NO intentional tort!

offense; you do not have to have intent to cause harm. You must intend to cause one of them. You can have harmful battery or you can have offensive battery).

Restatement (Second) of Torts

1) Harmful Contact – An actor is subject to liability to another for battery if:

i) he acts intending to cause harmful or offensive contact with the person of another, or an imminent apprehension of such contact, and

ii) a harmful contact with the person of another directly or indirectly results

NOTE: With this, if you intend to cause imminent apprehension of intent, you have satisfied the first element (i). So, a fake punch would count, if your intent is to scare them and not actually touch them, this is still intent.

2) Offensive Contact – An actor is subject to liability to another for battery if:

i) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact, and

ii) an offensive contact with the person of the other directly or indirectly results.

Battery-when an actor acts intending to cause a harmful or offensive contact with the person or other third person, or an imminent apprehension of such contact. And the intended offensive contact actually occurs.

3) Definitions: Bodily Harm § 15: Bodily harm is any physical impairment of the condition of another’s body, or physical pain or illness. Offensive Contact – bodily contact is offensive if it offends or harms a reasonable sense of personal dignity. Would an ordinary person not extraordinarily sensitive find the contact offensive? (i.e. Objectively Offensive)

I) Wallace v. Rosen (2002) – in the middle of an unannounced fire drill at a high school, the π was standing at the top of the stairs talking and did not get out of the way or move to evacuate building. ∆ teach ver trying to get her students out of the building touched π on the back to get her attention and tell her to move. π alleged ∆ pushed her down the stairs and sued for battery.

A) “As Holmes observed, even a dog knows the difference between being tripped over and being kicked”. This is also the key distinction between negligence and intentional torts.

B) The mere knowledge and appreciation of risk – something short of substantial certainty – this is not intent.

C) To constitute battery, ∆ needed the intent to bring about a result which would invade the interests of another in a way the law forbids.

D) This case introduces the Crowded World Theory (aka Crowded World Accommodation)

1) Consent is assumed to ordinary contacts which are customary and reasonably necessary to the common intercourse of life.

2) The time, the place, and the circumstances under which the act is done, will necessarily affects its unpermitted character, and so will the relations between the parties. We must consider the totality of the circumstances (reasonable person)

3) Policy reasons: we like the stuff we get from having a crowded world, and what we allow that is bad (touching) to get what we want (public transportation) tells us a lot about who we are as a society. Understanding what we are willing to accept for progress in the face of human dignity is essential to tort law.