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

UNiversity of south carolina school of law
Torts I Outline
Fall 2006
Professor jacqueline Fox
Textbook- Prosser, wade, & Schwartz

I. Chapter 1: Development of Liability Based upon Fault

A. Introduction
1. Tort – a civil wrong, except for breach of contract, for which the law provides a remedy in the form of damages
2. Principally developed through the common law
3. Purposes of Tort Law
i. Provides a peaceful means handling grievances
ii. Deterrence of wrongful conduct
iii. Encourage socially responsible behavior
iv. Indemnity – restore injured parties to their previous condition
4. Historical Origins
i. Not truly known, just many theories
ii. Theory – originated with liability based on actual intent and culpability
iii. Theory – began by imposing liability on those who caused physical harm
iv. Law did not consider intent of the actor as much as the loss to the injured party
5. Forms of Action
i. Early law based solely on issuance of writs
ii. If action did not fit a form, could not seek relief
iii. Writ of Trespass
a. Criminal character, only applied in cases of forcible breaches of the peace
b. Purpose primarily for punishment, but grew to provide some remedy
c. Later guilty ∆ could purchase release, remedy to the π
iv. Writ of Trespass on the Case
a. Applied to the chancellor when no other writ could be found
b. Birthplace of modern tort actions
v. Distinction; Ex. Tree thrown onto road
a. Trespass only lies for direct and forcible injuries (man hit by tree)
b. Case only lies for other tangible injuries (man comes later and falls over tree)
B. Introductory Cases
1. Anonymous 1466 (Held Liable)
i. Liable Regardless of Fault – If a person takes action, he is bound to do it in such a manner to avoid causing injury or damage to others
ii. This principle applies regardless of:
a. Whether the action was lawful, or
b. Whether the injury occurred without the actor’s intent
iii. Note – One of the earliest cases in tort law
2. Weaver v. Ward 1616 (In military exercise, soldier accidentally shot another soldier. Held liable)
i. Significance – First case that recognized that a person might not be liable for an accidental injury that occurred without that person’s fault
ii. Tort law gives damages according to loss (almost strict liability)
iii. Unlike criminal cases, which require a felonious mind, torts do not require intent
iv. Δ cannot be excused for a tort unless the Δ is without fault
3. Brown v. Kendall 1850 (∆ was attempting to separate two fighting dogs with a stick, when the Δ backed up, swung

er Absolute Liability. Lower courts directed verdicts for the Δ)
i. Main Point – Illustrates liability without fault
ii. Old Rule – must prove negligence in blasting cases unless the blast was accompanied by a physical trespass on the damaged property
iii. New Rule – Adopted absolute liability in all blasting cases
a. With negligence, have to prove that the defendant’s conduct was dangerous
b. Explosions are inherently dangerous
c. Question is not whether it is lawful to blast, but who should bear the risk
iv. Concluded evidence of causation of plaintiffs’ damage sufficient
v. Notes
a. Strict liability – imposing liability without proving fault
b. Typically applies to abnormally dangerous activities and products liability cases

II. Chapter 2: Intentional Interference with Person or Property

A. Intent
1. Garratt v. Dailey 1955(Child pulled a chair out from under П, causing her to fall and fx hip. П sues for intentional tort of battery)
Battery – the intentional infliction of a harmful bodily contact upon another