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University of South Carolina School of Law
Boyd, Marie C.

Prof. Boyd
Torts  Outline
I. What is a tort?
●      Tort: A civil wrong other than a breach of contract (but can include a breach of contract); it involves property rights; “the law providing civil regress for interpersonal wrongs and sometimes institutional wrongs.“  This is almost always in the form of damages for a wrongly inflicted injury
●      Tort comes from Latin word “tortus” meaning twisted.
●      Major purposes of Tort Law:
1.                   to provide a peaceful means for adjusting the rights of parties who might otherwise “take matters into 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, by compensating them for their injuries
5.                   to vindicate individual rights of redress.
3 Differences between Criminal Law and Tort Law:
1. Punishment:
Criminal Law: In criminal law, a guilty defendant is punished by either
(1) incarceration in a jail or prison,
(2) fine paid to the government, or, in exceptional cases,
(3) execution of the defendant: the death penalty. Crimes are divided into two broad classes: felonies have a maximum possible sentence of more than one year incarceration, misdemeanors have a maximum possible sentence of less than one year incarceration.
Tort Law: In general, a losing defendant in civil litigation only reimburses the plaintiff for losses caused by the defendant's behavior.
In a civil case under tort law, there is a possibility of punitive damages, if the defendant's conduct is egregious and had either
(1) a malicious intent (i.e., desire to cause harm)
(2) gross negligence (i.e., conscious indifference), or
(3) a willful disregard for the rights of others. The use of punitive damages makes a public example of the defendant and supposedly deters future wrongful conduct by others.
Punitive damages are particularly important in torts involving dignitary harms (e.g., invasion of privacy) and civil rights, where the actual monetary injury to plaintiff(s) may be small.
2. Initiation:
Criminal Law suits are initiated by the government.
Torts suits are initiated privately
3. Standard of guilt:
Criminal Law:
– Burden of proof is ALWAYS on the state
– In criminal litigation, the state must prove that the defendant satisfied each element of the statutory definition of the crime, and the defendant's participation, “beyond a reasonable doubt.”
Tort Law: In civil litigation, the burden of proof is initially on the plaintiff. However, there are a number of technical situations in which the burden shifts to the defendant. For example, when the plaintiff has made a prima facie case, the burden shifts to the defendant to refute or rebut the plaintiff's evidence.
            – there must be evidence that the defendant is guilty or liable more likely than not.
A. Factors affecting liability:
1)  recognized need for compensation- determines when compensation is require,
2) moral aspects of defendant’s conduct
B. The law of torts seeks to purify the imbalance of what has happened to the victim, to restore the victim to her pretort event.
C. Torts can be divided into three categories:
 1) intentional torts- torts based on intentional conduct
 2) negligence (85%)- torts arising out of an unreasonable risk of harm
 3) strict liability-not negligent or intentional but subjects actor to liability        
4) product liability- borrows from negligence and strict liability     
Chapter I: Development of Liability Based Upon Fault
a) Definition- denotes that the actor
1) desires to cause consequences of his act,
2)or believes that the consequences are substantially certain to result from it; desire or purpose to bring about a physical/emotional effect
– If an actor is less than substantially certain that an act will result in an effect, the actor may be liable for negligence.
Substantial certainty- knowing that a particular effect will occur as a result of her action.
            *NOT high likelihood. Reckless by defendant is not enough to constitute intent.
b) General: intent refers to these two elements, not a person’s mental state
a.       Desire/purpose to cause offensive/unlawful/harmful consequences (specific)
b.       Know with substantial certainty that harmful consequences will result (general)
c) Cases & Rules
            1) Hulle v Orange- Case of Thorns (King’s Bench 1466)
            Rule: One who voluntarily does an act that results in damages to another is responsible for the damages even if the act was lawful. Since D’s actions caused P’s damages, he is liable in tort.
**Case demonstrates an example of strict liability for damages related to trespass. The intent to do the act was sufficient. Even if the act is lawful, the party who performs the act is strictly liable for all the damages arising from an entry onto the land of another.
            2) Weaver v. Ward (King’s Bench 1616)- 2 soldiers where one accidentally shot the other
Burden of production: The duty upon a party in a legal proceeding to introduce enough evidence relating to an assertion of fact to have the issue be considered by the fact-finder rather than summarily dismissed or decided;
Burden of persuasion: the facts a party must plead and prove in order to prevail on a particular issue; and how persuasively the party must prove those facts. 
Burden of proof- The necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised between the parties in a cause.
            Rule:  A defendant may not be liable in a trespass action if it is purely accidental, inevitable, or without negligence and the burden of proof is on the defendant.
– Defendant liable in this case because of failure to sustain burdens of proof and persuasion.
** Case adds there are situations where defendant may not be liable → introduces the concept of liability without fault.
            3)Brown v Kendall- (Supreme Jud Court of Mass 1850)- 2 dogs fighting, in effort to break it up, defendant hits plaintiff with stick.
            Rule: When a Defendant unintentionally injures another while undertaking a lawful act, the Plaintiff must prove that the Defendant acted without due care as adapted to the exigencies of the circumstances.
            – the burden of proof is on the plaintiff.
4) Cohen v. Petty (Court of Appeals DofC 1933) Defendant injured in car accident when plaintiff suddenly fell ill behind the wheel.
Rule of Law: When a Plaintiff fails to show any actionable negligence on the part of the Defendant, and the Defendant’s uncontested evidence shows the injury resulted from a sudden, unforeseeable illness, a verdict is properly directed for the Defendant.
●        The plaintiff failed to meet the burden of proof.
5) Spano v Pe

has no right to commit such an act. The conduct is still seen as one that is antisocial.
– If an actor intends to inflict an intentional tort upon one party and accidentally harms a second party, the actor   can be held liable to the second party for battery under the doctrine of transferred intent.
– If an actor intends an act against a party and that act impacts upon another the actor is liable for the injuries suffered. The fact that the injury resulted to a party other than was intended does not relieve the defendant from responsibility. Smith will not be relieved of liability because he intended to injure someone else.
●        Doctrine of transferred intent- if any 1 of the 5 intentional torts committed, transferred intent applies.
○    Assault
○    Battery
○    False imprisonment
○    Trespass of land
○    Trespass to chattels
2. Battery
11) Cole v Turner (Nisi Prius 1704) Old standard for in trespass for assault and battery.
Rule of Law: 1. The least touching of another in anger is a battery.
2.If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently it will be no battery.
3. if any of them use violence against the other, to force his way in a rude inordinate matter, it is a battery; or any struggle about the passage, to that degree as may do hurt, is a battery.
      *Focus on direct damage
            12) Wallace v Rosen: (Court of Appeals of Indiana, 2002) Teacher pushes plaintiff with broken leg out of way in effort to get class out during fire drill. *Intent is key
Rule of Law: Consent to ordinary personal contact is assumed for all contacts that are customary and reasonably necessary to the common intercourse of life, and in such circumstances, no intent to unlawfully invade another’s interest will be found. The touching was not “rude, insolent, or angry”.
*intent is key
a) Battery (§13): An actor is subject to liability to another for battery if:
a) 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
b) a harmful contact with the person of the other directly or indirectly results.
b) Bodily Harm (§15): Bodily harm is any physical impairment of the condition of another’s body, or physical pain or illness
c) Character of Intent Necessary (§§ 16 and 20): If an act is done with the intention of causing offensive/harmful, or putting another in apprehension of either harmful/offensive contact, but the act causes a bodily contact, the actor is liable for battery although it was not done with the intention of bringing about the resulting bodily harm or offensive bodily contact. Battery is a transferable tort. (Talmage v. Smith)