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

Torts Outline


Fall 2013


· A civil wrong, other than a breach of contract, for which the law provides a remedy.

· Imposes duties on persons to act in a manner that will not injure other persons.

· Person who breaches a tort duty has committed a tort and may be liable to pay damages in a lawsuit.

Purposes of Tort Law:

· Provide a peaceful means for adjusting the rights of parties who might otherwise “take the law into their own hands”

· To deter wrongful conduct

· To encourage socially responsible behavior

· To restore injured parties to their original condition, by compensating them for their injury.

· To vindicate individual rights of redress.

Other Purposes of Torts:

o Provide remedy for losses

o Encourage deterrence (conduct actions in better way to prevent torts)

o Promote socially responsible behavior


o Liability based on Fault

o Weaver v. Ward (1616)

§ Fault w/o intent (negligence)

§ Defendant’s actions intentional=liable

§ Not intentional w/ fault=liable

§ Not intentional w/o fault=no liability

o Brown v. Kendall (1850)

§ Facts: 2 dogs were fighting, defendant tried to separate the dogs by hitting them with a stick. When raising the stick he hit plaintiff in the eye, injuring him.

§ Reasoning: If defendant’s action was unintentional, and done in the doing of a lawful act, then the defendant was not liable, unless it was done in the want of exercise of due care.

§ Burden of proof is on plaintiff to prove defendant was acting negligently.

o Cohen v. Petty (1933)

§ Facts: Plaintiff was riding in Defendant’s car, P alleges D failed to exercise reasonable care in its operation & drove at excessive/reckless speed. D lost control of car into embankment. P received permanent injuries. Just before accident D exclaimed to his wife, “I feel sick” & then D fainted (never fainted before) & car wrecked.

§ Holding/Reasoning: No fault when a sudden unforeseeable interference causes action.

o Spano v. Perini Corp. (1969)

§ Facts: Plaintiff owns a garage in Brooklyn, which was wrecked by a blast occurring nearby. Automobiles in the shop for repairs were damaged too. Defendants were engaged in constructing a tunnel pursuant to a contract w/ city of NY, and were doing controlled blasting.

§ Strict Liability: Can be held liable even though no intent or negligence, even if every precaution taken. Liability w/o fault.

o Holle v. Orynge (1466)

§ A man is bound to do actions in a manner that cause no harm.

§ Damage—-compensation (w/o regard to intent)

· Strict liability

§ Encourages use of the courts, not taking law into own hands.

§ Protect property.

o Conduct not foreseen is negligent, if there is a reasonable chance it could happen.

Intentional Torts:

· Elements:

o Intent

o Act

o Causation

o Technical Injry

o Elements of intent

o Was there intent

o Did action cause injury?

o Garratt v. Dailey

o ∆ pulled chair out from π, π fractured hip, π sues for battery.

o Intent?

§ Substantially certain injury would occur (general intent)

§ Purpose=specific intent

§ No bad motif needed for intent=general intent.

§ Children can be held liable

· Some age where a child is too young to be able to form intent

o Spivey v. Battaglia

o ∆ gives unsolicited hug to π at lunch break. π became paralyzed on left side of face. π sues for negligence, assault, and battery.

o Egg-shell plaintiff rule: Taking π as they are (even if highly fragile)

o With respect to assault and battery, one is deemed to intend that which is substantially certain to follow from his actions but need not intend to cause actual injury or harm. Knowledge of a risk of harm is not sufficient to establish the requisite intent.

o Ranson v. Kitner

o Facts: Defendant was hunting wolves, accidentally shot Defendant’s dog.

o Reasoning/holding: Act was a mistake, acted in good faith, but provides a remedy for mistakes. Plaintiff must show Defendant intentionally shot at something, not that he intentionally shot the dog.

o McGuire v. Almy

o Mentally ill ∆ attacks caregiver, π, with chair leg. π sues for assault and battery.

o Mental illness does not alleviate intent, unless institutionalized and harm caretaker.

§ Encourages socially acceptable behavior

o Talmage v. Smith

o Boys on shed, ∆ throws stick at boy, misses and hits π boy.

o Transferred intent: liable when intent to hit someone but instead hit some other person in a group. Transfers from person to person.

o Transferred intent between intentional torts (battery, assault, false imprisonment, trespass to land, trespass to chattels) NOT CONVERSION and IIED.

o Be held liable for actions that they weren’t intending to do.


o Intentional infliction of harmful or offensive contact with someone without consent.

o Cole v. Turner created the tort of battery.

o Wallace v. Rosen

o π in stairwell during fire drill; ∆, a teacher, is moving her class outside and touches π on back to get her attention, π then falls down stairs and gets injured.

o What would be offensive to an ordinary person not unduly sensitive as to personal dignity.

o Crowded World Theory

§ In a crowded world, a certain amount of personal contact is inevitable and must be accepted. Absent expression to the contrary, consent is assumed to all those ordinary contacts which are customary and reasonably necessary to the common intercourse of life.

o Fisher v. Carrousel Motor Hotel, Inc.

o ∆ snatches plate away from π (rocket scientist at banquet) and says. “Blacks can’t be served here.” π sues for battery.

o R 2d § 18

§ Objects closely connected w/ person is to be considered part of person.

o Damages for mental suffering are recoverable without showing physical harm.

o Direct contact not needed for battery (Garrett)


o intentional act that causes plaintiff to experience reasonable apprehension of an immediate harmful or offensive contact.

o I de Se et ux. V. W de S

o Fear is not needed for assault, only need anticipation of bodily harm/contact.

o Western Union v. Hill

o Π goes into shop where ∆ tell her to come behind the counter so he can “lover her and pet her and fix her clock.” Counter was too wide for ∆ to reach π.

o Words alone are not sufficient

o One accused of assault must also appear to have the present ability to commit the battery if not prevented.

o Point unloaded gun (that π doesn’t know is unloaded) is assault

False Imprisonment

o Unlawful restraint through force or threat of force, person confined is aware of confinement or harmed. Some jurisdictions require awareness even if harmed.

o Means of Confinement or Restraint (R 2d § 41):

o Physical barriers; or

o Force or threat of immediate force against the victim, the victim’s family or others in her immediate presence, or the victim’s property; or

o Omission where the ∆ has a legal duty to act; or

o Improper assertion of legal authority

o Misc. Rules:

o Retention of π’s property sometimes may provide the restraint necessary

o Big Town Nursing Home v. Newman

o π voluntarily taken to nursing home by nephew, admission papers said he could leave at any time. π was detained in nursing home against his will after making several attempts to leave.

o Unlawful restraint through force or threat of force

o Parvi v. City of Kingston

o Drunk π was put in the back of police car and taken to golf course to sober up. π then wandered into highway and was struck by a car. π admits at trial that he has no recollection of what happened.

o Aware at time of confinement or harm

o Hardy v. LaBelle’s Distributing Co.

o π, new employee of ∆, was accused of stealing a watch by another employee. ∆ led into manager’s office under pretense of new employee tour of the store. π questioned by manager, police, etc. and ultimately, cleared of accusation. π never asked to leave and was not told she could not leave.

o π loses this case b/c she was not compelled to stay.

iers extend above and below the ground for a reasonable amount.

o Rogers v. Board of Road Com’rs

o Pursuant to license. ∆ placed a snow fence and posts upon π’s husband’s property with the understanding that it would be removed at the end of winter. ∆ did not remove the fence at the end of winter, and π’s husband was killed by an accident involving the fence’s continued presence of his property. π sued for trespass & negligence.

o Any item left on property after consent has expired is trespass.

o R 2d § 160: A trespass can be committed by the continued presence of a structure or thing that the actor or his predecessor in legal interest placed on property if:

(a) the actor fails to remove it after consent has been terminated, or (b) after privilege has been terminated.

o Things to remember for trespass to land:

o Right to file trespass belongs to who controls the land, not owns it.

o Not checking boundaries is not a defense.

Trespass to Chattels

Chattel: moveable or tangible personal property.

o An intentional act by defendant that interferes with plaintiff’s chattel, causing harm. Subject to liability to the possessor of the chattel if, but only if, (a) he dispossesses the other of the chattel, or (b) the chattel is impaired as to its condition, quality, or value, or (c) the possessor is deprived of the use of the chattel for a substantial time, or (d) bodily harm is caused.

o Elements:

o Intentionally uses/intermeddles

o With a chattel

o In the possession of another


o The chattel is impaired as to its condition, quality, or value


o The possessor is deprived of the use of the chattel for a substantial time


o Bodily harm is thereby caused to the possess or harm is caused to some person or thing in which the possessor has a legally protected interest.

o Glidden v. Szybiak

o π, a 4 year-old girl, encountered a dog owned by ∆. She approached the dog, climbed on back and pulled his ears. The bog bit π, and she sued to recover for her injuries. ∆ argued that π, in playing with the dog, had committed trespass to chattels and was thus not entitled to recover.

o Actually have to show harm to the chattel for action.

o Compuserve Inc. v. Cyber Promotions, Inc.

o ∆ distributed e-mail advertisements to π’s subscribers. π requested that ∆ stop, but ∆ continued. π employed measures to block ∆’s messages, but these measures were frequently circumvented. π obtained a temporary restraining order to block the messages, and then sought a preliminary injunction to extend the duration of the blockage. ∆ argued that π’s computer equipment and service was not dispossessed, and that this prevented the issuance of such an injuction.

o Reinforces that value or condition must be effected by interference

o Things to remember for trespass to chattel:

o Trespass to chattel is quite universally limited to intentional interferences with them.

o Like the trespass to land, conduct is treated as intentional even though the ∆ acts under an innocent mistake.

o Actions cannot be maintained w/o proof of actual damages (which includes variations as stated in elements earlier.)

o Trespass to chattel survives (past conversion and other torts) as a possible remedy for interferences when the π wants to keep the chattel and sue for the harm.