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

I.       Introduction – Development of Liability Based Upon Fault
A. Purpose of Tort Law
1.      provide peaceful means for adjusting the rights of parties who might otherwise take the law into their own hands
2.      deter wrongful conduct
3.      encourage socially responsible behavior
4.      restore injured parties to their original condition
5.      to vindicate rights of redress
B. History of Tort Law
1.      Trespass – injuries or harm that was a direct result of someone’s action
2.      Trespass on the Case (most applicable to modern tort law) – injury or harm that was indirectly caused by someone’s action
C.  Three Types of Liability:
1.      Intentional Torts
2.      Negligent Liability
3.      Strict Liability
II.    Intentional Torts
A.    Intent
1.      Intentional – the D intended to bring about the result. The act, not the result must be intentional.
i.        The presence of intent to do harm is not necessary. All that is necessary is the intent to do the act that caused the harm (ex: insane person is held liable if the actions taken were intentional, no consideration of particular circumstances in most jurisdictions).
ii.      Good Faith – acting in good faith does not relieve liability if action was intentional. Good faith is defined as: a state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one's duty or obligation, (3) observance of reasonable commercial standards of fair dealing in a given trade or business, or (4) absence of intent to defraud or to seek unconscionable advantage.
2.      Substantial Certainty – intended action with an unintended consequence, but the consequence was reasonably foreseeable.
3.      Transferred Intent – if results of action are realized on a different party, there is still liability. Extends to intending to commit one tort and committing another tort. Intent can only be transferred in the following torts:
i.        Battery
ii.      Assault
iii.    False Imprisonment
iv.     Trespass to Land
v.       Trespass to Chattels
4.      Crowded World Accommodation – people have to accept a reasonable amount of unwarranted touching. All contact is not an intentional tort. Ex: Teacher pushed parent while managing a fire drill. Negligence analysis: Her main duty was to protect her students.
5.      Garratt v. Dailey – Child pulls chair out from under aunt. If he knew it was substantially certain aunt would sit and fall where chair was, then intentional battery.
6.      Spivey v. Battaglia – D gave P unsolicited hug which resulted in P’s injuries. Not substantial certainty (unintentional, negligence instead)
B.     Battery – collection of actual and punitive damages allowed
1.      Knowing or intentional, harmful touching of another
i.        Indirect counts! Touching is not limited to person. It can be anything within control of the person (purse, tray, plate, hat, car keys in hand, etc.)
ii.      Fisher v. Carousel – waiter grabbed plate from African American hotel guest.
2.      Against P’s will without consent or privilege
i.        D need not be aware of touching when it occurs (ex: kiss while sleeping or physician/patient).
3.      Rude, insolent or angry manner
4.      Special Situations:
i.        If P refuses help, but the D persists, there is a battery.
ii.      Consent to sex does not bar liability for battery (ex: STD).
iii.    Crowded world exception – due to crowded society, a reasonable amount of unwarranted touching is expected.
5.      No recovery for damages unless intent is found and conduct is found to be negligent. (ex: tripping over and hitting someone is not intentional).
6.      Current Rule: When D intentionally causes P to undergo offensive contact and the resulting injuries are more extensive than a RPP might have anticipated, D still liable for injuries.
7.      Defenses: Consent, Self-Defense, Defense of Others, Defense of Property, Recovery of Property
C.    Assault – collection of actual damages only
1.      Unlawful attempt to commit a battery
i.        P must be aware of the threatened contact!
2.      Incomplete by some intervening action
3.      Create well-founded fear of an imminent battery
i.        Words alone are usually not enough to create this threat. However, D’s past acts coupled with words may be sufficient.
4.      Apparent present ability to effectuate the attempt, if not prevented
i.        D threatens to shoot P but then leaves to get the gun. No assault.
D.    False Imprisonment
1.      Direct restraint of one person by another
i.        P must have a present awareness of restraint. In some instances a request to leave must be made to confirm restraint.
ii.      If no awareness, then there must be harm from confinement.
iii.    Confinement was in boundaries set by D.
iv.    Mere words can restrain if P fears safety if she disregards.
2.      Physical liberty of another
3.      Escape option – P must be aware of the escape option and it must present no harm. If P engages in a dangerous escape option and is injured, the D is not liable for injuries. 
4.      Without adequate legal justification
i.        False arrest – if convicted of the basis for the false arrest, then false imprisonment cannot be claimed.
ii.      Storekeeper rule – storekeeper has privilege to restrain an individual for a reasonable amount of time to ascertain if a theft has occurred.
iii.    Losing job – not enough to prove false imprisonment     (Ex: if you leave this meeting, you will be fired).
iv.    Dignitary harm – does not require injury b/c injury is to personal dignity. Ex.: D steals clothes while P is in public.
v.      Leave if you can do so safely under the totality of the circumstances.
5.      Intentional Infliction of a Confinement
E.     Intentional Infliction of Emotional Distress – extremely difficult to prove; use Reasonably Prudent Person standard.
1.      Conduct must be intended or reckless
i.        Person w/ “ordinary sensibilities,” in the absence of special knowledge, is used as the test.
ii.      More protected groups (vulnerability is greater):
a.       Children
b.      Elderly
c.       Pregnant Women
d.      Rape Victims
e.       Pet Owners
2.      Conduct must be extreme and outrageous
                                                                                      i.      Grossly offensive conduct – most times even this type of conduct is not actionable.
3.      Causal connection between conduct and emotional distress
                                                                                      i.      Substantial Certainty

Privileges –
                  A.        Consent
                              1.         Express- if given by the P, then the D is not liable.
i.        If consent is given based on fraud or misrepresentation, then it never existed.
ii.      P must have the capacity for consent.
iii.    If consent is to a criminal act, then consent never existed. (ex: P and D agree to fight each other)
iv.    DeMay v. Roberts – Pregnant bedridden woman has doctor make house call; he brings a friend; liable b/c she did not consent to have non-doctor present.
2. Implied – may be given through P’s conduct, custom, physical acts, or from circumstances. Objective manifestation is what counts, not thoughts or intention. 
v.      Medical personnel may act in absence if (presumed consent):
a.       Patient is unable to give consent.
b.      Risk of serious bodily injury
c.       Reasonable person would consent.
d.      Patient would not have ordinarily refused treatment.
e.       Current rule – Informed Consent: Patient can limit or withdraw consent.
3.      Intoxication – Liable for intentional torts; not a defense against an intentional tort; people cannot harm you; cultural norms – sex among acquaintances
B.  Self-Defense – Person is entitled to use to defend against a threatened battery. Criminal law rules apply.
i.        Reasonable mistake = still privileged
1.  Reasonable force
ii.      Deadly force is never authorized unless in danger of serious bodily harm or the attack is inside one’s dwelling.
iii.    If in the act of defense, the D mistakenly injures an innocent third party, the D is not liable.
2. To prevent a battery
iv.    Harm may be actual or perceived.
3. That is imminent
v.      Words alone will not create the threat.
4. Castle Doctrine – don’t have to retreat from your own home.
C.  Defense of Others
5.  Privilege is extended if the D herself would have been threatened   under the same circumstances.
vi.    reasonable force rule still applies
vii.  reasonable mistake = still privileged
viii.jurisdiction split to judge reasonableness
a.       some courts judge acts from the third party from D’s viewpoint.
b.      other courts look at the situation from the victim’s viewpoint.
c.       privilege shifts in a fight; what is reasonable?
D.  Defense of Property
                  1.  Reasonable force – only what is necessary; never deadly force.
ix.    deadly force can be used if physical harm is threatened or imminent which shifts the situation to self-defense.
x.      cannot eject someone into danger unless his or her presence presents some danger to you (ex: contagious illness).
xi.    must issue warning unless harm appears imminent.