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University of South Carolina School of Law
Hubbard, F. Patrick

TORTS OUTLINE-Hubbard-Fall 2013
Tort is a civil wrong other than a breach of contract, which the law provides a remedy.
Purpose of a tort:
1.      to provide a peaceful means for adjusting the rights of parties who might other wise “take the law 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 injury
5.      to vindicate individual rights of redress(remedy or rectify)
1.      Trespass to real property: intruding on someone’s property/real estate without permission of legal owners
2.      limitation of actions or statute of limitations: period of time to file certain suits
3.      wrongful death action: suing due to cause of death due to negligence
4.      liability: state of being responsible for something (ie a wrong done in practice)
5.      writ of trespass: a person claims damages for a wrong committed against his person or any tangible/corporeal property
6.      writ of trespass on the case: party sues for damages for any wrong or cause of complaint to which covenant(contract) or trespass will not apply…many torts fall under this like deceit, defamation, negligence
a.       Require intent on behalf of tortfeaser. Intentional tort elements: Act, Causation, Intent)
b.      Believes the consequences are substantially certain to result form act
                                                              i.      If a tortsfeasor knows with substantial certainty that a particular effect will occur as a result of his action, she is deemed to have intended that result
                                                            ii.      Anything less than substantially certain means NO tort.
                                                          iii.      Recklessness would take away intent
                                                          iv.      How do we measure intent? Subjective.
                                                            v.      Liability would stand for a harmful act with no intent under negligence.
I)  Garratt v. Daily Supreme Court of Washington, 1955 (Justice Hill)
Facts: Ruth Garratt (π) is suing ∆ Brian Daily (age 5 and 9mths) for battery. Lawn chair à broken hip.
 A) If the child knew with substantial certainty that π would fall, he had the requisite intent for battery.  (just the voluntary act is not enough).
II) Spivey v. Battaglia Supreme Court of Florida (1972) – during a lunch break at work, ∆ gives π an unsolicited hug.  π suffered a sharp pain in her neck and became paralyzed on the left side of her face.  π sued for negligence, assault and battery.
A) General Rule:  Intent is when a reasonable person would believe that a particular result was substantially certain to occur.  Knowledge of a risk, short of substantial certainty is insufficient for intent.  The distinction is the difference being something is substantially certain, and something is just foreseeable (anything is a possibility). 
B) Here, the bizarre result of her being paralyzed was not substantially certain.
III) Ranson v. Kitner Appellate Court of Illinois (1889) – hunters killed π dog, they thought in good faith that it was a wolf.  ∆ hunters held liable for the value of the dog.
A) ∆ liable despite acting in good faith
B) Intent: ∆ was substantially certain they would kill an animal, it did not matter that they made a “mistake” and mistook the animal’s identity.  (The fact that the animal they killed was a dog instead of a wolf, did not negate their intent to kill).
C) Generally, mistake of identity does not negate intent.  (Keep in mind mistakes regarding privileges are different.  For example, the mistaken belief that you are being attacked warrants self defense).
D) Policy Issue: encouraging hunters to be more careful.
IV) McGuire v. Almy Suprmem Judicial Court of Massachusetts (1937) – mentally ill woman attacks her caregiver with a chair leg.  π caregiver sues for assault and battery.
A) The insane are still liable for their intentional torts, to the same extent as a normal person, as long as the insane was capable of entertaining the same intent and must have actually entertained that intent.
B) If the insanity results in an inability to know with substantial certainty that the consequence will occur, the ∆ insane person will not be held liable.
C) Policy type issue: In civil cases, there is not much risk to the defendant – just parting with money (compared to in criminal where there is loss of liberty involved).  So, in civil cases, we’ve made this rule regarding insanity extremely broad and more general. 
D) Note: Intoxication does not void intent.
V) Talmage v. Smith Supreme Court of Michigan (1894) – boys were sitting on top of ∆’s shed.  ∆ threw a stick at a particular boy, but missed that boy and hit another in the eye.  He intended to hit one party but instead hit π.
A) Introduces the doctrine of transferred intent: allows intent to be transferred among victims.
B) The court gets around ∆’s aiming problem with this: As long as the ∆ had the requisite intent to hit someone, that intent can be transferred to whomever he did hit.
C) Transferred Intent doctrine is based upon the notion that one should not be allowed to escape liability for wrongdoing simply because someone other than the intended target was injured. This shows once again that tort law is not overly preoccupied with intent to cause a specific injury to a specific party – the overriding concern is with wrongful conduct.
**Transferred Intent**
A) Transferred intent applies to Five Intentional Torts:
1) Assault, Battery, False Imprisonment, Trespass to Land, Trespass to Chattels
B) If a tortfeasor has the intent to harm one person, but instead harms another, he is liable for that harm to the other person for any intentional tort that results. 
1) For example, D shoots at A and accidentally hits B.  D is liable to B for the intentional tort of battery.
C) If a tortfeasor intends to commit one tort, but unintentionally commits another, he is liable for that other intentional tort, because the intent transfers from one tort to the next.
1) For example, A swings club at B, intending to frighten him, but a

ttery – the intentional snatching of an object from one’s hand is as clearly an offensive invasion of his person as would be an actual contact with the body.  It is not necessary to touch the plaintiff’s body or clothing, knocking or snatching anything from plaintiff’s hand or touching anything connected with his person, when done in an offensive manner, is sufficient.
B) This ∆ is held liable – this case is basically saying, you can snatch a plate and offend somebody and it will be considered offensive contact battery.
C) Case illustrates the importance of personal dignity, and this is the essence of a battery
NOTE: LOOK FOR ACCESSORIES (ex. Coats, ties, hats, etc.)
DEFENSES – Consent, Self Defense, Defense of others, Defense of property, Recovery of property.
            A) An actor is subject to liability to another for assault if:
i) he acts intending to cause a harmful or offensive contact with the person of  or an imminent apprehension of such contact, and
ii) the other is thereby put in such imminent apprehension
B) Harm threatened must be imminent- immediate in time, close in space, actual not potential.  Imminent apprehension exists when the victim (assault is in the mind of the victim), believes that immediate harmful or offensive contact will result.
C) Dealing with the extra sensitive π – no liability for making threats that would not satisfy requirements for assault if made to a typical person, unless the ∆ is aware of the π extra sensitivity and still does the act.
D) Words alone are not sufficient – words coupled with an act could be enough.  (Combination of hand in pocket and ‘I’m gonna kill you’ could put somebody in reasonable apprehension of imminent harm.  But, just ‘I’m gonna kill you’ is not enough).
E) Can have batter and assault separately or together present in one offense.
F) Person must be AWARE of assault unlike battery. 
I) Western Union Telegraph Co. v. Hill (1933) – ∆ clock repairer told π’s wife to come behind the counter so he could love and pet her and fix her clock. 
A) Assault: Assault must be intentional, unlawful, offer to touch the person of another in a rude or angry manner under such circumstances as to create in the mind of the π alleging the assault a well founded apprehension of an imminent battery coupled with the apparent and present ability to effectuate the attempt if not prevented.
B) Policy Issue: The idea is we have a right to be free from assault to our human dignity.  This is also an incentive not to unleash chaos.
NOTE: Remember, this is an intentional tort – the actor has to intend!