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


Professor Boyd

Fall 2015


Purposes of Tort Law

Means of allocating costs

To Keep the Peace
Social Responsibility

Theories of Tort Law

Economic Analysis (i.e. Hand formula)
Corrective Justice – compensation to provide a remedy for a wrong
Social Policy

Think about how the law has changed over time and how it could change in the future.
Lower Standard of Proof than in Criminal – Preponderance of the Evidence (more likely than not)
A civil wrong (other than a breach of contract)

Development of Liability Based on Fault

Fault requires injury/damage (damage à compensation without regard to intent)
Strict liability, no fault but absolute liability à liability
Fault without intent (negligence) à liability
Fault without intent and with a voluntary act à liability

Hulle v. Orynge (Case of Thorns)

Does not matter if you acted lawfully and without intent, you’re responsible
Strict liability – If there’s damage, there’s compensation without regard to intent

Weaver v. Ward

accidental, without fault, there is no liability or recovery; burden of 
proof is on ∆
Suggestion that a defendant may not be liable if there is no fault

Brown v. Kendall

an separates dog fight and hits other man unintentionally, π has burden of proof to show ∆ acted without ordinary care or unlawfully
Ordinary care changes with circumstances
∆ only liable if actions are done without due care; negligence
Was the defendant using ordinary care?

Cohen v. Petty

(∆) faints, wrecks car, injures passenger (π)
Not liable because action was unforeseeable and had never happened in the past

Spano v. Perini Corp

blasting caused damages
Failure to prove negligence does not prevent liability for damages when activity is abnormally dangerous
Strict liability


Intentional Torts:

False Imprisonment
Intentional Infliction of Emotional Distress
Trespass to Land
Trespass to Chattels


Intentional Tort Elements

Technical injury

General intent – substantial certainty
Specific intent – purpose
Bad motive is not necessary
Transferred intent

Battery, assault, false imprisonment, trespass to land, trespass to chattels
Doctrine applies when D intends any one of above torts and commits any one of these (intent transfers between the five) because D still intending to commit harm

Good faith and mistake do NOT negate intent

Held liable in the same way adults would be
Exception: some age where a child would be too young to form the requisite intent

Mental Illness

Doesn’t negate intent
Exception – institutionalized and employed institution caretaker injured

Garratt v. Dailey – Main case on Intent

∆ (minor) pulled chair out from π, π fractured hip, π sues for battery
Voluntary act is not enough alone – D had substantial certainty that P would fall
Children can be liable for intentional torts

Spivey v. Battaglia – Egg Shell P

Unsolicited hug, paralyzed P
Egg-Shell P rule

Ranson v. Kitner – Good faith and mistake do not negate intent

Hunter ∆ shoots π’s dog, thinks it’s a wolf in good faith.
Good faith is not defense – ∆ liable because he intentionally pulled the trigger
Policy issue: encourage hunters to be more careful.

McGuire v. Almy – Mental illness

entally ill ∆ attacks caregiver π with chair leg, π sues for assault and 
Insanity is not a defense as long as insane person is capable of entertaining the same 
intent and acted upon it. In this case, ∆ said she would kill π
Policy issue: In civil cases, there is not a huge risk to the ∆ (aside from $) compared 
to criminal cases (loss of liberty), thus, insanity rule is more broad and general
Intoxication does not void intent

Talmage v. Smith­ – Transferred Intent

Boys on shed, ∆ throws stick at boy, misses and hits π boy
Transferred Intent—intentionally willed his muscles to throw stick.


: Intentional infliction of harmful OR offensive contact without consent

May be recklessly committed where on acts in a reckless disregard of the consequences and the fact that a person does not intend the act resulting in an injury is immaterial
Accidental contact under negligence or strict liability
Goal: protection of personal dignity

Not necessary for D to touch P to commit battery

, Fisher
Extensions of self (something physically connected to one’s person)
Contact as necessary, but does not have to be direct contact

Objective standard – would an ordinary reasonable person see the touching as offensive?
Crowded world theory

A certain amount of person contact is inevitable and must be accepted.
Absent expression to the contrary, consent is assumed to all those ordinary contacts which are customary and reasonable necessary to the common intercourse of life, such as a tap on the shoulder to attract attention, a friendly grasp of the arm, or a casual jostling to make a passage…
Policy issue: We like the stuff that results from a crowded world thus, we allow consent (ie. touching) to get what we want (i.e. public transportation). This speaks for us as a society; understanding what we are willing to accept for greater good/ progress in face of human dignity is essential to tort law.

Cole v. Turner – foundational battery

1704 (super old) case that talks about requisites for battery
Least touching of another in anger is battery.
Narrow passage, two people passing, without any violence or design of harm, one touches the other gently, it will be no battery.
Any violence, of forceful, rude, inordinate manner, is battery. Any struggle about the passage to degree as may do hurt, is battery too.

Wallace v. Rosen

π in stairwell during fire drill; D, a teacher, is moving her class outside and touches π on back to get her attention, π then falls down stairs and gets injured.
Since Cole, battery is not angry, rude, or insolent vs. just anger.
Mere knowledge/appreciation of risk- something short of substantial certainty- this is not intent; rather, an intent to bring about a result which will invade the interests of another in a way that they law forbids- this is intent.

Fisher v. Carrousel Motor Hotel, Inc.

(server) snatches plate away from π and says, “Blacks can’t be served here.” π sues for battery.
Unpermitted and intentional contacts with anything so connected with the body as to be customarily regarded as part of the other’s person and therefore as partaking of its inviolability is actionable as an offensive contact with his person.
Not necessary to touch the π’s body or clothing- knocking or snatching anything from hands or touching anything connected with his person, when done in an offensive manner, is sufficient for battery.
Case illustrates importance of personal dignity (essence of battery).


: Intentional imminent anticipation OR apprehension of harmful OR offensive contact resulting from an overt action

has to appear to be capable of committing battery in order to commit assault
Fear not a requirement
Mental, not physical, injury

Conduct must be aimed at P OR D must have a substantial certainty that P would be affected
Conduct must be directed at bystander’s immediate family or bystanders must have physical harm to recover for IIED (D must know bystander is present)
Distinction between near emotional distress and extreme emotional distress
Objective standard – Would a reasonable person see this as extreme?

Nominal damages not available for IIED
IIED commonly shows up when ∆ has some power status (police officer, landlord, bill 
collectors, etc.) where threats go beyond ordinary means of persuasion or demands and become 
abuses of power in the nature of extortion.
Unlike most torts, the severity of the damage affects not just how much the π will 
recover, but whether the π will recover at all.

Policy issues

People have a right to be free from severe emotional distress. The ∆ must and it must be mental distress. (Some jurisdictions do still require physical manifestation of damage)
In determining if a tort actually occurred, we are not exactly concerned with how you feel, we are concerned with whether we want to call it “extreme and outrageous” and legally condemn it.

State Rubbish Collectors Ass’n v. Siliznoff

π collected trash in the ∆’s territory. ∆ threatened violence against π if he did not attend ∆’s meeting and reimburse them for the trash he collected. π promised to join ∆’s association and pay the next day so ∆ let him go home. π was very scared, became ill, vomiting for several days and missed work.
This case is severe enough. (ƥ) Ct. doesn’t want to encourage this kind of organized crime unit’s bad behavior.
No physical harm is necessary here to recover for IIED.

Slocum v. Rood Fair Stores of Florida

π shopper in grocery store asked ∆ employee for the price of an item to which he replied, “You’ll have to find out the best way you can … you stink to me.” π sued for IIED, unsuccessfully.
Not severe enough—must be extreme and outrages (see above).To qualify for IIED, conduct must result in severe emotional distress—mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not qualify.

Harris v. Jones

∆ was π’s supervisor at a factory, and was aware that π suffered from a speech impediment causing him to stutter. ∆ frequently mocked π and his condition on the job, causing him to feel distress. π sued for IIED (unsuccessful).
Lays out 4 elements of IIED
π must show that he suffered from a severely disable emotional response to ∆’s conduct.

Taylor v. Vallenlunga

π witnessed ∆ attacking and beating her father. π sued for severe emotional distress stemming from witnessing the attack. (Unsuccessful)
Intent Requirement—No transferred intent!
∆ didn’t even know π was there. Therefore, he could have no intention of inflicting distress upon her if he didn’t know of her presence. This limits recovery to a person who the ∆’s knows is present and witnessing the act.