Torts Boyd Fall 2016
Torts: A civil wrong, other than a breach of contract, for which the law provides a remedy.
Purposes: To provide peaceful means for adjusting the rights of the parties “take the law into their own hands”, deter wrongful conduct, encourage socially responsible behavior, vindicate individual rights of redress, to restore injured parties to their original condition.
Hulle v.Orange = protecting property, lawful action causes damages = still liable
Weaver v. Ward = fault without intent = negligence (soldier accidentally shoots during training)
Brown v. Kendall = Burden on defendant = plaintiff must come prepared with evidence to show unlawful intention, fault of defendant, show lack of ordinary care by defendant. Burden should be on plaintiff. (error in trial instructions)
Ordinary Care: degree of care which prudent and cautious men would use, such as necessary to guard against probable danger.
Cohen v. Petty= involuntary act (fainting at the wheel), plaintiff failed to show actionable negligence.
Spano v. Perini Corp = absolute liability by blaster (inherently dangerous act they are liable even when acting with caution and without intent)
Bases of Tort Liability
Negligent conduct which causes unreasonable risk of harm
Neither intentional nor negligent but subject to strict liability due to public policy
Intent: Desire to cause certain immediate consequences
Intent to make CONTACT not to cause harm
Rule: person acts with purpose of producing consequences (specific intent) or person acts knowing that the consequence is substantially certain to occur (general intent)
*If conduct merely creates a foreseeable risk of harm (may or may not be realized) then conduct may be negligence or reckless, but not intentional.
*Children and Mentally ill liable for torts if all elements of the tort can be proven
A mistake or an accident (good faith) does not negate intent, Thomas v. Smith shooting dog mistaken for wolf
Intent to contact sufficient to hold liable
Intent can transfer between people and between torts (Talmage v. Smith, kids on shed threw stick)
Intentional torts do not require proof of damage (negligence does)
Battery: the knowing or intentional touching of one person by another in a rude, insolent, or angry manner.
Plaintiff must prove defendant intended to make contact with substantial certainty (general) or acted with a purpose (specific) (Garratt v. Dailey)
Directly or indirectly; harmful or offensive contact (if unintentional = negligence anaylsis)
Would offend or harm reasonable sense of personal dignity (including accessories/ things in hand, Fisher v. Carousel)
Assault: the intentional; unlawful offer to touch in a rude or angry manner to create in the mind of the plaintiff, a well-founded fear of an imminent battery coupled with the apparent and present ability to effectuate the attempt.
An act by defendant creating a reasonable apprehension in plaintiff (apprehension does not mean fear)
Words alone are not enough; it is enough that the defendant has the apparent ability to commit battery (Western Union v. Hill, drunk clock repair, reaches hand)
Immediate harmful or offensive contact (future threats not valid) (reasonably offensive, not for oversensitive)
Intent to create the immediate apprehension of contact or intent to commit the battery
Can have battery or assault or both, one does not imply another
False Imprisonment: the intentional confinement of another to a bounded area where the plaintiff is either aware of the confinement or harmed by it.
An act or omission on the part of the defendant that confines or restrains plaintiff
Physical Barriers, physical force, threats of force, failure to release, and invalid use of legal authority are acts of restraints (moral pressure and threats do not count)
Time is irrelevant (Fear of losing job not enough)
Shopkeeper privilege (if reasonable belief of stolen merchandise)
Must know of the confinement
er, wrongful detention, and substantially changing, severely changing, severely damaging, or misusing chattel
The longer the withholding period and the more extensive the use, more likely to be conversion
May recover damages (fair market value at time of conversion) or possession (replevin)
*Biggest difference between TTC and Conversion is the severity of the damages that might warrant full value compensation. Both require damages and are applied to possession of movable/tangible things.
Consent: not a privilege necessarily but an exception
Rule: Consider overt acts of the plaintiff and the surrounding circumstances, including customs and rules of play, and look to the culture and the environment
Don’t have to consent to the harm, but consent to the conduct
Within rules of the game (Hackbart v. Bengals)
Motive doesn’t matter intent to contact
Consent obtained by fraud is not valid consent (DeMay v. Roberts)
Self Defense: To use reasonable force to defend against threatened battery
Retaliation: when battery is no longer threatened privilege terminates
Reasonable belief: reasonably believes that force is necessary to protect himself against battery
Provocation: insults, verbal threats, or other language are not enough for self defense
Amount of Force: Limited to what is reasonably necessary for protection
Can use deadly force if slightest reasonable doubt retreat cannot be safely made
Defense of Others
Only when person needing defense is privileged themselves. Person can step into shoes of the privileged (can’t mistakenly defend the aggressor)