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University of Toledo School of Law
Slater, Joseph E.

Torts Fall 2011

Professor Slater

Introduction to Torts

1. Common law subject, dictated by case law

2. Torts:

a. Wrongdoings recognized by law as grounds for a lawsuit

b. Conduct that falls below some legal standard, criminal is typically dealt with outside of torts law but some torts are also crimes (e.g. punching in the face is battery: both a crime and tort)

c. Misc. civil wrongs that have little in common, best defined by what it isn’t: criminal law, statutory law, property, contracts. It is all of the other types of civil wrongs

d. E.g. blowing smoke in someone’s face, intentional grabbing of someone’s plate,

3. Torts law aims at vindicating individual rights and redressing private harms

a. Harm required

i. D is at some sense, at fault, either because he intends harm or because he takes unreasonable risks of harm

ii. Injured person has a “cause of action”

4. Sometimes courts will pass statutes in order to address things that are not covered in tort common law

5. Questions to ask:

a. What conduct counts as tortious or wrongful?

b. Did the conduct cause harm that the law will recognize?

c. What defenses can be raised against liability if the D has committed a tort?

6. Aims and Approaches in Tort Law: Justice and Policy, Compensation and Deterrence (thoughts on these concepts in common law and legal rules)

a. Justice, Policy, and Process

i. Morality or corrective justice ideals/policy – hold Ds liable for harms they wrongfully caused

1. By making the wrongdoer compensate the P, the accounts are “righted” between the parties

2. Society may wish to compensate injured people by the use of public funds but it cannot force one to compensation another without fault

3. Individual accountability for fault, individual freedom to act without fault

4. Fault is judged by the fairness of imposing nonreciprocal risks or as judged by deviations from accepted norms

ii. Social utility or justice – “good for all view”, system of law that rules toward the good of the society

iii. Potential conflicts between justice and policy – one must prevail or both will be compromised

b. Compensation

i. Some harm can be righted with compensation (e.g. loss of income, medical expenses) and others cannot (e.g. psychological, emotional distress)

ii. Tort liability should be strict or expansive in order to secure compensation for more injured persons

iii. Ds are seen as “risk distributors” who should be liable for any harms they cause regardless of fault because they can distribute the costs of paying compensation

iv. Compensation is not more important than corrective justice or strict liability

v. Judges feel heavily committed to a system of corrective justice and turn to social policy only when they feel social policy and corrective justice coincide and least in part.

vi. If compensation is the most important goal, tort system is not the best way because other means are cheaper

c. Deterrence/Punishment

i. Deter certain kinds of conduct by imposing liability when that conduct causes harm

ii. All persons, recognizing potential tort liability, avoid conduct that could lead to this

d. Efficiency – considerations of costs and utilities, greatest net good for the community (contrasted with fairness and justice)

e. Process

i. Rules that judges and juries can understand and apply in a practical way, and not leave too much to the judge’s or jury’s discretion

ii. Loose rule formulation may fail to constrain the judge or the jury

iii. Tight rule formulation eliminates needed flexibility

iv. Rules guide lawyers investigation and arguments

f. No-fault model of torts

i. Alternative to torts law. This can make things simpler

ii. Modern tort law – some things in modern tort law are still strict liability

Intentional Torts

1. Intentional torts are intentional bad acts

a. Effects of Classifying a Tort as Intentional

i. Intentional torts are generally deemed considerably more serious than torts of mere negligence. And yet, in certain circumstances, P is worse off if the tort committed against Ps is classified as intentional rather than negligent

1. Many insurance policies pay judgments for negligent and reckless acts but do not cover intentional torts thereby limiting the Ps potential source of recovery.

2. Another reason is that statutes of limitation for intentional torts are often much shorter than the statutes of limitation for negligent torts.

3. Ps sometimes “underplead” intentional torts to negligent torts to help the P

2. Battery

a. Elements of Battery (need 1 and 2)

i. 1 – Intent to touch

1. Subjectively wanted to accomplish a result

2. Substantially certain that an act will have a certain consequence

ii. 2 – Touch with either an intent to harm OR offend

b. Intent to touch

i. 1 – Subjectively wanted to accomplish a result OR

ii. 2 – An act must be done with substantial certainty that the contact or apprehension will result.

1. Substantial certainty – more than just realizing it is a very grave risk.

a. Grave risk may be negligent, but it is not intent.

iii. Damages – P will almost always be able to receive damages whether or not there was harm in an intentional tort

iv. Dual-intent requirement (old, not modern)

1. Intent to contact

2. Intent that the contact be harmful or offensive

v. Single-intent requirement (new)

1. If one does something that society views as offensive in order to signify intent

vi. Insanity/Incapacity

1. Whether courts adopt a single or dual intent rule may be important to cases involving children with diminished mental capacity where intent is hard to establish.

2. The US refused any blanket statement immunity for persons with mental disabilities. Might be worried about people faking it.

3. A mentally ill person may have an intent to invade the interests of another even though his reasons and motives for forming that intention may be entirely irrational

vii. Child Liability

1. In most states, children may be liable for torts they commit as long as the injured P can prove the required elements including intent. In most states, a child cannot simply escape tort liability because of young age. Age 7 is typically used as the cut-off point.

2. Parents are not liable for the torts of their children simply by the virtue of being their parents, unless: a child’s tort was committed willfully or wantonly and damages that may be obtained are limited

3. Parents are commonly alleged for negligent behavior not intentional torts

4. Often parents’ insurance policy may well cover minor children living in the household. Such a policy would pay any judgment rendered against the child.

viii. Transferred intent – the tort of battery or assault and battery may be committed, although the person struck or h

torekeepers privilege – have the right to do reasonable investigations and confine people when they are doing such investigations.

i. Storekeeper must have good faith belief that someone stole something

ii. Can only take as much time as is reasonably needed to determine if the person has stolen something or not. Once you have made a determination about the person, the privilege no longer holds.

iii. Cannot make excessive threats or use excessive force

f. Damages

i. Ps can get damages from false imprisonment (and all other trespassory torts) even if they cannot prove harm. The law provides one’s right to be undistributed from trespassory torts.

ii. You must be AWARE of the confinement in order to receive damages

iii. If suffer from harm, you don’t need to prove awareness

iv. Conclusion – need to suffer harm or be aware of confinement

g. Transferred intent applies here as a trespassory tort to trespassory tort – a person intends to commit battery but ends up falsely imprisoning, person is liable for false imprisonment

5. Torts to Property

a. Trespass to Land

i. Intentional entry upon land of another

1. Can be personal entry or intentionally causing an object to enter the land

ii. Entry must be intentional

1. No defense if you believe it is their own land or that there is a right to be there

2. Also includes substantial certainty of the consequences of trespass

iii. Trespass and nuisance

1. Trespass is an invasion of the P’s interest in the exclusive possession of his land

2. Nuisance is an interference with his use and enjoyment of it

iv. Injunction and damages

1. When physical harm is inflicted, D is liable for damages measured either by the cost of repairing damage or by the diminution in the value of the premises resulting from the tort depending on the circumstances

2. Punitive damages- if the trespass is deliberate or malicious. Liable for unexpected harm (trample rare and precious flowers)

3. Nominal damage award represents the recognition that although immeasurable in dollars, actual harm has occurred.

v. Transferred intent applies here – if you intend to enter B’s land but end up on C’s you will be liable

vi. Reasonable space above and below the land – no bright line rule for height but at a certain height, becomes navigable air space by federal law

b. Conversion of Chattels/Trover

i. Requirements:

1. D must intend to exercise substantial authority/dominion over the P’s chattel (item of tangible movable or immovable property except real estate connected with real property)

a. Authority/Dominion – Do something significantly harmful to P’s chattel or right to chattel, significantly damaging, significantly destroying, restricting access