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University of Toledo School of Law
Rapp, Geoffrey C.



Fall 2012

I. Tort Law in General

A. Tort Defined – actionable wrong. A tort is a civil lawsuit where defendant’s conduct must satisfy particular elements. Determination is of liability or lack thereof as determined by a preponderance of the evidence. Damages suffered affect level of recovery by plaintiff.

B. Guiding Principles

1. Compensation for injured persons

2. Optimizing incentives (prevent bad/encourage good)

3. Punishing injurers

4. Expressing views of right and wrong.

C. Categories of Tort Law

1. Intentional Torts – Wrongdoer had “intent.”

2. Unintentional Torts – Accidental torts based on negligence or recklessness.

3. Strict Liability Torts – Liability without fault (no negligence, recklessness, or intent required).

D. Injury/Harm

1. Injury – invasion of any legally protected interest of another.

2. Harm – existence of loss or detriment in fact of any kind to a person.

i. An injury causes harm if it has detrimental effect on plaintiff.

E. Damages

1. Compensatory – awards for harms suffered.

2. Punitive – damages intended to punish the defendant.

3. Nominal damages – awarded when plaintiff has suffered in jury but no harm.

II. Intentional Torts

A. Intent

1. Something intended cannot be negligent and vice versa.

2. An act itself can be intended despite irrational motives.

i. There is no insanity defense to intentional tort.

B. Battery – intentional tort of battery protects a person’s bodily integrity and right to be free from intentionally inflicted contact that is harmful or offensive.

1. Elements of Battery

i. Harmful or Offensive

ii. Contact

iii. With Intent

a. Intent can be desire to make harmful or offensive contact.

b. OR substantial certainty to make harmful or offensive contact.

2. Harmful/Offensive

i. In battery, claim can be made when contact is harmful, offensive or both.

ii. Contact that is offensive but not harmful is toughing that does not on its face cause physical harm.

a. Offensive touching amounts to battery when society in general would view it as offensive (objective).

b. BUT touching someone with knowledge that they are hypersensitive may be actionable even if society would not define such touching as hypersensitive (Restatement Caveat).

3. Contact – can be direct or indirect touching.

i. Examples –

a. Hitting with fist.

b. Hitting with bat

c. Blowing smoke at someone.

d. Knocking someone’s plate out of their hand.

4. Intent

i. A plaintiff can satisfy intent requirement with proof that defendant desired to cause harmful or offensive contact or was substantially certain that such contact would occur (or apprehension thereof).

ii. General intent to unlawfully invade another’s physical well being through harmful or offensive contact or apprehension thereof is required, specific intent is not.

a. The specific injury or harm does not have to be intended in order to be liable for intentional tort.

iii. Dual v. Single Intent

a. Single intent is intent for the contact which happens to be harmful/offensive.

b. Dual intent is the intent to contact and the intent to harm/offend.

· Some jurisdictions favor dual intent for battery liability. It is a defense when defendant is unable to understand offense/harm of contact (infant, senile). This is the minority opinion.

5. Must have all the elements (Intent, Contact, Harmful or Offensive)

C. Assault – Intentional tort of assault protects one’s interest in being free from the apprehension of imminent harmful or offensive contact.

1. Elements of Assault

i. Intent

ii. Apprehension

iii. Imminence of contact that is harmful or offensive

a. Conditional threats are not a defense – if defendant gives option to escape contact by performing an action he/she is still liable for assault.

b. “Mere words” are not actionable

c. Words plus acts or other circumstances make it actionable.

2. Apprehension

i. Plaintiff must subjectively be in apprehension at time of imminent contact.

ii. Objectively, apprehension must be the kind a reasonable person would have in a given situation.

3. Imminence of Contact – defined as almost at once. Without significant delay.

4. Intent – desire or substantial certainty (same as battery).

D. False Imprisonment – Defendant intentionally causes a confinement or restraint of the victim in a bounded area.

1. Elements of False Imprisonment

i. Intent

ii. Confinement/restraint

iii. Bounded area

2. Intent

i. Desire or substantial certainty

ii. Also includes transfer of intent.

3. Confinement – any of the following

i. Physical barriers

ii. Use of force or threat of force against either person or property

iii. If one omits to act (legal duty to release someone, ex. Police).

iv. Improper assertion of authority (impersonate officer)

4. Bounded area

i. In “four” directions figuratively.

ii. Area can be large

5. Victim must be aware of confinement

i. Restatement says it is actionable if harmed by confinement even if unaware.

6. No minimum amount of time

i. Damages based on value of time lost and emotional and physical harm.

7. Defenses include lawful authority and self defense or defense of others.

E. Intentional Infliction of Emotional Distress a.k.a. Outrage – Intentional extreme or outrageous act that causes severe emotional distress.

have believed he was threatened.

V. Unintentional Torts -Negligence

A. Negligence is liability with fault.

i. Negligence is our primary “accidental” tort.

ii. Fault is a lesser standard than intent

2. Elements of Negligence

i. Duty – Did D have a duty to perform to a standard of conduct?

ii. Breach – Did D not live up to duty?

iii. Causation –Did breach cause (in-fact or proximate) . . .

iv. Damages –harm?

3. Examples: carelessness, heedlessness, error of judgment as to riskiness, acts of negligence or negligent omissions.

4. Based on the reasonable person standard.

i. Objective rather than subjective “defendant best judgment.”

ii. Comes out of concern for general welfare.

5. Hand formula

i. Financial liability should only be imposed for negligence if the burden of preventing the injury does not exceed the magnitude of the injury multiplied by its likelihood of occurring.

ii. Probability of accident (P); Gravity of injury caused by accident (L); Burden of adequate precautions (B)

iii. B

6. Sudden Emergencies

i. The standard for negligence is the “Reasonable under the circumstances” test.

ii. Occasionally courts will include an “emergency” instruction to the jury, but no jurisdiction has a definitive emergency standard.

7. Children

i. Children can commit and be liable for intentional torts (battery and assault).

ii. In some states children under 7 are deemed incapable of negligence.

iii. However, where children engage in “adult activities,” they are held to an “adult standard of care.”

a. Adult activities are activities normally undertaken only by adults.

b. Policy: Children should be allowed to engage in childhood activities without fear of liability for negligence.

8. Physical Disabilities

i. If the actor is ill or otherwise physically disabled the standard of conduct is that of a reasonable man under like disability.

ii. This seems more forgiving to the actor, but sometimes disabled persons will be deemed negligent for engaging in an activity at all.

a. Contributory negligence: Behavior of P must be examined to deem whether or not P was negligent and contributed to harm or injury in addition to D’s negligence.