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Torts
University of Toledo School of Law
Kionka, Ted

Torts Outline


I.      Generally–
a.      What is a tort?
i.      A civil proceeding, for the which the law provides a remedy for a wrongful act.
b.      Is wrongfulness related to justice?
i.      Justice is NOT found in the outcome, if is found in the procedure, and the process we use in achieving the outcome.
1.      The procedure must be uniform and consistent.
c.      Three Theories of Culpability? 
i.      Intent
ii.      Negligence
iii.      Strict Liability
d.      Consent to Contact –
i.      Everyday we implicitly consent to ordinary types of contact. This prevents the extra ordinary sensitive person from claiming battery.
e.      Proximate Cause –
i.      All intentional torts are crimes. Thus, if the plaintiff can prove intent, the law will presume proximate cause.

II.      Intent–
a.      Generally –
i.      Intent is not a tort. You must identify a larger issue, such as battery, into which you include the discussion of intent.

b.      Two tests for intent – (it is necessary to apply BOTH)
i.      Purpose of Causing the contact –
1.      Look to see if the actor acted with the purpose of causing the contact.
ii.      Substantial Certainty –
1.      Look to see if there is knowledge on the part of the actor that such contact is substantially certain to be produced.
a.       Knowledge beyond knowledge.
2.      Distinguish from Negligence –
a.       Substantially certain requires knowledge beyond knowledge, while negligence just requires knowledge.
b.      Mere knowledge equates with Foreseeability, which equates with negligence.
c.      Mistake –
i.      As a general Rule, mistake will not negate intent when the requisite intent is found, even if made in good faith. (movie theater hypo)
1.      Although mistake may not negate the existence of intent, it may be relevant with regard to the defenses the Δ may raise.
d.      Non-relevant Considerations –
i.      Motive, ill will, and volition are NOT relevant in determining intent.

e.      Insanity –
i.      Majority Rule –
1.

obvious, such as an actual injury.
3.      Contact –
a.       The contact can be direct or indirect. (If you touch something so closely associated with that person that it is deemed to be a product thereof).
i.      Note, you do NOT have to be conscious of a battery, you could be sleeping.
ii.      Offensive –
1.      Intent –
a.       Defendant had to intend the contact. Even if they didn’t intend the harmful contact, they just had to intend that the contact occurred. Apply the two intent tests.
2.      Offensive –
a.       Look to time, area, relationship between parties, and surrounding circumstances to see if a reasonable person would have been offended. The law will not protect the extra sensitive person.
3.      Contact –
a.       The contact can be direct or indirect. (If you touch something so closely associated with that person that it is deemed to be a product thereof).
Do not have to be conscious of a battery, you could be sleeping.