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University of Toledo School of Law
Kionka, Ted

Torts Outline

I.         Introduction
a.                           What is Tort?
i.                                             A civil wrong, other than breach of contract, that involves a breach of duty for which a remedy may be obtained usually in the form of damages; a breach of duty that the law imposes on persons who stand in a particular relation to one another (not a criminal wrong; often, same conduct can be both, though)
ii.                                             Wrongs recognized by law as grounds for a lawsuit; involves conduct that falls below some legal standard
b.                           Goals of Tort System
i.                                             To compensate injured “plaintiffs” (shift money from tortfeasor to P in appropriate situations)
ii.                                             To deter tortious conduct
1.                                                   General – people in general will try in advance to conform their conduct so they are not subject to liability
2.                                                   Specific – if you are subject to liability for a tort, will be more careful in future
iii.                                             To impose the costs of liability on those who, for whatever reasons, ought to bear them, but only on those persons
iv.                                             To minimize transactions costs (who can we keep the transaction costs as low as possible?)
c.                           Broad Aims
i.                                             Morality or Corrective Justice (good justice b/w individuals; hold D’s liable for harm they wrongfully caused; what is justice? fairness)
ii.                                             Social Utility or Policy (good-for-all-of-us view; concern is not justice to individual; it is to provide a system of rules that works toward good of society)
iii.                                             Procedural Efficiency (rule should be a workable rule; rules should be made with legal process itself in mind; must not leave too much to judge’s or jury’s discretion)
iv.                                             Risk Distribution (risk of any one injury is being distributed)
1.                                                   e.g. product manufacturers, could pay compensation for injuries they cause and then recoup some or all of those costs by raising price of products; each individual purchaser of products will pay a tiny fraction of the costs of injuries inflicted by those products and the injured person will not be compelled to bear the entire cost alone
v.                                             Deterrence (deter certain kinds of conduct by imposing liability hen that conduct causes harm; All persons, recognizing potential tort liability, would tend to avoid conduct that could lead to tort liability)
vi.                                             Economic Efficiency
vii.                                             Process Values (making the system more efficient)
d.                           Reasonable Minds
i.                                             If trial court finds a summary judgment, directed verdict, etc., appeals court needs to determine if reasonable minds could have differed on whether or not D could have been found negligent; if they could, then summary judgment, directed verdict, etc. was the wrong decision

II.         Intentional Torts (a tort committed by someone acting with general or specific intent; also known as “will

1.                                                   “An insane 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”
iv.                                             Need to plead that their was fault; if don’t plead that for alleging battery, will be dismissed
v.                                             Egg Shell P Rule – take P as you find them; if they happened to be susceptible to a certain injury, that’s tough
b.                           Assault – the threat and use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact; the act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery
i.                                             Elements Needed: (a) D intends to put P in immediate apprehension of a harmful or offensive touching, or other trespassory tort; and (b) D does put P in such imminent (no significant delay) apprehension
1.                                                   Conduct intended to cause either an offensive contact OR apprehension of an imminent battery (and which in fact does cause an apprehension of the P of an imminent battery); person has to APPREHEND an imminent battery; the word is NOT fear; assault constitutes “touching of the mind, if not the body”