Select Page

University of Wyoming School of Law
Burman, John M.

I. Introduction to the Study of Tort Law
                A. What is a tort?
1. Tort: civil wrong for which the law recognized a legal remedy on behalf of a private individual.
2. The focus is on the wrong against society at large
3. Primary purpose is to provide a legal mechanism whereby the individual victim of the tortuous misconduct can recover monetary damages to compensate him or her personally for actual injuries.
4. Tort law developed as a way of remedying those unique wrongs that do not rise to the level of truly criminal misconduct at one extreme, nor for which the common law provided a remedy under other causes of action.
B. The Casebook Method of Studying Torts
                1. The majority of American Tort law is derived from common law court decisions.
2. Our purpose in studying these appellate decisions is to understand the precise process by which appellate courts resolve legal disputes.
                C. Procedural Stages of a Typical Tort Case
1. Complaint is filed: puts def. on notice as to the specific facts and circumstances of the claim, as well as what type of relief the plaintiff is seeking to obtain from the court.
2. Motion to dismiss, aka demurrer, def. believes there is no legal basis for the case to continue
3. Answer is filed: def. admits or denies each specific allegation asserted in the Complaint.
4. Discovery: written questions to seek further details about the opposing sides.
5. Motion for Summary Judgment: asks the trial court to rule in favor of movant as a matter of law, not allowing trial to proceed. Adds additional facts to establish there are no disputed material facts.
6. Motion in Limine: limits or controls the direction the trial will take in regard to an issue or evidentiary matter anticipated.
7. Section of a Jury: voir dire
8. Motion for directed verdict: challenge the sufficiency of the evidence that has been presented, after evidence.
9. Motion for judgment, N.O.V: made after jury has returned a verdict, gives judge one last chance to change mind
10.   Motion for a new trial: gives judge last opportunity to correct serious legal errors.
11. Final Judgment: verdict is not final until it has been approved by trial judge
                D. Development of a Fault-Based Tort Liability
                                1. If plaintiff was not required to prove intent or negligence, liability was described as strict.
                                2. If intent or negligence required, plaintiff must prove def. was at fault.
II. Intentional Torts
                A. Battery: the intentional tort that protects a person’s interest in freedom from unwanted bodily contact.
                I. Intent
1. Elements: (1) the defendant acted; (2) that the act was done with the intent to cause a harmful or offensive contact with another; and (3) that harmful or offensive contact actually resulted.
2. Garratt v. Dailey case, question of five year old having intent
3. -Two ways to prove intent: subjective and objective
-Harm is the invasion of the legally protected interest or invasion of the bodily integrity
-Prima facia in battery the intent and harm must occur
4. Reasonable implicitly means objectively reasonable. 
5. Shaw v. Brown & Williamson Tobacco – It has long been settled that actual physical contact is not necessary to constitute a battery, so long as there is contact with clothing or an object closely identified with the body.
                II. Contact and Offensiveness
1. Fisher v. Carrousel Motor Hotel – Knocking the plate out of hand intended harm, so exemplary damages awarded because it was a willful battery
                B. Assault
                                1. Tort law protects plantiffs from apprehension of contact, even if contact never occurs.
                                2. Protect the bodily integrity by prevention of apprehension of imminent contact
3. Holloway v. Wachovia Bank & Trust – Intentional act was the pointing of the gun. Can probably prove intent subjectively and objectively. The defendant’s conduct of pointing a gun created a harm. The plaintiff’s were apprehensive of the gun pointed at them. It was unwanted.
4. Elements of assault: intent, offer of injury, reasonable apprehension, imminent threat of injury,
5. Vicarious liability is that one person is liable for another’s behavior, relationship between the two parties. Parent/child relationship does not usually constitute vicarious liability in torts.
6. Intentional act proven by subjective and objective intent. Difference between assault and battery is that there is no contact. Without contact there is no battery. Assault, intent to cause injury and guilty of assault whether one misses or hits the person. There must be apprehension of imminent bodily contact.
C. False Imprisonment
1. (1) An actor is subject to liability to another for false imprisonment if (a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and (b) his act directly or indirectly results in such a confinement of the other, and (c) the other is conscious of the confinement or is harmed by it.
2. Have freedom to go where we want. If something happens to deprive us of that freedom there could be a tort. In false imprisonment probably could prove subjective intent but objective intent works just as well. Every tort has to involve harm and the harm in this case is a violation of the right to move or go where one wants. 
3. Elements: Intentional Act, Confinement of plaintiff (physical barriers or threat), Plaintiff has to be aware of confinement, Conduct of defendant was a substantial factor in causing the harm, causation, Harm.
4. Teichmiller v. Rogers Memorial Hospital – There are no facts showing she was intentionally and unlawfully restrained, in an office whose door was open and from which she never asked to leave.
5. Volition is the actor’s willingness to do an act.
6. Deliberation is the thinking out or weighing of the act before it is done.
7. Purpose is the result desired by the actor.
8. Motive is the actor’s subjective reason for doing the act.
9. Malice is the actor’s feeling of ill will or hatred towards the victim of the act.
                D. Trespass to Land
1. One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove.
2. Elements of the tort of trespass to real estate: Entry or remaining on property, unauthorized without consent, causation, harm, intentional entry. Harm is intrusion of legally protected interest. Harm will be interference with the right to have exclusive use of the property. Entry has to be voluntary. 
3. Ampitheatres Inc. v. Portland Meadows – -While the dividing line between trespass and nuisance is not always a sharp one, we think it clear that the case at bar is governed by the law of nuisance and not the law of trespass.
4. Intentional act which deprives plaintiff of property, without consent, causes, harm.
5. Bradley v. American Smelting and Refining – When airborne particles are transitory or quickly dissipate, they do not interfere with a property owner’s possessory rights, and therefore, are properly denominated as nuisances; this is not the case when those particles accumulate on the land and do not pass away.
E. Trespass to chattels, chattel is a moveable piece of property. 
1. Anything that is not real estate, personal property. Real property and personal property. Real property is not moveable, personal property can be a car, laptop, most anything. Right to exclusive possession of that property. 
2. Elements: Restatement 218: One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if, -he dispossess the other of the chattel, or -the chattel is impaired as to its condition, quality, or value, or -the possessor is deprived of the use of the chattel for a substantial time, or -bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.
3. Therefore, harm, causation, intentional act that interferes with the right to possess that property, without consent
Intentional act that interferes with the right to possess that property
4. Compuserve v Cyber Promotions – email case, Harm to the personal property or diminution of its quality, condition, or value as a result of defendants’ use can also be the predicate for liability.
                F. Conversion
1. Completely depriving people the right to their exclusive property is conversion. 
2. Conversion: right to exclusive ownership
3. Elements: -intentional act which deprives the owner of the use or possession of that property -without consent
-causation because the actions of defendant were a substantial factor in depriving plaintiff of possession of the property –harm
4. Bergeron v. Aero Sales – What happened to make this happen, Kasper bought jet fuel and put it in someone’s else tank Praegitzer’s and Praegitzer sold the property to Curtright. Curtright thinks he bought the property and therefore the fuel also. Both want the jet fuel. Who owned the jet fuel? Seller can only sell what he was entitled to have. Deprived him of exclusive possession of the jet fuel. Kasper still owned the jet fuel. Right to exclusive possession of the jet fuel. Kasper has this right. Was there a conversion involving the jet fuel? Yes there was. Was interference with the right of the owner of the fuel to use the fuel. 
5. When it comes to trespass there are three different torts that protect two kinds of property: real property (trespass to real estate), personal property (chattel): torts of trespass to real estate and conversion.
                G. Intentional Infliction of Emotional Distress
1. -T

e necessityprovides defendants with a qualified privilege to interfere with property to protect their own interests, or those of a small group of others.
-Private necessity is a qualified privilege because it still requires the defendant to compensate the property owner for any damage caused. The Restatement of Torts explains (1) One is privileged to commit an act which would otherwise be a trespass to the chattel of another or a conversion of it, if it is or is reasonably believed to be reasonable and necessary to protect the person or property of the actor, the other or a third person from serious harm, unless the actor knows that the person for whose benefit he acts is unwilling that he shall do so. (2) Where the act is for the benefit of the actor or a third person, he is subject to liability for any harm caused by the exercise of the privilege.
3. Necessity cases are difficult to resolve because they often do not involve an inherently wrongful act by either party.
4. Reasonable person would believe there is a necessity. This entitles defendant to take reasonable action, to trespass for a reasonable length of time. 
5. Ploof v. Putnam – Defendant tied their boat to the dock. To protect themselves and the boat. People are more important than the boat. Protection of life is more reasonable. Private necessity, protecting their own interests, not that of the public. To save family, was entitled to trespass. It was a reasonable amount of time. Vincent v. Lake Erie Transp. – Boat owner stayed longer than he was supposed it. Damage was caused. Who should pay, the dock owner or the boat owner? Ultimately the boat owner had to pay for it. He extended the time of reasonableness. Damage was caused because the boat was there. 
6. Public Necessity
7. -Public necessity provides defendants with an absolute privilege to interfere with the property of others to avoid a “public disaster.”
8. -The Restatement (Second) of Torts § 262 provides: One is privileged to commit an act which would otherwise be a trespass to a chattel or a conversion if the act is or is reasonably believed to be necessary for the purpose of avoiding a public disaster.
9. The most important distinction between public necessity and private necessity is that public necessity is an absolute privilege – in other words, a defendant who successfully raises the privilege need not compensate the plaintiff for his loss.
10. United States v. Caltex – military case, oil companies not compensated because public necessity.
IV. Negligence
                A. Introduction
1. Elements: (1) A duty of reasonable care (in most cases, a person must behave as a reasonably prudent person under the same or similar circumstances). (2) Breach of duty (The plaintiff must prove that the defendant failed to use reasonable care to avoid causing harm. Many people refer to this element alone as “negligence,” although the entire cause of action also goes by that name. (3.) Causation (plaintiff must prove “cause in fact”: that the defendant’s breach of duty, the negligent conduct, in some way brought about the plaintiff’s injury. Plaintiff must also prove “proximate cause”: that the causal connection between the negligent conduct of the defendant and the plaintiff’s injury was sufficiently close to hold the defendant liable) 4. Damages (plaintiff must prove that actual injury resulted from the defendant’s conduct. Nominal damages are not awarded for negligence that does not cause injury.
                B. The Duty Standard – the Reasonably Prudent Person Standard of Care
2. Legally protected interest: reasonable expectation that others will act in a reasonable manner. Protects one’s reasonable expectations.
Elements: a duty of reasonable care under the circumstances, breach of duty (defendant acted unreasonably), causation, and actual damages.
3. Duty is a question of law for the judge. There are times when people do not have a duty to a plaintiff. Does def. owe a duty to plaintiff? Breach is a question of fact for the jury