Torts Outline

Torts Outline

Wilson

Fall 2012

I Law of Torts- found in case rulings

A Tort- a civil wrong which law recognizes a legal remedy on behalf of a private individual

B Civil not criminal

i) Differences between civil and criminal

(1) Preponderance of evidence

(a) Civil-majority, more likely than not

(b) Criminal- beyond a reasonable doubt

(2) Burden of proof

(a) Civil-P must prove

(b) Criminal- prosecution must prove

C Remedies

i) Injunction- order that you must quit doing something

ii) Monetary damages

iii) Contract- remedies defined by contract

D Elements of Tort

i) Civil wrong

ii) Non-contractual law

iii) Law provides remedy

E Categories

i) Intentional torts

ii) Fault-based torts- D at fault

iii) Strict Liability- concerned injury to P

F Four things to determine

i) Legally protected interest

ii) Elements of every tort (burden of proof on P)

iii) Policies behind elements

iv) Apply elements and policies in every case!!

G Policies behind tort law- why shift loss from P to someone else the D

i) Compensate P for the loss they suffered

ii) Deter the D and society from committing this wrong

iii) Punishment for the D action

II Intentional Torts

A Battery

i) Legally protected interest is invasion of bodily integrity

ii) Elements- P prove (action that caused harm)

(1) D acted

(2) Intentional act to inflict harm

(a) Objective- show with substantial certainty that D knew actions would cause harmful contact

(b) Subjective- D intended to cause harm- use circumstantial evidence to prove

(3) Cause- actions of D were substantial factor in causing harm of P

(4) Harm-invasion of bodily integrity

iii) Intent

(1) Garrett-5year old moved chair-

(2) Rest §29-act that directly or indirectly is legal cause of harmful contact with another makes the actor liable if act done with intention of harm, contact not consented too, or contact not otherwise privileged

(3) Rest-Character of actor’s intention-

(a) Intent if act done with purpose of causing contact or with knowledge from D that contact is substantially certain to be produced

(b) Not enough act intentionally done, must realize contact will result

(4) Generalized knowledge insufficient to satisfy intent (Shaw-cigarette smoke in truck cab)

iv) Contact (Fisher-plate hit out of hand)

(1) Actual physical contact not necessary for battery, as long as contact with clothing or object closely indentified with body

(2) Protection extends to any part of body, or to anything which is attached to it and practically identified with it

(3) Rest- anything directly grasped by the hand or intimately connected with body universally regarded as part of body

v) Offensiveness (Fisher)

(1) Rest- D liable not only for contacts which do actual physical harm, but also for those which are offensive and insulting

B Assault- legally protected interest is apprehension of harmful or offensive contact, even if contact never occurs

i) Elements:

(1) Intentional act- D knew with substantial certainty that actions would cause harm or injury

(a) Offer of injury

(2) Causation- actions of D must be substantial factor causing harm of P- circumstantial evidence

(3) Reasonable apprehension of imminent bodily contact- invasion of bodily integrity (Jung-L- pounding on students desk)

(a) Reasonable apprehension- don’t want the contact, not fear

(b) Imminent (threatening to happen)

(4) Apparent ability- D must show

(a) Rest- if act done with intention of affecting 3rd person but puts other in apprehension of harmful or offensive contact actor subject to liability as if intended to affect them (transferred intent)

C False imprisonment- legally protected interest is right to free movement

i) Elements:

(1) Intent to confine (physical, emotional barriers)

(a) Objective- D knew with substantial certainty that his actions would confine P

(b) Subjective- intent to confine

(2) Confinement

(3) Awareness of confinement (conscious- ask/attempt to leave) (Teichmiller- wanted to go make copies)

(a) Waters-cabin false arrest- D had gun so substantial factor (reasonable belief) show he was not free to go

(4) Causation- substantial factoring of actions of D that causes harm

(5) Harm- being confined

D Trespass to Land-legally protected interest is right of an owner to exclusive possession of land

i) Elements:

(1) Intent to enter land or causes a thing or third person to do so

(2) Remains on land, or fails to remove form land something have a duty to

(3) Causation: actions of D are substantial factor

(4) Harm: active injury: land is injured, if not then pay nominal $1

ii) Intentionally and without privilege enters land

iii) Common Law–Amphitheater- lig