TORTS Outline December 2005
I. Tort = a civil wrong, other than a breach of contract, for which the law provides a remedy to the victim
a. Purposes = compensating victim for a wrong that has been done; deterrence of future wrongs; and punishing the D
b. Compensatory damages paid to victim – monetary award only
i. Lost income / earning capacity from time of the incident until death
1. Burden of proof is preponderance, NOT beyond a rsnble doubt
ii. Medical expenses
1. Nursing expenses
iii. Intangibles
1. Pain and suffering
iv. Mental distress
v. Attorneys’ fees
c. Punitive damages may sometimes be awarded – only on basis of intentional or reckless conduct.
i. Only type of damages where evidence of D’s wealth is admissible
ii. Often limited to 9 times the amount of civil compensatory damages
d. Categories of culpability
i. Negligent = D failed to act in a reasonble fashion to prevent foreseeable harm to P
1. Acting carelessly or unreasonably as to others’ safety
ii. Reckless = actions created a high probability of injury, but D consciously disregarded the probable consequences and caused the harm
iii. Intentional = D acts either
1. With the desire or purpose of causing a wrongful consequence to the P; OR
2. With knowledge to a substantial certainty that such a consequence will result
iv. Strict liability
1. Abnormally dangerous activity
2. Product liability based on defects
3. Worker’s compensation
a. Awards damages regardless of fault for policy reasons
b. Not absolute liability because defenses like assumption of risk are still available
e. Recovery requires fault except in strict liability situations
i. No one is responsible for pure accidents or unavoidable acts
ii. Liability requires negligence, recklessness, or intent
II. Intent
a. Definition = voluntarily acting:
i. For the purpose of causing harm, OR
ii. With knowledge to a substantial certainty that harm will occur
1. Substantial certainty = 99% sure
a. Reasonable person standard determines what results would be substantially certain to result from D’s conduct
2. Thus intent to harm multiple people would be found from throwing a bomb into a crowd intending to harm a single person.
b. Intent to v
sociated with the person that the P could reasonably feel that his dignity was invaded by a harmful or offensive touching of the object)
a. e.g. clothing and things held in hand; NOT automobiles
5. Without consent or other privilege.
b. Assault = intentionally causing, by an overt act directed at the plaintiff, a reasonable apprehension of an imminent harmful or offensive contact, with apparent present ability to carry it out, without consent or other privilege.
i. Elements
1. Intentionally
2. Causing
3. By an overt act directed at P (words not enough)
4. A reasonable apprehension (belief or awareness that P would suffer)
5. An immediate harmful or offensive contact [battery]
6. With apparent present ability to carry out the battery
7. Without consent or other privilege
Words are only sufficient if accompanied by a physical act directed towards P as a preliminary to an imminent battery.
