TORTS à BERNER SPECIFIC
What is a tort? An actionable civil wrong
Difference between criminal cases and civil cases:
(1) The end result (what we are looking to accomplish) is different
a. Punishment on criminal side – taking away their liberty (sending them to jail)
i. Burden of proof – beyond a reasonable doubt
b. Compensability on the civil side – plaintiff being compensated for his loss
i. Burden of proof – preponderance of the evidence for the compensatory damages part (more than 50%)
1. higher than preponderance but lower than beyond a reasonable doubt for punitive damages – “clear and convincing evidence”
(2) Tort system is designed to help the victim, the criminal system is not
(3) DOUBLE JEOPARDY does not protect a defendant from being charged of both criminal and tortuous battery
Torts:
(1) Compensate for bodily harm including:
a. Physical harm
b. Emotional harm
c. Mental harm
d. Economic harm (lost wages, medical expenses)
e. Dignity harm (intentional torts)
Three types of torts:
(1) Intentional Torts
(2) Negligence Action
(3) Strict Liability
1. Intentional Torts
a. Fault based system
b. Can sometimes overlap with criminal system
c. Bankruptcy does NOT get rid of debts caused by intentional torts (it does get rid of debts caused by negligent torts); Davis v. White
i. It matters whether you law your case as an intentional tort or a negligent tort (an intentional tort is more useful than a negligent tort – intent based claims have a better claim for punitive damages, as well as they can’t be discharged due to bankruptcy; they (intentional torts) usually have a longer statute of limitations and go outside of insurance coverage)
d. Intent:
i. Requires a state of mind about the consequences of an act done either for the purpose of producing that consequence or aware of a substantial certainty that that consequence will take place
ii. Substantial certainty – very high threshold
iii. Example (“I made my fist go out against Bob’s face because he stole my woman friend”)
1. “I made my fist go out” – voluntariness of action (not intent)
2. “against Bob’s face” – intent (that it have some consequence)
3. “because he stole my woman friend” – motive (doesn’t have to be proved, but is useful
iv. Doctrine of Transferred Intent
1. Applies to all of the intentional torts
2. You missed who you intended to shoot, and you shot someone else instead; that intent transfers to the person who you actually hit
a. Can transfer intent from one human being to another human being
b. Can transfer intent to commit one tort to another tort
c. Battery intention for A can be transferred to an assault intention for B
3. When you transfer the intent, you also must transfer the privileges, or defenses that would be available to the defendant
e. You must name the tort based on the damage!
f. Plaintiff must prove ALL elements by a preponderance of the evidence (more than 50%)
g. Children
i. Can commit torts (including intentional torts)
ii. Some states say below a certain age (3 or 4), there is a tort presumption that children can’t commit a tort
h. Insa
ething closely related – car plaintiff is in; horse plaintiff is on)
3. Elements:
a. Intent
i. Intent – a state of mind about the consequences of an act (that state of mind either has the purpose of bringing about that consequence {harmful or offensive contact} or knows that it is substantially certain to bring it about)
1. Davis v. White – duel intent (must have the intent to make bodily contact and that the contact will be harmful or offensive; Restatement and majority view)
a. Minority view – only need intent to make contact
b. To engage in harmful or offensive conduct
i. Defendant has to intend the harm or offense
ii. Objective standard, but pay more attention to plaintiff’s perspective (defendant has to be on notice that the act is harmful or offensive to the plaintiff if it is something not “reasonable”)
iii. Conduct which is offensive to a reasonable sense of personal dignity is offensive contact (Snyder v. Turk)
1. Leichtman v. WLW Jabor Communications, Inc. – court holds that smoke or fumes would be sufficient physical contact (tobacco smoke, as “particulate matter,” has the physical properties capable of making contact); bit of a stretch by the court
