Basic Overview
Tort: any wrong for which the law provides redress; wrongs recognized by the law as grounds for a lawsuit
Cause of action: claim against a tortfeasor
Measure of damages: in a tort, the injured p is entitled to recover:
1) Loss of earning capacity / wage loss
2) Reasonable medical expenses
3) Payment for pain and suffering, including mental pain and suffering
– there may be only one legal action concerning a tort
– damages must include all future expected damages
3 bases for tort liability:
1) Intent: an intentional injury, such as the intentional striking of another person
2) Negligence: Failing to take the caution of a reasonable person in that situation – often requires an economic analysis of risk
– comparative negligence: subtract the damage done to the D by the p from the p’s recovery
3) Strict Liability: liability by the D without fault. Usually determined by a statute
– most courts require some showing of fault (either by intent or negligence) to hold a D responsible
Dignitary harm: emotional harm, or harm that is demeaning to the p as a human being
Direct Intentional Wrongs
Establishing a claim for intentional tort
to person or property
Definitions:
Battery: The unlawful, undesired and unprovoked use of force on another person with the intention to harm or create fear of harm in that person; harmful touching. All parts of a person’s body and anything closely attached to it (i.e. clothes, car, etc) are protected; even slight touching = battery
Battery Elements
1. Bodily contact (direct or indirect).
2. Intent to do:
3. Injury or offense. Objectively measured notion—would a reasonable person find the action offensive?
a. The intent must somehow be connected to the outcome of the bodily contact.
Van Camp v. McAfoos [20]: Fault is an essential element to liability. Where an essential element of the cause of action is missing, there is no tort. In McAfoos, p was hit in the leg by D’s tricycle. The court dismissed the p’s claim because the D could not form the requisite intent needed for battery.
– the law does Ø generally recognize strict liability without a statute; left with intent and negligence for causes of action.
– Negligence takes age into account; i.e. the care a reasonable 3-year-old would take in a given situation
– Causing an injury, by itself, will Ø make a D liable
– Liability requires fault – established by proving intent or negligence
– causes of action arise when fault is alleged
– Historic strict liability: any D who acted affirmatively and directly may have been liable for the harm done, even without fault.
– HSL is no longer followed; finding fault is a new concept
Snyder v. Turk [24]: A person is liable for battery when he acts intentionally to cause a harmful or offensive contact and when a harmful contact results. In Snyder, D grabbed p, his nurse, during an operation and berated her for her poor performance.
– Offensive Contact: contact that is offensive to a reasonable sense of personal dignity.
– Must be contact that would offend a reasonable person
– Offense is Ø subjective to the p; it is always objectively understood
– Battery does Ø require physical harm
– Requires 1) intent to harm or offend 2) touching/bodily contact with another 3) no consent by the p
– intention must be to harm or offend, not simply just to touch
– if D touches p with knowledge that the touching will offend p; D is liable for a tort
– depends on state statute
Cohen v. Smith [24]: an actor is liable not only for acts that cause physical harm, but also for relatively trivial acts which are merely offensive or insulting. In Cohen, p instructed doctors that her religion required than no men see her naked body. A male nurse assisted in the procedure and p won a battery action based on her lack of consent.
– an acto
uch conduct is held under negligence or recklessness. Unless the actor realizes to a substantial certainty that the contact or apprehension will result, he lacks the intent necessary for liability. In Garratt, D, a 5-year-old, pulled a lawn chair out from under p. Testimony was conflicted as to whether D had the requisite intent to harm p.
– civil cases must prove the necessary elements of a cause of action by a preponderance of the evidence
– a minor is equally liable for a tortious act as an adult
– the D’s age may affect the knowledge and awareness requirements for intent or negligence
– recklessness; willful/wanton conduct: a cause of action that shows actual or deliberate intent to harm or which, if the cause of action is not intentional, shows an utter indifference or conscious disregard for a person’s safety or the safety of others
– punitive damages may be assessed for intentional and reckless torts; Ø for negligent torts
– Intent – D can be liable even if he does Ø desire to harm p (throwing rock across the lake hypo)
– Requires a purpose or volitional act; or
– A volitional act with the substantial certainty of a particular outcome
– substantial certainty: certainty that a result is definitely going to occur
– D is liable for both intentional and negligent torts – difference in remedy
– Intentional: – cannot be discharged in bankruptcy court (See Davis)
– More likely to receive punitive damages
– Damages are generally more liberal
– Statute of limitations is longer
No proximate cause requirement
