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Villanova University School of Law
Wertheimer, Ellen


Fall 2015

Professor Ellen Wertheimer

I. Introduction

a. Definition – A tort is a civil wrong, other than breach of contract, for which the law provides a remedy. A person who breaches a tort duty (i.e., a duty to act in a manner that will not injure another person) has committed a tort and may be liable in a lawsuit brought by a person injured because of that tort. Torts is a fault-based system.

b. Purposes of tort law: (1) to provide a peaceful means for adjusting the rights of parties who might otherwise “take the law into their own hands”; (2) to deter wrongful action; (3) to encourage socially responsible behavior; and, (4) to restore injured parties to their original condition, insofar as the law can do this, by compensating them for their injury.

c. Langan v. Valicopters, Inc. (crop dusting) = D helicopter sprayed for beetle infestation on a farm with chemical pesticide. Pesticide traveled onto P’s organic farm which caused them to lose their organic food grower certification b/c of the chemicals in the food. Held, strict liability for organic crops and crop dusting.

i. D’s argument= We took all proper precautions, We are entitled to spray our crops

ii. Costs of spraying: drifting onto other people’s land à must pay all damages

iii. Abnormally dangerous activity: satisfies all 6 aspects

1. Risk cannot be eliminated by reasonable care

2. Harm could be great

3. High degree of risk

4. Activity is a manner of common usage

5. Inappropriate activity

6. Valuable to the community

a. Balancing of interests

b. What can the D do?

i. Social interest of spraying outweigh interest of the P’s

ii. Add a buffer zone

iii. Adjust price of crops to compensate

iv. Buy P’s crop every year

v. Buy P’s land

vi. Spray by hand near border

c. Consumers ultimately pay – prices rise to reflect cost of production undergone by farmers

i. Social cost

II. Intentional Torts

a. Intent

i. All that the intentional torts have in common is that D must have intended to bring about some sort of physical or mental effect upon another person.

1. No intent to harm: The intentional torts are generally not defined in such a way as to require D to have intended to harm the plaintiff. (Example: D points a water gun at P, making it seem like a robbery, when in fact it is a practical joke. If D has intended to put P in fear of imminent harmful bodily contact, the intent for assault is present, even though D intended no harm to P.)

2. Substantially Certain: If D knows with substantial certainty that a particular effect will occur as a result of her action, she is deemed to have intended that result.

a. Garratt v. Dailey = Brian Dailey, five years old, pulls a chair out from under P as she is sitting down. The evidence at trial shows that he did not desire that she hit the ground, but he may have known with substantial certainty that she was trying to sit, and would hit the ground. Held, the case must be remanded to the trial court, to determine whether Brian indeed knew with substantial certainty that P would fall. If so, he meets the intent requirement for battery. On remand, the trial court found that Brian knew with substantial certainty that P was trying to sit when he pulled the chair away and that there was therefore the intentional tort of battery.

i. Children

1. Kids, as plaintiffs are different than kids as defendants.

2. Children defendants are treated as adults. We treat those whose mental capacity is diminished as adults. Why? As between a person injured and the one who has diminished capacity, the equity lies with the victim. This puts pressure on society to control children and those with diminished capacity.

3. In comparative fault, children plaintiffs are given credit for their modified capacity as minors.

b. High likelihood: But if it is merely “highly likely” and not “substantially certain,” that the bad consequences will occur, then the act is not an intentional tort. “Recklessness” by D is not enough.

3. Act distinguished from consequences: Distinguish D’s act from the consequences of that act. The act must be intentional or substantially certain, but the consequences need not be.

a. Vosburg v. Putney = D reached across aisle with his foot, and hit with his toe the shin of the P. Limb was in a diseased condition when the touch occurred causing destruction of bone. D is liable for all of the consequences of his intentional tort, no matter how


a. Mink v. University of Chicago = no consent to involvement in a drug experiment. Drug later caused risk of cancer in children. Ingesting pill same as using needle. Lack of consent, intentional, and offensive contact (no knowledge by patient).

d. Assault

i. Definition: Assault is: (1) intentionally (2) causing reasonable apprehension of (3) imminent harmful or offensive contact.

1. Intent: The defendant must either have intended to cause the apprehension or contact, or have intended to cause the contact itself.

a. Intended apprehension: First, D intends to put P in imminent apprehension of the harmful or offensive contact, even if D does not intend to follow through (e.g. D threatens to shoot P, but does not intend to actually shoot P). Intention to frighten, but not actual contact = intent. 5 Torts Outline

b. Intent to make contact: Alternatively, D intends to in fact cause a harmful or offensive bodily contact. (Example: D shoots a gun at P, trying to hit him. D hopes P won’t see him, but P does. P is frightened, but his shot misses. This is assault.) Attempted battery = assault.

c. Summary: So D has the requisite intent for assault if D either “intends to commit an assault” or “intends to commit a battery.”

2. Apprehension test: (1) Must be reasonable (2) Apprehension is not to be confused with fear or intimidation. (3) Apparentability will meet the apprehension requirement.

3. “Words alone” rule: Ordinarily words alone are not sufficient, by themselves, to give rise to an assault. Normally, there must be some overt act – a physical act or gesture by D – before P can claim to have been assaulted.

a. Conley v. Doe = P finds student writing death threats. Later finds out student was making them towards her. Words alone cannot constitute assault, must be together with an act.