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Villanova University School of Law
Moreland, Michael P.

TORTS I OUTLINE—FALL 2007—Prof. Moreland
A)    What is a tort?
i)        “Wrong” or “Trespass”
(1)   Latin root: torquere (“to twist”)
ii)      A tort is a civil wrong not arising out of contract for which the law provides a remedy.
iii)    Contrast with criminal law (state brings the action as prosecutor) and contracts (the parties determine beforehand the terms of their rights and obligations).
B)    Three approaches to liability
i)        Intentional Torts
(1)   Causing intentional harm
(2)   i.e. Battery: (unwanted touching)
ii)      Negligence
(1)   Carelessness (accidental harm)
(2)   i.e. Car accidents
iii)    Strict Liability
(1)   Not intentional; but also not carelessness
(2)   Behavior that is so hazardous
(3)   i.e. Keeping dangerous animals (pit bulls)
(a)    can’t be careful enough; if someone is injured you are liable
C)    Goals of Tort Law
i)        Corrective justice
ii)      Deterrence
iii)    Loss distribution
iv)    Compensation
D)    Ex ante/ex post Perspective (Before/ After)
i)       i.e.
(1)   Compensate victim(ex post)  
(2)   Deter further bad behavior (ex ante)
E)     Walter v. Wal-Mart Stores Inc.
i)        Facts
(1)   Antoinette Walker, 80 years old, went to her local Wal-Mart store to fill her prescription for a chemotherapy drug. Henry Lovin, a pharmacist employed by the store, accidentally mis-filled the prescription and provided here with a stonger drug than the drug her doctor had prescribed. Although the medication caused her cancer to go into remission, Walter suffered serious side effects that she would not have suffered with the correct medication, including internal bleeding that resulted in an extended (five-week) hospitalization.
ii)      Procedure
(1)   The trial judge entered judgment as a matter of law for Walter on each of the elements of Walter’s prima facie negligence case. As Wal-Mart had no defenses available to it, the jury was left with only the issue of damages. The jury unanimously agreed to a verdict of $550,000 in damages ($71,000 for medical expenses and $479,000 for pain and suffering).
iii)    Issue
(1)   Did the trial court err in ruling in favor of Walter as a matter of law?
iv)    Arguments
(1)   Walter: evidence presented at trial supports trial judge’s ruling.
(2)   Wal-Mart: (a) jury should have had a chance to decide; (b) damages were excessive.
v)      Holding
(1)   The Maine Supreme Judicial Court affirmed the ruling of the trial court and held Wal-Mart liable for damages of $550,000.
vi)    Analysis
(1)   Elements of claim for negligence were amply satisfied: (a) standard of care was breached, and (b) Wal-Mart’s negligence caused harm to Walter (pp. 8-9). Court rejects comparative negligence and mitigation of damages arguments (pp. 9-10). Court also rejects other arguments by Wal-Mart with respect to need for expert testimony (pp. 10-11), comments by Walter’s lawyer (p. 11), and excessive damages/bias (p. 11).
F)    Respondeat Superior(addressed in Walter v. Wal-Mart)
i)        allows ∏ to sue the employer for the bad

Restatement §§ 13, 21.]  
            [C] The Mistake Doctrine
Under the mistake doctrine, if a defendant intends to do acts which would constitute a tort, it is no defense that the defendant mistakes, even reasonably, the identity of the property or person he acts upon or believes incorrectly there is a privilege. If, for example, A shoots B’s dog, reasonably believing it is a wolf, A is liable to B, assuming B has not wrongfully induced the mistake. [See, e.g., Ranson v. Kitner, 31 Ill. App. 241 (1888).]  
Courts have applied the mistake doctrine to a variety of intentional torts. Nevertheless, in many instances actors benefit from specific privileges, such as self-defense, which protects the defendant from liability for reasonable mistakes, notwithstanding the mistake doctrine.
            [D] Insanity and Infancy
Unlike in criminal law, neither insanity nor infancy is a defense for an intentional tort. [See, e.g., McGuire v. Almy, 8 N.E. 2d 760 (Mass. 1937).] However, intent is subjective and requires that the defendant actually desires or be substantially certain the elements of the tort will occur. Consequently, if the defendant is extremely mentally impaired or very young, she may not actually possess the requisite intent.