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Villanova University School of Law
Moreland, Michael P.

Torts Final Exam Outline

Tort Basics:

To commit a Tort – act in a manner that law deems wrongful toward & injurious to another, such that the other gains the right to bring forth a lawsuit and obtain relief from wrongdoer (tortfeasor)
Examples: battery, assault, negligence, false imprisonment, fraud, etc.

Civil wrongs

3 Approaches to Liability:

Intentional Torts (battery, assault, etc) – purposefully harming someone
Negligence – carelessly causing harm
Strict Liability – does not matter how careful Def. was, not intentional but injury still caused (ex. Keeping of harmful animals)

in Tort law, people are liable NOT guilty!
Functions of Tort Law:

Corrective justice, deterrence, loss distribution, compensation

Walter v. Wal-mart (negligence by pharmacist)

Wrong cancer medication given by accident causing Walter to get very ill – sues for negligence

Sues Wal-Mart NOT pharmacist (Respondeat Superior – company answering for its employees) – employer held vicariously liable for wrongful acts of employees within scope of employment.
Affirmed by Maine Supreme Court that Wal-Mart’s negligence warrants damages for Walter.

Walter’s comparative negligence by not realizing the name on the bottle was incorrect and by not calling Dr. earlier not sufficient for reduced damages.

Walter had burden to prove Wal-Mart owed her a duty, which it breached and thereby caused harm.
Pharmacist admitted ‘serious error’ by not explaining drug

Also claimed Walter would not have reason to suspect incorrect meds.

In order to establish liability, plaintiff in negligence action must show that def’s negligence was cause of harm.
Motion for judgment as a matter of law:

Judge may grant only if concluded that in light of proven facts, no reasonable jury could find in favor of plaintiff

Summary Judgment if done prior to trial

Granted if no genuine disputes between parties on “material facts”

In light of these facts, reasonable jury could not find in favor of plaintiff

Negligence – four elements (duty, breach of duty, causation, harm)
Common law – based on court decisions, not Statutes!
Stare Decisis – Issue at present court must refer back to previous decisions from court cases if:

prior decision rendered by a court with same jurisdiction (higher court or this court or U.S. Supreme Court)
Issue was resolved in previous case
Issue in previous case had comparable circumstances with current case.
*promotes a reasonable degree of consistency across decisions*
*cases from other jurisdictions can be persuasive but NOT controlling on current case
Some courts might overrule previous cases b/c of changes in society, etc

Tort Restatements – (compiled by Amer. Law Institute) provides clarity and consistency but does NOT have force of law.
Tort suit commenced once Complaint is filed w/ Court. – Def’s attorney typically responds w/ an answer (admit/deny allegations)
Black Letter Law – rules and standards where there is wide consensus among judges.
Motion to Dismiss – filed by Def. but puts heavy burden on Def. to show that no matter the evidence brought, there is a fatal defect in the complaint which would prevent damages from being awarded.
Discovery – period after complaint to interview, compile evidence, witnesses, etc

Disposition – interview conducted by one party w/ other party witnessing.

Issues of law reserved for judge/ Issues of Fact for Jury
In Tort Law – person must be found liable by a preponderance of evidence (greater chance than not that tort occurred)


Purposeful striking or touching of another

Even if not hurt, you could still have battery claim for purposeful touching

Ceccarelli v. Maher (’43 Trial Court) – Maher beats up Ceccarelli

Struck fiercely, suddenly – not assault b/c no time to apprehend!

Paul v. Holbrook (’97 Appeal) – Holbrook massaging Paul’s shoulders

Trial court ruled Summary Judgment in favor of Def. (Paul appeals)
Appellate court overrules and says it is battery – jury could reasonably infer Holbrook intended to touch Paul

*Battery: Prima Facie Case

Def. liable if:

Def. acts
Intending to cause contact w/ plaintiff of a type that is harmful or offensive
Def’s act causes contact

Touching element – need not be skin on skin (ex. Shooting)
Fisher v. Carousel Motor Hotel – African American has plate grabbed from him b/c of hotel’s refusal to serve blacks – ruled battery (act of grabbing)
Nelson V. Carroll – Carroll hit Nelson in head w/ gun

During second hit in head gun goes off and shoots Nelson in stomach
Carroll argues he did not intend to shoot Nelson
Carroll wants a motion for judgment – where court must consider all evidence in best light for party who motion is against.
Court rules Carroll intended to commit a battery and the fact that he intended to cause a touching and that touching was harmful, regardless of the result, it is a battery.

Punitive damages – damages that go beyond the amt. necessary to compensate the plaintiff for the past and future losses caused by the tort.
**Think about what constitutes harmful contact or offensive contact!**

Offensive contact is objective – must violate social standards of acceptable touching

Ex. Tapping on shoulder might offend someone but court does not deem offensive.

Big question in Tort Law: What would the “reasonable person” think??
Sovereign Immunity – common law principle wh

as capable of escaping car and breaking her window etc. (ability to harm Vetter)

Claim Summary Judgment was wrong by trial court….should have gone to jury!

Plaintiff can make case for assault claiming she was fearful w/o feeling apprehension.

Enough being aware contact could occur

Aiding & Abetting:

Requires “encouraged,” or “helped to carry out”

Defenses to Battery & Assault:

Defenses to assault and battery typically assert that the alleged tortfeasor was privileged to act as she did, even though her conduct was prima facie tortious.

Ex: person sued for battery asserts privilege of self-defense claiming she was within her rights to cause intentional harmful touching b/c she was protecting herself from an imminent harmful touching.

**many states require plaintiffs to prove absence of consent rather than leaving it to the Def. to prove that victim consented**
Comparative Fault:

In Negligence:

Argue that plaintiff’s own fault contributed to injury

In Intentional Torts:

No comparative fault!


Plaintiff cannot prevail on a tort claim if there has been consent to endure a bodily contact, etc.
Through written or spoken statements or through conduct.
Koffman v. Garnett:

Coach ordered kid to hold football and stand upright
Coach tackles 13 yr old football kid and breaks his arm
Held that battery occurred…

Reasonable person could conclude coach’s actions imprudent and taken in disregard of player’s safety
Coach asserts that player consents to football contact…plaintiff argues that’s not the case…didn’t consent to harsh contact by coach much bigger/older

Express consent – surgery forms b/c of possibility of harmful contact
Implied Consent – voluntary participation in contact sports, etc.

**courts typically bar the imposition of liability on Def. only if on the basis of plaintiff’s conduct, Def. actually and reasonably believed the plaintiff consented.

O’Brian v. Cunard:

O’brian sues alleging she never consented to immunization injection.