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Villanova University School of Law
Wertheimer, Ellen

Chapter 1:
Most important question in torts: “WHO PAYS DAMAGES?”
If the defendant wins it does not mean the costs go away. Either the defendant with pay them or the plaintiff will get left with them. The costs are still there.
Policies motivating tort law will be important to investigate throughout this class.
Weaver (P) vs. Ward (D) (Year: 1616)
·         Ward shot Weaver
·         Ward’s basic defense is that it was an accident
·         Demurrer àusually filed by defendant… it’s a motion to dismiss for failure to state a claim…in this case the Plaintiff files a demurrer saying the “accident defense” is not valid
·         The court says that it is not a criminal case, it is a torts case… it being an accident is not a defense
·         No man will be excused in a tort except if it is inevitable (completely without the defendant’s fault) However, the courts takes the meaning of the word fault to be causation.
·         Court grants demurrer and throws out the defense that it is an accident
·         In tort law the fact that it was an accident does not make it a defense
Brown (P) vs. Kendall (D) (Year: 1850)
·         Plaintiff is hit in the eye with a stick by the defendant while the defendant is breaking up a dog fight while the plaintiff is directly behind him.
·         Everyone agrees in terms of tort law that it was an accident. It was not intentional.
·         Trail court instructs jury that there are 2 pieces to negligence:
o   Necessary action (D has the duty to take action if his dog will get hurt or if the other dog started it) Then the burden of proof is on the plaintiff to show the d did not use “ordinary care”. If he is negligent (does not use ordinary care)
o   If he does not have the duty to stop the fight then he must use “extraordinary care”
·         On appeal they challenge the term “extraordinary care” and that there is only one standard of care and that is the “care a reasonable person would use in the circumstances”
·         If there is no negligence, then the defendant is not liable. There is no liability without negligence is reaffirmed in Brown vs. Kendall
Hammontree v. Jenner (1971)
·         Defendant has a sudden epileptic seizure and crashes car into plaintiff’s store
·         Defendant has no negligence factually or legally…he did everything under the law at the time…both parties are innocent and court must decide where the costs should fall
·         Proven by the fact that the plaintiff withdrew their argument that the d was negligent
·         Plaintiff’s argue strict liability (it shouldn’t matter that there is no negligence)
·         Argue causation: it is the defendant’s car, defendant’s seizure and defendant created the risk by driving so the cost should be on the defendant. Not fair to the defendant because he did not do anything wrong but neither did the plaintiff. 
·         Court decides there is no liability without negligence…rejects the plaintiff’s argument.
SIDE NOTE: Torts is a state law area…different states have different rules that cannot be reconciled. Some state would disagree with Hammontree v. Jenner because the driver created the risk just simply by driving. Dissenting view: Every driver takes on a certain set of risks by driving.
Absolute v. Strict liability
Most courts use absolute and strict liability interchangeably
Strict liability should for the most part be reserved for products
Absolute liability àliability for which there are no defenses “you are liable period end of story” (there are always exceptions though)
Strict liability à there are defenses
Langan v. Valicopters, Inc
·         Plaintiffs are organic food growers with a small farm next to a big farm. Their farm gets sprayed from the drift with pesticides by the crop duster.
·         Farm may well have been ruined, their current crops were ruined.
·         It is neither the plaintiff’s nor defendant’s fault but defendant’s crop spraying has unavoidably wrecked the plaintiff’s crops
·         2 different approaches:
o   Page 12: if you crop dust you are liable (absolute liable) Part of the cost of spraying your field is paying for the organic crops that you ruin. What other options could the crop duster use?
o   Restatement of torts…these are not statutes but they are hypothetical situations and are only laws if the court adopts them. In Washington the courts adopted 5.19 and 5.20 (Ultra hazardous or abnormally dangerous activities)…statutes always govern what the courts say. Restatement says “If you carry on an abnormally dangerous activity you are liable.” They call it strict liability.
o   To determine if it is an abnormally dangerous activity we look at the 6 factors on page 12. A, B, and C are what really matter. D, E, F are not as important.
·         Court adopts strict liability. Court finds that they have the right to spray the crops but they have to pay the costs of doing it. They must pay for organic crops that are destroyed.
Intentional Torts à either it’s a battery or its not
·         Respondeat Superiorà employee does something negligent while acting within the scope of their employment their employer is responsible
o   Employer is only liable for the intentional tort of the employee when the job requires you to be physical such as a bouncer
o   Does not apply in intentional torts unless the intentional tort is part of the course of the employment
o   Limited causation à when you commit an intentional tort you are liable for all of the consequences but in negligence there is only a certain amount you are liable for
o   Punitive damages àdesigned to punish the offenders
·         Intent à on purpose, volitional, at the will of the actor…doesn’t have t

unconsented to contact itself. The unconsented to contact is the ingestion of the experimental pills by the women. Intention to causeàintention to cause them to swallow the pills without their consent.
1.2.2.      Fisher v. Carrousel Motor Hotel, INC.
·                  Plaintiff was attending a luncheon. Employee of the hotel grabs the plate from the plaintiff’s hand claiming a Negro cannot eat there. Plaintiff was not hurt but extremely embarrassed. Defendant dies and hotel is sued. Corporation is liable for this particular intentional tort because of the scope of the employment…he is enforcing a racist hotel policy. The basic defense that there was no physical contact between plaintiff and defendant but court rejects this because as long as there is contact with something attached to the plaintiff’s person the defendant has committed a battery. Assault is fear or apprehension of physical contact. Battery is actual physical contact with the body or something attached to the body (a plate in this case). Court finds that a battery was committed. Could be $1 in damages but whatever the jury finds appropriate for punitive damages.
1.2.3.      Lambertson v. United States
·                  Plaintiff was working on a loading dock when US Department of Agriculture worker Boslet jumps on his back, yells boo, and pulls his hat over his eyes and Lambertson slices face on nearby meat hooks. Boslet’s defense to battery is that he did not intend to cause harm and it was an accident. Initial contact was not, however, unintentional. Lambertson is suing federal government but cannot sue them for battery. Federal government cannot be sued for the intentional torts by their employees.
Stupidity and/or being well intentioned are both not defenses for intentional torts.
Sovereign Immunityàyou cannot sue the Government
Federal Torts Claims Actà creates exceptions to the rule that you cannot sue the government…created by statute so exceptions are limited…there is no exception for intentional torts.
Technical Batteryàis a battery without intent to harm (evil)…but there is no such things as a technical battery…it’s either a battery or its not…this was just one judge’s way of putting things
District court’s determination that it was a battery is affirmed.
Battery is a dignitary tort so is assault