A. General [pg 1] 1. Torts one of oldest branches of law [pg 1-4] 2. The Aims of Tort Law [pg 5] a. prevention of self help by victims and their relatives and friends
b. retribution against wrongdoers
c. deterrence of wrongdoers
d. compensation for the victims of wrongdoers
1. except for compensation, these are the same goals as criminal law
a. therefore compensation has become key focus
1. however retribution deterrence may be more important than ever, due to individuals confrontation by large institutions, corporations, government
3. The Theoretical Structure of Tort Law [pg 6] a. “general” theory [pg 6] 1. “there is no wrong w/o a remedy”
b. “particular” theory [pg 7] 2. law of torts merely composite set of discrete torts
a. this is modern view
b. when confronted w/ new/novel problem, must extend existing tort remedies
Right to Privacy? Roberson v. Rochester Folding Box Co (Ct. App. NY 1902) [pg 8] Facts- P sues company for using her likeness in advertising w/o her consent. Acknowledges this is a new tort, but claims basis in “right to privacy”.
Finding- Court holds there is no cognizable right to privacy independent of some other right (e.g. property rights.)
Dissent- Principle of equity and “natural rights” allow extension of tort remedy even if no firm precedent may be found; likeness may be thought of as “property” like writings, e.g.
Note- Statute enacted in 1903 to prevent unauthorized use of image
4. Development of the Concept of “Fault” [pg 17] a. trespass [pg 19] – P injured as immediate result of conduct
b. trespass on the case [pg 19] – P injured as consequential result of conduct
c. presented problems in pleading for both defendants and plaintiffs
1. e.g. justifications and denials must be pleaded separately [pg 20]
Ordinary Care? Brown v. Kendall (SC Mass 1850) [pg 25] Facts- P was injured when stick D was using to separate fighting dogs hit him in the eye causing injury. D appeals award for P on ground that trial court incorrectly stated “extraordinary care” standard for behavior that was lawful but not a duty.
Rule- If D engaged in lawful act, duty to avoid unintentional injuries is the use of reasonable care. Burden of proof on P.
Finding- Court holds trial court standard incorrect. New trial ordered.
Note- intentional = trespass, unintentional = case
II. Intentional Torts [pg 32] (modern derivatives of writ of trespass)
A. The concept of “Intent” [pg 32] 1. Restatement (Second) of Torts
a. § 8A “intent” [pg 32, 33] = desires to cause consequence, or he believes consequences are substantially certain to result from conduct
b. § 2(a),(b) “reckless” [pg 33] = person knows risks of conduct, or knows facts that make risk obvious, and precaution would be small burden compared to risk
Note- Mich. Legislature quickly made “intentional”=purposeful for purpose of Worker’s Comp.
B. Assault and Battery [pg 41]
a. Another person is put in apprehension of imminent harmful or offensive touching.
1. Act – must be voluntary
2. Intent – intent to touch/threaten
3. Result – person must be put in apprehension of offensive or harmful touch
a. apprehension isn’t necessarily fear
b. apprehension must be of immediate, imminent contact
1. To cause offensive or harmful contact, or
2. To cause apprehension of such contact.
c. Special Rules:
1. Doctrine of Transferred Intent: intent need not be directed at P (P must feel apprehension for himself).
2. Nature of Threat:
a. Must be imminent
b. Must be aware of threat
c. Threat that can be avoided by agreeing to an unlawful act is assault.
d. Fear not required! Only apprehension. (May not be afraid but contact still offensive.)
e. Apprehension need not be of contact caused by D. (“a snake is behind you!”)
f. Words alone usually not sufficient, unless put P in apprehension of imminent contact.