PART I: INTRODUCTION
A. Introduction to course
1. Tort Goals
Fairness Between parties and undoing wrong to victim
Social Utility (Policy)
Prevents losses through deterrence, encourages activity through belief in deterrence and in compensation and transfers funds to the needy.
Justice v. Social Utility
Fairness, equity and justness Increasing wealth, productivity and freedom
Immediate parties Society as a whole
In light of past interaction In light of future consequences
Concerned with the allocation of losses resulting from the activities of people; it is an attempt to balance the utility of a particular type of conduct against he harm that it may cause, judged by the prevailing social and economic attitudes of the time.
2. Objectives of the Tort System
There are many possible compensation systems. Whatever system is employed, it should fulfill the following objectives:
(i) Be equitable (between those who receive benefits and those who bear the burden; among beneficiaries; among the cost-bearers).
(ii) Contribute to the wise allocation of human and economic resources.
(iii) Compensate properly.
(iv) Be reliable.
(v) Distribute losses rather than leave them on single individuals.
(vi) Be efficient.
(vii) Deter risky conduct.
(viii) Minimize fraud.
3. Historical Strict Liability
o Direct harms
o No fault required for prima facie case
· (Trespass on the) Case
o Indirect harms
o Fault required for the prima facie case
PART II: INTENTIONAL TORTS
An intentional, unprivileged harmful or offensive contact by D with the person of another.
1. Elements of a Prima Facie Case
(a) Act. There must be a volitional act by D that causes the contact with P. D’s act must be an external manifestation of his will. It must be a volitional movement.
(b) Intent. D must be intending the touching. Intent is the actor’s desire to cause the result of his actions (a harmful or offensive touching) or his belief that these consequences are substantially certain to result from his actions. There is no requirement that there be a hostile or malicious intent. Objective facts may be introduced to prove a D’s subjective state of
son has a right to determine what shall be done with his own body. More recent trend is that the only intent that is needed is the intent to touch that results in a harmful or offensive touching. Immediate awareness of the contact is not essential.
Smoke as Contact
Leichtman v. WLW Jacor Communications, Inc. (pg. 42)
P who claims to be a nationally known anti-smoking advocate was invited to appear on P’s talk show. One of the talk show hosts lit a cigar and repeatedly blew smoke in P’s face.
Rule: Because tobacco smoke is a “particulate matter” and has properties capable of making contact, it can be considered offensive to a reasonable sense of dignity. This is not a secondary smoke case but intentional conduct.
There need not be contact with the body. You need to have an invasion of personal space. Fisher (pg. 41)
(a) Touch and (b) thereby harm, or
(a) Touch and (b) thereby offend
Intent to touch
Recent minority approach