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Wayne State University Law School
Browne, Kingsley R.

Wayne State University


Professor Browne

Fall 2011

What is a Tort?

1. A civil wrong committed by one person against another

2. Breach of duty, not by contract, that give rise to action for damager

What are the functions of the tort system?

1. To provide relief/recovery for those the torts are inflicted upon (compensation)

2. Corrective justice

3. Find economically efficient rules

a. Minimize cost of accidents and accident prevention

Intentional Torts: where the defendant desires to bring about a particular result

– e.g. Battery, Assault, Trespass, Conversion

Negligence: where defendant did not intend to bring about a certain result, but merely acted carelessly

Strict Liability: where defendant is liable even though he did not intend to bring about the undesirable result; and used the utmost care (w/out intent or negligence)

Intentional torts:

1. Battery: Harmful contact RTS2d §13

· an actor is liable to another for battery if:

a) he acts intending to cause harmful or offensive contact with the person of the other or a 3rd person, or an imminent apprehension of such a contact

b) a harmful contact with the person of the other directly or indirectly results

2. Intent:

· A person acts with intent to produce a consequence if:

a) The person acts with the purpose of producing that consequence; or

b) The person acts knowing that a consequence is substantially certain to result

3. Vosburg v. Putney (classroom kicker)

· F: D kicked P in classroom, P had previous condition, P is injured, P sues

· I: Is D liable for damages from unseen injuries?

· H: Yes, act was unlawful in classroom, therefore intent was unlawful

· ROL: Intentional tort feasor is responsible for all results from actions, including unforeseeable ones

4. Garratt v. Dailey (chair puller)

· F: P went to sit down, D moved chair, P fell and injured, P sued

· I: Is D liable for damages if he did not touch P?

· H: Yes, D knew that P would sit down and that P might fall

a) D acted w/ substantial certainty that P would fall

b) D caused action that resulted in harmful contact (P hitting ground)

· ROL: P must establish that D committed his or her act for the purpose of causing the harmful contact or with substantial certainty that such contact will result

5. White v. University of Idaho(piano teacher)

· D conducted non consensual touching on P’s back, P has reaction and is injured

· D found liable due to act being non consensual (rejected RST2d)

6. Wagner v. Utah(Mentally-impaired K-Mart)

· D is mentally impaired and attacks P

· D found liable due to intent to cause action and harmful contact results (inconsistent with RST2d)

7. Intent as Desire vs. Intent as Knowledge

8. Intent to Act vs. Intent to produce consequences

9. Transferred Intent

· Talmage v. Smith (stick thrower)

o Defendant threw a stick at trespassers and injured a third, unseen trespasser. Stick labeled: “Tortious intent”

o Intent transfers among like intentional torts…

10. Battery by smoke (2nd hand smoke)

· Shaw v. Brown & Williamson Tabacco Corp. (2nd hand smoke)

o Truck driver sues for exposure to smoke from driving partner

o Rejected: Not sufficient intent, didn’t know with substantial certainty smoke would affect any particular person.

Intent for Trespass to Property

1. Dougherty(trespass = damage)

a. ROL: Every unauthorized entry upon another’s land qualifies as a trespass, regardless of the degree of damage done in the process

Trespass to Chattels:

1. Hamidi (Intel emails)

a. ROL: Under California law, the tort of trespass to chattels does not encompass an electronic communication that neither damages the recipient computer system nor impairs its functioning.

2. Trespass in cyberspace


Poggi (Wine barrels)

a. ROL: Conversion is the unwarranted interference by defendant with the dominion over the property of the plaintiff, which results in damages



1. Mohr (ear surgery on opposite ear)

a. ROL: If an operation is performed without Plaintiff’s consent, and the circumstances were not such as to justify its performance without consent, then the operation is wrongful and thus unlawful

2. O’Brien (small pox shot)

a. ROL: When consent is used as a defense to an assault action, the totality of the circumstances must be considered, but only overt acts and outward manifestations may demonstrate such consent or lack thereof

3. What is the scope of consent?

4. Subjective vs. Objective Standard.

5. Who may give consent?

6. Does lack of disclosure vitiate consent?

7. Can effective consent be given for illegal acts?

a. Majority view: no constitutional power to consent to illegal act (can sue eachother)

b. Minority view: if there is consent, no tort

c. Minority view w/ exception: minority rule, exceptions made to protect social rule and interests of ignorant parties (kids, etc)

8. Hudson v. Craft. (unlicensed boxing match)

a. ROL: A boxing promoter is liable for the boxers’ injuries in an unlicensed boxing match, regardless of whether or not the boxers consented


1. Maguire (insane guy beats up nurse)

a. ROL: An insane person is liable for his intentional torts

2. Is insane person held to same standard of intent as sane person?


1. Courvoisier (shoots officer during “riot”)

a. ROL: One is not liable for injuring an innocent person during a riot if it is reasonably believed that the innocent person is a threat and the person is acting in self-defense

2. Muncy (domino parlot fight)

a. ROL: Self-defense defense cannot be utilized when it is unclear who the aggressor was

3. What is the scope of the right to use self defense?

4. What is the effect of a mistake in the need for self-defense?

5. What is the effect of an injury to an innocent bystander?

Defense of Property:

1. Katko (spring gun)

a. ROL: The value of human life and limb both to an individual and as a matter of public policy outweighs the potential damage to property. Thus, while a defendant may use reasonable force in defense of her property, he has no right to willfully and intentionally injure a trespasser in a manner that may result in loss of life or great bodily injury. The only exception is when the trespasser is committing a violent felony with the potential of endangering human life


When D unintentionally injuries P during a lawful act, P must show that D acted w/out due care as adapted to the circumstances

b. Hybrid of strict liability and negligence

i. D was only liable if he did not use proper care and P did

2. Stone v. Bolton (lady hit by cricket ball)

a. ROL: D has a duty to take reasonable measures to prevent a reasonably foreseeable risk from occurring

b. D argued accident was highly unlikely

3. Bolton v. Stone (d appeals lady hit by cricket ball)

a. ROL: Test to be applied is whether the risk of damage to a person is so small that a reasonable person in that position, considering safety, would have though it right to refrain from taking preventative steps.

b. Should weigh cost of prevention w/ likelihood of risk (kinda like Hand formula)

4. What are the arguments for and against a fault standard?

5. Hammontree (drive thru shop window, caused by seizure)

a. ROL: Liability of a driver, suddenly stricken by illness rendering him unconscious, for injury resulting from accident during that time rest on principles of negligence, not strict liability.

b. P sued under strict liability because knew negligence claim would not work

c. Court said legislature would have to bring this to action, not courts

d. Under negligence regime:

i. Jury decides if you should have taken precautions, based on harm, risk and $ it costs.


1. The “Reasonable Person” Standard

2. Vaughan (hay bale fire, burns down cabins)

a. ROL: standard of negligence is objective: one has behaved negligently if he has acted in a way contrary to how a reasonably prudent person would have acted under similar circumstances.

b. Decided on objective standard of “reasonable person” instead of subjective standard based on D (would have left too much gray area)

3. Holmes excerpt.

4. Roberts (boy hit by car, contributory negligence?)

a. ROL: In considering negligence of a minor, standard of care is the degree of care commonly exercised by ordinary minor of same age and maturity.

b. Contributory negligence: child not held to same standard for self-protection as a reasonable prudent person

c. Primary negligence: child held to same standard as prudent person if he caused the accident

d. Beginners are held to same standard as those that are experienced (in adult activities)

5. Daniels (When minor drives = care of adult)

a. ROL: When minor P undertakes an adult activity, which can result in grave danger to others, the standard of care is measured by what a reasonable and prudent adult would use.

b. Unfair to other drivers if youth not held to adult standard