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Wayne State University Law School
Ackerman, Bob

Fall 2013
Tort law Evolved from Case Law à Common Law
·         Tort = wrongdoing; wrongs recognized by law as grounds for a lawsuit
·         Harm required- D’s wrong results in harm to another person that the law is willing to say constitutes a legal injury
o   Involve physical injury or threat to physical injury
·         Developed through litigation, not through statutes, whether the wrong was intentional or unintentional
·         Tort – conduct that amounts to a legal wrong and that causes harm for which courts will impose civil liability.
·         Primarily tort law is Retrospect, GOAL: compensate the plaintiff for the HARM that was done to them in the past.
·         Shift the loss from the plaintiff onto the defendant
Common Questions in Tort law:
·         What conduct counts as tortuous or wrongful?
·         Did the conduct cause the kind of harm the law will recognize?
·         What defenses can be raised against liability if the defendant has committed a tort?
Theory of tort liability
·         Aims of tort law: 2 schools of thought
o   Corrective Justice: Moral Responsibility
§  Hold defendants liable for harms they wrongfully caused and NO others
§  Imposing liability
§  Overall object of tort law: define cases in which the law may justly hold one party liable to compensate another
§  Justification:
ú  Compensate
ú  Create fairness and justice
ú  Create stability and social order
ú  Deterrence
ú  Retribution
o   Social Utility or Policy
§  “good-for-all-of-us view”
§  Social Utility: Dominant concern NOT justice to the individual BUT provide a system of rules that, overall, works toward the good of society
§  Social Policy: Process- social policy that is inward looking. Focus on preserving the litigation system. RULES MADE:
ú   with the legal process itself in mind.
ú  judges and juries can understand and apply in a practical way, 
ú  they must NOT leave too much to the judge’s or the juries discretion.
Valid Cause of Action? Must show Fault.
a.      Children and Insane People
                                            i.      Children may be held liable for their torts.
1.      Must prove each element, including intent
Garratt v. Dailey – p. 35
·         Facts:
o   Kid pulls chair out from under elderly woman.  She breaks hip. 
·         Courts Reasoning:
o   Child can be held liable if there is intent. 
o   Child must know or be substantially certain that the plaintiff will be harmed
Van Camp v. McAfoos – p. 8
·         Facts:
o   Kid rides bike into back of woman, causing injury to her Achilles
·         Courts Reasoning:
o   Child can be held liable if they are at fault.
o   Child cannot be led liable if there is an accident, since no one is at fault. 
                                          ii.      Very young children are seen to be incapable of harmful intent
                                        iii.      Parents can be liable for their children’s torts (Most states have a statute for this)
1.      Damages are capped at a low limit
2.      Child’s tort must have been committed willfully or wantonly
                                        iv.      Insane people can be held liable if they have intent
§  Wagner v. State – p. 41
ú  Facts:
·         Woman is suddenly attacked from behind by mentally disabled patient.
ú  Courts Reasoning:
·         Battery requires an actor to intend harm or offense through his deliberate contact.
·         Def. was incapable of forming this intent.
b.      Transferred Intent
                                            i.      Serves to protect innocent bystanders
Baska v. Scherzer – p. 44
§  Facts:
ú  Girl is trying to break up a fight at a party.  Gets hit in the face.
§  Courts Reasoning
ú  Actor intends to produce such an effect upon some other person and that his act so intended is the legal cause of a harmful contact to the other
ú  The fact that someone else was hurt does not change the fact that their act (punching) was intentional.
                                          ii.      This holds the actor who committed the act responsible, regardless of who is harmed
                                        iii.      Two types:
1.      Tortfeasor intends a tort on one person, but commits a tort on another.
2.      Intends one tort, but accomplishes another.
                                        iv.      Extended Liability Principle – Tortfeasor is liable for all harm caused by his tortious act, not just those that there intended or foreseeable. 
Damages when more than one person is liable:
·         Comparative Fault
o   each faulty party must bear his or her share of the losses
·         Apportionment among defendants
o   if fault is found 80%/20%, party will pay their percentage of damages
·         Joint and Several Liability
o   Plaintiff can collect full 100% from one defendant.
o   Defendant can then collect their proportional “contribution” from other defendant
·         Several Liability
o   Plaintiff can only collect percentage from defendant that they are owed.  I.E. 80%
Intentional Torts
Intent – intent to produce a consequence as either a purpose to produce that consequence or knowledge that the consequence is substantially certain to result. 
1.     Battery
RSMT 2nd of Torts: An actor is subject to liability to another for battery if
o   he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
o   a harmful contact

               i.      First part is exactly the same as battery. 
*You can have a battery without assault (Sucker-punch)
                                          ii.      Imminent – doesn’t mean immediate, it means that there will not be a delay
                                        iii.      Apprehension – awareness of an imminent touching that would be a battery  (This can be a touching of the body, if not the mind)
                                        iv.      Plaintiff must reasonably apprehend an immediate touching
1.      Words along for the most part will not suffice to create such an apprehension
Cullison v. Medley – p. 46
o   Facts:
§  Defendant slept with plaintiff’s underage daughter.  Parents came by flashing gun and threatening him if he didn’t leave daughter alone
o   Courts Reasoning
§  Assault constitutes, a touching of the mind as opposed to the body, the damages which are recoverable for an assault are damages for mental trauma and distress.
§  In order to determine whether or not assault occurred the jury should decide whether Cullison’s apprehension of being shot or otherwise injured was one which would normally be aroused in the mind of a reasonable person.
3.     False Imprisonment
·         RSMT 2nd of Torts: An actor is subject to liability to another for false imprisonment if
o    he acts intending to confine the other or a third person within boundaries fixed by the actor, and
o    his act directly or indirectly results in such a confinement of the other, and
o    the other is conscious of the confinement or is harmed by it.
a.      Elements:
                                            i.      Intent to confine
                                          ii.      No lawful privilege (Not a cop)
                                        iii.      Against consent
                                        iv.      Confined in a limited area
1.      Doesn’t count if you are being excluded from an area, such as kicked out of a bar or restaurant.
                                          v.      Appreciable time, however short
                                        vi.      Plaintiff must be aware of the confinement at the time or
                                      vii.      Plaintiff must have sustained actual harm.