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Wayne State University Law School
Browne, Kingsley R.

Professor Browne – Fall 2015
What is a tort?
Tort: a breach of duty other than that of a contract that gives rise to an action for damages
Civil wrong committed against an individual
Individual right violated by someone else
Tort law provides remedies for these wrongs
What are the functions of the tort system?
Functions of Tort Law
Protect innocent individuals from external aggression to their person and property
Provide compensation
Deterrence (if you harm, you are liable)
Corrective justice (fair)
Economic efficiency (incentive to avoid accidents)
The 3 Main Theories for Tecovery in Tort:
Intentional harms: Recovery for harms intentionally inflicted by D on the person or property of P
Negligence: Recovery for harms negligently inflicted through the want of reasonable or ordinary care (doesn’t require intent)
Strict liability: Recovery for harms inflicted on P by a D who acts w/o negligence & w/o any intention to harm
Intentional Tort: Intent + Damages (actual harm)
Damages (actual harm)
Don’t have to show damages, int. torts are a matter of trespassing to your body or property
Is there a prima facie case? Is there an affirmative defense?
Common Policy
We do not want to escalate/provoke violence so defenses and legal remedies are available accordingly
Protect P from innocent harm
A. Physical Harms
1. Trespass to Person (Intentional Torts to Persons)
RST 13. Battery: Harmful Contact
An actor is subject to liability to another for battery if
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
harmful contact with the person of the other directly or indirectly results.
The Second Restatement uses intention to denote that the actor desires to cause consequences of his act, OR that he believes that the consequences are substantially certain to result from it. (RST 8A)
Intent is subjective (what is in his mind at the time)
RTT 1. Intent (dual intent standard)
A person acts with the intent to produce a consequence if:
the person acts with the purpose of producing that consequence; OR
the person acts knowing that the consequence is substantially certain to result. (like 99%, high standard)
He has to be substantially certain (still subjective)
Just because something is not an intentional tort doesn’t mean it is not a tort
If just short of substantial certainty but positive harm would occur, could be negligent for disregarding a substantial risk
Intent as desire vs. intent as knowledge
Intent to act vs. intent to produce consequences
Vosburg v. Putney (1891 WI): defendant held liable for unlawful touching
F: Schoolhouse kick to knee à loss of leg (assault and battery)
Rule: In action to recover damages for alleged assault and battery, the plaintiff must only show either that the intention was unlawful, or that the defendant is in fault.
H: Defendant liable even though plaintiff's leg was in a weakened condition from a previous injury.
R: If the intended act is unlawful, the intention to commit it must necessarily be unlawful. So if the kicking of the plaintiff by defendant was an unlawful act, the intention of defendant to kick him was also unlawful. The act was a violation of the order and decorum of the school, so necessarily unlawful.
Jury found in special verdict that defendant didn’t intend to cause harm, but regardless he intended to touch plaintiff’s leg and it was found unlawful because in violation of the order and decorum of the classroom so plaintiff can recover damages
Pursued as an intentional harm instead of negligence because different defenses to each claim. If tried suing for negligence, defendant could have claimed plaintiff was contributory negligent because 14 years old and didn’t tell him his leg was bad
Garratt v. Dailey (1955 WA): expanded scope of intent – same as RST (dual intent standard)
F: 5 year old pulls out chair from where adult woman was attempting to sit à fractured hip (battery)
Rule: Plaintiff must establish that defendant committed his or her act for the purpose of causing the harmful contact or with substantial certainty that such contact will result.
H: Judgment against defendant upheld because defendant knew with substantial certainty that plaintiff would attempt to sit down where the chair had been.
The concept of “intent” denotes a defendant’s desires to cause the consequences of his actions, or his belief (with substantial certainty) that the results will follow. The distinction to be drawn is not merely whether the defendant intends to commit the act in question, but whether he intends to cause the consequences of his act.
Sued for battery (intentional tort) instead of negligence because only 5 years old
Even though injury wasn’t the goal here, still found intent because moved the chair when substantially certain (90%+) that the result would occur (vs. being only likely – if something is only likely does not mean intent)
For intent determine if the defendant himself (not a reasonable person – objective) knew the result was substantially certain
Can have intent as knowledge or desire
What is in the mind of most people is only circumstantial evidence
Although the Restatement Provisions are Powerful Authority, Sometimes Courts Reject Them:
White v. University of Idaho (1990 ID): Court held that piano student she stated a valid claim for battery against music professor for touching her back even though the defendant had not meant to either harm or offend her, brushing aside any attempt to incorporate the requirement of offensive intent, noting they have not and will not adopt the Restatement (Second) in Idaho. Rejected dual intent standard.
It has been held that a mentally impaired man could commit battery because
Not transferred intent if defendant intended to hit a fox with a rock and instead hit the plaintiff because it is not a tort to throw a rock at a fox
Talmage v. Smith (1894 MI): tortious intent of defendant transferred to plaintiff
F: P was struck in eye by stick thrown by D, intended at 2 of P’s companions while they were trespassing on D’s property. D asserted he did not see P, nor did he intend to hurt him (battery)
H: Court held this was immaterial. “The right of the P to recover was made to depend upon an intention on the part of the D to hit somebody, and to inflict an unwarranted injury upon someone…The fact that the injury resulted to another than was intended does not relieve D from responsibility.”
Defendant intended battery because attempted to make unauthorized contact with someone and that tortious intent is transferred to the plaintiff
Shaw v. Brown & Williamson Tobacco (1997 MD): claim rejected – failure to allege sufficient intent
F: Non-smoker truck driver shared cab with heavy smoker à lung cancer  (battery for secondhand smoke inhalation against tobacco company)
H: Claim rejected for failure to allege sufficient intent. Tobacco Co. did not know with a substantial degree of certainty that secondhand smoke would touch any particular non-smoker (although may have had knowledge that it would reach some non-smokers). Such generalized knowledge is insufficient according to Court to satisfy the intent requirement for battery
Had to sue tobacco company because an employee can’t sue another employee
Usually an employee can’t sue an employer either, the only remedy between and employer and employee is worker’s compensation
Very narrow exception is if it is an intentional tort – specific intent by the employer to injure the employee (can’t just be something like knowledge of toxic chemicals in a mine)
Leichtman v. WLW Jacor Communications (1994 OH): defendant liable – intended harmful conduct
F: Radio host intentionally blew smoke in the fact of an antismoking advocate (battery)
H: Defendant intended to cause harmful contact, and thus was liable for battery
2. Trespass to Land (Intentional Torts to Property)
Principal right as a property owner is to exclude others
Trespass quare clausum fregit (trespass qcf) granted to protect the plaintiff's interest in the exclusive possession of land and its improvements
Trespass to real property takes place not only on the surface, but also with respect to any intrusion above or below the surface of the land
Dougherty v. Stepp (1835): unauthorized (unlawful) entry = trespass regardless of actual damages
F: D entered P’s unenclosed land without permission and surveyed a part of the land, claiming it as his own (mistaken about the ownership of the property). Made no damage to property. (Action to recover damages for trespass quare clausum fregit (qcf))
Rule: Every unauthorized (unlawful) entry onto the land of another is a trespass regardless of the amount of actual damages.
H: Defendant liable for damages.
R: Action for trespass can be maintained w/o proof of any actual damage. The law implies some damage from every entry against the will of landowner “if nothing more, the treading down of grass/ herbage”
Old rule: person is strictly liable for trespass, i.e. if he enters the land of another without permission, he is liable regardless of intent or negligence in doing so
Present rule: liability for trespass only if intrusion is intentional or negligent
General rule: to be liable for intentional tort of trespass don’t have to harm the property, and property owner doesn’t have to have a no trespassing sign posted
Brown v. Dellinger (1962 TX): held liable for damages because trespass resulted in actual harm
F: Minor Ds were trespassers b/c of unauthorized acts of bringing matches and igniting fire in P’s charcoal burner
H: Held civilly liable for the consequences directly flowing from trespass  
Owing to the passive and immovable nature of real property, the courts have generally adopted stringent standards of liability whenever the trespass results in actual harm
Cleveland Park Club v. Perry (1960 D.C.): intent in tort of trespass is the intent to complete the physical act, not the intent to cause harm
F: 9 year old dove down in pool, removed drain cover, and inserted rubber ball à extensive damage requiring the pool to be closed for repairs (trespass)
H: “The court stressed that in trespass cases 'the intent controlling is the intent to complete the physical act and not the intent to cause injurious consequences'”
Intangible Trespasses = Noise, radiation, electromagnetic fields, light smoke
Public Service Co. of Colo. v. Van Wyk (2001 CO): with intangible intrusions have to show actual harm
“An intangible intrusion may give rise to a claim for trespass, but only if an aggrieved party is able to prove physical damage to the property caused by such intangible intrusion”
This requirement safeguards against the concern that allowing trespass claims against intangible intrusions would produce too much liability
sustained plaintiff's nuisance claim that the defendant's actions depreciated the value of their property, caused mental distress and deprived them of the quiet use and enjoyment of th

the legislature for the purpose of protecting a certain class of people from their own inability to appreciate the consequences of their acts
Not clear if Hudson v. Craft falls within this exception
Ex: age of consent
Some courts have refused to allow underage plaintiffs to bring private rights of action for statutory rape and sue for damages when under the age of consent but consented to sexual intercourse but others have on the ground that the girl was “too immature to rationally or legally consent”
Athletic injuries: In most sports it is generally held that plaintiffs consent to injury from blows administered in accordance with the rules of the game
EXCEPTION – when the blows are deliberately illegal, or the act is against the rules and customs of the game then players are liable for injury in tort action has to be a high level of intent to injure (Hackbart v. Cincinnati Bengals, Inc.)
Courts have applied similar principles to high school and college athletic contests
And whether the activity is organized or unorganized is immaterial to the standard of liability
RTT 2. Recklessness
A person acts recklessly in engaging in conduct if:
the person knows of the risk of harm created by the conduct or knows facts that make the risk obvious to another in the person's situation, AND
Comment a: “gross negligence carries a meaning that is less than recklessness”
There is a sturdy judicial distinction between recklessness and negligence
Turcotte v. Fell (1986 NY):
F: P pro jockey sued in negligence when injured in a race by D who violated track rules. H: Court refused to allow the action – P doesn’t claim D intentionally or recklessly bumped him; only that as a result of carelessness, D failed to control his mount… While “consent” to join in a sporting activity is not a waiver of all rules…. a professional clearly understands the usual incidents of competition resulting from carelessness.”
b. Insanity
Insanity is not a defense to liability for intentional torts
Main argument against liability for insane person is that you are holding someone to a standard that they may not be able to comply with, but hold insane person to the same standard and impose liability so that the people who oversee the insane person have an incentive to make sure that the person doesn’t harm others
No special treatment for insane people, liable in the same way as a normal person
McGuire v. Almy (1937):
F: Insane person attacked caretaker à suit for injuries
Rule: Where a legally insane person causes intentional damage to the person or property of another, he is liable for that damage in the same circumstances in which a normal person would be liable if capable of entertaining the same intent and entertained it in fact.
H: Insanity not defense, insane person liable for assault/battery b/c capable of entertaining intent
Is insane person held to same standard of intent as sane person? Note: Intention and Insanity. Insane person held to same standard of intent as sane person: Have to have the requisite intent (have to intend a harmful contact with another person) and if you can form intent, then can be liable
Motivation doesn’t matter, just intent
Ex: kill someone because thought they were Hitler – still liable
c. Self-Defense
While subjective test (intent) is used for prima facie case of battery, objective test (reasonableness) is used for the defense of self-defense
To use defense of self-defense, have to be acting reasonably
Courvoisier v. Raymond (1896): self-defense defense allowed even though not actually under attack, because he mistakenly thought that he was under attack
F: C jewelry store owner mistakes cops for thugs and injured cop R with gunshot. R brought case for battery. C claimed defense of self-defense
Rule: Self-defense may constitute a defense to liability for intentional torts, even if the actions taken by a defendant in self-defense result from a mistaken but reasonable belief that the defendant is under attack. Can plead self-defense even if mistakenly think in danger, so long as reasonably believe you are and that force is necessary for self-defense.
After considering all the facts, a jury could have found that Courvoisier reasonably mistook Raymond to be a rioter intending to harm him and thus fired his gun in self-defense. Self-defense may constitute a defense to liability for intentional torts. 
Prima facie battery case but not tortious because acting reasonably in self-defense