Tort: a civil wrong that causes damage for which a remedy may be sought in the form of damages. Damages, injury, or a wrongful act done willfully, negligently, or in circumstances involving strict liability, for which a civil suit can be brought.
– What is tort law?
o Torts—wrongs recognized by the law as grounds for a lawsuit
§ Conduct falls below legal standards
§ Must result in a harm
· Emotional, physical economic etc.
– why are tort claims brought?
o Shifting the loss that resulted in from the act
o Reasons for shifting the loss:
§ General Deterrence
§ Public Policy/social justice
§ Civilized way to resolve disputes
§ Compensate the victims
· Alternative models—ie: worker’s comp
o Courts good deterrence system? Debatable
I. INTENTIONAL TORTS
A. Prima Facie Case: to establish a prima facie case for intentional tort liability, the Π must prove:
1. Act by the Δ: refers to a volitional movement on the part of the Δ
2. intent: a person intentionally causes harm if the person brings about that harm either purposefully or knowingly. INTENT IS SUBJECTIVE—can be implied by actions—most contemporary courts follow the Restatement §8A definition of intent
a) purpose/desire: a person purposefully causes harm if the person acts with desire to bring that harm
b) knowledge: a person knowingly cause a harm if the person engages in an action that harm is substantially certain to occur.
c) Actor does not need to intend the injury: the intent that is relevant for liability for an intentional tort is the intent to bring about the consequences that are a basis of the tort. Thus, someone may be liable for an unintended injury if he intended to bring about the basis of tort consequences.
d) If no intent, may still be liable for negligence (unintentional tort)
e) Transferred intent: Under the transferred intent doctrine, accepted by many courts, intent can be transferred between five torts (battery, assault, false imprisonment, trespass to chattel, and trespass to land) and different victims within these five torts. For example, if A intends to assault B, but accidentally commits battery against B or another party C, A is liable for the battery.
(1) Intent can only be transferred between intentional torts of assault, battery, false imprisonment, trespass to land, trespass to chattels and conversion of chattels.
(2) See Hall v. McBride: aiming and firing a loaded weapon at a passing automobile manifests an intent to put the automobile’s occupants in apprehension of a harmful or offensive bodily contact, which intent is necessary for battery and is transferable to an innocent bystander who is injured by the shooter’s bullet
(a) Extended liability: if a person commits a tort they are responsible for all damages caused
B. INTENTIONAL TORTS TO THE PERSON
1. Battery: Battery occurs when the defendant’s acts intentionally cause harmful or offensive contact with the victim’s person.
a) Prima Facie—intent, contact, harm, absence of privilege
(1) VanCamp v. McAfoos: In order to establish a cause of action for battery, a plaintiff must plead and prove facts establishing the defendant’s wrongful act
(a) The court establishes in McAfoos that they will not allow for liability without fault
(2) Act by the Δ: “external manifestation of the actors will”, “volitional movement”
(a) Unconscious acts not sufficient: movm’t while sleeping
(b) Acts by incompetents: not legally competent are still capable of volitional movements
(i) see Polmatier v. Russ: one may be liable for intentional torts even if legally insane—his thoughts were rational even if they were schizophrenic
(a) rational decisions are not necessary to form intent
(b) Insane persons can be liable for their torts—policy considerations
(i) If two innocent persons suffer a loss, it should be born by the one who occasioned it
(ii) Public policy requires the enforcement of such liability in order that relatives of the insane person shall be led to restrain him
(iii) That tortfasors shall not simulate or pretend insanity to defend their wrongful acts
(iv) No liability then no redress for injuries
(ii) see White v. Muniz: a party must have been aware of the offensiveness of her conduct in order to be held liable for the intentional tort of battery (single intent v. dual intent)
(a) intent to cause harm? Or intent to touch AND cause harm?
(i) did the “act” with the intent to inflict harmful or offensive contact—everyone is “capable” of intent
(ii) test: acted with desire to cause result or believe that the result was substantially certain
(iii) see Garrett v. Dailey: the intent necessary for the commission of a battery is present when the person acts knowing with substantial certainty that the harmful contact will
ility to cause harm, intent to cause harm or apprehension of harm, actual apprehension
(1) Act by the Δ: volitional movement (like in battery)
(a) Words alone are not sufficient—must also be movement of the body however words alone may be enough to impose liability for IIED (later)
(i) see Cullison v. Medley: summary judgment on a claim of assault is not sustainable where a jury could conclude that the defendant intended to frighten the plaintiff and that the plaintiff’s apprehension of being injured was one that would normally be aroused in the mind of a reasonable person
(a) assault constitutes a “touching of the mind”
(b) apprehension must be reasonable
(c) assault, unlike battery, is effectuated when one acts in intending to cause a harmful or offensive contact with the person of another or an imminent apprehension of such contact
(ii) Exception: verbal threats of imminent harm may constitute assault. Ie: “turn around and I’ll shoot you”
(2) Intent: intent to cause battery OR substantial certainty battery may result—intent needed to prove assault (test: desire or substantial certainty)—transferred intent is applicable as in battery
(3) Apprehension: The victim must perceive that harmful or offensive contact is about to happen to him
(a) Imminent Harmful or offensive contact: For assault to be actionable the victim’s apprehension must be of imminent harmful or offensive contact.
(b) Fear v. Apprehension: The Restatement and several court decisions distinguish between “fear” and “apprehension.” The requisite apprehension of imminent contact need not produce fear in the victim.
(c) Person must be apprehensive of touching to his or her own person (not their property)
(d) Source of threatened harm: Δ may be liable for the apprehension if he arouses that apprehension of harm from someone else (in this case—words would be sufficient)
(e) Threats of future harm maybe considered IIED