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Wayne State University Law School
Gable, Lance

Torts Review Session…
–         Res Ipsa…it must be demonstrated that it is more likely than not that the harm was not caused by an action of the Defendant himself
–         Superior Knowledge Doctrine (Hill v Sparks)
o       Courts will permit consideration of exceptional skill or knowledge and hold a D to a higher standard of care based upon that superior knowledge/skill
o       With a set of facts where one party has superior knowledge of potential harm court must decide whether the superior knowledge/skill will be required to conform to a higher degree of care.
–         Intoxication – doesn’t auto negate consent
o       But not an excuse that will allow a person to complain that their consent was not valid
o       Can be a relevant factor that a reasonable person may not believe a intox person did not give actual consent
–         Nominal damages – Why would you “want” them
o       Not because of compensation
§         But you can gain
·        In some jurisdictions they allow punitive damages to follow (must first be some sort of nominal damages for punitive to follow)
·        At some level the fact that they gained nominal damages can allow them to “win” the case for other reasons
o       Precedent, insurance claims, etc…
–         “Negligence per se” – standards are different in tort action than criminal
o       in civil the key is that there is some rule (statute or reg) that P can show that D violated
§         If the party can show that the opposing party has violated the rule it will fulfill the elements of duty and breach
·        Ways to defend
o       Argue that they are not the class of persons or not the injury the statute is meant to protect or guard against
o       Definitely not a strict liability
–         Assault and Battery – transferred intent applies
o       If you only intent to assault and end up causing a harm (battery) the intent is transferred to allow for a battery charge. Doesn’t apply to intentional infliction of emotional distress.
–         Palsgraff case – Cardozo and Andrews…courts have melded the two separate opinions in the case.
o       Cardozo – foreseeability
o       Andrews – considering foreseeability as an issue of proximate cause not as an issue of duty
–         Substantial Factor Test…
o       If impossible to determine between multiple parties who caused harm
o       If you know it was only one but can’t prove which…
§         Alternative liability
·        Can’t force P to prove which D caused harm
o       If joint tortfeasors and enough evidence can show that they have diff

natural and probable consequence to establish intent.
            – Garratt v. Dailey [46] Boy pushing the chair under her)
§       Doesn’t matter if actor is competent to appreciate the harm they cause, requisite intent to strike, fact that intent arose from insanity is irrelevant (Polmatier v. Russ, [54] – Crazy man with irrational basis, kills).
·      Public Policy reasons:
o     if 2 innocent people suffer a loss, it should be bourne by the one who occasioned it.
o     incentives for relatives to control their insane family members.
o     Allows people to not easily claim insanity as excuse.
o     facilitates compensation to more innocent party
o     Dual intent – intent modifies both contact and harm.
§       Necessary to show both intent to contact and intent that the contact be harmful or offensive.
Incompetent persons are harder to prove liability to(than single) because intent to cause harm cannot be proven (White v. Muniz [57] in living facility strikes, but insufficient to show intent to harm or offend)