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Torts
Wayne State University Law School
Caulkins, Stephen

 
Fall 2006
 
liability without fault–reasons
            he caused it
            somebody has to pay the doctor’s bill
                        makes sense to have the one who did something than the person who didn’t do anything
            deterrence
                        counter argument: fault system already has deterrence build in
            if there is a fault system there is less chance of paying
            easier rule: you hurt someone, you pay
expensive to sue–in favor of no fault
 
Who pays when person is hit with the stick?
            insurance company
better for society if insurance pays
            spread cost over lots of people–the masses can handle a small inc. in bills.
           
Why shouldn’t there be liability?
            easier to bring lawsuits—more lawsuits
                        more demands on legal system
            no one would take risks
anytime you win, you do make it easier for others to win (good and bad thing )           
Personal accountability
            ex. tobacco comp. concealed info
                        focus on nuances
 
 
            Case:
            Vonsburg v. Putney
            Remanded for new trial b/c the testimony of the doctor was hypothetical
            The plaintiff had originally been awarded $25000.
Facts:
            Plaintiff: a little over 14
            Defendant: a little under12
            Defendant kicked the plaintiff under the knee, while in the school room, after lessons had started.
            Plaintiff knee had been injured the month before. It was nearly healed at point of injury.
           
 
Issue One:
            Plaintiff must show either that the intention was unlawful or that the defendant is at fault.
            If they had been in the playground, plaintiff may not have been liable. Certain expectation that those things happen on the playground.
           
Conclusion:
            Happened in the classroom. Action was unlawful.
 
Issue Two:
            Was the knee already diseased?
 
Doctor was required to give an opinion on a hypothesis, but he couldn’t have given an intelligent opinion as to which wound on the plaintiff’s leg caused the injury.
This influenced the jury and shouldn’t have been used.
 
Issue Three:
            Can only such damages be recovered as the defendant might reasonably be supposed to have contemplated as likely to result from his kicking the plaintiff?
 
            The wrongdoer is liable for all injuries resulting in the wrongful act, whether they could or not have been foreseen by him.
 
 
Conclusion: Cause remanded for a new trial.
 
 
Vonsburg v. Putney
           
Head note:
            written by west company employees
                        read opinion, wrote down paraphrased summary of what opinion said
            (no upside in reading a head note)
            number categorizes where opinion belongs
Lyon: judge who wrote opinion
           
Defendant attorney: no intention to commit assault
What lawyers argued:
            attorney defense–could be assumed that among boys it was an unavoidable accident, should not be a recovery, must appear that injury was consequence of wrongful act, should have been foreseen, no evil intent
            plaintiff–where an infant commits a wrong, damages resulting to another ought to be recompensed. party who commits a trespass is liable, def. knowingly and consciously kicked plaintiff.
 
Totally different approaches to the law (have to make two attorneys address other’s argument)
 
defendant won (appellant won)
            b/c the testimony from the doctor
                        suff. important question and answer–might have changed jury’s opinion if q. had been properly phrased
           
Does plaintiff has cause of action if def. intended to cause no harm?
answer to this question: (last sent. of first p.) – action sustained
            they mean: action is affirmed
Why does court come down for plaintiff on this issue?
            unlawful act, therefore intention is unlawful
           
court could say, don’t apply Vonsburg to a case where someone had no intention to make contact (his daughter running down hall and accidently kicking someone)
 
Is there liability under court standard if you are on playground?
            No.     
Well, you can still be liable on a playground. Girl studying. Someone kicks her.
            soccer. penalty committed. not a battery b/c even penalties are allowed in soccer.
 
Why pay the $5000?
Deterrence
plaintiff shouldn’t have to pay–he was just sitting there
If rule of expected harm, most cases you’d have recovery of $0. Won’t award $$ to someone who isn’t harmed.
 
Why wasn’t he wearing

e horse
 
Assault and battery
Military exercises
If men tilt or turney in presence of king or if two masters of defense kill each other–no felony
 
Brown v. Kendall
 
If a man takes my hand and strikes you (or the plaintiff ran cross his piece when it was discharging)– no negligence to give occasion to hurt.
 
 
Case: Garratt v. Dailey
Case originally dismissed. Remanded for clarification.
 
Facts:
            A five-year-old was visiting with an adult in her back yard.
            Her sister, an adult, came out to join them.
            The boy pulled the chair away, and she feel to the ground and fractured her hip.
 
            Only the sister testified, so the court went with the boy’s testimony. That he pulled the chair away, and tried to put it back when he realized she was trying to sit.
 
Issue:
            How do you prosecute a minor for a tort?
           
            The same way you would anyone else.
 
Issue:
            Was Brian a trespasser?
           
            No. He was a visitor. Allowed to touch property.
 
Issue:
BATTERY: intentional infliction of a harmful bodily contact upon another.
 
            intention of bringing harm or an apprehension thereof
            the contact is not consented
            the contact is not otherwise privileged
 
            Was there intent? (no consent or privilege)
 
If plaintiff proved that Brian pulled the chair out while she was sitting, there would be intent
 
Issue:
            Was plaintiff able to cross-examine?
           
            Yes, except regarding whether he had his chair pulled out from under him in Kindergarten.
                        Plaintiff tried to ask q’s about conversations he’d had at his home.
            But all of this got on the record anyway–point proved.
 
 
A deposition should have been allowed, even if under supervision of court.