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Wayne State University Law School
Calkins, Stephen

Torts Fall 2006
Professor Calkins
I.        Chapter 1 Historical Development of the Tort
(A)    Development of the Concept of Fault
                                                              i.      The Case of Thorns: even if doing a lawful act, if damage caused, must be compensated for if thorns blew on, but its unavoidable®D not liable
                                                            ii.      Weaver v. Ward:man ran in front of musket and got injured necessary acts and burden test of tort
1.       if p’s act is inevitable that he’d get hurt, D not liable
2.       if injury unavoidable, D not liable
3.       if act was necessary in proper way, using ordinary care, D not responsible
4.       if not necessary, D responsible unless extraordinary care, accident inevitable
                                                          iii.      Burden
1.       if duty of D to interfere, P’s burden to prove negligence
2.       if D act unnecessary, D’s burden to prove extraordinary care, want of ordinary care on p
3.       necessary, D ordinary
4.       unnecessary, D extraordinary
                                                           iv.      Brown v. Kendall: Two dogs are fighting and man tries to break them up by swinging his hit and hits a person who is behind him Rule: established modern action of negligence where a person could liable even if he didn’t act intentionally, we required him to use ordinary care.
1.       Under inevitability test and necessary test almost everyone was liable for things which required requiring ridiculous standards of care
II.      Chapter 2 Intentional Torts
(A)    7 intentional torts can be separated into those committed against person and property.
(B)     4 intentional torts against person
                                                              i.       Battery, Assault, False Imprisonment, Infliction of Emotional Distress
(C)    3 intentional torts against property
                                                              i.      respass to Land, Trespass to Chattels, Conversion
(D)    Elements:
                                                              i.      Act by D (Act is a voluntary movement)
                                                            ii.      Intent
                                                          iii.      Causation
(E)    Intent
                                                              i.      Specific Intent: goal is to bring about those consequences requires D’s subjective knowledge
                                                            ii.      General Intent: if knows w/ substantial certainty those consequences will result
1.       Restatement (Third) Definition of Intent: A person acts w/ the intent to produce a consequence if:
a.       The person has the purpose of producing that consequence; or
b.      The person knows to a substantial certainty that the consequence will ensue from their conduct.
                                                          iii.      Vosburg v. Putney: D gave P a light kick in the shin during class and P’s leg being susceptible to infection became infected because the kick aggravated it.
1.       The court held that the action was to “recover damages for an alleged assault and battery.” The general rule is that. The “plaintiff must show either that the intention was unlawful, or that the defendant is in fault”. (Lyon, J.) If the intended act is unlawful, the intention to commit it must necessarily be unlawful. In this case, where the “kicking” occurred mattered. The kicking was unlawful because it violated the “order and decorum of the classroom.
a.       P must prove either the act is unlawful or that D is at fault
b.      Court ruled in dicta that if this had happened during recess that P could not recover
                                                           iv.      Garret v. Dailey: P goes to sit down in chair that had been moved recently by D ( a young boy). Is D liable for battery. Rule: A person must be substantially certain that there acts will cause the harm to be held liable for an intentional tort
1.       If she’s ten feet away instead of five feet, you could argue that there is no battery because he couldn’t be substantially certain the will sit there.
2.       On the other hand if the kid yanks out the chair for the purpose of producing the contact, he is guilty of battery under the restatement.
                                                                                                            Intent and result are both:
                                                Tort to Tort – same person, different tort
Transferred Intent
                                                Victim to Victim- same tort, different person       battery
                                                                                                                    Trespass to land
                                                Different Tort, Different Victim                       Trespass to chattel
[B] 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. [See, e.g., Alteiri v. Colasso, 362 A.2d 798 (Conn. 1975).] Substantial certainty doesn’t apply to transferring intent. 
Only use substantial certainty when figuring out if there is the initial intent (not transferred).
The Restatement does not adopt the doctrine generally, but does endorse transferred intent between assault and battery. [See Restatement §§ 13, 21.]  
Singer v. Marxkids throwing rocks, watch Barbie
1.       if D aims and throws at one person and hits another, still liable for assault and battery b/c injury is direct, natural and probable consequence of his wrongful act
2.       infant liable for battery b/c invades another regardless of intent
3.       only intent (as long as has the mental capacity to have state of mind needed for the tort) needed is doing the particular act
§ 1.02 Battery [7-10] [A] Overview and Definition
Battery occurs when the defendant’s acts intentionally  and directly or indirectly causes harmful or offensive contact with the victim’s person. [See Restatement §§ 13, 16, 18.] Accidental contact, by contrast, must be analyzed under negligence or strict liability.
[B] Intent Requirement
While battery requires intent, the prevailing tort definition does not require an intent to harm. It is only necessary that the defendant intend to cause either harmful or offensive contact. [See, e.g., Vosburg v. Putney, 50 N.W. 403 (Wis. 1891).] The transferred intent doctrine is applicable to battery. [See § 1.01 [B], supra.] [C] Harmful or Offensive Contact
Battery encompasses either harmful or offensive contact. Even trivial offensive contact can constitute a battery. Victim does not have to be aware of contact, they can find out later. (Doctor offensively touching patient while under anesthesia)
[D] Causation
The defendant’s voluntary action must be the direct or indirect legal cause of the harmful or offensive contact. However, defendant need not herself actually contact the victim. (In

will it always be a assault?
Not if it’s in an empty area, but it can be in a crowded one.
You in your car see your enemy and try to hit him.
He jumps out of the way over a railing adjacent to the road (battery).
Even if you don’t expect what’s going to happen, you’re liable
If you put a hole in the middle of the road, and someone sees it, deliberately jumps in it and hurts himself (No battery).
Jump out of way into road (liability for assault and battery) increased their exposure to risk
Jump out way under tree which limb falls (no liability) equal chance of hit happening everywhere
Jump out of way and get hit by lightning (no liability) equal chance…..
Trespass to Land
(A)    Elements
a.       Intentional physical invasion of land (or airspace above land)
                                                               i.      need not be aware or intend to enter the property of a particular person.
b.      Affirmative act by D
                                                               i.      Being thrown onto land is not trespass
                                                             ii.      Stumbling and falling on land is not either
c.       Invades possessor’s land
(B)    Intent
a.       that D intended to enter land, don’t need to show he entered unreasonably
b.      liable if D desired to enter or knew entry was substantially certain
(C)    Act
a.       unwarranted entry onto land is trespass b/c breaking his close
b.      D himself doesn’t need to enter, can cause another or instrumentality to invade
c.       intrusion must be result of intent or negligence
(D)    Mistakes v. Accidents
a.       Mistake even if reasonable (such as thought it was your own property) is not a defense to trespass because you still intended to enter land.
b.      Accident are not actionable because the person did not intend to violate the land of another
                                                               i.      If someone accidentally enters your land and causes damage, the plaintiff will not must prove the that defendant acted negligently or recklessly (instead of strict liability under trespass)
(E)    Damages
a.       Trespass is actionable per se, party may sue even if no harm is done for nominal damages only though
b.      damages depend on acts done and extent of injury
c.       p entitled for at least nominal damages, regardless if real damage was suffered
d.      strictly liable for all injuries regardless of foreseeability
(F)    Defenses
a.       If defendant can prove that the entering of the land was involuntary he will not be liable
b.      If he can prove that the owner consented for him
                                                               i.      If owner consents and he stays longer than consented to, than he is liable
                                                             ii.      He cannot remained upon the land after the possessor has asked him to leave
c.       May be able to raise a necessity defense