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Wayne State University Law School
Gable, Lance

Chapter 1: Tort Law: Aims, Approaches and Processes

What is Tort Law?

· Torts are wrongs recognized by law as grounds for a lawsuit. They can be intentional or negligent. They can also require no state of mind (strict liability).

· In all tort cases, the defendant’s wrong results in a harm to another person (or entity) that the law is willing to say constitutes a legal injury. It can be a physical harm or commercial/intangible harm.

· Torts, crimes, and contracts: Despite dealing in money damages, the law of torts is more similar to criminal law than the law of contracts. Often times they overlap. A punch in the face is both a crime and a tort called battery.

· Non-Tort Systems: Tort law commonly addresses physical injuries inflicted by one person upon another, but there are alternatives. Worker’s comp systems, for example.

· Common Questions in tort law: Much of torts is concerned with three questions
1. What conduct counts as tortious or wrongful?
2. Did the conduct cause the kind of harm the law will recognize?
3. What defenses can be raised against liability if the defendant has committed a tort?

Particular aims of tort law are usually erected under one of two large systems of thought. The first bases tort law on moral responsibility or corrective justice. The second is based on social utility or policy. It bases tort law on a social policy or a good-for-all-of-us view.

The corrective justice system is interested in correcting individual wrongs and the social policy system is interested in the bigger picture.

The two often create a similar outcome, but there are certainly times when they diverge.

There are many goals of tort law. They include:
1. Corrective justice.
2. Compensation
3. Risk Distribution
4. Deterrence

Prosser v. Keeton
Facts: Prosser was the owner of a valuable watch. It was stolen by Thurlow. Thurlow misrepresented himself to Keeton as the owner of the watch and sold it to him. Thurlow and Keeton were members of the same church and because of this connection Keeton reasonably believed that Thurlow was the owner and paid $500 for the watch. Thurlow disappeared. A month later, Prosser saw Keeton wearing the watch and identified it as his by means of a secret mark. The trial court held that Keeton, though in good faith, was a converter and liable to return the watch or pay its reasonable value. Keeton appeals.
Justice Allen: The thief did not obtain title to the watch so he couldn’t have transferred title to Keeton.

Justice Bateman: This justice focuses on the justice aspect. Neither men were guilty of a wrongdoing, but since the thief disappeared, one or the other must bear the loss. Watch owners, though undoubtedly victims of theft, are in a better position to guard against theft than the purchasers are to discover it.

Justice Compton: He concedes Bateman’s point that the law can give title to the good faith purchaser if there is an apt reason of policy for doing so, but claims that there is nothing in evidence to support the notion that owners can protect themselves from thieves any better than purchasers can. Justice does not help us put the loss on either Prosser or Keeton. Social policy, however, does speak to this issue. Social policy states that the law should foster exchange of goods. If everyone had to investigate the provenance of the goods he or she purchased, nothing would get done. Keeton should get the watch for this reason.

Policy: When the demands of justice conflict with demands of policy, which should prevail? If the ideas of justice can be manipulated in an argument maybe ideas of policy can be too. Perhaps there’s a policy argument to be made in order to give Prosser the watch.

Chapter 3: Establishing a Claim for Intentional Tort to Person or Property

1. Battery

Battery can be defined as intentional contact that results in harm or offense.

Depending on the jurisdiction, there is either a single or dual theory of intent:

Under a single theory there needs to only be intent to come in contact with the person.

Under a dual theory there needs to be intent to come into contact and also to cause harm or offense.

A. Requiring Fault

Van Camp v. McAfoos
Facts: Mark McAfoos (3 years old, 1 month), drove his tricycle into the back of Van Camp’s leg causing damage to her Achilles tendon and requiring surgery. Her complaint was dismissed and she appealed.
Issue: Does the plaintiff have to allege enough facts to suggest that the child’s actions created fault?
Analysis: Yes, the plaintiff failed to allege that the child acted either intentionally or negligently. There are four parts to a tort claim: duty, breach, proximate cause, and damages. Plaintiff fails to allege fault, which is a part of the breach.

B. Elements of Battery

There are many types of tort claims. One way to organize these claims is to group them along two dimensions-the interests they protect and the levels of culpability they require.

In terms of interests, tort actions can protect against 1) physical injury to person or property 2) dignitary and emotional harm; and 3) economic harm.

With respect to culpability, tort rules may impose liability for serious wrongdoing (intent or malice, negligence (lack of reasonable care), and even when the defendant is guilty of no fault (strict liability).

Snyder v. Turk
Facts: Turk is a surgeon who became frustrated with Snyder, a nurse assisting him. Turk grabbed Snyder and pulled her face down toward the surgical opening, saying “Can’t you see where I’m working, I’m working in a hole. I need long instruments.” The nurse sued him and the judge granted Turk a directed verdict for lack of evidence that he intended to inflict personal injury.
Issue: Does the lack of intention to cause injury preclude recovery on a claim for battery?
Analysis: Battery exists where a person acts intending to cause a harmful or offensive contact, and when a harmful contact results. Contact, which is offensive to a reasonable sense of personal dignity, is offensive contact. Assuming the evidence in the most favorable light for the non-moving party, the appellate court asserts that reasonable minds could conclude that Dr. Turk intended to commit offensive contact. The first assignment of error is sustained.

Cohen v. Smith
Facts: Patricia Cohen was admitted to a hospital to give birth. It was determined that she needed a caesarian section. She and her husband talked to the hospital and told them that their religious beliefs prohibited Cohen from being seen unclothed by a male. The hospital assured her that they would honor her wishes. Roger Smith, a male nurse on the staff, allegedly touched her and observed the operation.
Issue: Does the couples religious belief qualify under a standard of reasonableness for offensive behavior?
Analysis: The trial court dismissed the action because the contact was not harmful, but the appellate court emphasized the fact that the contact could be harmful or offensive. The appellate court emphasized the fact that the plaintiff’s had informed the defendants of their convictions. Accepting as true the plaintiff’s allegations that they informed the defendants of their religious beliefs and that defendants persisted in treating Patricia Cohen as they would have treated a patient without those beliefs, they concluded that the trial court erred in dismissing both the battery and intentional infliction of emotional distress counts.

Mullins v. Parkview Hospital, Inc.
Facts: Before undergoing a hysterectomy at a teaching hospital, the plaintiff Ruth Mullins told her gynecologist that she wanted privacy during the surgery. Toward the end, she crossed out the portion of the consent form that consented to allowing students to work on her. She received assurance from the anesthesiologist tha

children are conclusively presumed to be incapable of harmful intent. Age seven is frequently used as a cutoff point. A few states go even further and hold that children under a particular age (again often seven) are conclusively presumed to be incapable of committing any tort at all.
3. Other Solutions: Will small children always be liable in states that do not grant blanket immunity? It would still have to be proven that the child had the requisite intent. Should we say that a child of four can’t harbor intent to strike a babysitter in a harmful or offensive way? What about holding a child liable for intended harms, but not for intended offense?

Parental Liability for the Torts of their Minor Children
A person can only sue the parents instead of the child itself if there is a statute authorizing such a suit, unless they are also at fault in some way. There is a common law rule that parents are not vicariously liable for the torts of their children simply by virtue of their being parents. Statutes imposing liability exist in virtually every state, but they are limited in two significant ways: 1. The tort must have been committed willfully or wantonly and 2. The damages that may be obtained are limited.

Stoshak v. East Baton Rouge Parish School
Facts: While trying to stop a fight, Baton Rouge High School teacher John Stoshak was struck in the back of the head by a punch thrown by one of two fighting students. Stoshak fell to the ground and lost consciousness. Because of Louisiana’s assault pay provision, Stoshak was eligible for greater disability benefits if his injury resulted from an assault and battery by any student or person while he was acting in his capacity as a member of the teaching staff of a public school.
Issue: Is Stoshak eligible for the assault pay despite the student’s lack of intent to strike the teacher?
Analysis: Yes, he is, because of the doctrine of transferred intent. The doctrine of transferred intent states that if a person intended to inflict serious bodily injury while trying to hit another person, but missed and accidentally hit someone else instead, such intent is transferred to the actual victim. The court assumes that the legislature was cognizant of the fact that battery has been interpreted this way.

The extended liability principle: The defendant who commits an intentional tort, at least if it involves conscious wrongdoing, is liable for all damages caused, not merely those intended or foreseeable.

The effects of classifying a tort as intentional: The Restatement (Third) of Torts calls it “somewhat ironic” that intentional torts are generally deemed considerably more serious than torts of mere negligence, and yet in certain circumstances the plaintiff is worse off if the tort committed against the plaintiff is classified as intentional rather than negligent. There are many reasons, among them: insurance policies sometimes only pay for negligent torts, thus limiting the amount of recovery and the statutes of limitation are much shorter for intentional torts. Sometimes it’s beneficial, because it’s harder to discharge an intentional tort in bankruptcy.