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West Virginia University School of Law
Cady, Thomas C.

Liability Based on Fault
·         Torts: Derived from Latin word “tortus” meaning twisted
Civil, not contractual, wrong giving rise to a civil action usually for damages
·         Basic Purpose of Tort System:
1.       Provide peaceful means for adjusting rights of parties
2.       Deter wrong doing
3.       Encourage social responsible behavior
4.       Restore injured parties and compensate for injury
***main purpose is to compensate and deter
·         Each issue of fault a lawyer thinks about:
1.       Liability – Defendant must have done a wrong by breaking a rule
2.       Remedy – What can plaintiff get to right a wrong
a.       Two Kinds:
i.      Specific – remedy problem specifically i.e. divorce, restitution, injunction
ii.      Substitute – monetary remedy
3.       Enforceability – Can P get order from judge
o        $ is always collectible – assets and insurance
·         Oliver Wendell Homes, Jr.: 1st Demi-God of Torts
·         The Common Law: Considered best book of law by an American
o        “the general principle of our tort law is that the loss of an accident must land where it falls….unless good reason to shift blame.”
·         Anonymous (1466): legal damages fall on actor even if no intent and no fault; directly injured victims get max compensation; STRICT LIABILITY
·         Weaver v Ward (1616): D directly injured P; D needs to prove not liable by saying UTTERLY NOT AT FAULT
·         Brown v Kendall (1850): D directly injured P; LIABILITY BASED ON FAULT                       

Not Negligent – “No Fault”
Not Negligent – “No Fault”
ÞNot Liable bc No Fault
Inevitable Accident
Negligent – “Fault”
Negligent – “Fault”
ÞNot Liable bc P was contributory negligent

Not Liable bc D no fault

·         Cohen v Petty: D faints and recks; D was not at fault and therefore not liable
·         Spano v Perini: strict liability for extrahazardous dangerous activity; all blasts are at fault because extrahazardous activity
·         WV Bailey v Groves: P’s home floods due to new road; liability based on fault; welfare economics shifts burden to the one who is better able to pay
·         Three Types of Torts: Intentional, Negligent, Strict Liability

Intentional Interference with Person or Property
·         RST § 8A Intent:
o        The word “intent” is used throughout the Restatement of this Subject to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.
·         RTT Section 1 – Intent
o        A person acts with 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 the person’s conduct
Requires both an intent and invasion of interest
·         Garrett v Dailey: D pulls chair out from P; intent is present if D knew to a substantial certainty that the result would happen; child intended for P to fall; therefore, child intended to injure P; D has to prove that he did not know with a substantial certainty that P would be injured
·         Spivey v Bataglia: D put arm around P to tease her and P was paralyzed; D had no desire to harm and did not know with substantial certainty that his actions would cause the consequences
·         Ranson v Kitner: Defendants were hunting and shot the plaintiff’s dog because it looked like a wolf; Court held that the defendants are clearly liable for their mistake.
v      D intended consequences (killing wolf) so mistake is NO excuse, D is liable
·         McGuire v Almy: Insane D hits P with chair; insane people can be held liable if they have the mental capacity to form necessary intent; insanity is not an excuse

·         Talmage v Smith: D threw a stick and hit P; Doctrine of Transferred Intent: Defendant intentionally shot A but has unintentionally hit B; when direct harm, D is liable for transferred intent; court ruled in favor of the plaintiff because the defendant intentionally threw the rock to hit somebody, but hit someone else – Majority – person has to be in zone of danger; can be person to person and intentional tort to intentional tort
·         WV Lambert v Brewster: D hits P’s father and P miscarries; Bystander Liability: those who witnessed violence are victims even though they are not directly injured; Extended Doctrine of Transferred Intent to punish the wrongdoer to include persons in Zone of Danger and whose presence was not known to D – Minority view that persons do NOT have to be in Zone of Danger
·         Two Types: Against Person (Battery, Assault, False Imprisonment, IIED) and Against Property (Trespass to Land, Trespass to Chattels, Conversion)

·         RST § 13 Battery Harmful Contact: 
o         An actor is subject to liability to another for battery if
§         (a)  he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact (intent to touch offensively), and
§         (b)  a harmful contact with the person of the other directly or indirectly results.
o        NOT necessarily physical harm but has to be some sort of touching
·         Restatement Section § 18 Battery Offensive Contact
o        (1)  An actor is subject to liability to another for battery if
§         (a)  he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
§         (b)  an offensive contact with the person of the other directly or indirectly results.
o        (2)  An act which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm
·         Cole v. Turner: the least touching of another in anger is a battery; if two or more meet in a narrow passage, and without any violence or design to harm, the one touches the other gently it will be no battery; if any of them use violence against the other, to force his way in a rude inordinate manner, it is a battery; or any struggle about the passage to that degree as may do hurt, is a battery
·         Fisher v Carousel Motor Hotel: D jerks plate from P who is black; the intentional snatching of an object from one’s hand is clearly an invasion of his person as would be an actual contact with the body; because the plaintiff was holding the plate in his hand, the defendant committed assault and battery; plate so closely associated with P’s body
·         WV Criss v Criss: D forced wife at knifepoint to have sex; no marital privilege for forced sex; emotional distress are automatically recoverable for assault and battery
·         WV Courtney v Courtney: battery and IIED

·         RST Section 21 Assault:
(1)  An actor is subject to liability to another for assault if
(a)  he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
(b)  the other is thereby put in such imminent apprehension.
(2) An action which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm.     
v      For the tort of assault, the victim must have an apprehension of contact, and it is not necessary that the defendant have the actual ability to carry out the threatened contact
v      Words alone are not sufficient
v      Requires imminent apprehension of immediate bodily contact – victim must believe act may result imminent contact unless prevented by self defense, flight, or third party
·         I DE S ET UX v. W DE S (John of Summerset and wife vs. Will of Summerset) Y.B.Lib.Ass. folio 99, placitum 60 (1348): P stuck her head out of the tavern window that the defendant was beating with a hatchet, and tried to stop him. He struck the hatchet but did not hit the woman; there is harm done and a trespass because he made an assault on the woman even though no harm was done. Damages are awarded to the woman even though no contact
·         Western Union v Hill: D makes sexual advances to P; D must be able to commit threatened act; mental distress is considered assault

False Imprisonment
False Imprisonment: tort designed to protect freedom of movement or right of free person in free society to travel about unmolested by public or private persons
·         P needs to be confined, not excluded
·         Person must be aware of confinement

·         § 35 False Imprisonment
o        An actor is subject to liability to another for false imprisonment if
§         he acts intending to confine the other or a third person within boundaries fixed by the actor, and
§         his act directly or indirectly results in such a confinement of the other, and
§         the other is conscious of the confinement or is harmed by it.
o        An act which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for a merely transitory or otherwise harmless confinement, although the act involves an unreasonable risk of imposing it and therefore would be negligent or reckless if the risk threatened bodily harm.
·         Three areas:
o        Shoplifting: mistake made by shopkeeper about theft bc of employer or customer; Defamation; privacy: body searches or searching purses, bags, etc.
o        Disturbing Police: drunken in public place, disturbing the peace, consumption of alcohol in open container, assault, resisting arrest, destruction of property
o        Religious Commune: persons enticed to join religious communes and programmed to religious beliefs and not to escape
·         Big Town Nursing Hom

growing product without written permission

Trespass to chattels
·         Chattels: an item of personal property that is not freehold land and that is not intangible; typically movable property, such as furniture or cars, but may also be interests in property
·         Trespass to Chattels: not as strongly protected
·         RST § 218 Liability to Person in Possession
o        One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if,
§         he dispossesses the other of the chattel, or
§         the chattel is impaired as to its condition, quality, or value, or
§         the possessor is deprived of the use of the chattel for a substantial time, or bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.
***requires one of the above four

·         Glidden v Szybiak: P climbs on back of D’s dog and dog bites; P was trespassor to D’s chattel; no evidence of chattel being hurt and P can recover damages

·         RST § 222A What Constitutes Conversion
o        Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.
o        In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important:
(a)      the extent and duration of the actor’s exercise of dominion or control;
(b)      the actor’s intent to assert a right in fact inconsistent with the other’s right of control;
(c)      the actor’s good faith;
(d)      the extent and duration of the resulting interference with the other’s right of control;
(e)      the harm done to the chattel;
(f)       the inconvenience and expense caused to the other.
·         A factually heavy tort
·         Majority: owner can sue as soon as chattel is converted
·         Minority: owner must attempt to recover chattel
·         Pearson v Dodd: former employees steal files, copies it, and replaces it; no conversion because papers had no value and the owner was not deprived of them because they were returned

·         WV Arnold v Kelly: D took control of P’s horse and got shot; damages = amount horse worth at time of conversion

Privileges (defenses to torts)
Consent: willingness in fact for conduct to occur
·         Majority Rule and common law rule: illegal consent = no consent; if one voluntarily engages in illegal conduct and is hurt can sue others; WV included
·         Minority Rule and RST rule: illegal consent = consent; cannot sue others
·         Will not be effective when consent exceeds scope of consent, incapacitated from giving consent, obtained by fraud or duress, public policy prevents consent
·         O’Brien v Cunard: P claimed she was vaccinated without her consent; P gave apparent consent by waiting in line; where consent is not expressed an individual may rely on the other party’s behavior and overt acts in order to determine whether that party has consented to the individuals conduct
·         Mohr v Williams: D operates on P’s left ear after the right ear was OK; doctors must have consent for each and every kind of surgery; consent for a particular kind of surgery does not give general consent for another kind of surgery; EXCEPT when 911
·         Hackbart v Bengals: an individual is liable for the intentional striking of another during a violent game, where the rules of the sport prohibit such intentional acts; players consent to accepted levels of violence
·         De May v Roberts: P had baby and consent to help from D who Dr said was his assistant; consent is not a defense if D knows of P’s mistaken belief or if it were obtained by mistake or fraud; fraudulent consent = no consent = battery
Hart v Geysel: P consents to box in an illegal match vs. D and is killed; one who engages in prize fighting, which is unlawful