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West Virginia University School of Law
Cady, Thomas C.

Torts I_Cady_Fall 2009

Chapter One:
Torts generally:
·         A Tort is a civil wrong, other than a breach of contract, for which the law provides a remedy.
·         Insane are liable for their torts but not criminal actions
·         Mistake is not a defense/excuse
·         Fault basis of liability – new way comes from Brown v. Kendall
1.             Intent – the actor desire to cause the consequences of his act or the actor believes that the consequences are substantially (restatement §8A) certain to result
2.             Negligence – unreasonably risky conduct (restatement §291)
a.       Oliver Wendell Holmes said that the fact that a person causes injury is insufficient to prove fault (i.e. shift blame)
·         No fault basis of liability – strict liability – old way comes from Anonymous
·         Theories
1.Baker article
ii.        Blood money – extracted from ∆’s pocket and rarely pursued in Tort unless the conduct is extremely egregious or the ∆ has deep pockets
iii.        Insurance money – First party insurance protects ∆’s from liability.  This is the money that atty.’s go after. 
iv.        New money – money that is left over.  Subrogation is the process by which the insurance companies recover from the guilty party
2. Way to think about Tort cases as atty.
i.        What is the ∆’s possible liability?
ii.        What is the possible remedy?
iii.        Is this remedy enforceable?
1. Determined by liability insurance
3. Tort system is fundamentally biased towards the Repeat Players (Haves) and against the One-Shotters (Have nots)
·         Tort worldviews
1.      Compensation Deterrence theory – compensate the wronged and deter the wrongdoers from their actions
2.      Enterprise Liability theory – protect the interests of laissez-faire capitalism against its own accidents
3.      Economic Deterrence theory – use economics to analyze tort law – should provide the maximum efficiency in the system.  Maximum product safety for prudent investment
4.      Social Justice theory – Retributive justice.  If A diminishes B’s status, A should make B whole.
5.      Traditional View – Tort System is designed to stop people from taking the law into their own hands, compensate for harms, etc…
Real Olde England – 15th Century –
·         Fault DOESN’T matter
·         Only defense is I DIDN’T DO IT – it didn’t happen at all
·         Focus was on COMPENSATION not action
·         Forms of action:
o   Writ of trespass – Available only for DIRECT injury
o   Writ of trespass on the case – INDIRECT injury

Olde England – 17th Century –
·         Fault begins to develop
·         If no fault, best theory is trespass
·         Defendant’s best theory of defense is UTTERLY WITHOUT FAULT

1850 Chart:
·         Defendant NOT negligent/ Plaintiff Negligent – Defendant wins because no fault – Plaintiff’s negligence does not matter
·         Defendant Negligent/ Plaintiff Negligent – Contributory negligence –Both parties negligent – Defendant wins because both are negligent
·         Defendant NOT negligent/ Plaintiff Not Negligent – Defendant wins because no fault – Does not matter if plaintiff was negligent
·         Defendant Negligent/Plaintiff NOT negligent – Plaintiff wins because defendant is solely negligent

Contributory negligence – Plaintiff’s negligence however slight is a complete bar to recovery

Comparative negligence – MAJORITY – reduces plaintiff’s damages by percent of his fault. If P’s negligence is less than all of D’s negligence combined the P recovers all of his percent of neglgience

·         NY – Strict liability if vibrations do damage
·         WV – NOT strict liability – must show based on fault

Chapter Two:

Desire to cause consequences of act
act with purpose of producing consequence
act with purpose of producing consequence
believes that consequences are substantially certain to result
knowing that consequences are substantially certain to result
believes that consequences are substantially certain to occur
·         Definition: Actor desires to cause consequences of his act or he believes the consequences are substantially certain to result from it
·         Majority – Intent (Desire/substantially certain) is intentional tort
·         WV – Transferred intent – intentional tort

·         Batter requires bodily contact & intent
o   Harmful – Alteration of the physical integrity of the body
o   Offensive – Offends a reasonable sense of personal dignity (Objective test)
o   Must have:
§ 1. intent to cause harmful or offensive contact
§ 2. actually cause harmful or offensive contact
·         Majority – Must be OFFENSIVE touching to constitute intentional tort
·         Majority – Spitting in someone’s face considered offensive battery
·         Majority – Based on a REASONABLE PERSON’s belief as to if offended

·         Majority/Minority/WV –Must have Immenent Apprehension of battery– Impending, threatening, looming
·         Majority – Obscene gestures and remarks not assault
·         Majority – Loaded/unloaded gun does not matter –fear still warranted
·         WV – Same as majority and:
o   also look at mental anguish, insult considered
o   3d party can recover if member of vic’s immediate family and saw battery or assault

Intentional infliction of emotional distress:
words never enough
“Fighting words” are enough
(insult statute – fighting words)
public utilities or common carriers are subject to strict liability for gross insults

π can recover for the mental aftereffects of a tort
must cause a physical injury

π can recover for IIED where the effects are purely mental
·         Four factors:
o   Conduct must b

o   Normal violence that is part of the game
§ Ex.) Football injuries
·         Majority – performing life saving surgery even though refused by patient based on religious grounds is battery
·         No consent under misrepresentation, mistake, or duress
·         Consent to crime does not bar recovery and is not valid
o   Ex) Underage girl consenting to sex does not bar tort action
·         Parent cannot withhold emergency medical treatment for child – Court must override before doctor can act. Child’s wishes do not matter

Self Defense and defense of 3rd party:
·         WV –
o   Can use deadly force
o   No need to retreat
o   Defense of 3rd person must be correct or must reasonably believe:
§ Circumstances such that 3rd person has privilege of seld-defense
§ Intervention necessary for protection
§ Must use force reasonably necessary
o   Cannot use spring loaded shotgun
·         Majority –
o   Must be correct for defense of 3rd person
o   Can use deadly force
o   No need to retreat
Defense of property:
§ Majority –
o   Deadly force CANNOT be used to defend property
o   Must use reasonable force
o   Cannot cause death or serious bodily harm
§ WV –
o   Can only use deadly force in home or other place of residence if:
§ Reasonably believe intruder may kill or inflict serious bodily injury to occupant/others in residence
§ Occupant reasonably believes intruder intends to commit a felony at the residence
o   Can use deadly force outside residence if attacked

Recovery of property:
§ WV –
o   Cannot use deadly force to recover property
o   May use citizen’s arrest – shoplifting statute – reasonable detention/investigation
o   May use reasonable force to recover property
§ Majority – reasonable force may be used where property taken by force or fraud and there is fresh pursuit

Public Necessity:
§ Complete privilege
§ New Rule: One is privileged to enter land of another if it is or reasonably believes there is to be imminent danger. NO duty to pay.
o   Ex.) Destroying one person’s house to save town – no duty to pay that one person.
§ Old rule: Individual should bear losses instead of whole. Gov’t did not have to pay

Private Necessity:
§ Incomplete Privilege
§ WV – Must pay under unjust enrichment
o   Ex) Run out of gas and have to steal gas from farmer’s tractor or you will die –Must pay
§ Majority – No trespass because privilege. No intent so NO fault. No negligence
o   Have to pay under unjust enrichment

Authority of law: