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Torts
West Virginia University School of Law
Cady, Thomas C.

Torts I outline

*All Liability Based Upon Fault
*Tort a Civil Wrong, other than a breach of K, for which the law provides a remedy, usually in the form of damages.
*WV- Blasting is strict liability *In Majority- Blasting is strict liability
*Ultra-hazardous activities under strict liability.
*The Haves- Shaped the legal system/ Repeat Players; The Have-Nots- One shotters
*Can predict outcome in civil cases by an analysis of: the rules, the lawyers, the institutional facilities, and the parties.

*If Δ seriously injures п, п’s attorney will not usually seek blood money, but insurance money from the Δ’s insurance company.
-Liability insurance is an element of tort liability, and it transforms tort rules into simple “rules of thumb.”
-Liability insurance policy limits are de facto caps on tort damages.
-Negotiations over insurance boundaries drive tort law in action

Theories
*Baker article
i. Blood money – extracted from ∆’s pocket and rarely pursued in Tort unless the conduct is extremely egregious or the ∆ is a fat bastard
ii. Insurance money – First party insurance protects ∆’s from liability. This is the money that atty.’s go after.
iii. New money – money that is left over. Subrogation is the process by which ∆’s are made to reimburse 1st party insurers.
*Way to think about Tort cases as atty.
iv. What is the ∆’s possible liability?
v. What is the possible remedy?
vi. Is this remedy enforceable?
1. Determined by liability insurance
*Tort system is fundamentally biased towards the Repeat Players (Haves) and against the One-Shotters (Have nots)
Tort worldviews
a. Compensation Deterrence theory – compensate the wronged and deter the wrongdoers from their actions. In majority, ∏ was seriously injured by ∆. The theory supporting ∏’s course of action against ∆ is The Compensation- Deterrence Theory
b. Enterprise Liability theory – protect the interests of laissez-faire capitalism against its own accidents
c. Economic Deterrence theory – use economics to analyze tort law – should provide the maximum efficiency in the system. Maximum product safety for prudent investment
d. Social Justice theory – Retributive justice. If A diminishes B’s status, A should make B whole.
e. Traditional View – Tort System is designed to stop people from taking the law into their own hands, compensate for harms, etc…
In Majority, ∏ was seriously injured by ∆. ∆’s attorney should consider the impact of: The parties on theory.

*In majority, all liability is based upon fault (Brown v. Kendall). П has burden of proof.
=Exception: strict liability. Strict liability means that fault is irrelevant.
– Basis of Brown is NOT to sue the bastards
– In practice, liability insurance is an element of tort liability
– Attorney wills know that liability insurance policy limits are de facto caps on tort damages
– Attorney will know that tort claims are shaped to match the available liability insurance
– Liability insurers are the ultimate “Repeat Players”
– Liability insurance transforms tort rules into simple “rules of thumb”
– Attorneys will know that negotiations over insurance boundaries drive tort law in action.

Δ

П

Who wins

Not Negligent; with due care

Not negligent, with due care

Δ wins

Not negligent; with due care

Negligent

Δ wins

Negligent

Negligent

Δ wins

Negligent

Not negligent; with due care

П wins

*Intent = Intentional Torts:

RST- Intent- Actor desires to cause consequences of his act or that he believes that the consequences are substantially certain to result from it. All consequences which the actor desire to bring about are not intended. Intent is not limited to only those consequences which are desired.

RST; WV; Majority- Transferred Intent- If: 1) an act is done, 2) with intention of affecting a person, 3) and causes harmful bodily contact to another. Then: Actor is liable to such other as fully liable as though he intended so to affect him.

*A desire/intent to hurt or harmà Intentional Tort
*Joker plays practical joke on victim and injures by pulling out a chair when victim is sitting down. Victim breaks hipàIntentional tort, joker intended the injury

I. Assault:
a. An act intending to cause a harmful or offensive contact with the person of the other or a third person or an imminent apprehension of contact. Exception: If action does not have intent, but causes apprehension, can be negligence or recklessness.
b. Words no matter how threatening, do not constitute an assault.
c. Must be an imminent apprehension of battery (harmful or offensive)àIf asleep, cannot be apprehensive of the impending battery

II. Battery: requires bodily contact and intent
1) Harmful- one in which there is interruption or penetration or violation of a physical integrity of the body or intrusive.
2) Offensive- One which is offense to a reasonable person under the usages and customs of the time and place, so that which will be offensive sometimes is not offensive other times in other places.
Must have: 1. Intent to cause and 2. Actually case harmful or offensive contact
àBased upon a REASONABLE person’s belief, not a super sensitive ∏
a. Dignitary Torts- Intentional invasions of a person’s sense of personal dignity.
b. Need intent to inflict a harmful or offensive touching.
c. Offensive Battery: Does not have to be an offensive touching of the body, but can be something closely associated with the body (ex: lapel of the jacket, plate in hand).
d. Harmful Battery: Rape
e. In Majority & WV- Kicking owner’s dog—Battery to owner (something close to owneràwalking the dog on a leash)
f. Dignitory Tort- Seek nominal, compensatory, and punitive damages. (touching a person’s private partsàno harm or damage, but VERY offensive)
g. In WV- If intentional battery but no medical damages, can get compensatory damages for pain and suffering.
h. Brushing up against someone on an elevator or crowded space in an unintended, non offensive touching is NOT Battery
i. Majority- Loaded/unloaded gun does not matter- fear still warranted.

III. False Imprisonment- The direct restraint of one person of the physical liberty of another without adequate legal justification.
a. RST-1) If a way to escape is left open, 2) which is available without peril of life or limb, no imprisonment. The п must know of the existence of an exit.
b. П

ory damages, punitive damages, c/l trespass, and statutory trespass and criminal proceedings.
g. In WV—if Asplund cuts down too many trees in their easement can sue on a violation of reasonableness.

VI. Trespass to Chattels
a. Non-realty; personal possessions. Mere touching of chattel is not a tort; must take it away. MUST CAUSE DAMAGE TO CHATTEL or no liability.
b. If no damage, no trespass to chattel.
c. Committed by 1) Dispossessing another of the chattel (taking it away) or b) using or intermeddling with a chattel in the possession of another.
d. Can have a modern, internet meaning—email server v. unwanted spammer
e. If a neighbor used vacationing homeowner’s lawn mower, returned it, cleaned it, and put gas back in itàhomeowner out of luckàcannot recover on trespass, no damage.
f. Ex: Two identical cars, owner gets in wrong car but immediately gets out when key does not workà Other owner has no theory of liability b/c no damage

Majority

Minority

WV

must actually damage chattel

same

Same

or impair the use of the chattel

Same

Same

recovery is limited to actual damage

Same

Same

VII. Conversion
a. Can be obtained with only nominal damages, whereas liability for trespass to chattels exists only on a showing of actual damages to the property interfered with.
b. Trespass: dispossesses or damage. Conversion: Dominion or control to dispossess.

Majority

Minority

WV

intentionally taking control of owner to the extent that it seriously interferes with owner’s right to control

occurs when return is requested and denied

same

remedy is amount of entire item

Same

same

occurs when return is requested and denied

Same

same