Tort: a civil wrong or injury not arising out of contract
– Criminal: breaking a law, loss of your freedom or life, brought by state
– Civil: private action, punishment is monetary damages
Difference between tort and contract:
– Contracts: focus on autonomy; choose to accept obligations through contracts, relationships exists
– Torts: no promise to drive responsibility to be charged for reckless driving, duties/responsibility imposed by state
Three basic kinds of torts:
Intentional torts- bad deeds done on purpose, ex. Assault, battery, IIED, small part of torts, really bad
Negligence- acting like a fool, not acting reasonable, huge part of torts, not as bad
Strict Liability- imposition of liability without fault, like keeping a tiger in your backyard, smallest portion of torts, not bad at all
Reasons for tort law:
Corrective justice: morally bad behavior has injured another person, we want to balance the scales, from the imbalance from the bad behavior, tort law puts the balance back in place. In torts you can’t fix the injury, but get payment for the autonomy that is lost, make injured whole again.
Deterrents: to stop people from acting in certain ways, make them pay money to someone else, incentive to behave
Compensation: based somewhat in the need of the victim, also tied closely to loss spreading. Large number of people can accept a loss better than one single person, similar to insurance theory, many torts judgments are covered by insurance. A lot of tort defendants are large corporations or insurance companies, so they can deal with a loss better than a single person. Person who is injured has to pay for loss, medical bills, auto repairs, etc, but if we tell defendant to pay or get from insurance, this pulverizes the loss, spreads the loss among others, to not make so bad on person as a loss
Standard tests:
1. Checklist test
2. Balancing test
3. Soup test
I. Intentional Torts
Intent: two ways to establish intent, disjunctive:
the hand, if the thing that is touched is so intimately connected with you will be counted, like camera, clothing, or cane, to be universally regarded as part of the person.
which is harmful or offensive
Offensive contact:
o Offends a reasonable sense of personal dignity, not unduly sensitive. Must therefore, be unwarranted by the social usages prevalent at the time and place inflicted.
o need not be ‘directly caused by some act of the actor’
o You are protecting against harm (physical inviolability) and offensive part (personal dignity)
upon another without consent
Two views on battery which make it more like a soup test:
1. The slightest touch is battery
2. There must be a reasonable inquiry (increase of people crammed together, not realistic for slightest contact to be a battery)
