Torts I Outline
Professor Asher – Fall 2015
What is a tort?
Huge impact on our lives today and the cost of things you purchase
Burden of Proof
On the plaintiff
By a preponderance of the evidence
Tort v. Crimes
Civil action
Monetary
Both insane and not insane can form intent
Criminal action
Liberty
Will prove different degrees of insanity since liberty is at stake
Purposes of Tort Law
Provide peaceful means
Otherwise they would take law into their own hands
Make victim whole
Development of Tort Law
Common Law
Law from judges
Statutory Law
Law from legislature
Stare Decisis
Stand by decision
Seven Intentional Torts
Battery
Intentional Infliction of Emotional Distress (IIED)
Trespass to Land
False Imprisonment
Assault
Conversion
Trespass to Chattels
Intent
Two pronged test
The person acts with the purpose or desire to produce that consequence; or
The person acts knowing that the consequence is substantially certain to occur
Never stands alone!
Mistake does not negate intent!
You saw what you thought was a wolf and wanted to kill it. It turns out the wolf was your neighbor’s dog. You can be held liable for killing your neighbor’s dog, even though you mistook it for a wolf.
Transferred Intent
False Imprisonment
Battery
Assault
Trespass to Land
Trespass to Chattels
Knowing with substantial certainty (KWSC) is subjective.
Restatement
Experts in the field write restatement
Restatement is not law on its own, but a court can adopt it as law in their jurisdiction.
Bright line rules
You either satisfy it or you don’t.
Offensive contact
Once someone says no and you continue with the act, it is an offensive contact.
Judged by a reasonable person’s response, unless you know some fact about that person
Intentional Torts
Battery
Model Law
To establish battery, a plaintiff must prove by a preponderance of the evidence, which means more likely than not, the following:
The defendant committed a volitional act;
The defendant committed a volitional act intending to cause a harmful or offensive contact of another, purposely or knowing with substantial certainty; AND
The plaintiff suffered a harmful or offensive contact.
A volitional act means the defendant committed the act of his own free will. Intent means the defendant committed a volitional act purposely, meaning the defendant desired to cause a particular result, or the defendant committed a volitional act knowing with substantial certainty (KWSC) that a particular result would occur. KWSC means you’d be shocked if the outcome did not occur. Harmful means causing injury to the plaintiff. Offensive means offending a reasonable person’s sense of dignity. Contact means a touching.
Fact Driven Rules
Children can form intent based on their:
Experience
Capacity
Understanding
Insane people can form intent
Public policy
Intoxicated people can form intent
Public policy
Motive
Don’t need motive, but it could help explain things
Intimately connected to the plaintiff
Plate case
Awareness
The plaintiff does not need to be aware of the battery in order for the defendant to liable.
Extended consequence rule
Liable for all consequences of battery even if the defendant couldn’t anticipate those consequences
Eggshell rule
Defendant is on the hook for aggravating an injury.
Assault
Model Law
To establish assault, the plaintiff must prove by a preponderance of the evidence, which means more likely than not, the following:
The defendant
there is no actual or apparent ability of an imminent battery and both parties know that because they both know the gun is unloaded.
Someone points a loaded gun at your back and at the time, you don’t see or know it happens. Even if you find out about it later, there is no liability for assault because there was no knowledge of imminent battery.
If someone says they will punch someone if they weren’t wearing glasses but they are wearing glasses, there is no liability for damages for assault, because there are negating words saying that they won’t do the battery because they are wearing glasses.
False Imprisonment
Model Law
To establish false imprisonment, the plaintiff must prove by a preponderance of the evidence, which means more likely than not, the following:
The defendant committed a volitional act to confine the plaintiff in boundaries set by the defendant;
The defendant committed a volitional act intending to directly or indirectly confine purposely or KWSC; AND
The plaintiff is confined and is aware of the confinement or harmed by it.
A volitional act means the defendant committed the act of his own free will. Intent means the defendant committed a volitional act purposely, meaning the defendant desired to cause a particular result, or the defendant committed a volitional act KWSC that a particular result would occur. KWSC means that you’d be shocked if the outcome didn’t occur. Confinement is restrictions set out by the defendant.
