Torts I Outline
Fall 2008
I. Tort – a civil wrong, other than a breach of contract for which the law provides a remedy.
a. Purpose of tort law:
1. To provide a peaceful means of adjudicating the rights of parties
2. To deter wrongful conduct
3. To encourage socially acceptable behavior
4. To restore injured parties to their original condition
b. Torts v. Crimes
1. Tort and criminal actions have different purposes
a. Purpose of tort action is to vindicate and compensate for infringement of private interests.
b. Purpose of criminal action is to vindicate public interests.
2. Burdens of proof differ
a. Tort – generally preponderance of evidence > 50%
b. Criminal – generally beyond reasonable doubt
c. Types of Torts
1. Intentional (generally intentional torts to persons and intentional torts involving property)
2. Negligence
a. Cohen v. Petty – for negligence plaintiff must establish that the defendant acted unreasonably under the circumstances
3. Strict Liability
a. Spano v. Perini – strict liability, i.e. liability without fault for one engaged in abnormally dangerous activity.
d. Writ System
1. Writ of Trespass
a. only allowed in cases of forcible breach of the King’s peace
b. required direct and immediate application of force to the person or property of Plaintiff
c. did not require proof of actual damages
d. did not require culpability
e. five torts that could be brought under writ of trespass:
-assault
-battery
-false imprisonment
-trespass to land
-trespass to chattels
2. Writ of Trespass on the Case
a. for claims not involving direct and forcible injuries to Plaintiff’s person or property
b. required actual damage and proof of culpability
II. Intent
a. What is Intent
1. Purpose or desire to bring about a given result, OR
2. Knowledge with substantial certainty that the given result will result
a. Ex. Garrett v. Dailey – remanded to determine if child moved chair knowing that plaintiff would attempt to sit – thus substantial certainty that a harmful or offensive contact would result.
b. Non Ex. Spivey v. Battagila- Battagila put arm around Spivey in an effort to tease her, who was shy, and caused her to be paralyzed. “The settled law is that a D becomes liable for reasonably foreseeable consequences and in this case he was not guilty because a reasonable man would not believe that the bizarre results were substantially certain to follow.” Negligence could be an argument for this case.
b. Intent is a subjective test
1. Garratt v. Dailey – must get inside this particular child’s mind to determine if he formed the requisite intent
c. Motives are irrelevant
1. Garratt v. Dailey – little boy pulled out old lady’s chair / it doesn’t matter if he was just trying to be funny or pull a prank
d. Reasonable mistake does not negate intent
1. Ranson v. Kitner – person shot dog thinking it was a wolf / intent present
e. The rule for formulating intent is the same for an insane person as it is for a sane one.
1. McGuire v. Almy – insane person formed intent to hit nurse on head with furniture
f. Transferred intent between people
1. If a person intends to commit an intentional tort against one person but actually injures someone else, his intent is said to transfer and he is liable to the other.
2. Talmage v. Smith – man threw stick at one little boy but hit a different one instead
g. Transferred intent between torts
1. If you intend to commit 1 of the 5 listed torts and another of the 5 listed torts occurs, your intent transfers and you are liable for all committed:
-battery
-assault
-false imprisonment
-trespass to land
-trespass to chattels
III. Intentional Torts
Battery – (3 elements) the use of intentional force against another with intent to cause harmful or offensive contact.
***Trigger: P has to be touched and there has to be some reason to believe that the touching could be on purpose.
1. Act: (must be voluntary) AND
1. Direct contact OR
a. Class Hypo: You slap friend on back. Didn’t mean to harm friend, but you meant to slap him (in a friendly manner) Friend sues.
2. Indirect contact – Intimately associated with individual’s body OR
b. Fisher v. Hotel: Hotel employee knocked plate and made racial slur at Fisher. Personal indignity is the essence of an action for battery and the defendant is liable not only for contacts which do actual physical harm, but also for those which are offensive and insulting.
3. Puttin
ine holding plate. D (employee) made racial comment and snatched plate form P’s hand. Plate is considered extension of that person.
b. No actual harm is required, because battery is a dignity tort, protecting against harm to a person’s dignity (that’s why a person can recover damages for mental suffering)
· Relevance of P’s awareness – P does not need to be aware
· Size of object – no relevance to size of object used to commit battery
· Social Settings – cannot be a battery if one was touched in a way that is common in a public setting…brushing shoulder when walking past another.
Assault – (3 elements)
1. Act: (by words and actions) AND
1. Person must be aware AND
a. HYPO: Amanda’s back is turned and Chadwick throws remote at her. She can sue for battery, but not assault because she was not aware that it was being thrown.
2. Imminent threat (must be reasonable, objective standard):
a. Ex. I am going to kill you right now and their gun is visible.
b. Non-Ex. I am going to kill you tomorrow. (no imminent threat)
o Fear not required (used for damages).
· Ex. If someone says they will spit on you, you are anticipating them doing it, but you are not fearful)
o Words alone are not enough- must be together with an act.
· Ex. “I am going to shoot you” is not enough. Must have gun present with words.
· Exception: Conditional Threats (Making an unjustified demand in order to avoid the battery is an assault)
i. Ex. robber walks up to you and says “Give me your money or I’m going to beat you with my stick.” This is an assault.
o Diffusing words- “If those cops were not right there I would beat you up
2. Intent:to cause apprehension of imminent harmful or offensive contactAND
1. Purpose or desire to bring about given result OR
