Torts Outline

Torts Outline

Theories of Liability (Recovery)
Tort- a civil wrong, other than a breach of contract, for which the law provides a remedy
Reasons for Tort Law
1) restore the injured parties to their original condition
2) prevent people from taking the law into their own hands
3) deter wrongful behavior
4) encourage socially responsible behavior

Burden of proof in civil case is “preponderance of evidence” i.e. superiority in weight, e.g. 51-49%. Burden of proof in a criminal case is “prove beyond reasonable doubt.” Due to the higher requirement of burden of proof, a criminal conviction can be used in its civil case. If criminal case is lost, civil action can still be filed.
Forms of Action: In early English law, remedies of wrongs were dependent upon the issuance of writs to bring the defendant into court. ‘Writ’ being a court order in the name of authorities having jurisdiction to its addressee, to do or refrain from doing a specified act.
Two common law writs came into existence – the writ of trespass, and the writ on trespass on case, also called action on the case. Definitions of trespass being (1) an unlawful act committed against the person or property of another; especially (esp.), wrongful entry on another real property; (2) at common law, a legal action for injuries resulting from an unlawful act of this kind; or (3) misdemeanor, which is a crime that is less serious than a felony and is usually (usu.) punishable by fine, penalty, forfeiture, or confinement in a place other than prison; also known as (aka.) minor crime. Definition of trespass on the case, at common law is an action to recover damages that are not the immediate result of a wrongful act but a consequential damage. This action was the precedent to a variety of modern day tort claims, including negligence, nuisance, and business torts. ‘Trespass on case’ is also termed as ‘action on the case’ or often shortened as ‘case’. The difference between trespass and case is the former being immediate and direct forcible injuries, while the later is for consequential injuries to person or property.
Note that the distinction between trespass and case is not based upon intention or negligence, but only on the impact of defendant’s wrong doing.
Writ of trespass on case in England became Negligence Law in the United States.
Types of Original Torts in Writ of Trespass: Trespass being an original direct injury, damages are presumed, because the invasion of the plaintiff’s rights in itself is a tort; and hence there is no need to prove damages. Five types of original Trespass (Fave-5): (1) Assault, (2) Battery, (3) False Imprisonment, (4) Trespass to property, and (5) Trespass to chattels.
Additional Torts of Trespass: (6) Intentional Infliction of Emotional Distress (IIED), and (7) Conversion.
I. Types of Tort Liability: Three bases of tort liability – (1) Intentional Conduct (includes Transferred Intent), (2) Negligent Conduct (includes Breach of Standard of Care), and (3) Strict Liability (includes Normally Dangerous Activity, Product Liability, and Wild and Domestic Animals), which is a conduct that is neither intentional or negligent, but covered under public policy. Strict liability have liability, no matter what.
All elements have to be satisfied
1) intentional- have to prove intent . Intent can be proved in 3 ways:
a) The action was on purpose to bring about a certain result.
b) The D. had knowledge of substantial certainty that his actions would bring about a particular result.
c) A transferred intent. (A tort must occur for this situation).
· Tort to Tort Intent – includes intent for one tort against one person to a different tort against a different person (e.g. intent to assault on one, transfers to intent to batter another)
· Person to Person
· Intent can be transferred between the original fave-5 torts (battery, assault, false imprisonment, trespass to chattel, and trespass to land) and different victims within the fave-5 torts (but not between intent and negligence).
2) negligence- duty that you have to someone was breached, and caused injury to someone
ex: what would make it necessary (duty) for you to
a) come to the aid of another
1. familial duty
2. relationship
b) breach of duty- assumes there is a standard of care
ex: what did you do that you should have been more aware of your actions to prevent the hurt from occurring
c) did it cause the effect
d) need to be compensated for the injury suffered
nominal damages- no one was hurt, but court needs to remind the offender that they did something wrong so they make him pay a small fee ($1)
Weaver v. Ward- P shot D while they were practicing warfare, also the D ran in front of the musketà if you don’t have proof of a fallacious mind you can’t be held liable
1. trespass on the case (hurt someone at a later time)
if you ran across the musket, it’s kind of contributive negligence
a. where you of the right mind
b. did you contribute to the harm
c. did you consent to the harm
d. did someone else do this on to you
2. first case, where defendant had an opportunity to absolve himself, but wasn’t successful
Brown v. Kendall-D was trying to break up two fighting dogs, when he accidently hit the P standing behind himà both were negligent= no recovery
1. did you exercise ordinary care- the kind and degree of care which prudent and cautious men would use, such that is necessary to guard against probable danger
2. court rejected to separate conduct from ordinary and extraordinary
a. when it’s more dangerous, automatically have to take more care
b. have to determine what is necessary and what isn’t; look at a curve and adapt accordingly; depends upon the degree
3. burden of proof now shifts to Plaintiff
a. preponderance of evidence
b. have to prove that P
1) was harmed
2) as a result of the event
3) defendant wanted to inflict the harm
3) strict liability- breach of a duty to make something safe; ultra hazardous activity no matter how careful you are, you cannot eliminate the risk, choose to engage in an enterprise that can cause harm (to others)
a) foreseeable- only responsible for actions that can be foreseen while exercising ordinary care
b) Cohen v. Petty- defendant had heart attack while he was operating a vehicle, the passengers very physically hurt, the defendant had no way of anticipating the heart attack since he was in good healthà have duty to others in the car, this isn’t negligence (some people would argue negligence b/c defendant continued to drive for 60 sec after he told his wife he wasn’t feeling well and fainted)
1. court wants to encourage certain activities and not others
2. strict liability- have liability to see safe passage for everyone in your car
3. this is an ultra hazardous activity- no fault = no liability
II. Interest- protected by the court (law)
Interest inferred caused harms which qualifies for damages
1) harmful or offensive behavior à battery
2) confinement à assault/ false imprisonment
3) reputation- deserving of law’s protectionà defamation
4) identity theft àproperty law
5) Person, real property are à nuisance
(entitled to private use of property that is quiet and peaceful)
6) secure ones propertyà trespass to chattels
ex: of property would be taking one’s book
7) interest of exclusive possessionà trespass to land
8) relationship w/ people & organizationsà injuries falsehood
III. Damages and Causation
Trespass due to its quasi-criminal character required no proof of any actual damage, since the invasion of the plaintiff’s rights by criminal conduct itself was a tort in itself, i.e. damages are presumed for Fave-5 torts. Action on the case, which developed as a pure civil remedy, there could ordinarily be no liability unless actual damage was proved. i.e. causal connection between tortious act and damage needs to be proved.
1) Damages
a) Need to have some type of Damages
Trespass –
1. direct and forcible injuries;
2. required no proof of actual damages
3. used today
4. strict liability applied
Trespass on the case –
1. other tangible injuries t