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(Chp. 1) Development of Liability Based upon Fault What is a tort? – a civil wrong, other than a breach of contract, for which the law provides a remedy OR a conduct that amounts to a legal wrong that causes for which courts will impose a civil liability What is the Purpose of Tort Law?
- To provide a peaceful means for adjusting the rights of parties who might other wise “take the law into their own hands”
- To deter wrongful conduct
- To encourage socially responsible behavior
- To restore parties to their pre-injury condition to the extent that this can be done by providing compensation for their injuries ** (very important)
- To vindicate individual rights of redress (relief)
- To promote the broad distribution of losses through the purchase of liability insurance Origins – Two Writs:
- Writ of Trespass : Provided recovery for injuries to plaintiff or plaintiff’s property that were caused by the immediate/direct application of force by the defendant o Equals strict liability o Purpose – initially punishment; no proof of actual damages needed Writ of Trespass = Immediate/Direct Application Transferred Intent is applicable under Writ of Trespass
- Writ of Trespass on the Case – Provided recover for injuries to plaintiff or plaintiff’s property that were caused indirectly and NOT by immediate/direct application of force o Liability ONLY IF plaintiff could show proof of actual damages Writ of Trespass on the Case = Indirect/ NOT Immediate Application History of Torts –
We come full circle: start with strict liability and end with strict liability INTENT (There can be NO Intentional Tort WITHOUT Intent)
1. Test for Intent (est. under Garratt v. Dailey) – a. Plaintiff MUST show: i. Defendant’s actions are done for the purpose of causing the contact or apprehension (i.e. willfully, purposefully) OR ii. The defendant acted with knowledge that such contact is substantially certain to be produced 2. A minor CAN be liable for an intentional tort (usually up till age 3 can be liable) 3. SHORT FORM: Intent is established 2 ways a. The actor acts willfully with purpose to cause a tort OR b. The actor has knowledge with substantial certainty that his/her conduct will = tort 4. Other MAJOR POINTS on INTENT : a. Mistake of fact does not negate the intent necessary to commit intentional tort i. Shooting of a dog instead of wolf = still liable (Ranson v. Kitner) b. Insane person that does intentional damage is liable for that damage Writ of Trespass Strict Liability - no fault needed/ all that was needed was that the plaintiff had to be injured directly Doesn't matter if it was an accident (Hulle v. Orynge - case of thorns) Fault based Liability Defendant is now given an opportunity to show evidence that action was done without fault (Weaver v. Ward - case of skirmishing musketts) P=Burden of Proof Plaintiff now has the burden of proof = moving away from strict liability (Brown v. Kendall - stick to break up dogs/hit third person in the eye No Negligence One cannot be charged with negligence if they are suddenly stricken by an illness they didn't anticipate (Cohen v. Petty - driving the car and unanticipated sickness) Strict Liability Strict liability is triggered by animals, abnormally dangerous activities, and defective products (Spano v. Perrini - dynamite blast that damaged garage and car in garage)
a. i.e. in an elevator, backpacks shove, train/CTA b. Intent can be inferred from context (i.e. time, place, etc.) i. i.e. fire drill and teacher touches parent = no battery (Wallace v. Rosen)
5. Policy – tort of battery is designed to protect Π’s dignity and the Π’s interest in being free from intentional/unpermitted contacts with the Π’s person **ASSAULT (Dignitary Tort)
- Test for Assault – a.** Δ acts with the intent or knowledge with substantial certainty to cause a reasonable apprehension of an imminent battery (harmful or offensive) b. Π experiences apprehension of an imminent battery and the apprehension is reasonable (well-founded belief of battery) i. Apprehension = mental cognition/recognition c. Δ has the apparent ability to cause an imminent battery i. Apparent ability = RP just needs to believe that a person could do this d. REQUIRES you to be awake and aware (cannot be asleep) 2. Rule for Assault a. An Assault is a battery that is incomplete b. Assault is a mental invasion rather than physical like battery i. Apprehension = more than just fear; mental awareness c. Don’t need actual damages d. Threat MUST be imminent (immediate) e. Words are NOT sufficient to = assault i. BUT exception is “give me your purse, or I’ll kill you” = assault ii. Words can also negate assault “if you weren’t my students, I would run you over with my truck” **not imminent danger anymore f. You can sue for both assault and battery – behind every battery can be an assault
- Policy** – the tort of assault is designed to protect one’s interest in being free from the apprehension of a harmful or offensive contact to his/her person
4. Misc. – Respondeat superior = vicarious liability = holding employer responsible for employee’s actions ( Western Union v. Hill and also Fisher v. Carrousel Motor Hotel) **FALSE IMPRISONMENT (Dignitary Tort)
- Test for False Imprisonment –** a. The Δ acts with the intent to restrain or confine the Π against will (unlawfully) b. The Π is restrained or confined to a bounded or fixed area c. The Π has no reasonable means of escape d. The Π must be aware of his/her confinement ( Big Town Nursing Home exemplifies all components, Parvi v. Kingston adds part d.) 2. Rule for False Imprisonment a. False imprisonment is NOT suffered unless victim knows of dignitary invasion b. NO liability for intentionally confining unless the person restrained KNOWS of the confinement OR is HARMED by it 3. Policy – the tort of false imprisonment is designed to protect the Π’s interest in being free from intentional and unlawful restraints on his/her movement or mobility 4. Unreasonable Means of Escape – Π unaware of the existence of the escape, involves danger or substantial harm, exposure of Π’s person a. Reasonable Means = getting out the same way you came in (no climbing out window or doing something crazy to leave that you didn’t do to get in) 5. EXCEPTIONS – a. If Π claims that they voluntarily stayed (i.e. to clear name or suspicion) then there is NO False Imprisonment b. Fear of losing job is INSUFFICIENT to constitute restraint c. FUTURE THREAT does NOT equal false imprisonment d. Retention of Property can constitute false imprisonment b/c it restrains you 6. FALSE ARREST = FALSE IMPRISONMENT a. An arrest made by a person (police or non-police) w/out proper legal authority is false arrest and that is a claim for false imprisonment
TRESPASS TO LAND (real property like land, soil, etc.)
- Test for Trespass to Land – a. Δ acts intending to enter upon the land of another; AND b. Entry on the land of another occurs
- Rule for Trespass to Land – a. The intentional, unlawful/unauthorized entry into the land of another is trespass i. Damage – no damage is required, court will infer some damage b. Mistake of fact does not negate intent to trespass c. Entries that are socially useful or beneficial are NOT liable for trespass to land
- Policy – the tort of trespass to land is designed to protect the Π’s right to exclusive possession of his/her land 4. TRESPASS V. NUISANCE a. Trespass = if the intrusion interferes with the right to exclusive possession of property, the law of trespass applies i. Invisible land invasion = must prove actual and substantial damage (i.e. pollution = damage to the land must be proven) b. Nuisance = if the intrusion is to the interest in the use and enjoyment of property , the law of nuisance applies i. Sound – loud speakers outside (use and enjoyment interference) ii. Light – raise pigs next door (use and enjoyment interference) iii. Smell – new stadium lights on at 2am (use and enjoyment interference) iv. (i.e. Airborne particles that quickly dissipate = not trespass) 5. ADVERSE POSSESSION a. If you use a piece of land long enough w/out objection then you claim fee simple ownership of the land (even if it’s someone else’s) 6. AIRSPACE a. You only own the airspace you can enjoy the use of (above your land) – you don’t own all of it, ONLY immediate reaches of the land
b. Public Domain – airspace that lies above the immediate reaches above the land is part of the public domain
- TERMINATED CONSENT/PRIVILEGE = TRESPASS a. A trespass can occur if a person or thing that is on the land with the consent of the owner of the land, fails to remove it after the consent has been effectively terminated, OR b. Pursuant to a privilege the person or thing is on the owner’s land, but then fails to remove it after the privilege has been terminated by the accomplishment of purpose or otherwise i. ( Rogers v. Board of Road Com – snow fence piece left in yard=trespass) **TRESPASS TO CHATTELS (personal property that is movable)
- Test for Trespass to Chattels –** a. Δ intentionally intermeddles with the chattel of another; AND b. The intermeddling causes damage (actual/significant) to the chattel i. Physical intermeddling – Intentionally bringing about a physical contact with the chattel ii. Damage –
- the chattel is impaired as to its condition, quality or value
- the possessor is deprived of the use of the chattel for a substantial time, OR a. Deprivation = implies you will get chattel back
- the intermeddling results in bodily harm to the possessor to some person or thing which the possessor has a legally protected interest
- Rule for Trespass to Chattels – a. Act must constitute intermeddling with chattel of another b. This tort requires evidence of damage c. CANNOT sue for both Trespass to Chattels AND Conversion (one is for minor interference and one is major – it can only be one or the other)
- Policy – the tort of trespass to chattels protects a person from intentional but minor interferences with his/her possession
7. WAYS TO CONVERT CHATTEL
a. Acquiring possession of it – stealing it b. Damaging it/Altering it – intentionally running over animal and killing it c. Using it - bailee wrongfully sells chattel d. Misdelivering it – delivery to wrong person by mistake so that chattel is lost e. Refusing to surrender it – bailee refuses to return chattel (Chp. 3) PRIVILEGES CONSENT (UNIVERSAL DEFENSE – MAY BE APPLIED TO NEGATE ALL TORTS)
- Definition of Consent – It is the voluntary agreement by a person in the possession and exercise of sufficient mental capacity to make an intelligent choice to do something proposed by another a. CANNOT BE – intoxicated, asleep or incapacitated (due to age or stoned)
- Express v. Implied Consent – Consent can either be expressed or implied a. Express Consent – Verbal or Writing b. Implied Consent – Consider the Δ’s conduct (e.g. outward actions/behavior) in light of the surrounding circumstances i. (even if you don’t say something, RP don’t consent to being punched=implied)
- CONTACT SPORT CONSENT a. Rule – Although a player consents to batteries in a contact sport, one does not consent to batteries that are inflicted intentionally and are prohibited by the safety rules and customs of the particular sport
- MEDICAL TREATMENT CONSENT a. Rule – i. The patient must be consulted and his/her consent must be given before doctor can operate ii. Doctor/Patient contract implies that doctor will exercise the skill, learning and care of a doctor in performing services for the patient iii. The decision to have surgery is completely up to the patient NOT doctor iv. If the doctor has performed a surgical procedure w/out consent = battery b. Exception –
i. A doctor has implied consent to perform a surgical procedure when
- Situation is an emergency
- In the course of an operation (that the person has already consented to) there is a life or death situation 5. FRAUD NEGATES CONSENT a. Consent is invalid when it is a result of a fraudulent act of another (i.e. lying, etc.) b. Consent that is induced by fraudulent acts of another by lying, misrepresenting, or omitting important info is invalid SELF DEFENSE/ DEFENSE OF OTHERS (for BATTERY, ASSAULT, FALSE IMP.)
- Existence of Privilege – Anyone is allowed to use REASONABLE FORCE to defend himself against a threatened battery on the part of another
- Retaliation – the privilege ends as soon as the threat of battery is gone, you cannot decide to act after the fact/retaliate (this will make you the aggressor)
- Reasonable Belief – if person thinks force is needed to defend, then this is reasonable use of privilege even if that necessity does not exist
- Provocation – verbal threats and language do not justify the means of self defense
- Amount of Deadly Force – limited to the use of force that is or reasonable appears to be necessary for protection against the threatened battery
- Retreat Before Use of Deadly Force – you do NOT have to retreat from your home but preservation of life is the most important thing so do that first before defending
- Mistake of Fact – okay under the privilege (even though not okay under tort liability)
- Protection from 3rd^ party suits – if you injure third party while defending yourself or another, you cannot be sued for tort liability DEFENSE OF PROPERTY (for TRESPASS TO LAND)
- Rule – a. Value of life is greater than value of property b. Cannot use deadly force to prevent someone from walking onto property
i. Dilemma b/w letting shoplifter walk out with merchandise or making a false arrest = both are a disadvantage to shopkeeper ii. Reasonable force short of bodily harm allowed (burden on shopkeeper) – b/c if you can’t use force, then what’s the point iii. Reasonable time = 0-60 minutes, anything more = false imprisonment iv. Can follow customer out to stand alone parking lot, not really shared lot NECESSITY/EMERGENCIES (for TRESPASS TO LAND/CHATTEL, CONVERSION)
- Definition - To use, trespass, destroy in case of emergencies that can affect the public at large or private threat
- Divided into 2 prongs: a. PUBLIC NECESSITY – emergency or threat so great in magnitude that it could harm A LOT of people i. NO LIABILITY FOR DAMAGES ii. Act of God – you CANNOT be held liable for damages if injuries are caused by Act of God/Nature b. PRIVATE NECESSITY – emergency or need that affects one or a few people i. LIABILITY FOR ACTUAL DAMAGES AUTHORITY OF LAW
- Police officer’s ability to arrest a. With warrant b. Without warrant – must have reasonable suspicion
DISICPLINE
- Parents a. The privilege has been extended to other family members or caregivers
- Teachers and Students a. Teachers can use some level of force – corporal punishment is constitutional and does not violate the due process
- Military and Troops a. Can use some level of force to discipline b. Has their own law – Military Code of Justice
- Captain of Ships/Crews a. Can use some level of order to maintain crew/ship JUSTIIFCATION (UNIVERSAL DEFENSE – CAN NEGATE ALL TORT LIABILITY)
- Rule – a. In some situations, a Δ’s actions may be justified if the actions taken by the Δ are reasonable and done to protect other from personal injury or to property b. Defense where it would be unfair to hold Δ liable but facts do not meet the requirements of the traditional defenses or privileges 2. PRIVILEGE OF LAST RESORT a. Prosser – grab bag defense = meaning it’s a last resort privilege b. Privilege allows you to come to the aid of someone else, or defend something when none of the other privileges apply
