Torts Class Notes 8/18/03


Intentional Torts


The most familiar subject to us because it’s common in society.


A tort is a civil wrong or injury caused by a breach of duty that arises by operation of law rather than agreement.


What is a civil wrong?  A wrong that courts or legislatures have determined are actionable.


What is a breach of duty?  When someone has a legal duty towards you (other than in a contract) that they breach.


Contracts are different from torts in that torts are things that pretty much everybody knows are wrong even though they’re not written down.


Legal vs. moral obligations


Crimes are different from torts, although they are more closely linked.  Not all crimes are torts, but some torts are crimes.  If someone is rich and commits a crime, they will frequently also be sued.


Major types of torts:

1.     Intentional

2.     Negligent

3.     Strict Liability


Intentional torts aren’t a big category and they’re not that complicated.


Negligence forms the bulk of torts in society today.


Strict Liability adheres whether or not fault exists.  This is a rather small category of torts.


Writs and the Common Law


Initially, you had to have a writ from the King in order to have a claim in court.  It wasn’t easy to get a writ.


There were two writs – trespass and case.


Trespass was actionable due to direct harm, like punching you in the nose.  (A preview of intentional torts.)


Case lets you recover on something that isn’t immediate.  (Sort of the precursor to modern negligence.)




This case says that you can be liable for anything you do, even if it was unintentional.


Why might this be a good policy?  Maybe it will make people pay more attention (change their incentives).


Tort law says “Don’t take the law into your own hands; you take ‘em to court.”™


But we don’t have this rule anymore.  We’ll talk about why that’s so.


Weaver v. Ward


Weaver brought an action of trespass of assault and battery against Ward.  What happened?  Ward intended to shoot the gun, but did not intend to shoot Weaver.


It’s not a crime, but it is a trespass.  Why not a crime?  He did not have a felonious mind.  He does have intent to do something, but not mean, bad intent.


Why is Ward at fault under the trespass rule?  If you intended to do anything, and you did it, and it harms someone, you’re liable.


The plaintiff demurs – that is, the plaintiff says he won’t argue against anything the defendant says but says that he’s right anyway.


Usually a defendant demurs because the defendant says that even if the facts are exactly as the plaintiff says they are, the case still must be dismissed based on the law.


Back in the day of W v. W, the defendant had the burden of proof, so that’s why the plaintiff demurs.


The defendant’s main argument is that he didn’t mean to do it.  The court says that no one will be excused from trespass.


What are the possible defenses?

1. It’s actually the plaintiff’s fault.

2. Someone else forced the defendant to do it.


Contributory negligence – the plaintiff is really the one at fault, or partly at fault


Policy problem – this creates a disincentive to being in the military because the guy couldn’t have really been more careful.


Even if you’re crazy and can’t form motive you can be found liable.


Brown v. Kendall


B & K’s dogs were fighting.  K tried to break up the fight and hit B in the eye.  B sued K for assault & battery.


Notice how this situation really mirrors the situation in the Anonymous case.


The jury instructions were kind of complicated.


The judge moves away from the fault concept as we’re seen it.  The judge puts the burden of proof on the plaintiff.


What is ordinary care?  You have to exercise the care that a reasonable person would under the circumstances.


The judge says the instructions were wrong, in particular in regard to the different standards of care as opposed to the concept of fault.


How does the judge come to this view?  It’s hard to see.  The judge cites the treatise of Mr. Greenleaf.  This judge is being really active.


What was the historical factor in 1850 that made the difference in this case?  The Industrial Revolution – employers benefited from the new rule.


Reasons for the fault concept:


1.     Protecting the growth of industry

2.     Fairness to defendants – we no longer think it’s fair to hold people liable in the absence of fault.

3.     Fairness to plaintiffs – they don’t need to depend on selecting the correct writ or that their harm is direct to be able to recover.

4.     Economic efficiency – comes up again and again and again.  We want to create incentives for companies to invest in the optimal amount of safety.  E.g. prescription drugs – most drugs help people, a few drugs harm people.  We don’t want to let harmful drugs on the market, but then again, we don’t want to keep all drugs off the market.


The judge orders a new trial rather than entering a judgment for the defendant.  Why?  Appellate judges are not fact-finders.  It’s the jury’s decision to make.  They have to go back and get the right instructions and deliberate.  The judge rules on the law, then the jury deliberates on the facts.


Also, the plaintiff needs the chance to adjust their case to how the law is now.


Now we have a fault view of the law.  The law of intentional torts doesn’t change over time as much.


Intentional Torts


These are really old school…c.f. the writ of trespass.


These have some interesting philosophical and policy questions.




Prima Facie Case – proving “the face of it”…the burden of proof in almost all tort cases is “the preponderance of the evidence”…that is, greater than 50%.  The jury will be told that “the plaintiff has to prove that it’s more likely than not the thing happened rather than didn’t”.


Assault is an act intended to cause apprehension of an imminent harmful or offensive contact, which directly or indirectly causes reasonable apprehension of such contact.


To prove a prima facie case, the plaintiff must prove that:


1.     An act occurred

2.     The defendant intended to do the act

3.     The act caused damages


Apprehension – the sense that something is about to happen.


The Restatement of Torts – mostly states what the law is, but sometimes tries to move the law forward by giving a minority opinion of what the law should be.


Why does it matter if your apprehension is reasonable or not?  You might be an extra super sensitive plaintiff.  It depends on the jurisdiction.  Subjective vs. “reasonable person” standard.


Intent – the defendant must have the intent to cause apprehension of harmful or offensive contact.  Intent is broader than “I want to do this”; it could also be “I’m doing something that’s likely to create a certain harm.”


You can’t create an assault with just words.


I de S et ux. v. W de S


What’s the Assizes?  A circuit judge with a local jury.  Judges would be sent out by the King to try cases in different regions.  We’re out in the boonies with a guy taking a hatchet to a door.


They’re evolving the trespass writ here.  We’re saying there is harm.  The harm was emotional and this case rules that mental injury is an element of damages for which there ought to be a remedy.


What if the defendant had testified that he aimed really carefully not to hit M and was just trying to get her to open the door?  Still an assault.


What if the defendant had testified that he hadn’t even seen the woman?  Then you would have conflicting testimony.  It would be a matter for the jury to decide who is more believable.


Does it make a difference that the defendant had a weapon?


If you can’t find assault in this situation, you could get him for trespass to land.


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