Torts Class Notes
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.
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 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.
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.
Assault
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.
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.