Torts I Write the rules as they are written in the text. Tort – a civil wrong, other than a breach of contract for which the law provides a remedy. Injury: any harm done to a person by the acts or omissions of another. Injury may include physical hurt as well as damage to reputation or dignity, loss of a legal right or breach of contract. If the party causing the injury was either willful (intentionally causing harm) or negligent then he/she is responsible (liable) for payment of damages for the harm caused. Theoretically, potential or continuing injury may be prevented by an order of the court upon a petition for an injunction. The purpose of tort law: provide a peaceful means for adjusting the rights of parties who may otherwise take the law into their own hands; to deter wrongful conduct; to encourage socially responsible behavior; to restore injured parties to their original condition, insofar as the law can do this by compensating them for their injury; viddicate individual rights of redress In Torts, the onus to show whether or not a defendant was blameless rested on the shoulders of the defendant (not certain if this still holds true). Trespass: Intentional Torts (battery, assault) Case: Negligence (emerged as its own tort) With limited exception, actions for injuries to the person or tangible property of a person, now require the proof of an intent to inflict them or of failure to exercise proper care to avoid Class 1: Office Hours: Professor will be available to see students on every other Saturday. Practice problems exist; see how Moore writes in order to mimic her style. Answers won’t be given, but Moore will assist students in finding the answers for themselves. Final: ½ multiple choice; ½ essay. The in-class assignments will show student’s how Moore writes Qs Torts attempt to show a division between criminal and civil law. Historically, tort law was criminal; we made it a civil remedy. We’re greedy and want damages or $ to recover and right a wrong. - cannot necessarily make someone whole Why a remedy for a wrong? It acts as a deterrence. Remedies for civil wrongs is a means to allow for people to seek justice without seeking vigilante justice. Insurance can be a motive for not being careful (can that show negligence?) Distinction between trespass and case. Look up Trespass, Case, Direct and Indirect and their interactions. Hull You have absolute liability. No excuse for not compensating another person for damages resulting from your action. You have the right to act, but any harm is your responsibility to compensate a person. Strict liability means that intent and negligence is of no consequence. Law of Innocent Parties: The person who incurred damage is more innocent. Both parties can be innocent, but the person who is more innocent receives more protection. What does the law protect? These rights are protected above your freedom to perform a legal act. - Bodily integrity o When someone encroaches on your space, the law allows for you to have a reasonable amount of protection - Protection of property o The law allows for a person’s property to be protected Weaver v. Ward Strict liability; no excuse for harming another. This case does bring up an inevitable accident. If an inevitable accident-no monetary award. Burden of proof is on the D at this time. P: I should not be left without remedy despite there being no intent to cause harm. If a lunatic harms, lunatic must still compensate the one harmed, but lunatic is not necessarily criminal liable. This case essentially is fleshing out a possibility for a world where strict liability would not be the framework for torts. Brown v Kendall: Ordinary care: A standard of care that an average person would use. Duty to act Extrodinary care should be the benchmark when there was no duty to act. SC places burden of proof on the P. Lack of care, fault and intention must be shown for P to recover. - Court recognizes accidental and inadvertent acts New concepts: negligence and intent. Plaintiff must prove that an action was avoidable (accidents and inadvertent behavior protected). A man using ordinary care would be protected by liability. Inevitable accident: a harm that could not have been avoided by using the proper degree of care (look at the actual definition) We now know that an inevitable accident is an accepted law. There are excuses for a person to act that harms another. Tort law allows for a harm that has no remedy. Cohen v. Petty No liability for involuntary actions. P must prove liability! Spano v Perini Strict liability. Fisher v Carrousel Motor Hotel I de S et ux. v. W de S Western Union Telegraph Co. v. Hill Big Town Nursing Home v. Newman Parvi v. City of Kingston Enright V. Groves Intent – specific intent, general intent (substantial certainty) Foreseeable risk = negligence Torts that are transferable (intent): false imprisonment, trespass to land, trespass to chattel, battery and assault. Battery: the least touching of a person in anger. - Intentional, harmful or offensive touching of another, directly or indirectly without justification of excuse o This definition includes transferred, specific and general attempt. o Go with harmful or offensive (you don’t need to answer to both criteria) o Invading a persons interests in a way that the law forbids o Intimate objects connected with a persons body is considered a part of a persons body. - There is a certain amount of personal contact that is inevitable and must be accepted. Absent expression to the contrary, consent is assumed to all those ordinary contacts which are customary and reasonably necessary to the common intercourse of life - If the ordinary and reasonable person would find it offensive, then it’s offensive - The touching element of battery may be accomplished by touching an object intimately connected to a person. Assault: Does not require contact - Intentional placing of another in apprehension of imminent bodily contact, with the apparent ability to carry it out. o There to provide protection for someone’s mental dignity - Apprehension = unease or mental discomfort - You don’t need to show fear. Fear = damages - Assualt must be a present threat that a person is able to carry out Respondent superior – ER liable for acts of EE if EE is acting within the scope of the employment. False imprisonment: Law is protecting a public policy - freedom of movement, - dignity False Imprisonment restraint of an individual against his will and the unlawfulness of such a restraint. The individual may be restrained by acts or merely by words he fears to disregard If the langauage is persuasive, it is not false imprisonment. There needs to be a threat of duress. False Arrest – FA arises when one is taken into custody by a person who claims but does not have proper legal authority. - A FA will not lie if an officer has a valid warrant or probable cause to believe that an offense has been committed and that the person who was arrested committed it. - If one is convicted for the charge which they were arrested, one does not have a claim for FA - If an officer requests the assist from a private citizen, the officer is liable if there is a mistake o If one knows that the arrest is unlawful, then that person is liable for the arrest. o Where a private citizen aids a police officer without any request to do so with an arrest, the private citizen is liable. - Regardless of the unreasonable actions (within limits) of the arrest no action for FI or FA will lie if the person who committed an unlawful act is arrested. - A physical barrier can cause a FI - Where a D has a duty to do so, refuses to provide the means of leaving, then FI - Short of emergency, one does not need to allow another person off of an aircraft o Where do you draw the line---eliminates exceptions - Good motive does not negate FI Intentional Infliction of Emotional Distress (IIED) - Must intentionally cause emotional distress - IIED can be more severe than some assault - Intentional or reckless, extreme & outrageous conduct that causes severe emotional distress, absent privilege. - Texas requires a physical manifestation for IIED to stick (most jurisdicions do not) o Reckless You know something could happen and you don’t care Deliberate disregard of a high degree of probability that a harm will occur and doing the act anyway. ----------------------------------I------------------------------------------------ Unkind words Mere emotional distress Severe emotional distress - Standard of conduct that exceeds all bounds tolerated by a decent society When punitive damages are awarded, the court believes that the behavior is beyond the pale. IIED - The conduct must be intentional or reckless The conduct must be extreme and outrageous There must be a causal connection between the wrongful conduct and the emotional distress The emotional distress must be severe. Courts do not have to define what is extreme and outrageous when the defendant doesn’t establish severity of conduct. Si Qui Nine (without proving an essential element, the tort cannot be) General Intent – Substantial Certainty Specific Intent – Purpose or desire to bring out a certain action Recklessness – Disregard for an outcome. IIED allows for third party damages (daughter witnessing her dad being beaten) IIED for third party witnesses P be present at the scene Close family relationship Defendant knows victims presence Defendant act with intent (GI, SI or Recklessness) to cause ED. RESTATEMENT: One can bring a cause of action where a bystander is present and D is aware that bystander is present (bystander must have a physical reaction to the emotional distress). TRESPASS TO LAND Mistake does not negate intent. Trespass to Land: The intentional, unauthorized entry into the property (close) of another. Prescriptive Rights – Guy cuts through the backyard of someone’s house. Does so for 5 years. Owner tries to stop the person. Can’t do that. Enter into my property without permission (quare clausum fregit). Don’t have to prove damage to the property—just need to show that there was unauthorized entry. Trespass can be negligence and not intentional. Negligent entry one must prove damage TOL requires invasion Nuisance -- the intentional, substantial and unreasonable interference with the use and enjoyment of the land in possession of another. One’s rights in property extend above and below the soil. - A reasonable distance under and above the property
