Anglo-American
Contract and Torts
Prof. Mark P. Gergen
Class One
Introduction to Torts
Intentional Personal Injury
Materials
•Lundmark, Common Law Tort and
Contract
•Supplement
The “Common Law”
Common Law sometimes is used to refer the body of
private law (e.g., Contracts, Torts, Property) that evolved
from the English common law in English-speaking
nations that principally were settled by the English.
Compare Civil Law
The term “common law” was used because it was the body of law
administered by the Crown’s courts across the entire realm.
Compare ecclesiastical law, the law merchant, etc . . . .
Common Law sometimes is used to refer a body of
judge made law in which a court looks to precedence
(prior cases) for guidance.
Compare law based on an authoritative text such as
a statute, a treaty, a written constitution, or a code.
The common law “cannot be reduced to an authoritative
form of words.”
At times it has been said courts look to “right reason” and
history for guidance.
John Austin (1790-1859)(a legal positivist) described the
common law as like “dog law.” See George v. Jordan
Marsh, Text p. 11 (applying new theory of liability).
History of the common law
Until the early 19th century, a “writ system.”
Writs with analogous modern actions:
Battery, Nuisance, Trespass, Conversion, Defamation . . .
Blackstone’s Commentaries (1765-1769)
The first English language Contracts treatise was published in
1807.
The first Contracts treatise describing contract law in a form that
would be recognizable today was published in 1876.
The first English language Torts treatise was published in 1860.
Inadvertent
physical injury
(accident law)
Intentional
personal injury
Economic torts
Property torts
Negligence
Assault and
battery
Fraud
Trespass
Abuse of process
Nuisance
Interference with
contract and
business relations
Conversion
Strict liability
Products liability
False
imprisonment
Intentional
infliction of
emotional distress
Defamation
Malicious
prosecution
Economic
negligence
E.g., negligent
misrepresentation
Bad faith breach of
contract
Trespass to
chattels
Torts can be usefully arranged on two dimensions . .
. one axis is liberty of action v. security from harm.
Prioritize liberty
of action
Immunity rules
Privilege for competition
Privilege to say harmful
things about a public
figure
Prioritize security
from harm
Negligence
liability
Strict liability rules
Trespass and
conversion
Strict liability for
abnormally
dangerous activities
Prioritize security
from harm
Prioritize liberty
of action
Immunity rules
Negligence
liability
Immunity from
liability if an
accident is not
reasonably
avoidable
Liability if an
accident is
reasonably
avoidable
Strict liability rules
The axis of culpability (moral fault)
Subjective
culpability
Some intentional
torts
Fraud
Objective
culpability
Negligence
No culpability
Strict liability
Trespass and
conversion
Under US law an
innocent purchaser
of stolen property is
liable for conversion.
Intentional infliction of emotional distress
Liability rules for
“Maliciously” or
dishonestly inflicted
harm, including . . . . . .
Defamation and malicious prosecution
Tortious interference with contract and
business relations
Bad faith breach of contract
Privilege for competiton
Privilege to say harmful
things about a public figure
Offensive social behavior
Security
Culpability
Liberty
Trespass and
conversion
Intentional personal injury
Battery—knowing physical contact that the actor knows or has
reason to know is harmful or offensive
Assault—threat of an imminent battery
Tuberville v. Savage, Text 5
D angrily touched sword while stating to P he
would not use it while the court was in town. Held
not an assault. Not an imminent threat.
Example of touching another in conversation is
not a battery (court says assault) because it is not
harmful or offensive. An alternative explanation
is implied consent.
Intentional personal injury
Battery—knowing physical contact that the actor knows or has
reason to know is harmful or offensive
Assault—threat of an imminent battery
Coblyn v. Kennedy’s Inc. (Mass 1971), Text 7
Mistakenly believing P, an elderly man, to be a
shoplifter, D’s guard physically confronted P as P
was leaving store grabbed P’s arm and escorted P
back. P had mild heart attack.
The guard’s contact is a border line battery and perhaps an
assault but P brought a claim for false imprisonment, the gist of
which is to knowingly deprive another of their liberty without
justification.
Coblyn v. Kennedy’s Inc. (Mass 1971), Text 7
Mistakenly believing P, an elderly man, to be a shoplifter, D’s guard
physically confronted P as P was leaving store grabbed P’s arm and
escorted P back. P had mild heart attack.
This is an appeal from a jury verdict for P. D raises 2
issues on appeal
1) Did the guard knowingly restrain P?
2) Did the guard have reasonable grounds
(probable cause)?
On 1) the court concludes there was sufficient evidence to put
this issue to the jury. See Text 8 (top) This is a deferential
standard. Debatable cases go to the jury.
On 2) D challenges the jury instruction arguing for a subjective
standard—did the guard honestly believe he had probable
cause? The court holds the standard is objective and that a jury
might reasonably find the guard did not have reasonable cause.
Note the significant role played by the jury in deciding whether
P was restrained and whether D had reasonable cause.
False imprisonment is similar to battery. An actor who
knowingly touches or restrains another commits the tort of
battery or false imprisonment even if the action is in good faith if
the contact or restraint is objectively unreasonable. Touch or
restrain someone else at your risk!
Security
Culpability
Liberty
Battery and false
imprisonment
Trespass and
conversion
George v. Jordan Marsh Co. (Mass 1971), Text 11
D repeatedly harassed P (phone calls late at night and
dunning letters) to coerce her to pay debt of adult
child. Harassment continued though P’s attorney
requested D stop. P claims she had a heart attack as a
result.
The trial court granted D’s motion for demurrer (directed
verdict), finding that even if everything P alleged was true she
had no legal claim.
The trial court followed Spade v. Lynn & Boston RR (Mass.
1898), Text 12, which held there was no recovery for emotional
disturbance absent “injury to the person from without,” e.g., a
battery, assault, or false imprisonment.
George v. Jordan Marsh Co. recognizes a new cause of action
(tort). Look at the lower half of p. 12 where the court argues
that the law is open to novel claims and that a may court may
create “additional niches” in the “ancient walls surrounding the
law of torts.”
Elements: “intentional or reckless extreme and outrageous
conduct” resulting in “severe emotional distress.” These are
taken from the Restatement, Second Torts Sec. 46 (p. 14 top).
Following English law, Prof. Lundmark states physical harm is an
element. See p. 10. As he notes at p. 11, in US law the focus is on
the outrageousness of the conduct. Some US courts do require
that the emotional disturbance be “physically manifested.” What
does the Massachusetts court say about this at p. 14 (middle)?
Why require physical manifestation?
In most US states punitive damages would be available in a case
like George v. Jordan Marsh Co. Punitive damages are available
for willful or malicious wrongs involving dishonesty, oppression,
or reckless infliction of severe harm.
Intentional infliction
of emotional distress
Security
Culpability
Liberty
Battery and false
imprisonment
Trespass and
conversion
Battery—knowing physical contact that the actor knows or has
reason to know is harmful or offensive
Assault—threat of an imminent battery
False imprisonment—knowingly deprive another of liberty
without justification.
Intentional infliction of emotional distress—intentional or
reckless extreme and outrageous conduct resulting in severe
emotional distress.
As a prank D steals P’s clothing while P is in a public shower at a
beach. Which if any claims might be available?
Is shining a bright line in someone’s eye for the purpose of
momentarily blinding them a battery?
Battery—knowing physical contact that the actor knows or has
reason to know is harmful or offensive
Assault—threat of an imminent battery
False imprisonment—knowingly deprive another of liberty
without justification.
Intentional infliction of emotional distress—intentional or
reckless extreme and outrageous conduct resulting in severe
emotional distress.
D physically blocks door way with his body to prevent P from
entering a public bar where P’s friends are congregated. Which
if any claims might be available?