Tort Fleming

Tort is a civil wrong. Committed by one person in civil society against another. Compensation for plaintiff (crim is punishment for D) Not based primarily on contract. Development of tort: judge made law not legislation.

Five forms of liability for physical harm

  Intentional tort liabilities are enormously varied: Unity lies in the fact that it redresses forms of deliberate wrongdoing.

1. Battery:                                   Intentional            Purposive             
2. negligence                               Accident
3. vicarious liability                        accident
4. Strict Liability                           accident
5. Workers’ compensation            accident

  DEFINITIONS

Battery

1. Restatements

2. Prosser

3. Character of Actor's intention (Rest)   

4. Intents   

  cases

Garratt

Court adopts restatement as law. State of mind of intention: intended to harm: not necessary:

Must victim have intended to bring about unauthorized contact: no not necessary. Trial court thought it was minimum. S. Ct: should have knowledge to a substantial certainty that act would lead to contact.

In Garrat: while the injury was the unintended result of an intended act, the standard of proof used was if D had substantial knowledge that the P was going to try to sit down where he had moved the chair.

Villa

Villa’s applies Garrat’s concept of intent : substan certainty that harm occur.

Must defendant know that his act is harmful or offensive. No.

Def himself need not know that contact is harmful but must be harmful or offensive. reasonable person must think it’s harmful. Take victim as you find them (question of hemophiliac) but there are limits

Ellis Case

1. Battery count:: ellis refines conception of intent from garret and villa. To be liable must tort-feasor be capable of knowing wrongfulness of act:

Between two innocents: line close between intentional liability and strict liability. Victim’s interest in being free from harmful or offense contact is the source for these tort definitions.

Infant liable if has state of mind to recognize… (see up) ; Battery requires only intent to bring about physical contact – see above 28

Fl: a four yr old knows in general that it is wrong to hit people and the court is holding all four yr olds to standard of being reasonable as a 4 yr-old.

R1                    R2                                            R3

Contact            harmful or off character            type of injury

Court draws distinguish between knowing something is wrong from knowing something is harmful. R1 is irrelevant if child knows harmful but must have substantial certainty that contact will occur and must have some R2 but it is a objective standard not a subjective standard. Enough that a reasonable child would’ve know that the contact would be harmful or offensive.

An actor must know R1 and a reasonable actor in the circumstances would’ve known that act harmful or of offensive character but not travel to r3.

R1 subjective knowledge

R2 objective knowledge of reasonable person

Court holding this child to standard of reasonable child.

Applying this standard makes liability somewhat strict. Don’t care if this particular child knew that the conduct be harmful. Whenever apply reasonable standard in law there is a sense you are requiring them to meet standard of reasonable person.

Like Villa case. He didn’t have to know

Court adopts restatement as law. State of mind of intention: intended to harm : not necessary:

Must victim intend to bring about unauthorized contact: no not necessary. Trial court thought it was minimum. S. Ct: should have knowledge to a substantial certainty that act would lead to contact.

Two kinds of intents:

1. Purposive: pulls chair out with purpose to make her fall.

Knowledgeable intent: he wants to sit down but knows to a substantial certainty she’s going to fall if he takes thee chair.

Squib cases: exsistence of liability doesn’t depend on the def having money (garratt) FL: insurance is important for the tort system because without insurance than many batteries go without redress.

Main point in squib: insurance policy requires intent to commit injury. Public policy wants to prevent people from getting indemnities from committing battery.

August 27, 2003

Line between fault and beyond fault. Classically no liability beyond fault

Fault

______________________

Beyond fault

·       Vicarious liability (hybrid)

·       Strict liability (eg, abnormally dangerous activities)

Beyond tort

·       Workers compensation

Percentages:

Purposive intent               1.0 100 chance that your aimn will come to pass

Knowledgeable intent               .9 90% chance it will happen

Negligeence                            less than 90%-0% less certain that it will happen,

Negligence failure to take precaution to reduce risk: not always factual but counter factual not want D do but what D failed to do up to P to say what D should’ve done differently

Why ought negligence to be sanctioned? A way to say even though not intentional still liable because would have duty of reasonable care. Negligence def

Grounds or justifications for neg:

respect or fairness: rooted in notion neg person hasn’t paid due respect to victim

Economic grounds: neg consititute waste: failure to spend optimum level on safety precautions (people neg throwing risks on community and neg law makes them interenalize those costs rather than inflect those costs on others) efficient

Vicarious liability: social relationship: master-servant. Servant is personably liable, master vicarious liable

Servant remains in the realm of the fault system; master is beyond the fault line and is vicariously liable

RESTATEMENTS OF TORTS

519 (pg 21 torts)

 look through 6 factors of 520 they focus on usually high prob of risk and great magnitude of harm and they persist even eafter all precautions have been taken; with exception of factor 5 than section is scary: Ord risk of life equals negligence and then those risks which exceed and that were strict liability.

S.L. Attribution rule is easier to apply than vicarious lib: risks because more readily marked off in s.l.

August 29, 2003

Chapter 2; battery and defenses that beat it. Basic tort conceptions: intention, harm, etc.

HARM

Notes from the Ellis case:

Baby sitter not complete stranger but first time baby sitting this kid.

Case was dismissed by trial court.

2. Negligence Count

Foresight. Lacks foresight. Foresight is to negligence that intent is to battery.

More complex to think through future risks. Children capable of forming thoughts about acts which have a direct effect but not capable for side effect of act.

Is court being too easy on children on not knowing moral element (be careful).

3. Suit against parents.

Is parent child relations analogous to master slave? Child is not an agent of the parent. No concept of master-servant (they remain within relationship child can’t go home, life-long relationship). Vicarious Liability.

Children are judgment proof. Should parents be strictly liable for torts committed by their children? If own wild animal and escapes and does damage you are liable.  Strict liability for wild and ferocious animals..

Child are not abnormally dangerous undertakings.

Negligence rule: no liability unless parents’ negligence made it possible and probable that act would happen.

Some people who think about accidents are in the fault mode: morally culpable and should be made to be paid. 

JONES TEETH CASE:

Difference between deterrence or punishment

Ambiguity in deterrence: compensation damages can also be deterrence.

Punishing and deterrence: deterrence is above and beyond the deterrence inherent in comp damages.

Punishment v detererance:

Punishment; sounds retributive and backward looking

Deterranace; sounds instrumental and forward looking. How can we prevent people in the future. Instrumental How to use legal system as a means to an end.

Majority is backward looking

Dissent is forward looking

Majority: don’t defer to lower court , goes by gut (well established that: get ready for a new concept; we defer to : get ready for non deference)

Dissent thinks the wrongdoer was the plaint who reneged on her debt. She was leaving the job taken advantage of generosity,