1
Things to Consider:
What type of joint liability?
Vicarious, joint and several, indivisible injuries?
Specificity of the question – just plain old liability = every type of tort vs. liability for specific
tort
What types of losses are permitted?
Only economic, pain and suffering, mental?
Res Ipsa Loquitor, nonreciprocal risk and Bexiga Principle apply a lot
Assumption of the risk, other defenses will score you points even if arguing against them
If there’s an employee involved, don’t forget about worker’s compensaton (intentional torts are
beyond the scope)
Torts Outline
I. T
HEORY
OF
T
ORT
L
IABILITY
(37-40)
Goals of Tort System
1.
Shift loss to
compensate
victims
2.
Deterrence
Rationale
1.
Sense of fairness
2.
Better to have the legal system redress injuries rather than allowing people to take the law
into their own hands
Arguments Against
1.
Not always fair: sometimes you make a poor person pay for a rich person’s injury
2.
Deterrence is better served through criminal law rather than tort law
a.
In criminal law, you have uniform punishment based on gravity of the crime
b.
In tort, you make a haphazard calculation based on amount of injury and degree
of culpability
Common Law Writs
1.
Writ of Trespass
: whenever you injure anybody directly, you are liable.
a.
Basis is causation, not fault, so this is strict liability
b.
Damage must be inflicted by force or breach of peace
2.
Trespass on the Case
: if the injury is indirect, you are only liable if there’s fault
Van Camp Fault Principle
: fault (either intentional or negligent) required to shift the loss, even
though injury is direct
1.
This case fails to achieve compensation goal: P is injured but does not recover
2.
But 2
nd
goal is deterrence: you can’t deter unintentional behavior
II. I
NTENTIONAL
T
ORTS
2
Battery
: the intentional infliction of a harmful or offensive contact (pg 40-54)
1.
Intent
a.
Must be result of a voluntary act
b.
Transferred Intent
: where the actor tries to batter one person and actually causes
a harmful or offensive contract to another, he is liable to actual victim (Hall v.
McBryde)
i.
Intent also transferred across trespassory torts: if defendant intends assault
c.
Ambiguity
: does intent modify the contact element or the harm element?
i.
Van Camp
says it modifies harm
ii.
Cohen
seems to say only the contact need be intended
d.
If you start a
chain of events
that you were substantially certain would result in
harmful or offensive contact, that is sufficient (
Garratt v. Dailey
)
i.
Cohen could be justified on this ground, since nurse knew plaintiff’s
religious beliefs made contact offensive
e.
Intent v. Motive
: your motive could be honorable, but it’s still a battery if you
intend to cause a contact that you are substantially certain will be harmful or
offensive
f.
Voluntary intoxication or drug use does not negate intent element
2.
Impact: Contact
a.
Defendant does not have to physically touch plaintiff
b.
Does not have to physically injure the plaintiff; can just be offensive
c.
Defendant does not even have to be present at the time of the contact (setting out
