Exam Analysis Chart out all of the torts that are in the fact pattern. Who are the plaintiffs and defendants? Make the prima facie case. Raise the defenses to the prima facie case. General considerations, if any. Vicarious liability Joint tortfeasors Intentional Torts – Attacking the fact pattern Always treat the plaintiff as an average person (no super sensitivities except when D is aware of them.) Everyone is liable for an intentional tort!
1) Introduction a) Definition – A tort is a civil wrong, other than breach of contract, for which the law provides a remedy. A person who breaches a tort duty (i.e., a duty to act in a manner that will not injure another person) has committed a tort and may be liable in a lawsuit brought by a person injured because of that tort. Torts is a fault-based system. b) Purposes of tort law: (1) to provide a peaceful means for adjusting the rights of parties who might otherwise “take the law into their own hands”; (2) to deter wrongful action; (3) to encourage socially responsible behavior; and, (4) to restore injured parties to their original condition, insofar as the law can do this, by compensating them for their injury. 2) Intentional Torts a) Assault, battery, false imprisonment, trespass to chattels, and trespass to land. b) Intent i) Meaning of intent: There is no general meaning of “intent” when discussing intentional torts. For each individual tort, you have to memorize a different definition of “intent.” All that the intentional torts have in common is that D must have intended to bring about some sort of physical or mental effect upon another person. (1) No intent to harm: The intentional torts are generally not defined in such a way as to require D to have intended to harm the plaintiff. (Example: D points a water gun at P, making it seem like a robbery, when in fact it is a practical joke. If D has intended to put P in fear of imminent harmful bodily contact, the intent for assault is present, even though D intended no harm to P.) (2) Substantial certainty: If D knows with substantial certainty that a particular effect will occur as a result of her action, she is deemed to have intended that result. (a) Garratt v. Dailey – Brian Dailey, five years old, pulls a chair out from under P as she is sitting down. The evidence at trial shows that he did not desire that she hit the ground, but he may have known with substantial certainty that she was trying to sit, and would hit the ground. Held, the case must be remanded to the trial court, to determine whether Brian indeed knew with substantial certainty that P would fall. If so, he meets the intent requirement for battery. On remand, the trial court found that Brian knew with substantial certainty that P was trying to sit when he pulled the chair away and that there was therefore the intentional tort of battery. (i) The court rejects the notion that purpose and motive are necessary for intent.
(ii) Regarding intentional torts, we treat those with diminished mental capacity the same as undiminished adults. As between a person injured and the one who has the diminished capacity, the equity lies with the victim. (iii)Children: 1. Children are liable for intentional torts. Although the child may be liable, the parents may not have to pay. 2. As plaintiffs with respect to comparative fault, children are given credit for their modified capacity as minors. (b) High likelihood: But if it is merely “highly likely” and not “substantially certain,” that the bad consequences will occur, then the act is not an intentional tort. “Recklessness” by D is not enough. (3) Act distinguished from consequences: Distinguish D’s act from the consequences of that act. The act must be intentional or substantially certain, but the consequences need not be. (Example: D intends to tap P lightly on the chin to annoy him. If P has a “glass jaw,” which is broken by the light blow, D has still “intended” to...
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