Torts Class 1

01.14.2010

IntroductionCourse webpage. STANLEY -- files- PP reviews, syllabus - PP slides will be posted after class. o Skeleton of outline for class - Announcements-- reading assignments are here Class participation- If not prepared, inform prof prior to class. No penalty assessed. Preparation- Always figure out the procedural posture of each case. - Where and how something occurred - Case briefs- facts, posture, holding, reasoning, dissent. Torts- civil wrongs not covered by contract law. Liability- intentional, negligent, strict liability (covered in torts 2) Common law- writ must be filed for court to hear case. Wrongdoing must fall under certain writ (correct) in order for case to be heard. Old Common Law Trespass vi et armis - trespass with force and arms.-----Direct commission of violence by defendant to plaintiff. - Harm caused directly by defendant (def. threw log directly at plaintinff) Trespass on the case harm was caused indirectly (def. threw log in street, plaintiff tripped n log)

Brown v. Kendall Massachusetts, 1850. 60 Mass. (6 Cush.) 292. Parties: Plaintiff: Brown Defendant: Kendall

Summary of Case: The two mens dogs were fighting. Kendall tried to break them up by hitting them with a stick. When he raised the stick, he accidentally hit the plaintiff causing serious injury to his eye. Brown filed suit for an action of trespass for assault and battery. Defendants wishes for specific instructions to jury were denied. 4ft. stick How far was plaintiff away from def? 15 ft (rod). Def. was walking backwards because dogs were moving in that general direction. Trespass for assault and battery. Vi et armis (directly caused injury)- correct cause of action was filed Trial jury found in favor of plaintiff. Necessary act? -- Did he use ordinary care? (Jury instructions at trial) Issues: Was it necessary or proper for Kendall to interfere in the dog fight? Care that must be given depends on this question. Must exercise extraordinary care if act was not necessary. Was the correct degree of care taken by defendant and plaintiff?

If defendant had no legal duty to intervene, did he use extraordinary care? Whose jury instructions are correct? Decision: A new trial was ordered. Appellate court Reasoning: A new jury must answer and decide on the issues affecting this trial. Defendant must propose different jury instruction, or it will be almost impossible to appeal. Jury can come to a conclusion under the correct set of instructions for necessary and care. Courts trying t get away from the notion that def. should be guilty based directly on fault (must prove intent, negligence, necessity, etc.) Contributory negligence?

Garratt v. Dailey Supreme Court of Washington, 1955

Summary: Ruth Garratt filed suit against Brian Dailey (then 5) for battery. Dailey allegedly pulled out a chair from underneath Garratt right before she sat down. Garratt fell to the ground and sustained a serious hip injury. Plaintiff sued for battery. -The trial court ruled in favor of Dailey claiming that he did not intend nor know of injuries that could be a result of his prank. Dailey claimed that he was trying to move the chair so Garratt could sit in it, not the contrary. This evidence contradicts the plaintiffs. Elements of battery: - An actor that acts intending to cause harmful or - offensive contact or to cause imminent apprehension of such contact and - Harmful or offensive contact actually results. Issue- Did defendant intend to cause such injury? Did def. have knowledge that plaintiff would incur injury and his contact was harmful? Decision: The case was remanded. After remand, defendant was found guilty.

Reasoning: In order for Dailey to be found guilty of battery, on remand, it must be proven that defendant acted knowingly and intentionally that plaintiff was about to sit in chair and that she would have hit the ground causing injury as a result. Restatement states the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it.. encompasses both knowledge and desire to a degree of substantial certainty.

Notes: The judge is the trier of fact in this case. - Can 5 yr old have necessary intent to commit an intentional tort? - Yes, sufficient understanding that moving the chair will cause plaintiff to fall and hit the ground. -