I. Assault and Battery I
What’s a tort? It’s a wrong that a court is prepared to recognize, usually in the form of ordering the transfer of money (“damages”) from the wrongdoer to the wronged. The court is usually alerted to a wrong by the filing of a lawsuit by a private citizen alleging harm: anyone can walk through the courthouse doors and, subject to the limits explored in civil procedure, call someone else (or, if a company, something) to account.
The first section deals with that group of torts known as intentional. We’ll review the spectrum of intent that marks the sometimes-fuzzy boundaries among wrongs that are done intentionally, those done merely “negligently,” and others in between, and also have a chance to think about what kinds of damages should be on the table once a wrong is established. What happens when an act that’s only a little bit wrongful, even while intentional, results in unexpectedly large harm?
We’ll also discuss the sources that courts turn to in order to answer such questions. Rarely, in tort cases, are those sources the ones laypeople expect: statutes passed by legislatures. Without statutes to guide them, what are courts left with? They turn to decisions of prior courts or decide to announce a new rule as they sort out cases that are non-starters, cases that are such slam dunks that juries need not be empaneled to weigh them, and cases that are in a middle ground that call for jury decision. They distinguish, too, between matters of fact (subject to jury ascertainment unless crystal clear), matters of law (for judges to determine and appellate judges to set precedent upon), and mixed questions of fact and law, such as when a particular behavior falls short of a legal standard.
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