Torts - Sanders

Tort

A civil wrong (other than a pure breach of contract) for which the law provides a remedy, typically money damages.

Common law

Judge-made law developed case-by-case through precedent, as opposed to law enacted by a legislature.

Stare decisis

The doctrine that a court should follow its own precedent and that of higher courts within its jurisdiction.

Cause of action

The modern set of factual/legal elements a plaintiff must plead and prove to recover, the descendant of the old writ.

Writ

A document purchased from the royal chancery that authorized a specific, formally-defined type of lawsuit.

Trespass (vi et armis)

The ancient writ covering injuries that were the direct, immediate result of the defendant's conduct.

Trespass on the case

The ancient writ covering injuries that were only a consequential, indirect result of the defendant's conduct.

Emendatory system

The pre-Norman English practice of requiring a wrongdoer to compensate the victim (or the victim's kin) rather than face state punishment.

Wergild / bot

Anglo-Saxon compensation owed to a victim's kin for a death (wergild) or a lesser injury (bot), scaled to harm and status.

Wite

A payment by the wrongdoer to the authority holding the court, originally akin to court costs, later a true penalty; ancestor of the criminal fine.

Right of privacy / publicity

The interest in controlling the use of one's own name, likeness, or identity, at issue in Roberson; later organized by Prosser into four distinct privacy torts.

Intent (Restatement Third § 1)

Purpose to cause a consequence, or knowledge that the consequence is substantially certain to result.

Substantial certainty test

An intent standard satisfied when the actor knows the harmful consequence is near-certain, not just probable, to occur.

True intent test

A narrower intent standard requiring the actor to have actually desired or aimed at the injury itself.

Recklessness (Restatement Third § 2)

Knowing disregard of an obvious risk, where the burden of avoiding the risk is slight relative to its magnitude.

Single intent (battery)

The majority rule: intent to cause the contact is sufficient; no need to also intend harm or offense.

Dual intent (battery)

The minority rule: requires intent to cause the contact and a separate intent that the contact be harmful or offensive