英美法律制度 Tort Law

Sometimes people make mistakes. In Ranson v. Kitner, the defendants had shot the plaitiff’s dog, thinking it was a wolf. The court held that they were liable for damages for intentional trespass of chattel, although they were acting in good faith. To shoot the animal is an intended act, and the action is by no means inadvertent or negligent. This is the mistake doctrine: if a defendant intends to do acts which would constitute a tort, it is no defense that the defendant makes a mistake.
两大法系的差别

法典/先例，规范/规则，形式/实质，逻辑/经 验

All tortious conduct falls into one of three categories: intentionally inflicted injury; failure to exercise reasonable care; and conduct giving rise to strict liability.
For example, the tort of battery requires proof of intent to cause contact with another person. While, the intent in false imprisonment is to confine another person. But in general, the intentional torts are not defined in such a way as to require defendant to have intended to harm the plaintiff.
No general meaning of "intent"

All that the intentional torts have in common is that the defendant must have intended to bring about some sort of physical or mental effect upon another person. But, what’s interesting is that, there is no general meaning of "intent" when discussing the special intentional torts. For each individual intentional tort, you have to memorize a different definition of "intent."
Tort Law
What is a tort?
(1) a tort is a civil wrong committed by one person against another; and (2) torts can and usually do arise outside of any agreement between the parties.

Secondly, on the measure of damages. The measure of damages is generally broader for the more culpable categories. In particular, an intentional tortfeasor seems to be more blameworthy than the one who is under strict liability; for punitive damages, reckless or intentional conducts may justify such an award, where as punitive damages are available only if the evidence establishes a high degree of blameworthiness on the part of the defendant.
在英美法系国家并不存在侵权法（law of tort）,而仅仅存在侵权行为法（law of torts）, 这就是,存在着一系列的作为或不作为,它们在 一定的条件下,可以被提起各种特定的故意侵 权诉讼或过失侵权诉讼, 或严格责任诉讼。 正如刑法是由确定各种具体的犯罪行为的众 多规则所组成一样,侵权行为法亦是由众多的 确定特定损害行为的各种规则所组成。在各 种具体的情况中,根本不存在有关侵权责任的 一般原则。……”•- Salmond

Forms of action
Trespass Trespass on the Case


我们已经埋葬了诉讼形式，但它们仍从坟墓 中统治我们。 ---- Maitland

英美侵权行为法是一个以个案形式发展起来 的法律分支，法律规定不能够从成文法典中 寻找，而只能从法官先前的判例中去发现； 法律理论不存在着准确性和一致性，相似的 案件可能存在着相互冲突的法律规则。
I. INTENTIONALLY INFLICTED INJURIES

We require an intent to constitute an intentionally inflicted injury. Intent is a state of mind. It’s a state of mind about the consequences or result of a certain act. Purpose: a personal desire, it’s the actor’s personal desire to produce a particular result. Knowledge: the actor is substantially certain, that a particular result will occur, even if that result is not desired.



Example: Defendant points a water gun at Plaintiff, making it seem like a robbery, when in fact it is a practical joke. If Defendant has intended to put Plaintiff in fear of imminent harmful bodily contact, the "intent" for assault is present, even though Defendant intended no "harm" to Plaintiff. In Vosburg v. Putney 1891, a schoolboy deliberately swung his foot across the aisle to touch a classmate. The contact caused serious injury that the schoolboy never expected. And he was held liable for the damages, because we don’t require an intent to harm to constitute a battery.
Impact of such classif百度文库cation

First, impact on the scope of liability The three categories differ concerning D’s liability for far-reaching, unexpected, consequences. The more culpable D’s conduct, the more far-reaching his liability for unexpected consequences ---- so an intentional tortfeasor is liable for a wider range of unexpected consequences than is a negligent tortfeasor.

Law of Tort vs. Law of torts
Tort law is concerned with liability for personal injuries and property damage. In England and America, the law of torts is still largely a matter of common law, which means, the law of torts is based on precedents, and it may be different from place to place, absent of uniform legal applications.


There are 5 traditional torts derived from the writ of trespass, namely, assault, battery, false imprisonment, trespass to land, and trespass to chattels. Only those five enjoy the benefit of the concept of transferred intent. They do not require a showing of actual harm. If actual damages are not proved, a nominal award may be made to vindicate the technical right of plaintiff.
transferred intent


Eg.1 During the break, while the teacher was absent from a classroom, the students engaged in an eraser battle. One boy threw the eraser, intended to strike or scare someone near the far wall, but hit the plaintiff in the eye. Eg.2 If A intends to punch B, but B ducks and A’s fist strikes C, why should A not be held liable? There would seem to be no good reason. This is the theory of transferred intent. The idea behind transferred intent is that the defendant’s intended act is so wrongful that the defendant should not be permitted to escape liability for the damages. But not all kinds of torts permit transferred intent.