Torts: The Issue of Private Wrongs

Because the victims were soon forgotten in the king's system, they turned back to the local courts, filing cases against offenders who had caused them harm. These actions were first known as trespass; later torts: "A complex machine for shifting human losses from one who sustained loss someone else."

At first, there were three varieties of trespass:

(l)Trespass with force of arms against the person:

Assault: Acts placing plaintiff in reasonable apprehension of an imminent battery taking place. Words are never enough but may be with some action. There must be present apparent ability of defendant in plaintiff's perception to carry out the threat.

Battery: International touching of the person of another in a rude, insolent or angry manner. "Person" Includes things attached to him at the time and the touching can be by an agency set in motion.

False imprisonment: plaintiff must be aware that he is not free to move about at will as a result of the acts of defendant. Confinement must be total and without freely given consent.

Trespass against the personal, private property of another by carrying away theft (exerting unauthorized control over property of another with intent to deprive the owner of the use and enjoyment) and

Trespass against real estate; breaking the close. In burglary an historic statutory element is "breaking and entering".

All three trespasses require proof of a specific intent to do the act which caused the harm; that is, that the act of the defendant was volitional as opposed to a reflex.

But it was not necessary to prove that a harm was intended or that harm even resulted. Trespass began in strict liability, at the opposite end of Criminal Law!

But the original law was insufficient. Defendant throws a log towards the road, hitting plaintiff who is walking past. Plaintiff, being harmed, has an action in trespass against defendant, because he was directly touched by the agency set in motion by defendant. But what if, instead of hitting plaintiff, the limb lays in the highway and plaintiff, in the dark, stumbles over it and is injured. What then?

Local courts developed actions on the case. Trespass became the action for direct and immediate harm without actual damages. Actions on case were for consequential or indirect harm where actual damages did have to be proven.

But in actions on the case you also had to prove a fault that the defendant did the act with some mental culpability, but not necessarily with mens rea. Gradually fault became the doing of an act negligently, recklessly, or intentionally.

Negligence means to do an act, which a reasonably prudent person would, in same or similar circumstances, not do, or to refrain from doing an act, which a reasonably prudent person would do. You were held to a mythical community standard of conduct. The community, in the form of the jury, determined its standards case by case.

Reckless means doing an act with a heedless disregard for the safety of others, where the actor knows, or has every reason to know, that a very high risk of harm is being created.