OK here is my WIP tag game question: do the two that start with numbers have anything to do with each other? I am very curious about your ~system
GREAT question, and the answer is yes — those two are numbered that way so they will stay next to each other in my files. They are parts one and two of a Loveless AU that will have at least three parts (maybe more), but I just haven’t gotten to anything beyond notes past part two yet. 😅
My ~system, such as it is, is to put the concept in parentheses (like this) as a working title. Changing the doc title to the actual fic title is the last thing I do before moving it to the “Finished” folder. These two have numbers in addition because they are chronological and from different povs. :D
A person (or werewolf) commits an intentional tort when she acts intentionally and causes an injury. Many intentional torts have criminal counterparts: for example, battery (harmful or offensive contact against a person) is both a crime and a tort. The difference is criminal charges punish the tortfeasor for society’s benefit, while a civil tort suit compensates the plaintiff for the harm, or “makes the victim whole.”
A more formal way to talk about intentional torts (and other types of torts) is to break the requirements into elements. To win a tort suit, the plaintiff must prove all the elements of the case.
Elements of Intentional Torts
Act by the defendant;
Which was intentional;
And caused the plaintiff’s injury.
Since we’re talking about a legal issue, the elements don’t have common-sense meanings. What is an “act”? What does “intentional” mean? What about “causation”? Law professors love to ask questions like that. We’ll use some hypotheticals to show how each element works.
Action
For a defendant to be liable for an intentional tort, the defendant must have acted, and the act must have been volitional. For example, Remus, a werewolf, transforms back into a human after an exhausting night chasing rabbits in the woods. After he transforms, he passes out, and falls onto his friend James, knocking James down and causing James to break his arm. Is Remus liable for James’ injuries because Remus committed an intentional tort? No, because his action was not volitional - it was not “dictated by the mind,” because he was unconscious.
Intent
There are different kinds of “intent,” so we’ll start with the most straightforward. Specific or classic intent means the tortfeasor acted with the goal of bringing about a particular consequence. For example, Stiles, who is not a werewolf but hangs out with them on TV, throws a rock in the woods with the aim of hitting his werewolf frienemy Ethan in the back of the head. He has acted by throwing the rock, and his specific intent is hitting Ethan with the rock. (How much this actually hurts Ethan goes to what damages Ethan can recover, which we’ll get to later.)
Substantial certainty, or general intent, means the person who acted was substantially certain of the consequences, even if they did not desire a particular result. Stiles, frustrated after losing another scrimmage to a bunch of superpowered teenagers, flings a lacrosse ball at a werewolf huddle. They don’t use their super-speed to jump out of the way since they’re distracted looking at a YouTube of an adorable kitten on someone’s iPhone, and the lacrosse ball hits Ethan. Stiles didn’t aim at Ethan in particular, or intend for his action to end by hitting Ethan, but he is liable for the consequences because he was substantially certain that he would hit someone.
What if Stiles was aiming at Aiden, Ethan’s twin (werewolf) brother, and hit Ethan instead? Stiles would still be liable for an intentional tort under the transferred intent doctrine: the intent to commit a tort against one person can be transferred to a different person who is injured by the action. What about if, instead of having poor aim, Stiles genuinely confused the twins, and intended to hit Ethan with a lacrosse ball but mistakenly hit Aiden instead? Is Stiles liable for an intentional tort against Aiden? Yes, because of transferred intent.
Transferred intent also applies when someone intends to do one harmful act and ends up doing another. For example, if Ethan lunges at Stiles, putting Stiles in apprehension of an immediate blow, Ethan intends to commit the intentional tort of assault. But say Ethan trips (gracefulness is not a werewolf superpower) and knocks Stiles to the ground, which is battery, another intentional tort. The intent to commit the first tort transfers to the tort actually committed, and Ethan is liable for Stiles’ injuries.
Werewolves have a couple more special considerations for intent. Say Isaac, who recently became a werewolf and has imperfect control of his shape-shifting abilities, turns into a wolf for the first time on the full moon. He sneaks up on his friend Erica and snaps his teeth, wanting to nip her on the leg and startle her. Unused to his sharp werewolf fangs, he bites down hard and injures her. Was this an intentional tort? Yes, because although he did not intend to cause an injury, his intent was to bite Erica, and he did.
But this is Isaac’s first full moon, and as a new werewolf, he doesn’t have complete control of his facilities. Let’s say many werewolves have a difficult time controlling their aggression during the full moon, and new werewolves are easily confused, unable to tell friend from foe. Could Isaac argue that as an inexperienced lycanthrope overwhelmed by the lunar cycle, he was mentally incapacitated and should not be held responsible for his intentional torts? Most courts would reject this argument and find him liable anyway. The majority view is that individuals who are “incompetent,” including minors and mentally incapacitated people, are liable for their intentional torts.
Causation
Causation for intentional torts is relatively straightforward: the plaintiff’s injuries must have been caused by the defendant’s act or something the defendant’s act set in motion. The defendant’s conduct must have been a substantial factor in causing the injury.
Let’s look at an example. Isaac and Erica are frolicking in the woods, playing werewolf tag, when Ethan and Aidan cross into territory belonging to Isaac and Erica’s pack. Isaac and Erica chase the twins off their pack’s land, but continue their pursuit past the border. Erica jumps on Aiden, intending to wrestle him to the ground, but doesn’t notice the steep drop into a ravine behind Aiden. She knocks him down and he rolls off the edge, suffering serious injuries from his long fall. Did Erica cause Aiden’s injuries? Yes, because even though she did not push him off the edge, she set in motion the events immediately leading to his fall, and her conduct was a substantial factor leading to his injury. Erica is liable to Aiden for an intentional tort because she acted voluntarily with the intent of knocking him down, leading to Aiden’s injuries.
Next Time on Werewolf Torts
We’ll talk about specific intentional torts in two categories: intentional torts against a person, and intentional torts against property.
Let's get started by defining some terms so we're all on the same page, starting with tort and werewolf.
What is a tort?
Tort law compensates people who suffer harm to their person or property from another’s action. Torts is a common law doctrine, which means that instead of becoming law by being put in a statute, the laws are based on prior courts’ decisions, also known as precedent. Each wrongful act causing harm is a tort. Individuals who cause harm are tortfeasors. A plaintiff can sue a tortfeasor, who then becomes a defendant in the case.
Liability means an individual is legally responsible for another’s harm and must compensate the other individual by paying damages.
Werewolf Torts is based on tort law from the United States, which came from (but is different than) English common law torts.
What is a werewolf?
For our purposes, we’ll assume a few things about werewolves. First, a werewolf is a shapeshifter who spends most of her time appearing to be an average human, but can choose to have wolf characteristics (claws, sharp pointy teeth) or turn into a wolf. We’ll also assume that turning into a wolf is compulsory from moonrise to moonset on full moons. Some werewolves were born that way (thanks, Lady Gaga), and others became werewolves after being bitten by a werewolf.
As we go, we’ll talk more about particular characteristics as they’re relevant to torts – volition in human and wolf forms, self-control, making other werewolves, and supernatural abilities besides shapeshifting like enhanced senses, among others. But this should get us started.
A Few Administrative Notes After the Jump
A Note About Pronouns
In the tradition of many legal textbooks, Werewolf Torts uses “she” as the default singular third-person pronoun.
Corrections, Feedback, Etc.
Your author is a 1L evening student, using Werewolf Torts to prepare for a torts exam. Some things will definitely be inaccurate. First, don't use this blog for actual legal advice. Second, if you'd like to submit a correction, the ask box is always open.
Like many law school examples, the hypos are sometimes to be marginal cases that could come out for either side. Since there are no werewolves in the common law, it's impossible to tell what would actually happen in the werewolf hypotheticals.
Disclaimer: Do Not Use This Blog For Legal Advice.
