TORTS FINAL OUTLINE

SCHOENBAUM, FALL 2012

TEST TIPS

  1. Best answers will identity the rule and then compare your fact pattern to cases you look at in class (and compare and contrast)
  2. Raise factors, compare to cases, then make predictions: “There are factors going both ways because the analysis shows that unlike bushey…etc.”

A BRIEF OUTLINE OF THE NEXT 31 PAGES THAT MIGHT DECIDE YOUR FUTURE

  1. Two main theories underlying tort law of when compensation for harm caused is required  POLICY ARGUMENTS
  2. Corrective justice when you cause injury you’ve actually created moral imbalance and D needs to compensate P to take care of it (FAIRNESS ARGUMENTS)
  3. Deterrence Arguments deter injuries from happening
  4. Two other considerations when we think about whether to allow tort system to shift loss and how we allow it to do so
  5. Administrability – how hard will it to be for court to administrate the rule
  6. Institutional competency – should this be enforced through courts or legislature, judges or juries?
  7. Four different types of torts
  8. Triggering type of conduct of four types
  9. Voluntary Act - Intentional
  10. Breach of Duty – Negligence
  11. Certain activity (abnormally dangerous) – Strict Liability
  12. Seller – Defective Product
  13. Causation
  14. Factual (injury resulted more likely than not from triggering conduct)
  15. Proximate (standard - we don’t allow liability for all these types of conduct that constitute factual, limit to injuries foreseeable, of sort that made conduct fit the triggering standard in the first place)
  16. Damages
  17. For intentional torts – need damages in first place to have a tort (you can get nominal damages)
  18. Then how do we measure them (how much do we compensate P for her injury)
  19. Defenses – if D has appropriate defense, then even if all thee elements are met, the D may still be found not liable

Theories and Principles Underlying Tort Law

  1. Corrective Justice
  2. When one person causes an injury to another person, it creates a moral imbalance.
  3. Fairness – Make party responsible compensate injured party for loss
  4. Deterrence
  5. Want to deter people from committing actions that are likely to injure another. Making people liable for these damages works as a deterrence.
  6. Don’t want to punish people using due care. Would over-deter activities
  7. Administrability
  8. Want to create laws governing these actions that are easy and consistently applied to cases.
  9. Will law open floodgates to litigation?
  10. Will ruling create a slippery slope?
  11. Institutional Competency
  12. Who is responsible for making and implementing the law?
  13. Courts v. Legislature
  14. Civil code easier to follow and more predictable, but change is slow (statutes)
  15. Often up to the jury to make choices of liability by applying law
  16. Normative
  17. Should base laws off what society determines is right and wrong
  18. Bentham Utilitarianism
  19. Should create laws that benefit society as a whole
  20. Posner Law and Economic
  21. Should not look at morals, should do what is economically efficient
  22. Costs
  23. Externalization – society bears the costs. Ex. Pollution
  24. Internalization – company spends more to make product safe, raises prices

INTENTIONAL TORTS (voluntary act + intent + causation)

  1. Voluntary Act
  2. A defendant is not liable if the act which causes the harm is not voluntary
  3. An act is not voluntary if it is the result of a pure reflex, or if unconscious when made
  4. Involuntary act in preservation of life?
  5. Laidlaw v. Sage – Man walked into bank, tells D he is going to set off a bomb. D moves P in front of him to shield blast. Court found NL, maxim of self preservation first law of nature, act done under pressing danger is done involuntarily to protect ones life.
  6. Intent
  7. An actor has an intent when the actor:
  8. Desires to cause the consequences of his act; or
  9. Knows or believes the result is substantially certain to occur
  10. Garratt v. Dailey – kid pulls out chair from underneath girl, he was substantially certain she would hit the ground; liable for battery even if the D doesn’t touch the P
  11. Substitutions for intent (Intent was unlawful)
  12. If D intended to do the act or make the contact, which was unlawful or objectively inappropriate, and the contact turned out to be harmful/offensive, then intentional tort even if didn’t intend the harm. Whether the act was unlawful determines whether or not the intent to act was unlawful.
  13. Vosburg v. Putney – D lightly kicked another boy in class with pre-existing knee condition he didn’t know about. This was against school rules b/c happened when class called to order and not at recess. Liable for battery and harm that ensued from aggravating old injury w/o intending the harm.
  14. Eggshell plaintiff rule: in intentional torts, take plaintiff as they are. Liable for all damages that ensue, even if not foreseeable
  15. Transferred Intent
  16. Between People: If D had intent to intent to cause tort against one person, this intent will transfer to anyone who happens to be injured
  17. Ex: A throws eraser at B, hits C. C can sue A for battery
  18. Keel v. Hainline – Boys throwing erasers back and forth during class. A, throwing at B, hits C. A liable via transferred intent, B also liable for encouraging A to throw eraser.
  19. Between Torts: If D intends to assault P, but instead punches P, he will be liable for battery even though only intended assault
  20. Manning v. Grimsley – D, baseball player, throws ball at fence to scare heckling fans, ball breaks through fence and injures D. Intent to commit assault transfers to battery.
  21. Does not apply to IIED.
  22. Incompetency
  23. Fact that D is mentally incompetent, insane, or a minor, does not preclude a finding that he possessed intent to commit tort
  24. Polmatier v. Russ – D killed man, wife brought wrongful death suit. Found liable. D, although insane, did have intent to kill. Insanity does not void voluntariness of act.
  25. Incentives for this rule?
  26. More injustice of denying injured party compensation
  27. Gives incentive to family to take better care of insane
  28. Ruling other way would create false insanity defenses
  29. Causation
  30. D’s act or a force set in motion by that act must cause P’s injury

BATTERY – Intentional Infliction of Harmful or Offensive Bodily Contact

  1. Overview: (1) Act intending to cause harmful/offensive contact or imminent apprehension of such contact, (2) contact actually happens.
  2. Easy Battery Cases: Intend contact, act is voluntary, contact turns out to be harmful or offensive
  3. Hard Battery Cases: Wrongfulness/appropriateness if no intent to harm; imminent threat in terms of voluntariness
  4. Intentional
  5. Actor intended to cause harmful or offensive contact
  6. If intended act is unlawful, intention to commit it must also be unlawful
  7. Actor intended to cause imminent apprehension of such contact
  8. Put P in fear of imminent harmful or offensive contact
  9. Must intend the act that actually causes the harm
  10. Knight v. Jewett – P and D playing touch football game. D stepped on P’s finger causing damage. D not liable for assault and battery b/c he did not intend to step on her or harm her
  11. Harmful or offensive contact
  12. Harmful: causing physical pain or bodily damage
  13. Offensive: damaging to a reasonable sense of dignity
  14. Would an ordinary person not unduly sensitive as to his dignity be offended?
  15. Mohr v. Williams – P consented to surgery on right ear, D operates on left ear bc he sees it as worse. This is a battery because was offensive contact
  16. White v. University of Idaho – D piano teacher lightly poked P student’s back at her home when she wasn’t looking causing insane muscle injuries. P says she wouldn’t have consented and that it was inappropriate. Might be violating implied license for teacher not to touch student. Outlier.
  17. If you know person is extra sensitive to something and do it anyway, can be liable for battery.
  18. Contact Results
  19. Contact beyond level consented to (Mohr v. Williams)
  20. Can be implied from past experiences, words.
  21. Extends to personal effects
  22. Don’t actually have to touch person, contact with anything closely identified with body (hat, clothing)
  23. Contact doesn’t actually have to be from D’s body
  24. Arrows, bullets, etc.
  25. P does not have to be aware of contact at time (could be sleeping)
  26. As long as D commits the battery, liable for any consequences that ensue, regardless if unforeseeable

ASSAULT – Intentional causing apprehension of harmful or offensive contact

  1. Overview: (1) Intent to cause harmful/offensive contact (or intent to cause action that puts person in apprehension)to (2) give rise to imminent apprehension of such contact, and (3) an imminent apprehension subjectively reasonably results
  2. Intent
  3. Actor intended to make harmful or offensive contact
  4. Actor intended to cause imminent apprehension of such contact
  5. Put P in fear of an imminent harmful or offensive contact
  6. Bennight v. Western Auto Supply Co – P forced by B to work in warehouse with bats against her protests. Bats attacked her one day and then bit her the next day. P needed rabies treatment, reacted badly, went blind and suffered emotional problems. P’s husband sues for lack of consortium – assault turned into battery b/c manager intended to put her in the place (unlawful and objectively inappropriate thing to do b/c of the bats there) & knew with substantial certainty that she would have an apprehension with the bats then when bats made contact a battery resulted and intent transferred from assault to battery.
  7. Vossburg Special Sauce: contact that was apprehended in warehouse was objectively inappropriate or offensive
  8. Harmful or Offensive Contact
  9. Harmful: Causing physical pain or bodily damage
  10. Offensive: Damaging to a reasonable sense of dignity
  11. Imminent Apprehension Results
  12. P must undergo an offensive contact, or be put in apprehension of a contact happening
  13. If you know a person is super timid and scare him; assault
  14. Langford v. Shu – D set the stage for children to play a prank on neighbor. Prank scared her and she fell backwards, injuring herself. Liable for assault because she intended to scare P, and D expected to enjoy prank.
  15. The threat must be imminent
  16. Future threats and threats without present ability (from P’s point of view) to commit harm do not constitute assault
  17. Brower v. Ackerley – D’s calling P saying they are going to “find out where he lives and kick his ass” and “going to cut him in his sleep” not assault bc threats were in future or near future, not imminent future. (IIED?)
  18. Generally, words alone do not constitute assaults
  19. Conditional threats are assault (give me money or ill kill you).
  20. P must be aware of threatened conduct otherwise not liable for assault
  21. Threat to a 3rd party not actionable
  22. Intending to assault, striking at another and missing; assault.
  23. Holding hand in a threatening manner and saying nothing, assault.
  24. Tuberville v. Savage – D, holding hand on sword, and saying if judges were not in town he would not accept such language from P is not an assault, threat was not imminent, did not actually intend to assault P.

OUTRAGE (Intentional Infliction of Emotional Distress)

  1. Definition: Restatement (Second) § 46
  2. Intentional or reckless infliction, by extreme or outrageous conduct, or severe emotional or mental distress. Third party can recover if he intentionally or recklessly causes severe emotional distress to a member of such persons immediate family who is present, whether or not such distress results in bodily harm, or to any other person who is present, if such distress results in bodily harm.
  3. Overview: (1) by extreme or outrageous conduct (2) intentionally or recklessly causes (3) actual severe emotional harm to another (also liable for physical harm).
  4. Intent
  5. Desire to cause P emotional distress
  6. Substantially certain that P will suffer such emotional distress
  7. Recklessly disregard the high probability that emotional distress will occur
  8. Transferred Intent
  9. Generally not available, except when:
  10. Immediate family members who are present at the time of act
  11. (No physical manifestation necessary)
  12. Non family members who are present and suffer bodily harm
  13. Conduct by D was Extreme and Outrageous
  14. Conduct so outrageous in character, and so extreme in degree, going beyond possible bounds of decency, utterly intolerable by civilized community
  15. Hustler v. Falwell–P publishes magazine saying D first time during drunken incestuous rendezvous with his mother in an outhouse. Supreme court says no IIED b/c political cartoons are part of civilized society humor.
  16. Murray v. Schlosser – D hosts of radio show “Berate the Brides” where they reviewed pics in newspaper wedding announcements andinvited listeners to vote for “dog of the week”. D’s named P dog of the week and said hurtful comments. Liable for IIED b/c intent to hurt her and low social value hurting brides.
  17. Words not usually enough (unless D knew how sensitive P was)
  18. Greer v. Medders – P recovering from surgery in hospital bed w/ wife on hand, D (doctor left to care for P), made harsh comments to P, and also to wife which made her cry and D to experience episodes of shaking which required treatment. D liable for IIED, given P was post-op and fragile.
  19. Must be beyond mean and hurtful
  20. Roberts v. Saylor – D had poor medical history with patient P, and had settled a previous malpractice suit. Years later, while P was lying outside operating room waiting for surgery, D walked by and said, “I don’t like you”. D not liable, for mere insults that may hurt another’s feelings.
  21. P suffered severe emotional distress
  22. Conduct such that “no reasonable person could be expected to endure it”
  23. Muratore – IIED when employee of cruise ship took pictures of her back against will, displayed pictures w/ superimposed gorilla head, and made statements that “she likes things from the back”
  24. Usually have to show that medical aid was required
  25. Courts look at the P’s character and susceptibility
  26. Pemberton – No IIED when D sent mug shots of P and information of wife’s affair to P’s union members. D was “rough-and-tumble” labor official, information sent was true, and D did not prove adequate distress.
  27. Court can take into account relationship between P and D
  28. If D aware that P is very sensitive, easier to find IIED.
  29. Nickel – D liable for IIED, being P’s psych and marriage counselor, knowing P’s sensitivity, anxiety, made comments to D to break up his marriage, while having affair with P’s wife, only because of D’s relationship with P.
  30. Bodily harm is a good indicator of severe emotional distress
  31. For a 3rd person, the actor is subject to liability for emotional distress to:
  32. Member of immediate family who is present (Greer v. Medders)
  33. Any other person who is present, if distress results in bodily harm
  34. Common Carriers and Public Utilities held to a stricter standard.
  35. Domestic violence nowtakes martial context into account, used to just say keep it in the house not in the courts.
  36. Feltmeir v. Feltmeir–D beats P wife constantly for years and in front of children. Court held for IIED taking context of relationship into account and lowering the bar for civility in marriages.

TRESSPASS TO LAND

  1. One is subject to trespass, regardless of whether he causes harm, if he intentionally:
  2. Enters land or another, or causes a thing or 3rd person to enter land; OR
  3. Pegg v. Gray – D’s dogs entered P’s land, causing P’s cattle to stampede, breaking down fence that enclosed them. D owned dogs for fox hunting, intentionally, or knew that dogs would enter the land of another, without that owners consent. D liable for trespass.
  4. Malouf v. Dallas Atheletic Country Club– D not liable for golf ball hit that struck P’s car, no intent.
  5. Remains on the land without a right to be there; OR
  6. Fails to remove from the land a thing which he is under a duty to remove
  7. Intent
  8. You just have to voluntarily be on the land, doesn’t matter if you are a completely innocent person or were mistaken about anything
  9. D cannot induce you on the land and then claim trespass
  10. D is liable for all consequences as a result of trespass, no matter how foreseeable
  11. Van Alstyne – D (phone company) liable for trespass when employees left lead drippings behind on P’s land. D liable for death of P’s dogs that ate lead.
  12. RS (2d) Torts § 164 (Intrusions under Mistake): One who intentionally enters land in the possession of another is subject to liability to the possessor of the land as a trespasser, although he acts under a mistaken belief of law or fact
  13. Exceptions
  14. Desnick v. ABC – no trespass occurs when a person enters a business open to the public under the pretense of seeking its services but engages in undercover investigative journalism without disrupting the business’ activities.
  15. RS (2d) Torts § 166 (Non-Liability for Accidental Intrusions) –Except where the actor is engaged in an abnormally dangerous activity, an unintentional and non-negligent entry on land in the possession of another, or causing a thing or third person to enter the land, does not subject the actor to liability to the possessor even though the entry causes harm to the possessor or to a thing or third person in whose security the possessor has a legally protected interest.

DEFENSES TO INTENTIONAL TORTS

  1. Consent
  2. RS (2d) Torts § 892 (Meaning of Consent)
  3. Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction an need not be communicated to the actor.
  4. If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.
  5. Comment c (Apparent Consent): Even when the person concerned does not in fact agree to the conduct of the other, his words or acts or even his inaction may manifest a consent that will justify the other in acting in reliance upon them. This is true when the words or acts or silence and inaction, would be understood by a reasonable person as intended to indicate consent and they are in fact so understood by the other.
  6. Example: A, young man alone with B, a girl, in moonlight proposes to kiss B. Although inwardly objecting, B says nothing and doesn’t resist nor protests by any word or gesture. A kisses B. A is justified upon the basis of apparent consent.
  7. Example: While fighting A threatens to punch B in the nose. B says nothing but stands his ground. A punches B in the nose. A is not justified upon the basis of apparent consent.
  8. Example: A permits B to punch him in chest as hard as he can. B does so. Unknown to either of them, A has defective heart and as result of punch drops dead.