Torts

Battery

Restatment of Torts section 13 sec18

Sec. 13 BATTERY: HARMFUL CONTACT
An actor is subject to liability to another for battery if:

  1. he acts intending to cause a harmful or offensive contact with the person of the other or a third person or am imminent apprehension of such a contact and
  2. an harmful contact with the person of the other directly or indirectly results.

Sec. 18 BATTERY: OFFENSIVE CONTACT
An actor is subject to liability to another for battery if:

  1. he acts intending to cause a harmful or offensive contact with the person of the other or a third person or am imminent apprehension of such a contact and
  2. an offensive contact with the person of the other directly or indirectly results.

Indirect battery has been found when blowing smoke in a person's was intentional and has particulate matter capable of contact.

Battery- harmful or offensive contact

-Or allows for them to find battery under either condition

  • Harmful- physical
  • Offensive- emotional / physical

BATTERY

Nominative, Punitive

  1. Act by defendant
  2. Cause
  3. Harmful or offensive contact to plantiff
  4. Intent to cause Harmful or Offensive Contact
  5. Defendant acted for the purpose of causein harmful or offensive contact
  6. Defendant knew that H or O contact was substantially certain to result

Compensatory

  1. Cause
  2. Harm toplantiff
  3. Physical
  4. Non physical

ASSUALT

Nominative, punitive

  1. Act by defendant
  2. Cause
  3. Reasonable apprehension of harmful offensive contact
  4. Intent to cause apprehension of harmful or offensive contact
  5. Defendant acted for the purpose of causing apprehension of H or O contact
  6. Defendant knew that apprehension of H or O contact was substantially certain to occur

Compensatory

  1. Cause
  2. Harm to Plaintiff
  3. Non physical
  4. Physical

Paul v. Halbrook

Facts: Plaintiff and defendant were co workers

-Plaintiff asked to have defendant wear revealing clothing

-Plaintiff massaged shoulders from behind

  • Battery b/c contact – did not apprehend imminently
  • Contact- offensive

-Nom. Pun. Damages – hard to prove compensatory

Issue: whether or not the touching was offensive

-Harm

-Intent

  • Must prove the purpose or knowledge of his actions was for harmful or offensive contact

Holding: plantiff unable to prove offensive contact issue

Picard V. Pontiac Buick

Facts:

-he said she said account of touching and harmful or offensive contact

Issue of battery – defendant touches the camera

Assault cause of action

Causation

-does the plaintiffs account provide sufficient evidence that the defendants action was the cause of her spinal injury

Castiglione v. Galpin

Issue: Did the defendant’s action result in the plaintiffs being placed in reasonable apprehension of receiving battery? Are such conditions sufficient to constitute assault?

Holding: yes the circumstances surrounding the incident, whether the gun was on the lap or pointed at plaintiffs, constitute assault by placing them in reasonable apprehension of fear

RULE: Words alone may not be sufficient to constitute an assault; however, threats coupled with the present ability to carry out the threats are sufficient when one is placed in reasonable apprehension of receiving an injury.

Cullison V. Medley

False Imprisonment

Nom, Punitive Damages

  1. act by the defendant
  2. cause
  3. confinement
  4. physical barriers
  5. physical force
  6. threat to apply phys. Force
  7. duress
  8. illegal custody
  9. intent to cause confinement ( purpose or knowledge test)

Compensatory Damages

  1. Cause
  2. Harm to Plaintiff (physical or non-physical

Trespass to Land (strict liability)

Nom, pun,

  1. Act by Defendant
  2. Cause
  3. Interference with Plaintiff’s possessory interest in real estate
  4. Intent to enter land (purpose or knowledge test)

Comp.

  1. Cause
  2. Harm To land (or emotional distress)
  3. Proof of restoration
  4. Proof of degradation

Trespass to Chattel

Nom. Pun. Damages

  1. Act by defendant
  2. Cause
  3. Interference with Plaintiff’s Interest in Personal Property
  4. Intent to interfere
  5. Purpose
  6. Knowledge test

Comp

  1. Cause
  2. Harm to Plaintiff’s Personal Property
  3. (Physical; Non-Physical)

Conversion – Forced Sale

Nom, Pun.

  1. Act by Defendant
  2. Cause
  3. Appropriation of Plaintiffs Personal Property
  4. Intent to “appropriate

Comp Dam.

  1. Cause
  2. Harm from appropriation of plaintif’s personal property
  3. ( physical non physical )

MODERN TORT

INTETIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED)

Punitive & Compensatory Only

  1. Act by Defendant
  2. Cause
  3. Severe Emotional Distress
  4. Extreme Outrageous Conduct
  5. Proof of intent t cause severe emotional distress
  6. Purpose
  7. Knowledge
  8. Cause
  9. Harm to Plaintiff ( non-physical, physical?)

CONSENT

Types of Consent?

-Express ( written or spoken) (conditional, unconditional)

-Implied in fact

-Implied in law

Terms of Consent

Did the Defendant comply with terms of consent?

  1. Yes
  2. No

Was Consent Void?

  1. Plaintiff’s consent by fraud or duress?
  2. Consent by a mentally incompetent Plaintiff?
  3. Consent by immature minor
  4. Rule of sevens
  5. 1-6 incompetent
  6. 7-13 presumed incompetent
  7. 14-17 (20) presumed competent
  8. Consent to an illegal act
  9. Majority Rule= consent is void
  10. Minority Rule= consent valid (tort court)
  11. Restatement – consent is valid (minority rule)

Unless criminal law protects Plaintiff’s class ( majority rule)

ASHCRAFT V. KING

SHINE v. VEGA

McNAMEE v. AJW – consent is a defense in civil suits even to illegal conduct not in criima;

Self defense

Necessity?

Assault, Battery, False Imprisonment by plaintiff?

[duty to retreat?]

defendant reasonably believed force was necessary?

reasonably force?

-comparable

including death or substantial bodily harm

(depends on age, size, etc.)

silas v. bowen

tatman v. cordingly

Defense of Others

Necessity?

Assault, battery, false imprisonment by plaintiff to “other”

[duty to retreat]

defendant reasonably believed force was necessary?

1)From ‘others’ perspective

or

2)From defendant’s perspective

Reasonable force?

Comparable including Death or Serious Bodily Harm

Depends on age, size, etc. of

1)Plaintiff and other

Or

2)plaintiff and defendant

young v. warren

plaintiff – bf family

defendant – dad

shot and killed bf , daughter had been assaulted and battered

trespass iied

Felony Arrest

Necessity ?

Felony by the plaintiff (A, B, FI, TL, TCH, Conv.)

Did defendant have a reasonable cause to believe felony?

Defendant reasonably believes that force was necessary

Reasonable Force?

Comparable,

Felony of minor violence (not d or SBH )

Felony of major violence ( including d or sbh)

Kato v. briney

Self-Help

Defenses

1)What was the plaintiffs act of aggression?

2)What was the defendants act of self-help?

3)What torts did plaintiff allege?

4)What affirmative defense did the defendant allege?

Defense of property

1) Necessity?

Trespass by the plaintiff?

Defendant demand

-That plaintiff leave?

  • Unless futile

-Reasonably believed force was necessary?

2)Reasonable force?

-Comparable force

  • But not deadly or Substantial bodily harm
  • Depends on age , size, etc of the plaintiff and defendant

Torts Strategic Consideration

Tests of Intent / Punitive damage
Minority / Punitive damage majority / Bankruptcy discharge / Liability insurance
Minority / Liability insurance majority / Parent Vicarious Liability (PVL)
specific / yes / yes / not / no / no / yes
purpose / yes / yes / not / yes / no / yes
Knowledge / No / yes / not / yes / no / yes

Deluca v. Bowden

-Bbgun shoot out

  • kids under 7
  • hit 3rd kid
  • bb gun owned by 17 yr od

Anello v. Savgnac

- teacher student fight

  • teacher caught student
  • grabbed
  • kid fell

-KID GET UP PUNCHES TEACHER 3X FACE IN CORNER

  • Kid in prior fights
  • Used evidence to establish intent

Ortega v. Montoya

-2 assault 1 battery

-purpose and knowledge test

  • Purpose- acted with purpose to cause
  • Knowledge- substantially certain it would occur

PARENTS ARE STRICLTY LIABLE FOR THE ACTUONS OF THEIR CHILD

-Child must commit willful or malicious act.

  1. Prove the childe committed tort
  2. Prove they are the kids parents
  3. Policy cover child

*negligence on parents part can be negligent supervision

Torts Transferred intent

bat

Defendant intends to commit tort to X but instead does it to Plaintiff transfer intent from X to Plaintiff

Mcbryde

-Shot at car assault

  • Hit neighbor (battery )
  • Transferred intent from car to neighbor

American Inss. Co. v. Sauliner

-Bruce intends to scare girl – assault

-Bruce Hits David – battery

  • Intent transfers liable for battery of boy

Workers Comp – no fault litigation

-Scope of employment + injury

  • Gave up lots for no fault

-Intentional can recoup all given up?

-Vicarious liability §§ 219, 228, 229 – memorize

  • Compensation
  • Deterrence

Mary M. v. City of LA

-Police officer demands repayment

  • Threatens with arrest

-Borad foreseeability test IRA S Bushey Test

  • What the employer can forsee what an employee may do.

Vicarious liability

- § 228 - IRA S BUSHEY TEST

-LA- Maine - mary m - lisa m

-majority -minority

ADNORMALLY DANGEROUS ACTIVITES

(ADA)

a)Act by defendant

b)Adnormally dangerous activity

  1. RT 2d

1Hig degree of risk

2Great gravity of harm

3Risk can not be eliminated

4Not a matter of common usage

5Location is inappropriate

6Value to community

c)Cause in Fact

d)Proximate cause (scope of the risk test)

e)Harm to Plaintiff – compensatory damages only

Restatment 3.

  1. NO
  2. NO

WILD OR VICIOUS DOMESTIC ANIMALS

a)Act by defendant

b)Defendant is in possession of a wild or vicious domestic animal

c)Cause in fact

d)Proximate cause

e)Harm to Plaintiff

  1. Compensatory damages only

Strategic Consideration

Punitive? Discharge Bankruptcy? Liability Insurance Coverage?

No YesYes

Correa v. Curbey

-Applying R 2nd not auto strict liability

-Must prove cause in fact

Gron v. Rodgers

-Defendat – highway construction – Blasting – ADA

Issue For the Court

Scope of the risk test – harm was outside the scope not a proximate cause

Strict liability ony for physical harm

Reasonable care – all due diligent actions cannot eliminate risk

Koos v. Rooth

- Judge Linde – uses 3rdRestatment of torts during 2ndrt era

Young Case

- emergency conditions

-duty of reasonable care

NEGLIGENCE

Negligence:

  1. act by defendant
  2. negligent act
  3. duty

-duty of reasonable care

  • Defandant had a duty to do what a reasonable ______person would have done under ______circumstances
  1. Breach
  2. Judges Questions
  3. Forseedable Chance of Harm?
  4. Defendant knew or should have kown
  5. Unreasonable risk of harm?
  6. Likilehood? vs - Cost of Precautions
  7. Gravity?- Value of Defendants conduct to community?
  8. Jury Questions
  9. Did Defendant do what a reasonable ______person would have done under ______circumstances?
  10. Cause in Fact
  11. Proximate Cause
  12. Harm To Plaintiff

Compensatory Damages only

*blank fill ins emergency, superior knowledge

Reclessness / Punitavie? / Discharge in Bankrupotcy / Liablity Insurance / Parental Vicarious Liablitly (wilfull or maliciously)
-Subjective / yes / yes / Yes / Yes?
-Objective / No / yes / Yes / Yes?
Negligence / No / yes / Yes / No
Strict liability / No / yes / yes / No

Non intentional tort judgments

Reasonable Person Neglicnee

-What would a reasonable ______person would have done under like circumstances ?

  • §§ 10(a)(b)(c)- c does npot apply to dangerous activities for adults

Robinson v. Lindsey

-adult standard for dangerous activities

-snowmobile accident

Washington case – majority rule

Minnesota case – minority rule

-Hubner v. Koelfgren – bbgun – 4th exception to adult standard of care.

ADA( strict liability)

Abnormally dangerous activities

- One that is inherently dangerous

  • not a matter of common usage

negligence liability - prove negligent act – duty + breach

-what is duty of care ( child owes)

  • child owes duty of reasonable person age of the defendant unless it is adult activity – something dangerous driving cars , guns

MCkely v. Schrumm

- physically disabled

  • impaired vision

Masters v. Alexander

-impaired vision

  • capable of certain situations but not all due to limitations

Mentally Disabled Persons

Breunig v. American Family Ins. CO.

-insanity

creasy v. rusk

Negligence PER SE

Negligence Per Se

  1. negligent act
  2. duty
  3. duty to comply with criminal safety statute
  4. Breach
  5. Judges Questions
  6. Is the Statute Applicable
  7. Is the statute a safety statute?
  8. Is a violation of the statute excused?
  9. Did Defendandt prove that Defendant did not violate statute?
  10. Jury Questions
  11. If you find that a defendant violated a safety statute then you MUST find that defendant committed a negligent act.

-evidence of negligence NOTE: if the violation of the statute is only “evidence” of negligence the jury will be told “you may find” that defendant was negligent

*Custom enhances or informs the reasonable person standard

compliance with custom = non negligence

non compliance w/ custom = negligence

Hyde v. Mc

-Breach of statute issue

  • Used registration not safety statute so no neg per se

Dalal v. City of NY

-Negligence per se

  • Licensing statute requirement of glasses
  • Failure to wear triggers

Landowners + Occupiers Negligence Liablity

Plaintiffs / Historic Rule / Modern Rule / Modified Modern
Trespasser / defendant owes no duty / defendant owes a duty of reasonable care / Defendant owes no duty
Licensee / defendant owes no duty
or
defendantowes a duty to warn or make safe as to known dangers / Defendant owes a duty of reasonable care / Defendant owes duty of reasonable care
Invitee / defendant owes duty of ordinary reasonable care
Fix known, find unknown and fix all dangers / Defendant owes a duty of reasonable care / Defendant owes a duty of reasonable care

Negligent act

Duty

No Duty

No duty for acts of non fesance, unless…

-Defendant is an invitee

-Defendant is cause in fact of harm

-Defendant is social companion

-Defendant has a duty to protect

Duty of reasonable Care

Breach

Yanla v. Bigan – no duty to rescue

- Trenches filled with water

-plaintiff jumped in under urging of defendant

-fesance v. nonfeasance

issue of reasonable care

-was defendant responsible for plaintiffs harm

  • if so he has a duty to rescue

Ayers CCase

- 6 y/o fingers stuck in escalator

-invitee

-owed a duty of care

-aggravation of injury by lack of action

-duty to come to assistance

Farwell Case

- duty to assit when non actions worsen harm

  • must avoid actions that make situations worse

good Samaritan law

Posecai v. Wal Mart Stores

- balancing test

1)Specific Harm - awareness of the specific and imminent harm about to befall them

2)Prior Similar Instances - past history of criminal conduct will put the landowner on notice of future risk

-Looks to issues pertaining to defendant’s property or immediate issue

3)Totality of Circumstances - additional factors such as number, nature condition, crime acts foreseeability

- Places a greater duty on Biz. Owners to foresee the risk of criminal attacks on their property

-Majority Rule

4)Balancing Test- address the interests of both the business proprietors and their customers by balancing the

  1. Foreseeability of harm against
  2. Burden of imposing a duty to protect against the criminal acts of a 3rd person

Williamson v. Daniels

-15 y/o kid goes out when mom on phone

  • shoots and paralyzes plaintiff

-Mom knew discipline issues

  • Therapy, grounded,

-Not negligent

  • Didn’t have foreseeable knowledge of gun or likelihood of child’s action

Parent duty when

a)Knows or has reason to know ability to control child

b)Knows or should know of the necessity and opportunity for exercising such control

Kerans v. Porter Paint CO.

- No workers comp for sex harras. Only physical injuries

-may go forward under sexual harassment statute

-common law tort action based on assault and battery

  • intentional tort
  • Can an employer be hekd Vicariously Liable for an employees intentiolnaltorts

-Proof of Knowledge

  • Store manager – special position
  • if supervisor
  • company vicariously liable

-Negligence Cause

  • Corporation negligently failed to control actions of harasser

Master dtury reasonable care control servant actions outside scope of employment to prevent from intentionally harming others or creating unreasonable risk of bodily harm if

a)Servant i) on premise or ii) using chattel of master

b)Master i) knows or has reason to know that he has ability to control servant ii) knows or should know of the necessity and opportunity for exercising such control

PROXIMATE CAUSE

Tests :

  1. Policy Test
  2. Direct Consequence Test
  3. Foresight Test
  4. Scope of the Risk test

Precedents :

  1. Plaintiff is resuer of the Defendant
  2. Subsequent medical treatment to plaintiff
  3. Plaintiff is an eggshell plaintiff
  4. Plaintiff is a direct victim of emotional distress &
  5. Plaintiff has resulting physical manifestations of emotional distress

OR

  1. Plaintiff has serious emotional distress

Feasance = actions

Nonfeasance = acting when law does not impose duty

Mal Feasance = acting when law imposes duty

CAUSE IN FACT

- But For Test

-Substantial Factor Test

Gonzales- Cali Supreme Ct. more comfortable with subtatial factor easier to prove

NyRRCO v. GRIMSTAD

- Tug boat bumps barge

-captain falls in drowns

  • wife tried to save
  • no life vest no bouys

-nonfeasance but employer-employee relationship

  • not cause of drowning

Anderson v. Minneapolis & St. Mary

-two fires which was substantial factor

Proximate Cause Defendants Arguments

Tests :

  1. Policy Test
  2. Direct Consequence Test
  3. Foresight Test
  4. Scope of the Risk test

Precedents :

  1. Plaintiff is resuer of the Defendant - danger invites rescue
  1. Subsequent medical treatment to plaintiff – dr screw ups plaintiff may recover from defendant for medical
  2. Plaintiff is an eggshell plaintiff – frial , ailments, take plaintiff as you find them
  3. Plaintiff is a direct victim of emotional distress &
  4. Plaintiff has resulting physical manifestations of emotional distress

OR

  1. Plaintiff has serious emotional distress

Palsgraff v. Long Island RR. CO.

-Explosin causes scales to fall hit lady end of platform

  • proximate cause pro defendant for negligence
  • duty to all vs duty to actual

-plaintiff was too removed

DerDiarian v. Felix Contracting Corp

-defendant crashed through construction

Wagner v. Internat’l RR Co.

Negligent Infliction OF Emotional Distress

(NIED)

  1. Act by Defendant
  2. Negligent Act by defendant
  3. Cause in Fact
  4. Proximate Cause
  1. Direct Victim
  2. Physical impact to Plaintiff (ny)
  3. Plaintiff has a resulting physical manifestation rpm (ny)
  4. Plaintiff has SERIOUS emotional Distress (ca)
  5. INDIRECT VICTIM
  6. Plaintiff was in zone of danger (Amaya case)
  7. Plaintiff has resulting physical manifestation and related closely to the victim and near (Dillion Test)
  8. Plaintiff has a serious emotional distress and closely related an d present (THING TEST)

IIED

  1. Intentional act by defendant

-Extreme outrageous conduct

  1. Cause in fact
  2. Proximate cause
  1. Direct plaintiff of severe ed

or