Must Show the Existence and Amount of the Injury

Damages

Must show the existence and amount of the injury

What p can collect

·  Medical expenses

·  Lost earning capacity or wages

·  Pain and suffering including emotional

o  Difficult to dollarize

§  Testimony of economists to items that appear arbitrary maybe allowed but may be dismissed

o  Per diem-extrapolate how much it would cost you to be in pain for a certain amount of time

o  Comparable cases, guidelines and scales

o  Must be aware of pain and suffering in order to collect for it

§  Loss of enjoyment of life is part of pain and suffering

ú  Hedonic damages

§  ED may be separate, but there is no handbook

§  Want to get everything but avoid duplicates

·  Possibly medical monitoring

o  Some allow only if actual harm is shown, and some allow anyway

o  Usual denied for increased chance of disease

·  Other specifically identifiable harm

·  Reasonably certain future damages

·  Pecuniary damages are the economic consequences of the injury

·  PD, if there is malice or at least reckless disregard

·  For property-diminution, cost of repair, replacement, forced sale, nominal if no actual injur

Most states have instituted caps in some form or another

It is unenforceable for a p to give up the right to assert PD for product defects.

Death

survival statutes-brought by the estate

·  Cause of action survives the death of the D or p.

·  SOL starts either at moment of tort or moment of death

Wrongful death-separate cause of action for family and dependents of the deceased.

·  Must claim independent tort caused the death, and WD is the vehicle

·  Usually pecuniary, and loss of consortium (spouses), maybe PD

·  In wrongful death, a N beneficiary is not entitled to recover

Bring survival statute if committed assault, and decedent later dies unrelated, bring WD if battery caused his death

Intentional Torts

·  allege the elements-prima facie

·  Then prove the elements

·  Bring all claims at once

Almost all tort cases involve some kind of fault

·  The exception being SL

o  Wild animals

o  Vicarious L-respondent superior

o  Abnormally dangerous activity

o  Defective products

Battery

Act

w/ intent to cause harmful or offensive contact, or imminent apprehension of harmful or offensive contact

·  either desire to commit and act to cause the offense or harm, or an intent to commit an act that he is aware a harmful or offensive act will occur with substantial certainty

·  a reasonable person would view substantial certainty

·  a reasonable person would be harmed or offended, and a reasonable person would know a reasonable person would be harmed be offended

·  Not just intent to commit any act

harmful or offensive contact results

·  injury-judge harm by the p, just offense by reasonable person

·  would offend a reasonable sense of personal dignity

o  No need to prove medically diagnosable emotional injury to collect ED parasitic to a battery

·  Also, if the D knows of the idiosyncrasy of the p

·  extended person-touching something connected to the person counts as the person itself

·  Awareness is not requisite to collect for battery

·  A person may, but probably not, be able to collect for a smoker’s battery

o  Offensive can mean disagreeable, nauseating, or painful

·  Extended L-L for any consequences arising from the tort

If you prove all the elements, automatically entitled to nominal Ds for trespassory torts

Transferred intent-applies to trespassory torts- assault/battery/false imprisonment/trespass to land/trespass to chattel

Two types

·  1.)intends a tort on one person, but commits it on another

·  2.)intends one tort but accomplishes another

Only have to sue for the final tort

Aiders and ebedders may be responsible as principals for the tort

·  Can pick who to sue, and the D brings in co-Ds

L of minors

·  If elements present, don’t escape L

·  Particularly young children may not be able to have the requisite intent

·  What would the average child of that age think was offensive, or did he have the requisite intent to commit a harmful or offensive act

·  Only where a statute authorizes or where the parent is N can a parent be sued for the torts of the child.

Insane persons

·  Insane persons are usually L for intentional torts

·  May have motives to harm another, even if irrational

·  Just need the requisite intent, but intent can arise out of insanity.

·  Just need intent to cause the harmful or offensive contact, but cannot just intend to cause any contact.

o  Usually do not lower the standard for insane

·  Dual intent

o  Act intending to cause a harmful or offensive contact

o  Not just that a reasonable person would find such an act harmful or offensive.

Assault

Act

·  Words alone are not sufficient, but there may be an act accompanying the words.

o  Words offering a choice could be deemed assault… ill beat your ass if…

Intending to cause a harmful or offensive contact or the imminent apprehension of harmful or offensive contact

Imminent apprehension of such a contact results.

·  Damages are mental

·  apprehension must be one which would ordinarily be aroused in the mind of a reasonable person.

·  An Assault cannot occur if the battery has already begun

·  Apprehension is not simply fear, need awareness of imminent touching

·  Unlike battery, awareness is a prerequisite

FI

person confines another intentionally

·  physical restraint, threat of physical restraint, or the claim of lawful authority

·  p must have been aware of the confinement or sustained actual harm.

·  Implicit and explicit threats of physical force suffice

·  Office can be L if someone asks to have someone else confined

without lawful privilege

·  Privileges-Police officer, tort is false arrest. Same elements, but officer may have defense based on warrant or probable cause.

w/in a limited area for any appreciable time.

Torts to Property

Trespass to land, trespass to chattels, conversion of chattels

Trespass to Land

·  Intentional entry upon land of another, or intent to remain

·  Extends below and reasonable above, and includes objects thrown onto or over

·  Intent-purpose or substantial certainty to enter

·  D L for economic and non-economic harm

·  Extended L-damages not intentional or foreseeable

o  Limits, such as if they thought they had the right

·  Interference w/ possession-T can sue, not LL except for actual damages such as diminution or repair

·  L for intentional making someone else trespas

·  injunction

Conversion of chattels-trover, or conversion

·  Act,

·  with intent to exert substantial dominion and control over property,

o  do not have to be conscious of wrongdoing

·  and substantial dominion and control results

o  Factors

§  Extent and duration of control

§  D’s intent to assert control

§  D’s good faith

§  harm done

§  expense and inconvenience cause

·  Ultimate remedy-forced sale

·  Serial conversions-can sue the guy who steals and the guy who bought it from him, but not both.

·  Bona Fide Purchaser

o  Good faith purchaser still L. Cant get title from someone who doesn’t have it. If original owner was tricked into selling it. Can get title.

o  If bought from someone who dealt in such goods, the purchaser is not L.

·  Usual remedy is decreased value, but may be replacement. May be replevin.

Trespass to chattels

·  Act

·  w/ intent to interfere w/ p’s property

o  Intent is just to interfere, even if you do not know it is theirs.

·  and interference results

·  Must be some legal harm, and L is based on actual damage.

o  Dispossession

o  Loss of use for appreciable time

o  Damages to the item

o  Harm to p

Nuisance (not an intentional tort. Result is the determinate)

·  Unreasonable Interference with use and enjoyment

·  Sometimes no invasion-i.e. halfway house in residential hood

·  Usually need intent or N, but SL can occur (abnormally dangerous activities)

o  Knows trespassory invasion will occur

o  Knows the invasion occurs, but does not think it is serious

o  Knows conduct risks an invasion

o  No physical invasion

·  Contemporary nuisance law

o  Need substantial invasion

o  Unreasonable for p to put up with nuisance w/o compensation

o  Gravity of harm outweighs utility of the conduct

o  Compensation should be made if D can compensate those invaded and still stay in business

o  Must substantially and unreasonably affect normal persons and uses.

·  Public nuisance-

o  per se-illegal conduct, such as a drug house

o  in fact-by accident-circumstances-halfway house, loud parties

o  after evaluating in fact or per se, public or private

§  Public- unreasonable and substantial interference with a right held in common by the general public

ú  the person or group suing must prove they are subject to a different injury from the public

ú  Otherwise a public official must bring the suit

·  Factors to consider

o  p’s home or business

o  utility of D’s conduct

o  did the p come to the nuisance? No absolute rule, give deference but not determinate

o  Normal to area

o  D’s interest

·  Balance

o  Unreasonable? p wins

o  Not unreasonable? D wins

·  2 remedies

o  Damages

IIED (tort of outrage)

Extreme and outrageous conduct

·  utterly intolerable for a civilized society

·  Supervisors often held to higher standard

·  Common carriers are held to a higher standard, mere insults may suffice

·  Not mere insults

·  intentional or reckless interference with a dead body has traditionally been allowed.

·  Repeated or carried on, abuse of power or abuse of a person known to be vulnerable

·  Physical violence or threats

·  Public humiliation

o  Public figures are usually denied tort recovery for speech

·  Don’t have IIED claim for threat of divine retribution

·  Possibly fraudulently inducing ps into atmosphere of coercive persuasion

·  Marital relationships are not the realm of tort

Intended to cause severe distress or reckless in risking distress

·  Must be the primary or intended consequence

Actually caused severe distress

·  Purely emotional injury

·  Physical impact requirement is the clear minority

·  Many courts moved to physical manifestation of symptoms

·  May require proof in the form of expert testimony

·  Must be at least severe or even debilitating

·  Severe ED may be found when a reasonable person would not be able to cope with the situation.

·  Different if the D knows something about the p and plays on that.

Sexual Harassment-may be battery if contact occurred, but could be IIED

·  courts may or may not permit a claim for IIED when the act performed constituted a battery, but the SOL has expired

IIED usually does not apply to a third party not present during the outrageous conduct, but still suffers ED as a result.

·  The conduct must normally be directed at the person or at least must be present to witness the conduct

·  Must be present, and the presence must be known and could reasonably be assumed that ED would result.

·  Presence may be relaxed where the D sexually molested or kidnapped the child.

Bettis v. Islamis Republic of Iran

·  Immediate family could recover when he was kidnapped and tortured, but not extended family.

·  Targeted at you, then you can sue

·  This case is an extreme exception, as are some cases where the parent cannot be there-i.e. therapist molests kid

Defenses to Intentional Torts-Privileges

Affirmative defenses-affirmatively raise the defenses, usually by answer to the complaint, and the proof must affirmatively convince the jury that the facts supporting the defense are established.

·  D has burden of proof.

·  If defense applies, not L for the results

Protecting against the apparent misconduct of the p

·  Self-defense

o  Privileged to use reasonable force to defend against harmful or offensive bodily contact and against confinement

§  Depends on apparent necessity of self-defense, not actual reality

§  If the D reasonably, but mistakingly believes she is being attacked, she can use reasonable force

ú  what would the average normal person would have thought in this situation

o  Only what is reasonably necessary to prevent the harm, and can only use force which is likely to cause death or serious bodily harm if the harm threatened is death or serious bodily harm

§  If the guy ends up dying from non-deadly force, don’t worry about what ultimately ended up happening if justified in self-defense

§  Retaliation cannot be in self-defense

o  Required to reasonably retreat or otherwise avoid the need for self-defense, unless D is in her own dwelling

o  D is L for excessive force. Beyond reasonable force

o  Provocation is not enough to raise self-defense

o  May be able to commit assault or false imprisonment in self-defense

·  Defense of third persons

o  Usually can defend others on the same basis as defending yourself. If you make a mistake it may not be privileged

·  Third party injury in the process of self-defense

o  Can use deadly force in response, but injures another person. Defense may be able to transfer, but then can sue for N, and then the defense does not transfer.

·  Defense and repossession of property

o  one who reasonably believes that another has tortiously taken a chattel upon his premises or has failed to make due cash payment for a chattel purchased or services rendered there, is privileged to detain him on the premises for the time necessary for a reasonable investigation of the facts.

§  L for FI if hold for longer than necessary

o  A police officer is protected for arrest that appears to be under a warrant or reasonable cause.

o  A private person also has the privilege but if they are mistaken, they are not protected.

§  Cannot arrest for a misdemeanor not a breach of the peace

o  A person cannot directly or indirectly intentionally inflict serious bodily harm on trespassers when there is not danger of violence to the occupants of the house