TORTS OUTLINE – Fall 2000 (Prof. Park)

Purpose of tort law is to (1) create peaceful means to end disputes; (2) deter wrongful conduct; (3) encourage socially responsible behavior; and (4) to make an injured party whole.

I. INTENTIONAL TORTS

A. Intent

1. There is no general definition under intentional torts; all that is required that D must have intended to bring about some sort of physical or mental effect upon P.

a. No intent to harm is actually needed, just intent to cause/bring about physical or mental effect upon P. (i.e. intend to make P scared of apprehension of harm but not intending to actually harm P, makes D liable for assault nonetheless.)

b. Substantial certainty that specific effect will occur as result from D’s action, makes D liable as to intentional tort.

  • Garratt v. Dailey: It was substantially certain that P would fall as result of little Brian Dailey moving P’s chair, therefore, intent is inferred.
  • Just highly likely (recklessly) conduct does not make D liable under intentional torts.

2. Transferred intent – if D has intent to commit battery on X, but instead batters Y, then D’s intent transfers to act of hitting Y.

3. Damages – generally greater liability is imposed on intentional conduct than upon negligent conduct.

B. Battery

1. Definition: Intentional infliction of harmful or offensive bodily contact.

a. does not have to harm; can include offensive contact that is “damaging to a reasonable sense of dignity” (i.e. spitting on someone)

b. P does not have to be aware of contact (ex: P can be sleeping & still be battered)

2. Objective standard on what is offensive or harmful contact

3. P’s body does not have to be touched – it can be anything connected to P’s person

a. Fisher v. Carrousel: Black P had plate snatched away from him at D’s hotel. Assailant was liable for battery even though D did not touch P’s body, just as long as he touched item in P’s hand – which is considered offensive contact & an intentional invasion of “P’s person.” All made act sufficient ground for a battery action.

C. Assault

1. Definition: Intentionally causing apprehension of harmful or offensive contact

a. apprehension must be reasonable under the circumstances

  • Determined by jury

b. future threat is not sufficient

  • It must appear to P that harm threatened is imminent & that D has ability to carry out threat.

c. generally, mere words are not sufficient, unless coupled by provocative gestures.

d. P has to be aware of apprehension of contact

  • This is different than battery

2. D does not have to actually want to harm P. (ex: if D, as a practical joke, points a toy gun at P, and P reasonably beliefs it to be a real gun, and then D pretends to shoot – D is liable for assault.)

D. False Imprisonment

1. Definition: Intentional infliction of confinement

a. Does not include reckless/negligent act (ex: shop owner negligently locking store, while customer is still inside.)

b. Does not include being prohibited from entering an area

c. consent is a complete defense (Hardy v. Labelle’s: P, employee, consented to being in back office in order to investigate store theft. Therefore, no false imprisonment.)

2. D must be aware that she is being confined or must suffer actual harm.

3. When other ways of escaping exist: If D locks door and P believes she has no other means of escape & D knows that P is not aware of other exists, then this is false imprisonment.

4. Confinement does not have to be within four walls – refusal to provide means to leave is sufficient.

a. Whittaker v. Sandford: D did not let P use a boat to leave D’s yacht and go to land. D, as yacht owner, had a duty to provide a reasonable means in which P could use to get off yacht.

E. Intentional Infliction of Mental Distress

1. Definition: Extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress.

a. Causal connection between outrageous conduct and emotional distress.

  • P’s injury flows from D’s conduct

b. Conduct must go beyond bounds of decency & be regarded as atrocious, and utterly intolerable in society.

  • Objective standard

c. Emotional distress must be so severe that no reasonable person should/would endure it.

  • P has burden of proof to show emotional distress – this sometimes can be done by manifesting physical injuries or showing that P sought medical aid.

2. Objective test to severe emotional distress – more than just insults are needed.

a. Slocum v. Food Fair Stores: D’s employee used vulgar language and was rude to P. P claimed IIMD. Crt said objective test must be used (rather than P’s own subjective standard of what constitutes severe emotional distress) in order to rule out mere emotional distress.

  • Awareness of P’s sensitivities is a factor in IIMD.

3. Special relationships: P can recover for IIMD if D injures person in special relationship (parent, child, spouse) to P if;

a. D is aware that P is watching

b. D intends to inflict mental distress on P by injuring other person

F. Trespass to Land

1. Protects landowner’s exclusive right to possession of his land

a. Damage is NOT required

  • Nuisance, on the other hand, protects landowner’s exclusive peaceful enjoyment and use of his property – and must show damages.

2. Trespass occurs when;

a. D intentionally enters P’s land w/o permission

b. D remains on P’s land w/o the right to be there; even if D entered rightfully.

c. D puts an object on P’s land w/o permission or refuses to remove object from P’s land.

  • Rogers v. Brd of Roads: D had permission to use land for period of time. D left anchor post of P’s property after time lapsed. D was liable for trespass.

3. Intangible Articles;

a. Trespass can include particles & gasses that float from D’s land onto P’s property and causes damages (to limit mass liability).

  • Bradley v. American Smelting: Harmful pollutants from D’s smelting company floated downwind to P’s property & accumulated on P’s land. Crt said this is trespass.

4. Airspace;

a. Narrowing approach – Newark v. Eastern Airlines: A landowner is only in ownership of airspace that he uses in direct connection of land itself. Airspace is public domain for the most part.

b. Common law approach – Herrin v. Sutherland: D shooting duck over P’s property. D liable. Common law rule: homeowners have exclusive rights over sky above their property.

G. Trespass to Chattels

1. Definition: Intentional interference with a person’s use or possession of a chattel

a. protects owners exclusive use of chattel & the interfering thereof.

b. if chattel is impaired as to its condition, quality or value, D has to pay damages – not the full value of property.

2. P’s chattel does not have to be harmed in order for P to recover.

a. as long as P looses possession P can recover (ex: D takes P’s car for joyride and returns it unharmed after 2 hrs. D has committed trespass to chattels)

3. P must show more than nominal damages.

H. Conversion

1. Definition: Intentional interference with P’s possession or ownership of property which is so substantial that D should be required to pay the property’s full value.

a. destruction of property constitutes conversion

b. exercising dominion over chattel to exclusive or defiance of lawful owner’s right.

c. appropriating property to one’s own use

d. P has to show that it was his property, he didn’t want it taken, and that he wants it back.

e. transferred intent does not occur w/ conversion

2. Factors to consider in determining seriousness of interference w/ P’s right to possession;

a. extent & duration of actor’s exercise of control or dominion

b. harm done to property

b. inconvenience & expense caused to owner

c. actor’s good faith

3. Ways chattel may be converted;

a. stealing the chattel

b. damaging or altering it

c. receiving chattel after it has been stolen

d. disposing of chattel; a bailee who wrongfully sells it

e. misdelivering it; delivering property to wrong person, address, etc.

f. refusing to surrender property

4. Effect of good faith

a. if bailee negotiates the sale of stolen product to a 3rd party, then regardless of good faith, D is liable.

b. if bailee is aware of completing claim to property/product, then bailee acts at his own peril when deciding whom he should surrender item to.

c. Exception to good faith:

  • If bailee has no knowledge or reason to believe that the person presenting or recovering the chattel has stolen it, then D is not liable for conversion.
  • Bailee & servant are not liable if they act in good faith and have no notice of competing claim for chattel,
  • BUT, one who, in good faith, buys stolen property is liable.

5. Damages

a. Measured by open market value of property

b. damages cannot be recovered for sentimental value of property,

  • If converter offers to give back item & it’s not in that bad of shape, P can still sue for conversion – damages might be reduced, though.

II. PRIVILEGES TO INTENTIONAL TORTS

A. Privilege: right to engage in conduct that would be tortious but for the special grant of permission or license by the other person or because of special relationship they have entered into.

B. Consent

1. D is not liable if P consented to D’s act

a. consent may be givenexpressly

b. consent may be implied by custom, conduct, words, or by law

  • O’Brian v. Cunnard: D, a doctor gave P a vaccination on boat. P sued for intentional tort. Crt ruled that if it reasonably seemed to someone in D’s position that P consented (via P’s conduct – holding up her arm & standing in line), then consent exists regardless of P’s unexpressed inner wishes.

2. Lack of capacity

a. consent is invalidated if P is incapable of giving consent (i.e. a child, intoxicated, incompetent, unconscious.)

  • Medical emergency exception re: unconsciousness

3. Exceeding Scope of consent

a. even if P consents, if D goes substantially beyond the scope of the consent, then D may be liable.

  • Mohr v. Williams: P consented to operation on right ear, and D then operates on left ear as well. Crt ruled that left ear operation wasn’t such a medical necessary as to extend consent.
  • Pillow fight scenario: if you consent to pillow fight & other person picks up a bat, then this goes beyond scope & damages are recoverable.

b. A representation that induces consent, if proven fraudulent and causes damages, invalidates that consent and can be tortious claim.

C. Self-Defense

1. A person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact, and any threatened confinement or imprisonment.

2. Degree of force

a. forced used must be proportional to threat

b. proportional is measured by what is reasonably required

  • If D used more force than is needed and it’s not reasonable, then D is liable
  • Deadly force can only be used when deadly harm is threatened.

3. Reasonable mistake of fact re: danger is privileged

a. retaliation is not privileged

b. injury to 3rd person is privileged if no negligence

4. Retreat:

a. not necessary in majority of jurisdiction

b. at common law & in minority of jurisdictions today, retreat is required.

D. Defense of Others

1. Similar to self-defense in that person can use reasonable force to prevent attack on another person.

2. Mistake of Fact;

a. some jurisdictions put person in the shoes of person he is trying to protect.

1. if person who D is protecting is privileged to use self-defense, then D is privileged to defend that person.

b. other jurisdictions make defense of others privileged as long as mistake of fact is reasonable.

E. Defense of Property

1. Generally, one may use reasonable force to prevent the commission of a tort against his property.

2. Amount of force

a. reasonable force, so deadly force may never be used to protect property (unless deadly force against homeowner/property owner accompanies threat to property).

b. Katko v. Briney: D used spring gun to protect his unoccupied farm house. P, an intruder was severely injured by trap. This was excessive force and not privileged.

  • Crt will determine if property owner would have been allowed to use same amount of force had he been present, rather than spring-gun.

F. Recovery of Property

1. Generally, property owner can use reasonable force to recapture property when in “hot/fresh pursuit” of person w/ stolen property.

a. Hot/fresh pursuit: if sufficient time has lapsed between items being stolen & owner’s notice of it, then owner can not recover using force

b. owner must go through legal channels.

2. Demand for property must be made, unless futile or dangerous to do so, before force is used to recover property.

3. Shopkeepers have privilege to detain person for a short period, if they suspect that person of stealing property.

G. Necessity

1. Generally, a person may harm/destroy the property of another, where the harm done is necessary in order to prevent a greater harm to that person or others.

2. Public Necessity

a. where act is for the public good, the defense of necessity is absolute and D is not liable for damages.

  • Ex: Destroying one house in order to prevent fire from spreading to a row of houses.

3. Private Necessity

a. where act is solely done to benefit the D or his property, then the defense of necessity is qualified so, D has to pay for damages caused but is not liable for the intentional destruction/trespass.

  • Vincent v. Lake Erie Transp: D moored boat to P’s dock during violent storm in order to protect crew & boat. P’s dock was damaged. P was not liable for trespass but P was liable for damages to dock.

H. Justification

1. When D has sufficient reason for a conduct that would otherwise be tortious, it is possible that D may not be liable under justification defense.

2. This is used when D’s act does not fall within the other defenses, but society recognizes that D should not be made to pay for act.

a. law enforcement privilege when within scope of law/authority

b. immunity for high officials in capacity of office

III. NEGLIGENCE

A. Elements

1. Duty: legal duty requiring D to conduct himself according to a certain standard, in order to avoid unreasonable risk to others

2. Breach: failure to conform to the required standard

3. Causation: a reasonably close causal connection between conduct & resulting injury

4. Damage/Injury: P must show that damages resulted from breach

B. Negligence Formula

1. D is liable for what he actually knows, for what he reasonably should know, and for what he reasonably can foresee.

a. Unreasonable Risk – P must show that D’s conduct imposed an unreasonable risk of harm on P or class of persons which P is a member.

b. Balancing Burden and Utility – does risk of harm from the act greatly outweigh any benefits from the act? And, is cost/burden to reduce risk greatly outweighed by consequences? And, would a reasonable person take on that burden?

  • US v. Carroll Towing: Judge Hand’s formula for assessing if liability exists/measuring negligence: (D’s Burden in order to avoid risk < Probability of Injury x Gravity of Injury from D’s act) B<PL

c. Reasonably Foreseeable risks

  • Cohen v. Petty: D passed out while driving & injured P. D had no knowledge that it would happen, therefore is not negligent.

C. Standard of Care

1. A reasonable prudent personin that circumstance is the general standard of care.

a. Objective standard

b. In an emergency: what a reasonable person in the same emergency would do

  • But, if they cause emergency we give them less deference.

c. Handicap person: what reasonable person with same handicap would do, BUT handicap person also has to take special precautions (i.e. training to avoid accidents). As P’s, we give more deference to handicap person.

  • Roberts v. State of LA: Crt said, D, who was blind, only had to meet standard of reasonably prudent blind person – which included learning to walk carefully across the room.

d. Insane people are held up to a sane person standard

e. Children: what a reasonable child w/ same age, experience, & knowledge would do.

  • If child is engaged in inherently dangerous activity, they are held to an adult standard of care (snowmobile case).

f. Professionals: must meet the reasonable prudent standard that professionals of that field/activity have.

  • Heath v. Swift Wings: Crt said standard of care was that of a reasonable pilot and not subjective standard of pilot’s personal level of training.
  • Professional predictions: 1) must use professional skills & knowledge, 2) must exercise best judgment (good faith & honest belief), 3) exercise due diligence in making prediction. But, professional does not have to be 100% right.
  • Community Standards – before Drs from rural areas where not held up to same standard as Drs in urban areas but this is now changing, and Dr’s are being held to national standard.

g. Custom: usage and custom standards are not controlling factor for standard of care but they’re still germane when determining negligence. Non-compliance with custom might be evidence of negligence, and/or compliance might be evidence of reasonableness. Is it reasonable that D would follow standards? (economically prudent). This is a question for the jury.

  • Trimarco v. Klein: Glass shower door. Glass door was installed prior to new standard for shatter-proof doors. Other landlords adhered to this new standard. Crt said it’s question for the jury.

2. Medical Malpractice & Informed Consent

a. Objective test for determining negligence when patient is not fully informed: Would the reasonable person have opted for procedure or not, if doctor had given patient full information?

b. Subjective test: Whether the individual person involved would have opted for procedure had the doctor provided the full information? This rule relies on hindsight of patient, which could be hard for doctor to refute.

  • In cases where patients’ desires are so out of the mainstream (i.e. cutting off leg because of pain, when other less evasive procedures are available), then crts rely less and less on patients’ need for autonomy and focus more and more on doctors’ duty to adhere to his/her medical ethics.

c. Statutory change in common law tort system during “Medical Malpractice Crisis” is a legislative intervention on private law. But since so many doctor’s were being driven out of profession due to malpractice suits & insurance companies were no longer issuing malpractice insurance, legislatures made;

1. Changes in standard of care doctrine

3. Changes in informed consent rule

4. Changes in res ipsa loquitur

5. Changes in collateral source rule

6. Changes in statute of limitations

7. Limits on amount for pain and suffering

8. Prohibited the setting forth in complaint of amount of relief sought by P.

3. Automobile Guest Statutes

a. At first laws were made that shielded drivers from negligence charges by their auto guest, since guests were receiving benefit. The exception to this was when driver was reckless or used gross negligence.

b. Then as insurance became more prevalent, this again changed to provide means for auto guests to recover.

D. Violations of Statute

1. Standard of care may be established by proving the applicability of a statute to case at hand. – this goes to duty.

2. P must prove;

a. D’s conduct was prohibited

b. Purpose of regulation/statute was to protect against particular harm P suffered

c. P is a member of the class to be protected, and

d. P was injured by the unlawful conduct.

3. Negligence Per Se

a. Majority rule: When a safety statute is violated, this equals negligence per se, in that a duty was established and it was breached, so, D’s conduct/act was negligent as a matter of law.