Torts Outline – Professor Turley
I. Schools of Thought
A. Formalism
1. Code system, consisting of canons, case-made, judge-made rules
2. Rules are “outcome determinative”; goal- prevent bias/ subjectivity of judges
3. Fierce notion of judicial neutrality/deference; court should not engage in determining what law should be rather than what it is; leave lawmaking to legislative branch
B. Legal Realism- replaced Formalism in the Torts Revolution
1. Rejection of formalism; acceptance of the indeterminacy of the law
2. Karl Llewellyn found judges selected canons and pre-determined outcome (hidden bias); false neutrality
a. Began policy goal of creating a stable rule; consider broader implications
b. consider what reasonable person would have done and the goal of achievement
C. Normative
1. Goal- determine what is “norm of society”, what is morally right/wrong in society, usually decided by jury
D. Hobbes- Leviathan guarantees recourse/ remedy; corrective justice- law must make wrongs right vs. efficiency of CLS (producing most efficient manner of achieving wealth maximization rather than righting of wrongs)
E. Lockean
1. Labor Theory: In beginning, all was held in common. Then evolved into private property (mixing of sweat/labor = conversion of common property into private property)
2. Gvmt does not create priv. property- God created private property; gvmt may not redistribute wealth
3. Locke’s Proviso: One must leave “as good and enough for others” (used by Rawls to justify redistribution if extreme concentration of wealth occurs b/c it is defeating God’s plan of allowing man to produce through enterprise)
F. Utilitarianism
1. gvmt must protect individuals, not just market
2. Bentham- goal of gvmt- achieve the greatest good for greatest number; invest in social action à tremendous productivity (industrial revolution); gvmt = engineer of society
G. Feminism
1. Katherine MacKinnon- law written by middle-aged white men- inherent patriarchal bias
2. Jurispathic v. jurisgenerative
a. Jurispathic- basis of law is combative, male model; lawyer is knight; zero sum game- only one person wins/ gains
b. Better à Jurisgenerative- judges evaluate merit on both sides and shape an equitable decision
3. Bender- should have duty to perform low-cost rescues; Posner agrees, but from an efficiency standpoint
H. Critical Legal Studies
1. Goal- judges should actively work to break down class barriers; help marginalized
2. Sometimes favored judicial activism, courts should be more socially active
3. Duncan Kennedy- peeled onion of Blackstone’s Commentaries
a. Favored de-construction of ‘legal terms’
b. Wealth re-distribution is important (Rawls)
I. CLS counted by Judicial Restraint
1. Goal- deference to the legislature; judges are not elected and are counter-majoritarian
2. Madisonian System:
a. Tri-part gvmt provides checks balances
b. Factions à political pressure à majority rule (elimination of factions)
c. If left to judges- no faction pressure relief, too much control given to individual
3. Hart and Sachs- the system works best when courts leave it to legislature to fill gaps/ ambiguous legislation; Courts must stay in line w/the Madisonian system
J. But see- Public Choice Movement
a. Hart and Sachs view is wrong; gvmt often favors minority opinions rather than majority principles; deals/gaps = Congress making decisions to detriment of public
b. Mancur Olson
i. disagrees with Madison’s view- collective action: small groups are actually more powerful than big groups b/c small groups have concentrated interest
ii. vs. majority groups, that have dispersed interests and more free riders
c. Easterbrook
i. Dealism- gaps in legislation are bought and sold like a market
ii. Court must apply laws exactly as written; do NOT gap fill: limited judicial role
d. Jonathan Macey- agreed w/public choice criticism, but not the result
i. DO gap fill; take Congress at its word and enforce the “public-regarding purpose” of legislation; Congress can fix it if wrong
ii. Madisonian democracy works best when open and deliberative process; this is achieved by filling gaps to public regarding purpose, forcing Congress to amend out in open to continue deal-making
K. Hegel
1. Personality theory of property- the subjective value of an object to an individual is not recognized by the law- disconnect
2. the only way to understand property is to understand its relationship to the person
L. Law and Economics School
1. Goal- efficiency, not morality
2. Posner
a. morality is bad basis for law b/c of subjectivity; it’s indeterminate; focus on economic efficiency instead, which is more tangible and will improve the living conditions
b. Negligence is the most effective system; strict liability forces cost-internalization, leaving it to the market to dispose of inefficient activities
3. 2 most common definitions of EFFICIENCY:
a. Pareto Efficiency
i. Goal- get a pareto superior result- produces at least one winner and doesn’t make anyone worse off- making things more efficient
ii. Pareto optimality- point of optimal efficiency; point before first loser is produced
b. Kador-Hicks Efficiency
i. Goal- wealth maximization; producing losers doesn’t matter as long as there is a net gain; no need to compensate losers
4. Externalities
a. Rational actors try to externalize their cost to others (i.e. externalizing pollution)
b. Hardin’s Tragedy of the commons- wealth maximizing farmers will continue to add cows to shared land w/finite amt. of grass even if doing so will cause the land to stop producing food; result- everyone starves
i. Solution? Introduce private property à creates incentive to keep resource healthy
5. Pigou
a. only legislate when the market fails by allowing something contrary to the long-term needs of society
b. Examples- stimulus package; force a discriminatory firm off market w/legislation
6. Coase Theorum
a. Coase I- in a perfect market, the market determines the outcome of conflicts btw two uses – more valuable resource will ultimately prevail (farmer/ rancher ex.)
i. redistribution/regulation not necessary- market will handle it
b. Coase II- there is no perfect market; must include transactional costs (cost of reaching an accord btw parties), which can cause the outcome to flip- less valuable activity can continue b/c of the high transaction cost of stopping the activity; fewer people affected = higher transactional costs (Turleyworks ex.)
II. Intentional Harm
A. Background
1. Intent
a. Rest. § 1: Conduct is intentional if the actor:
i. desires the result/consequence (“purpose” intent); OR
ii. knows or believes the result is substantially certain to occur (“knowledge” intent)
· little boy knew old lady would be hurt when he pulled chair out in Garret v. Daly
· Children may be held liable of intent
b. intent inferred from conduct, not motive
c. Transferred intent- A hits C when intending to hit B; C claims transferred intent; 1st you must establish original intent
2. Traditional defense- consent
3. Basic Types
a. Physical Harm: Trespass to person, land, and chattels
i. Tresspass to person
· Vosburg v. Putney
o Rule Violation- Putney kicks Π in shin, lost use of leg
o held responsible, even for unforeseen damages
o Rule- For intent, it is sufficient to show rule violation, the natural cause of which is injury
ii. Trespass to Land- intent to enter someone else’s land, even if by reasonably mistake (i.e. because unaware it’s someone else’s property)
iii. Trespass to Chattels- intentional dispossession of a thing; loss in valuable int’st
· trespass to chattel (stolen but returnable) vs. conversion (destroyed, unreturnable)
· Rst. § 218, 19: Liable for direct/ indirect phys. contact causing impairment: of condition, quality, value.
o Intangible property: Intel v. Hamidi- trespass to chattels claim fails- emails did not damage the computer system
b. Physical Harm: Conversion
i. Rst. § 222- intentional exercise of control over chattel, which seriously interferes w/Π’s right to control
ii. Moore v. Regents of Univ. Cal.- organ removed from body, used for science ($). Usually put in trash so NO conversion.
· RULE: custom of chattel disposal effects determination of conversion
· Possible Defenses:
o slippery slope
o slippery slope- if you say removal of tissue is conversion, huge # of issues
o bright light argument- say this is not priv. property or slippery slope
o floodgates- if tissue is priv. property, thousands of patients whose tissue was used in research
c. Physical Harm: DEFENSES to Intentional Torts
i. Consensual Defenses- consent vitiates intent
· Rst. § 892: consent when one is willing for conduct to occur
o Need- Π’s subjective state of mind consent
o Don’t Need- communication to Δ
o Apparent consent- Π’s words or conduct is enough (i.e. implied consent in the O’Brien case- stick out arm, stand in line, receive unwanted vaccination)
o Mohr v. Williams- Dr. diagnoses left ear, while Π sedated, operates on other ear à civil assault and battery
§ Rule: Need consent
§ Issue: Patient’s awareness of consent, and to what
· Emergency Rule- Dr.s are not required to get consent if a person is seriously injured (i.e. unconscious or severe pain) and time is of the essence
· Proper, informed consent is required
o Canterbury v. Spence- Π has back surgery, left unattended, not instruct to stay still, falls off bed
§ Issue: Duty to disclose risks in acquisition of consent?
§ Rule: “Informed consent” is required
· Rule: You can’t consent to something illegal
o Hudson v. Craft- Π, minor, goes to carnival, injured in boxing match
§ Issue: Did consent to illegal activity negate Δ’s responsibility?
§ Rule: If you are part of a protected class (i.e. minor), court may ignore consent.
· Rule: Public policy can require consent- duty to disclose.
o I.e. If you have an STD, you have a duty to disclose (or be held liable). If you do disclose, even if transmission occurs, no liability.
ii. Insanity: Insane/estate usually held liable
· McGuire v. Almy- Π, nurse caretaker, insane Δ hit nurse on head w/table leg
o Rule: Insane held liable for their intentional torts.
o Court uses cheapest cost avoider to determine family is CCA. Turley- nurse/hospital CCA b/c they can get insurance, and nurse knows the danger.
iii. Self-Defense
· RST § 63: Rule: May only use reasonable force against imminent harm.
· Rule: May only use commensurate force.
o May not escalate the encounter by increasing the violence.
· Rule: You do not have to retreat.
o But may not retaliate once danger is passed. Battered women syndrome not accepted- viewed as retaliation.
· Rule: Mistaken self-defense must be reasonable.
o Courvoisier v. Raymond- Δ fending off intruders, confuses cop w/intruder and shoots
§ Rule: Reasonable, mistaken belief of self defense is reasonable.
· 3rd party privilege to defend others under same conditions and by same means as one may defend self.
iv. Defense of Property
· RST § 77: Rule: May use reasonable force; MAY NOT use force calculated to cause serious bodily injury or death in defense of property. Human life more sacred than property. May use molitor manus- laying gentle hands.
· Curtilage- the area around a home that is protected
· Rule: May NOT have lethal devices that cannot distinguish btw friend/ foe.
o Bird v. Holbrook- walled garden w/spring gun kills kid
o Rule: Human life worth more than property; lethal traps illegal.
· Rule: Notice is necessary to prevent liability for use of non-lethal devices that can cause injury that are not patent (i.e. electric fence, hidden barbed wire). Patent (visible) barbed-wire is a warning itself.
· Controversial: Castle Doctrine/ Make My Day- whenever someone intrudes your domicile, you may use the full range of self-protection (i.e. lethal force ok)
v. Recapture of Chattels
· RST § 100: Limited self-help privilege- reasonable force requirement, recapture must begin promptly
· Kirby v. Foster- Π has gained rightful possession of $, Δ fights for it back
o Rule: Reasonable force may be used ONLY when dispossession was unlawful
vi. Necessity
· An otherwise trespass/conversion on Π allowed in preservation of life or property.
· Ploof v. Putnam- Π, family sailing in storm, moor to Δ’s dock, dock’s owner unmoors boat
o Rule: There is a duty to allow acts of necessity in order to preserve human life.
· Vincent v. Lake Erie Transportation Co.- Δ re-ties failed ropes of boat to dock during storm, dock damaged by boat
o Rule: Privilege of private necessity does not negate duty to pay for damages.
o Turley: Reverse arg.- dock owner may be CCA (insurance, internalize costs). Ability to sue for lost opportunity costs unclear.
· Public necessity- “champion of the common good”; if acting for public good, may destroy public property and not be held liable
o Gvmt may always use this argument, but gvmt has waived much of its immunity
§ i.e. U.S. gvmt compensates war-time victims
o Most states have restricted it to keep ppl from claiming it
d. Emotional/Dignitary Harm: Assault
i. RST § 21: Assault- intent to cause reasonable apprehension of imminent battery
· Need: Intention + Act
ii. Δ must have intent to cause offensive contact or imminent apprehension (Π’s awareness of threat)
iii. Rule: Mere words are not enough to constitute assault
e. Emotional/Dignitary Harm: OFFENSIVE BATTERY
i. RST § 18: Battery: Intent to cause offensive contact + offensive contact
ii. If no intention, then only negligent, reckless act, NOT offensive battery.
f. Emotional/Dignitary Harm: False Imprisonment
i. False Imprisonment- Δ intends to confine Π w/in boundaries fixed by Δ, and Π is conscious of the confinement or harmed by it
· Intent is all that’s necessary; mistake is not a defense.
· False arrest = false imprisonment
· Future threats do not equal false imprisonment
ii. Bird v. Jones- Π disallowed to continue down blocked highway
· Rule: Effective confinement required for false imprisonment.
iii. Possible Scenarios:
· Acts of negligence (i.e. stuck on elevator/plane) do not equal false imprisonment.
· Confined in a room, but no restraint? Not false imprisonment
· Confined in a room, but a high window gives escape? False imprisonment
iv. Coblyn v. Kennedy’s- old man trapped in store after suspected shoplifting
· Rule: Short-term ‘imprisonment’ against shoplifters ok if reasonable (equivalent to citizen’s arrest). Time/place/manner is critical to reasonableness.