I. Intentional Torts : Battery, Assault, Trespass, Conversion

TORTS OUTLINE

I. Intentional torts: battery, assault, trespass, conversion

Intent: Refers to the consequences of the act (RST §2).
No insanity defense (McGuire)
Issue: whose can more cheaply control the insane person: family or caretaker? (or: insurance vs. litigation)
Battery: touching without consent
Thing hit can be article as well as body (De Longchamps)
Thing hitting can be object as well as body (e.g. spit, Alcorn)
Issues:
Does intent apply to harm (RST §18) or only to the act that causes harm (Vosburg, Garratt, White)?
Damages: in case of Vosburg, do we want whole life of P under normal circumstances, adjusted to reflect risk of injury due to medical condition blowing up by itself, or adjusted to reflect risk of medical condition blowing up period (including likelihood that someone else kicks it).
Damages can be adjusted to reflect benefits in good-faith cases (Mohr, where surgeon operated on different ear than agreed upon).
Issue: “eggshell P doctrine”; take your P as you find him.
Assault:
Elements (RST §21):
intent to either harm or put in apprehension of harm, AND
apprehension of harm
RST §21 comment b: fear d/n equal apprehension
Example: woman brandishing a gun that she knew to be unloaded guilty of assault b/c others did not (Allen).
Trespass: intentional entry onto the real property of another
intent applies to the act of entry, not to the act of trespass (Dougherty, Perry)
no damages required (Dougherty, Blondell), except with trespass to chattels.
entry can be by any tangible object, such as a rock, your foot, or even floride gas that falls to the ground (Martin v. Reynolds Metals). Cannot be intangible (Van Wyk).
Conversion: exercising domain over someone else’s property
intent applies to taking the object, not to conversion itself(Poggi)
however: good-faith converters cannot be liable for punitive damages, (Maye, where liable for value of gold minus labor to extract it). Nor can they be forcibly resisted in breach of the peace (see self-defense / recapture of chattels, below). Therefore can simply give the item back.
Note: this distinction d/n exist in trespass, so damages for good-faith conversion equivalent to any trespass
Conversion vs. trespass to chattels: w/ conversion liable for whole value of item; w/ trespass liable for loss of temporary possession or damage only.
Conversion applies even to innocent subsequent purchasers (Moore).
Issues:
Medical cases (e.g. Moore): does an organ become abandoned after surgery? Even if the consent was fraudulently obtained? Courts have said no.
Intangible objects: some courts (e.g. Kremen) say conversion applies. Sykes says this “pushes the envelope.”
False Imprisonment
must be an enclosed area (Bird v. Jones)
area of being confined can’t be much bigger than a considerable town (e.g. not “the rest of the habitable world”) (RST)
restraint can be based on implicit threat of force – need not be physical (Coblyn)
Intentional infliction of emotional distress
Three elements:
extreme and outrageous conduct
severe distress (must be physical in case of 3rd party non-family)
intent to cause distress or recklessness (reasonable person should have known it would do it)
Historically damages for emotional distress were parasitic on other tort
Then began to become independent (Wilkinson, where treated as battery)
Courts try hard to avoid creating a “general civility code.”
But: in Howard Johnson, owner wants to know who’s stealing from him; so he begins to fire people in alphabetical order until someone confesses. Appeals court let it go to jury.
Defenses to intentional torts
Consent
Must be reasonably specific (Mohr,consent to operate on a specific ear, rather than operate in general)
Exceptions for emergencies(Allore) and incompetents
Might not be a defense for bad-faith actors (e.g. organizer of fight, Hudson), though minority and RST view is that the consent defense does applies, as volenti non fit injuria (“the volunteer suffers no wrong”).
Bad-faith aspect seems particularly important: court says in Hudson that “promoter is liable… regardless of the rights as between the contestants,” and presumably promoter is more morally responsible than other nitwit fighter.
Note on Hudson: not clear what tort this is.
Issue: which rule discourages fights? Do people tend to think they’ll win (scared of liability) or lose (happy for insurance)?
Fraud: is touching based on fraudulent consent battery?
Examples:
Guy says he has no VD when he does, thereby has sex girl.
Guy says he loves girl when he does not, thereby has sex with girl.
Self-Defense (and recapture of chattels)
reasonable mistakes okay (Courvoisier)
Objective standard (e.g. Coblyn, false-imprisonment even though store honestly but unreasonably thought the old guy was a thief).
Issue: don’t want to deter self-defense, but also don’t want to deter defense of others (that could get you accidentally shot).
forcible recapture of chattels not allowed unless dealing with bad faith actor (Kirby)
no traps unless (alternatively):
to deter rather than injure (Bird v. Holbrook)
even with no trespassing sign, intruder endangering human life or committing capital crime (Katko)
sign explicitly warning about gun makes it okay, at least no longer an intentional tort (Sykes)
actor could have used same force had he or she been there personally (RST §85)
Necessity (partial privilege – simply trumps self-defense and punitive damages by converting property right to liability right)
Owner losses the right to forcibly evict a necessary tortfeasor (e.g. trespassing boat in storm, Ploof).
other examples cited in Ploof: trespassing to get around obstruction on highway or when running from someone trying to harm you.
But tortfeasor still liable for compensatory damages (Vincent)
liable for killing one intentionally even if not liable for killing four accidentally: Thompson’s Trolley Problem.
Rationale:
emergency circumstances prohibitively increase transaction costs
increase potential for violence
bilateral monopoly causes expected costs of activity (such as boating) to be greater than social cost ex ante.

II. Negligence: duty, breach, causation; damages infra.

Breach of duty
Reasonably prudent person: historical standard. Although sometimes courts try to figure this out with reference to the average person, the standard itself is objective except w/ respect to children and other manifest disabilities.
Definitional problem: the reasonable person standard, taken literally, might be circular, since a self-interested reasonable person would do whatever he could get away with, and that in turn would be based on liability rules. “Reasonable” should properly apply to the decision-making process, rather than the values driving that process (e.g. a “reasonable mistake” in self-defense, supra). More likely we mean a “considerate or altruistic reasonable person” or a “reasonable person acting in everyone’s best interests” or in “society’s best interest.”
Rationale:
Simplicity: we’d need a different standard for everyone.
Makes the evidence too tough, though we do that in criminal
Don’t want people with bad judgment to have no reason to cease using bad judgment
Precedent value in these judicial decisions is pretty worthless with a subjective standard
Approximates Hand BPL test (infra), assuming the decision-maker is altruistic (supra).
Examples:
Vaughan, no exception for retards.
Roberts v. Ring, court cannot take into account D’s age when determining if he was negligent for running over some kid, but can take kids age into account for contributory negligence.
Theory: Efforts at mitigation should not be held against D, however. So if old guy going 5 mph was as safe as normal guy going 30 mph, where normal guy would not be negligent, then old guy isn’t negligent even if normal guy going 5 mph could have stopped, unless the kid saw the car coming and detrimentally relied on his ability to stop (cf. Gould, infra)
BIG ISSUE I: consider the act on the margin, or the whole act? Cf. Last Clear Chance doctrine and Strict Liability rationale about scale and location of activity.
Exceptions:
Children:
unless engaged in adult activity, often defined by reference to government regulation
Daniels v. Evans: adult activity b/c legislature licenses motorcycle riding w/o respect to age above the limit
Gross: skiing not adult activity b/c no license required
Issue: does it matter whether the victim can observe the injurer? That is, if you see a kid skiing you can avoid him more cheaply than he can avoid you, but not so with driving?
BIG ISSUE II: do we want to condition optimal behavior on how other parties actually act or on how they should act? (cf. contributory negligence, last clear chance, infra).
Insanity: generally not a defense. RST says never.
Concerns (Breunig):
generally injurer should be liable (but this doesn’t square this with the rest of negligence law!)
want to induce persons interested in the estate of the insane person to restrain him
worried about fake insanity
Foreseeability: the decision to place oneself in the situation in the first place can also be negligent (Breunig).
though kinda hard to prove insanity if any history of it might make you negligent.
Insanity defense allowed in Gould b/c D was already institutionalized (ii and iii eliminated). Also, don’t want to hold efforts at mitigation against P (cf. supra). Not clear, however, if this was negligence or an intentional tort (the full case says negligence, but also that he “pushed” the nurse, so maybe court got confused).
With contributory negligence, courts are sometimes more subjective:
blind guy who fell into a hole held to reasonable blind guy standard (Fletcher v. City of Aberdeen)
drunk guy who fell into hole walking home (Robinson), though this could be a gross negligence issue (infra)
issue: perhaps we can declare gross negligence when the person committing it could have with certainty (and cheaply compared to the drunk) avoided the accident. Is this different than SL?
question: what if the guy left the hole opened because he was drunk? This looks a lot like the old guy driving example, supra, and the margin vs. total act big issue I. Drunk walking home might arguably be mitigating danger by not driving; drunk should not be digging a hole.
No exception based on income or wealth (Denver & Rio Grande RR v. Peterson)
Why not take wealth into account for damages? Not clear how utility of money differs interpersonally. Also, could arguably hold that rich person’s time is more valuable, lowering optimal amount of precaution.

Hand Test: Inefficient or suboptimal care test: is B < PL? (Carroll Towing). Note that this test applies to breach of any duty, not merely duty of ordinary care (put another way, the Hand test simply imposes a universal duty to act efficiently given the circumstances).
Main idea is (discussion from Vincent): holding someone liable for choosing the less valuable thing over the more valuable thing). Necessarily includes an analysis of the alternative actions and their costs (Cooley).
Not truly an objective test: must take into account the individual’s costs of precaution. Only objective to the extent that it requires a rational cost-benefit analysis (and presumably d/n take into account the individual costs of such an analysis, which in the case of an imbecile may be prohibitively high).
Assumptions:
burden is marginal (keep taking precautions up to the point where the next precaution would not be efficient), not average (i.e. all your precautions, on average, but be greater than or equal to the expected damage, meaning that for each really cheap precaution we’d need an offsetting really over-expensive precaution. In this case we’d have a zero social gain and massive overprecaution)
PL, or probability times loss (damage), is summed over all possible states of the universe.
total cost functions are continuous and differentiable over (0, inf.). Otherwise we’ll end up with multiple or no local cost minima, i.e. quantities of precaution such that B = PL.
Does not necessarily find least cost avoider if both parties non-negligent (Blyth, water company not liable for exploding pipes); in this case, however, given perfect judicial accuracy and efficiency (no litigation costs), it doesn’t matter; given accuracy only, better to let chips lie where they fall.
Issue: how to deal with mitigation (cf. supra, subjective standard for old guy driving slowly).
Question: Hand does not take into account the cost of hiring a bargee (to keep the boat from floating into the bridge) in the first place. Should he?
Answer: no. No rational actor would take an inefficient precaution, so hiring the bargee must be efficient. Thus Hand is correct to focus only on the cost of getting the bargee to do his job (whether or not his conclusion was correct – though the employer would be vicariously liable anyway).
Question: if D had not hired a bargee, would his “cost of avoidance” be hiring a responsible bargee.
Answer: Sure, assuming that a bad bargee is totally useless for this purpose (maybe he scares away robbers or something). But if he’s somewhat useful we’d have to decide if the addition of even a bad bargee is efficient.
Custom:
Rationale: customs tend to be efficient, pass the BPL test. (Titus, train worker)
Violating custom generally makes one automatically negligent
Following custom, on the other hand, does not necessarily prove you are not negligent (T.J. Hooper).
Sometimes evidence of following custom not even admissible (Mayhew).
Medicine: b/c BPL so hard to establish with medicine, courts tend to use custom as dispositive in malpractice cases (Lama).
But in some cases following custom d/n protect one from negligence:
Helling, where optometrist found negligent for failing to test patient for glaucoma, despite the fact that it was not customary under circumstances and despite doctor’s generally having an incentive to over-sell).
Canterbury is more justifiable, where doctor may have followed custom in not disclosing to the patient a material fact about his procedure.
Question: why do we need tort in medicine? Why not just contract, since it’s a market-mediated relationship?
Answer: insurance may be ineffective since once people are injured they can’t use the money. May be more effective if they pay doctors, ex ante, to be careful (i.e. pay higher rates and then have the right to sue).
Question: should custom be presumptively dispositive in market-mediated relationships?
Answer: yes, unless there is a reason why we should expect a systematic market failure, we should expect custom to be efficient. Thus T.J. Hooper and especially Helling are wrong, while Canterbury is correct.
Issue: what kind of custom? Generally objective.
Time: type of shower door that was customary years earlier but not customary today – evidence went to jury (Trimarco).
Location: national, not local (Brune). Generally similarly credentialed doctors, given the facilities in which they are working.
Rationale: too difficult to come up with different standards for different locales, no precedential value (see discussion of objective standard for negligence, supra), plus local doctors are biased expert witnesses.
Minority rule: “same or similar locality.”
Statutory violation:
Rationale: makes things easier to find automatic breach of duty.
Elements: “An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect” (RST §14).
Although sometimes called “negligence per se,” it’s not really negligence per se so much as breach per se. Still need causation (Lyons, speeding, and Martin v. Herzog, Cardozo, guy driving w/o lights).
Statutory interpretation:
Tedla v. Ellman, assumes that legislature wrote in common law exception to the rule requiring people to walk on the left side of the road for when traffic was too heavy on that side.
Uhr: court held that legislature did not intend to create right of action against school for failing to test, despite having a general right of action and enumerated exemptions.
Doctrine generally does not apply to regulations (Perotti, Elliotv. City of NY, Perry). Sometimes doesn’t apply to things that aren’t public safety statutes (Moch).
Res Ipsa Loquitur / Circumstantial Proof
2RST §328D: “It may be inferred that harm suffered by the P is caused by negligence of the D when:
the event is of a kind which ordinarily does not occur in the absence of negligence
other responsible causes, including the conduct of P and third persons, are sufficiently eliminated by the evidence; and
the indicated negligence is within the scope of the D’s duty to the P.”
Examples:
Byrne v. Boadle: D’s flour randomly hit guy in head.
Colmenares Vivas: escalator ate some woman. Held the owner (rather than lessee) liable despite lack of “exclusive control” (required by RTT and Prosser) – would be liable under RST.
Rationale:
information forcing (Ybarra, all doctors held jointly and severally liable for malpractice explicitly b/c of evidence problems; also Anderson; see also multiple possible causation cases, infra).
These decisions not highly regarded in other jurisdictions. Also not clear why this any different than holding everyone on the highway liable for accident.
perhaps we should only make one of them liable, so as to avoid perverse incentives (see joint and several liability, infra).
Latin sounds cool. There’s no obvious reason that juries can’t just consider circumstantial evidence as, well, evidence.

Duty (depends on relationship b/w P and D)
Ordinary care: owed to foreseeable P’s “to whom the actor could not reasonably have anticipated injury” (RST §281c; see also Palsgraf) (see also Causation, infra).
Duty i
No duty to rescue (Hurley, doctor refused to help and keep drinking tea) (ironically dubbed “Good Samaritan Rule”).
Rationale: although would support Hand’s BPL rule, such a duty:
would scare away potential rescuers who might go help out and at least check out the situation.
encourage reckless behavior / fraud / tons of litigation
be an imposition on free men, violating the liberal ideal
be asymmetrical if you also could not collect in a rescue action for helping (only sometime you can, under unclear circumstances).
Note: some states now impose a duty in limited circumstances, such as when you are involved in an accident with others, and in some cases where rescue involves no danger to you.
Nonfeasance / malfeasance distinction: modern trend away from it.
Old cases:
Buch: no liability for nonfeasance
Thorne, gratuitous undertaking case where guy said he’d buy insurance for other guy but didn’t.
New:
Montgomery: liable for act of omission (failing to put out flares) if you caused the danger, even non-negligently, in the first place.
Duty of owners / occupiers to people on their property:
No duty to trespassers
Rationale:
in applying the BPL test, there is no benefit from trespassing that the law chooses to recognize, b/c we want to force such behavior (absent necessity) through the market.
also don’t want people to over-invest in self-help.
trespassers are not foreseeable, so no negligence automatically (see frequent trespassers, infra).
Exceptions:
Affirmative duty to rescue trespassers once you know about them (Pridgen)
No duty under negligence (as opposed to intentional harm or recklessness) (Collieries for the principle, though the kid was a frequent trespasser and would have won today).