Torts Outline
Professor Pruitt
I. Battery
a.
Formal Definition
-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 an imminent apprehension of such contact and 2. A harmful contact
with the person of the other directly or indirectly results
-offensive:
1. He acts intending to cause a harmful or offensive contact with the person of
the other or a third person, or an imminent apprehension of such a contact, and
2. An offensive contact with the person of the other directly or indirectly
occurs.
Elements
of battery:
1. Act (assume volitional, an act of will)
2. Intent to make harmful or offensive contact or create
imminent apprehension of harmful or offensive contact
3. Effect: harmful or offensive contact occurs
4. Causation
5. Harm/Damages
Generally
assume it is volitional, an act of will unless (few exceptions: D was under
hypnosis, involuntary muscle contraction, etc.)
INTENT:
Term or Art…Intent never stands alone in your analysis. Inextricably linked to
some consequence, effect, purpose.
BATTERY
TYPE INTENT
Act
(like a kick or punch) + intent (purpose or desire) to cause a harmful or
offensive contact or imminent apprehension of the same.
Vosburg
v. Putney
Act
+ unlawful act = unlawful intent = battery type intent
Garratt
v. Dailey
Act
(moving the chair) + substantial certainty that harmful offense contact will
occur = battery type intent
Privileges
Defendant
escapes liability even if elements of prima facie case present
2
methods: Consensual privileges, nonconsensual privileges
Consensual
Privileges
“Consent
is willingness in fact for conduct to occur.
It…need not be communicated to the defendant.”
Subjective
or consent in fact: Plaintiff’s willingness in fact for contact to occur.
Objective
or apparent consent: The perception of others regarding whether plaintiff
consented to the touching.
Objective
or apparent consent:
O’Brien
v. Cunard Steamship Co.
Plaintiff
traveling to America and received vaccination. Argues that there was battery. Court ruled that no battery took place
because from plaintiff’s conduct, it can be seen that she consented to the
vaccination.
Subjective
or Consent in Fact:
Barton
v. Bee Line Inc.
Plaintiff
(15 yrs. Old girl) claims that she was raped by chauffeur working for
defendants. Chauffeur claims that the
girl consented to the sexual intercourse.
Jury awarded money to plaintiff. On appeal, the court reversed. Minors consent not used for criminal
liability but for civil cases, consent should be considered, even the consent
of a minor.
Doctor
Patient Relationship
Bang
v. Charles Miller Hospital
Patient
went in to get urinary problems checked out and doctor performed an operation
in which he severed patient’s spermatic cords and rendered him permanently sterile
-Both
consent in fact and apparent consent can be used in this case, but parameter of
the consent in question
Consent
2.
To be effective, consent must be by
one who has the capacity to consent or by person empowered to consent for him,
and
b.
to the particular conduct, or to substantially the same conduct
3.
Conditional consent or consent restricted as to time area or in other respects
is effective only within the limits of the condition or restriction.
4.
If the actor exceeds the consent, it is not effective for the excess
5.
Upon termination of consent its effectiveness is terminated, except as it may
have become irrevocable by contract or otherwise, or except as its terms may
include, expressly or by implication, a privilege to continue to act
Kennedy
v. Parrot
Patient
went through surgery. Doctor found something else while performing the surgery
and went ahead and fixed it. In the process, doctor messed up.
-Court
said there was not prima facie case for battery because patient consented
“If
both patient and surgeon know that the exact condition of a patient cannot be
finally and definitely diagnosed until patient is anesthetized and the incision
made, the P’s consent will be construed as general in nature…And the surgeon
may extend the operation to remedy any abnormal or diseased condition in the
area of the original incision whenever he, in the exercise of sound
professional judgment, determines that correct surgical procedure dictates and
requires such an extension of the operation originally contemplated…”
Kennedy
is not universally followed
In
some states, consent inferred or presumed only in an emergency
General
Rule: If doctor extends the surgery, use the balancing test in your
analysis. Weigh the risks of waiting to
bring the patient back to consciousness to obtain his consent, against the
risks from the additional surgery.
Non-consensual
defenses
Self-Defense
In
exam, ask 2 questions:
1. Was the defendant privileged to use some kind of force
to defend himself?
2. If yes, what degree of force was the defendant
privileged to use?
Using
non-deadly force
1.
An actor is privileged to use reasonable force, not intended or likely to cause
death or serious bodily injury, to defend himself against unprivileged harmful
or offensive conduct or other bodily harm which he reasonably believes that
another is about to inflict intentionally upon him.
2.
Self-defense is privileged under the conditions states in subsection 1,
although the actor correctly or reasonably believes that he can avoid the
necessity of so defending himself
a.
by retreating or otherwise giving up a right or privilege, or
By
complying with a command with which the actor is under no duty to comply or
which the other is not privileged to enforce by the means threatened.
Use
of deadly force
1.
Subject to the statement in subsection 3, an actor is privileged to defend
himself against another by force intended or likely to cause death or serious
bodily harm, when he reasonably believes that
a.
the other is about to inflict upon him an intentional contact or other bodily
harm, and that
b.
he is thereby put in peril of death or serious bodily harm or ravishment, which
can safely be prevented only by the immediate use of such force
2.
The privilege stated in subsection 1 exists although the actor correctly or
reasonably believes that he can safely avoid the necessity of so defending
himself by
a.
retreating if he is attacked within his dwelling place, which is not also the
dwelling place of the other, or
b.
permitting the other to intrude upon or dispossess him of his dwelling place,
or
c.
abandoning an attempt to effect a lawful arrest.
3.
The privilege stated in subsection 1 does not exist if the actor correctly or
reasonably believes that he can with complete safety avoid the necessity of so
defending himself by
a.
retreating if attacked in any place other than his dwelling place, or in a
place which is also the dwelling of the other, or
b.
relinquishing the exercise of any right or privilege other than his privilege
to prevent intrusion upon or dispossession of his dwelling place or to effect a
lawful arrest.
-the
actor is not privileged to use any means of self-defense which is intended or
likely to cause a bodily harm…in excess of that which the actor correctly or
reasonably believes to be necessary for his protection. If he acting in self
defense exceeds the defense, he is liable only for damages associated with
excess.
Defense
of others
-at
common law, could defend members of one’s household, as if oneself.
-privilege
now extends to total strangers
-Mistake?
E.g.
if a person sees A hitting B and comes to the aid of B and uses force against
A, but then it turns out that B was the original aggressor.
Majority
view: the person stepped in the shoe of B (the original aggressor) and has no
privilege.
Minority
view: if the person reasonably believes that the person he is aiding (B) had
the privilege to use force in self defense, then the person has the privilege
to use reasonable force, even if it turns out later that B was the aggressor.
Defense
of Property
Katko
v. Briney
Defendant
setup spring gun to defend their abandoned farm house
Ct.
ruled that defendants use of deadly force was excessive and found them liable
Law
places higher value on life then property
Defense
of Possession by force not threatening death or serious bodily harm
-An
actor is privileged to use reasonable force, not intended or likely to cause
death or serious bodily harm, to prevent or terminate another’s intrusion upon
the actor’s land or chattels, if
Ÿ
a. the intrusion
is not privileged…and
Ÿ
b. the actor
reasonably believes that the intrusion can be prevented or terminated only by
the force used, and
Ÿ
c. the actor has
first requested the other to desist and the other has disregarded the request,
or the actor reasonably believes that a request will be useless or that
substantial harm will be done before it can be made.
Defense
of possession by force threatening death or serious bodily harm
Ÿ
The intentional
infliction upon another of a harmful or offensive contact or other bodily harm
b a means which is intended or likely to cause death or serious bodily harm,
for the purpose of preventing or terminating the other’s intrusion upon the
actor’s possession of land or chattels, is privileged if, but only if, the
actor reasonably believes that the intruder, unless expelled or excluded, is
likely to cause death or serious bodily harm to the actor or to a third person
whom the actor is privileged to protect.
Ÿ
In Katko,
deadly force used but the trespassers posed not serious threat to the
inhabitants of the farmhouse (farmhouse was abandoned J) so use of such force was not privileged.
Privilege
of Necessity
Ploof
v. Putnam: no trespass when
plaintiffs went into defendant’s dock to save their lives
Vincent
v. Lake Erie Transport
-The
notion of qualified privilege- privilege of necessity
-qualified
privilege to enter on the land of another to avoid serious harm, but this
privilege is coupled with a duty to pay for whatever he breaks, damages.
II. Assault
Restatement
(2d) Section 21
(1)
An actor is subject to liability to another for assault if:
(a)
he acts intending to cause a harmful or offensive contact with the person of
the other or a third person, or an imminent apprehension of such a contact, and
(b)
the other is thereby put in such imminent apprehension.
-An
action which is not done with the intention stated in Subsection (1,a) does not
make the actor liable to the other for an apprehension caused thereby although
the act involves an unreasonable risk of causing it and, therefore, would be
negligent or reckless if the risk threatened bodily injury.
-(SO
INTENT IS INDESPENSABLE)
Apprehension
-apprehension
must be of imminent contact
-an
actor’s intent to inflict some future contact and the other person’s awareness
of this is not apprehension of imminent contact.
-e.g.
A tells B that I will come back tomorrow and beat the hell out of you. No assault has occurred.
**Imminent
does not mean immediate, in the sense of instantaneous contact, as where the
other sees the actor’s fist about to strike his nose. It means rather that there will be no
significant delay.
-It is not necessary that one shall be in the striking
distance of the other or that weapon pointed at the other shall be in a
condition for instant discharge. It is enough that one is close to that
reaching distance that he can reach the other at once or that he can make the
weapon ready for discharge in a very short interval of time. Under Common Law: Present ability
Assault
Test
Act
Intent
Effect
(Most Important Element)
Causation
Damages/harm
Intent
Element
Intent
to cause apprehension of contact or contact itself
-Intent
can be transferred
e.g.
A throws a brick at B intending to hit him.
C, a bystander, is put in apprehension of contact. A liable for assault on C even though A never
intended to hit C.
Effect
Element
Apprehension
that one is about to be touched. If
person has apprehension that someone else is about to be touched, no
assault.
Apprehension
=/ Fear
Apprehension
a term of art. We don’t require that the
person be afraid of the imminent contact.
We only require that he be aware that such contact is coming.
e.g.
A, a big football player, sees B, a little drunk guy, coming towards him with
his fists closed. A is not scared of B
but he knows that B is about to strike him. Assault takes place even though A
had no fear.
Subjective/Objective
Tests
If
an act is intended to put another in apprehension of an immediate bodily
contact and succeeds in doing so, the actor is subject to liability although
the act would not have put a person of ordinary courage in apprehension.
Bouton
v. Allstate Insurance
-court
used the objective test to determine that a reasonable person will not be
apprehended. This is certainly an
anomaly.
III. Offensive Battery
Section
18 Battery: Offensive Contact
(1)
An actor is subject to liability to another for battery if
(a)
he acts intending to cause harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such contact and
(b)
an offensive contact with the person of the other directly or indirectly
results
-An
act which is not done with the intention stated…does not make the actor liable
to other for a mere offensive contact with the other’s person although the act
involves an unreasonable risk of inflicting it, and, therefore would be
negligent or reckless if the risk threatened bodily harm.
So
offensive battery requires the actual intent to cause offensive contact.
Offensive
contact: Objective/reasonable person test
A
bodily contact is offensive if it offends a reasonable sense of personal
dignity. Contact must be that which is
unwarranted by the social usages prevalent at the time and place at which it is
inflicted.
Fisher
v. Carrousel Motor Hotel
-P
African American and D snatched the plate out of his hand and stated no Ns are
served in this hotel.
-Lower
Ct. said no battery because no assault
-On
appeal, reversed. “…it has long been settled that there can be a battery
without an assault, and that actual physical contact is not necessary to
constitute battery, so long as there is contact with clothing or an object
closely identified with the body…”
Leichtman
v. WLW Jacor Communications, Inc.
Tobacco
smoke can create offensive contact
But
substantial certainty intent not included
IV. False Imprisonment
Restatement
(2d) Section 35
(1)
An actor is subject to liability for false imprisonment if:
(a)
he acts intending to confine the other or a third person within boundaries
fixed by the actor and
(b)
his act directly or indirectly results in such confinement of the other, and
c)
The other is conscious of the confinement OR is harmed by it.
-An
act which is not done with the intention stated in Subsection (1,a) does not
make the actor liable to the other for a merely transitory or otherwise
harmless confinement, although the act involves an unreasonable risk of
imposing it and therefore would be negligent or reckless if the risk threatened
bodily harm.
False
Imprison Test
Act
Intent
to confine within boundaries fixed by actor
Effect:
Confinement results
And
P conscious of confinement
Or
Harmed by it
Causation
Damages
Effect
Element (most important)
Two
requirements
1. Confinement within boundaries
fixed by defendant AND
2. Plaintiff is conscious of
confinement or is harmed by it.
Confinement: Confinement can be by physical barriers,
physical force, threats of force, duress, asserted legal authority, failure to
release when duty to do so.
-Confinement
maybe in a large area. Doesn’t have to
be in a small area. Plaintiff might have
a way out, but as long as he does not know about it, he is confined. Even if plaintiff knows about means of
escaping, such means must be reasonable.
Whittaker
v. Sanford
-D
asked P to travel to America in his Boat.
When reached America, D refused to provide small boat to P and her
children to reach the shore.
Test
Act:
failure to provide boat (so omission can be considered an act)
Intent:
Subjective
Effect:
P confined on the large boat and conscious of it (no harms really)
Causation:
Damages:
Tricky P not really physically harmed but can be mental.
Main
points of this case: Don’t need physical contact for FI. Failure to act can be an act (e.g. D’s
failure to provide boat to P is considered act under FI test)
Restatement
2d Section 45
-Refusal
to release or aid in escape
-If
the actor is under a duty to release the other from confinement or to aid in
such release by providing a means of escape, his refusal to do so with the
intention of confining the other is a sufficient act of confinement to make him
subject to liability.
Rougeau
v. Firestone Tire & Rubber Co.
-P
suspected of stealing and asked by the employer to stay in a room
-Two
guards told not to let P leave
-Ct.
said no False Imprisonment. P only in
room for about 30 minutes. Guards never
considered him to be confined. When P
asked to leave because ill, guards let him leave.
-So
no FI
-P’s
silence can be considered consent.
Sindle
v. New York Transit Authority
-children
destroying bus property
-driver
closed door and told children that he is taking them to the police station
-One
child jumped out the window and bus drove over him.
-Ct.
of Appeals said D can use the defense of justification (D has the burden of
proof).
It
is not unlawful to restrain or detain, reasonable under the circumstances and
in time and manner, if done for the purpose of preventing another from
inflicting personal injuries or interfering with or damaging real or personal
property in one’s lawful possession or custody.
Coblyn
v. Kennedy
-old
man suspected of shoplifting
-Issue
1: any genuine restraint is sufficient to constitute an imprisonment…and any
demonstration of physical power which, to all appearances, can be avoided only
by submission, operates effectually to constitute an imprisonment, if submitted
to, as if any amount of force had been exercised. If a man is restrained of his personal
liberty by fear of a personal difficulty, that amounts to false imprisonment.
-Issue
2: Grounds are reasonable for detention when a reasonably prudent, cautious and
intelligent person would believe they existed.
Test
is objective: 1. Reasonable manner 2. Reasonable length of time 3. Reasonable belief that person has committed or attempting to commit
larceny
V. Intentional Infliction
of Emotional Distress (IIED)
- IIED Restatement 2d Section 46
- One who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional distress to another
is subject to liability for such emotional distress, and if bodily harm
to the other results, for such bodily harm
- Where such conduct is directed at a third
person, the actor is subject to liability if he intentionally or
recklessly causes severe emotional distress
i.
To a member
of such person’s immediate family who is present at the time, whether or not
such distress results in bodily harm, or
ii.
To any other
person who is present at the time if such distress results in bodily harm
1.
Therefore for
transferred intent, person must be present.
For family members, physical consequences not required. For non-family members, physical consequences
required.
- Elements of IIED
i.
Act: Extreme
and outrageous conduct (in Revlon it was failure to act)
ii.
Intent: Intent
to cause severe emotional distress or with reckless disregard for whether such
distress would occur
iii.
Effect: Severe
emotional distress
iv.
Causation:
Conduct must cause the distress
v.
Damages: For
emotional distress and, if it occurs, bodily harm
- State Rubbish Collectors Association v.
Siliznoff
i.
D threatened
P to join the association or he will beat him up and slash the tires of his
truck
ii.
In this case,
future threatsà so no assault
iii.
But ct.
said no assault needed in order to establish IIED
- Samms v. Eccles
i.
Respected
married woman constantly asked for sex by D
ii.
Ct. of
Appeals said that D’s conduct can be considered severe and outrageous by a
jury.
iii.
Usual rule,
“there is no harm in asking”
iv.
But in this
case, conduct continued for 6 months!
- Branda v. Sanford
i.
15 year old
bus girl verbally abused by D
ii.
Ct. of
appeals ruled that trial ct. erred by dismissing cause of action
iii.
“jury was
entitled to determine considering prevailing circumstances and contemporary
attitudes and Cheryl’s own susceptibility, whether conduct in question
constituted extreme outrage.”
- Comment F to Rest. 46
i.
The extreme
and outrageous character of the conduct may arise from the actor’s knowledge
that the other is peculiarly susceptible to emotional distress, by reason of
some physical or mental condition or peculiarity. The conduct may become heartless, flagrant
and outrageous when the actor proceeds in the face of such knowledge, where it
would not be so if he did not know.
1.
Branda
v. Sanford- P’s age could be a
factor
2.
Alcorn
v. Anbro Engineering, Inc.- P’s
race could be a factor
- Context in which the conduct occurred can also
matter
i.
Logan
v. Sears
1.
Employee on
the phone called P “queer”
2.
No one but P
heard it
3.
Ct.
considered this as a factor in deciding whether IIED
4.
Also, D’s
statement only hostile but not enough for IIED
- Hustler Magazine v. Falwell
i.
Public figure
cannot recover for IIED unless
1.
Offending
publication contained a false statement of fact
2.
Publisher
acted with actual malice
a.
Knowledge of
falsity or reckless disregard of truth or falsity.
- Failure to act can also be considered act under
IIED
i.
Ford
v. Revlon
1.
P sexually harassed
by manager for long period of time
2.
P used ever
avenue available to solve problem
3.
But no action
taken for a year
4.
Clear mental
distress- P tired to commit suicide
5.
Ct. said D
responsible for IIED for their failure to take proper action
- Jones v. Clinton
i.
Ct. considered
the following in deciding whether IIED
1.
Conduct at issue
2.
Period of time
over which it took place
3.
Relation between
P and D
4.
D’s knowledge of
P’s susceptibility to emotional distress by reason of some physical or mental
peculiarity
5.
Ct. applied a
“nervous breakdown standard”- very harsh on P
v VI. Negligence
o
Reasonable risks
are acceptable. But unreasonable risks are not accepted.
o
We want people to
use ordinary and reasonable care to eliminate risks other than ordinary ones…
o
Negligence law
doesn’t expect us to be accident-free, but expects us to be reasonable prudent
actors
o
Until Brown, it
was strict liability
o
Negligence 2 meanings:
1. Title of the tort 2. Breach of duty
o
Brown v.
Kendall
§
D unintentionally
hit P in the eye with a stick while trying to break a dog fight
§
Ct said: If the
act of hitting P was unintentional on part of D, then D was not liable unless
it was done in the want of
exercise of care adapted to the exigency of the case and therefore such
want of due care became part of P’s case and burden of proof was on P.
o
Ways to establish
Negligence
§
Reasonable Person
Standard (RPP)
§
B<PL
§
Foreseeability
§
Violation of a
statute
§
Custom
o
Elements of
Negligence
§
Duty
§
Breach of Duty
·
First two are
mirror images of each other
·
Act of breaching
duty is sometimes referred to as negligence, just as tort in its entirety/cause
of action is referred to as negligence
§
Actual Cause
§
Proximate Cause
§
Harm/Damages
o
Restatement 2d
Section 283
§
Conduct of a
reasonable man: The Standard
§
Unless the actor
is a child, the standard of conduct to which he must conform to avoid being
negligent is that of a reasonable man under like circumstances.
o
Reasonable man is
not expected to be impeccable- but words reasonable man denote a person exercising
those qualities of
attention, knowledge, intelligence, and judgment which society requires
of its members for the protection of their own interests and interests of
others.
o
Mental
Deficiencies
§
Unless the actor
is a child, his insanity or other mental deficiency does not relieve the actor
from liability for conduct which does not conform to the standard of a
reasonable man under like circumstances.
o
Section
283-children
§
If the actor is a
child, the standard of conduct to which he must conform to avoid being
negligent is that of a reasonable person of like age, intelligence and
experience under like circumstances.
o
Section 283C-
Physical Disability
§
If the actor is
ill or otherwise physically disabled, the standard of conduct to which he must
conform to avoid being negligent is that of a reasonable man under like
disability.
o
When applying the
reasonable standard, we are reasonableness of D’s actions at the time and under
the circumstances. The risk is to be
evaluated as it reasonably appeared before the accident. No assessment with the
benefit of hindsight based on additional knowledge.
o
B<PL Test
§
B- Burden of
taking the precautions + the broader social utility of the conduct which D would
have to forego.
§
P- probability of
accident
§
L- gravity of the
resulting injury
§
If burden of
taking the precaution is less than harm that results from failure to do so, it
was negligent/breach of duty not to take the precaution.
§
B<PL in action
·
U.S. v.
Carroll Towing
o
B- having a
bargee on board during day hours
o
P- wartime and
during day, very likely
o
L- expensive
cargo getting lose
o
So B<PL and
negligent to not have a bargee on board during day hours.
§
Restatement 2d
Section 291
·
Where an act is
one which a reasonable man would recognize as involving a risk of harm to
another, the risk [PL] is unreasonable and the act is negligent if the risk is
of such magnitude as to outweigh what the law regards as the utility of the act
or of the particular manner in which it is done [B].
·
Factors
considered in determining utility of actor’s conduct:
o
Social value law
attaches to the interests which is to be advanced or protected by the conduct
o
Extent of the
chance that this interest will be advanced or protected by the particular
course of conduct
o
Extent of the
chance that this interest can be adequately advanced or protected by another,
less dangerous course of conduct.
·
Factors
Considered in determining magnitude of Risk
o
Social value law
attached to the interests which are imperiled
o
Extent of chance
of that actor’s conduct will cause an invasion of interest of other
o
Extent of harm
likely to be caused to interests imperiled