Torts Outline-Fall 2006
I. Intentional Torts
a. Definition: Torts in which the ∆ desires to bring about a particular result. Generally defined when one has no established relationship with another person. Everyone is liable for intentional torts…insanity and infancy are not excuse.
1. ∆ must act intentionally.
2. Act must cause contact.
3. Contact must be harmful or offensive.
b. Intent: Intention to physically harm is not necessary. No contact is intentional if it is not the result of a voluntary act. ∆ must act for the purpose of inflicting harmful or offensive contact OR realize that contact is substantially certain to occur. (either). The contact must be offensive to the reasonable person.
1. Vosburg v. Putney: ∆ kicks Π lightly on the knee to get his attention. Even though ∆ did not intend to harm ∆, he is still liable because he intended to take the action. (Thin-Skull Rule). Malice is not necessary.
c. Doctrine of Transferred Intent: Where the actor tries to batter one parson and actually causes harmful or offensive contact to another, she is liable to the actual victim. Unconscionable to exonerate her just because she hits the wrong person.
1. Talmadge v. Smith: ∆ sees kids on his shed. ∆ throws a stick at them and hit Π. Court held, assuming ∆ used an unreasonable degree of force, he is liable to Π, even though it was not Π he was trying to hit. Same rule applies to if ∆ intended to commit a different tort, like if a ∆ intends to scare Π by shooting at her and actually does shoot her.
2. Shaw v. Brown: P sued tobacco company b/c fellow truckdiver smoked and P was diagnosed w/ lung cancer via secondhand smoke. Court found tobacco company was not responsible b/c P did not prove intent of tobacco company to harm him. This was b4 tobacco cases.
3. If ∆ knows with substantial certainty that a particular effect will occur as a result of his action, he is deemed to have intended that result.
a. Garret v. Dailey: ∆ pulls a chair out from under P as she sat down. If ∆ knew with substantial certainty that Π would hit the ground, ∆ meets the intent requirement for battery, even if he did not desire that she do so. Case remanded to determine if the ∆ knew with substantial certainty that she would hit the ground if he moved the chair.
4. However, “highly likely” is not “substantially certain” and if the act was only highly likely, it is not an intentional tort.
5. For battery, it is not necessary the Π have actual awareness of the contact at the time it occurs. It is required for assault. (If ∆ kisses Π while she is asleep, there is battery, but there is no assault).
b. Physical Harms
a. Battery: The intentional infliction of a harmful or offensive bodily contact. ∆ must have the intent to make contact, not just to do injury. Intended contact must be harmful or offensive, not in the spirit of pleasantry.
a. Always distinguish the intent to act from the intent to cause a harmful or offensive contact. Battery requires more than a deliberate act. It requires a deliberate act done for the purpose of causing a harmful or offensive contact, or which the actor knows to be substantially certain to occur.
b. Under battery, an actor is liable for all the resulting injuries, even unexpected ones. Contrast this to negligence where a ∆ is liable only for the foreseeable consequences of his act.
2. Offensive Battery: Damaging to a reasonable sense of dignity. A contact is offensive is a reasonable person in the circumstances of the victim would find the particular contact offensive. Punitives can always be awarded.
a. Alcorn v Mitchell: after trial between Π and ∆, ∆ spit on Π. Court held punitive damages may be awarded for highly offensive conduct to provide adequate redress for physical retribution.
3. Harmful Contact
a. Ordinary and reasonable contacts do not suffice (brushing past someone on the subway) and the touch does not have to be the person’s actual body, but can be an object they are holding or clothing.
b. If the touching itself is a battery, the ∆ is liable for the resulting harm, whatever its extent may be.
i. White v. University of Idaho: teacher touches student on back and she has a spasm. It is a nonconsensual touching even if he didn’t intend to harm her.
c. Π doesn’t have to be aware of contact.
i. ∆ kisses Π while she is asleep. There is no assault, but ∆ has committed battery.
ii. Mohr v. Williams: Π consults ∆, Dr. about her right ear. She consents to operation on left ear. During operation ∆ discovers the unauthorized ear needs surgery and performs it. The court held that the unauthorized surgery was unauthorized, offensive contact and constituted battery, even though it was not harmful. Most non-disclosure issues are treated under negligence.
1. Exception: if the ∆ discovers a condition which endangers the life of the patient he may operate on implied consent. Today most, physicians require the patient to sign a blanket consent form.
b. Assault: intentional causing of an apprehension of harmful or offensive contact. Apprehension of conduct with the person of the Π. Fear is unnecessary. If a threat is incapable of performance, there is no assault (if a person holds a gun to someone’s head, but the person knows its not loaded- they were not put into any apprehension). Not the same as “attempted battery.” Assault turns on whether a reasonable person would be put into apprehension.
i. ∆ must act with intent
ii. To place victim in apprehension of harmful or offensive contact or to make such a contact
iii. The victim must reasonably be placed in apprehension of such a contact.
b. I. De S and Wife v. W. De S: Π owns a tavern. ∆ demands wine while tavern is closed. Π leans out of window and tells him to go away and ∆ swings his hatchet at her. Court held that by attempting to commit battery and failing, ∆ has committed assault.
2. Intent:∆ must either have intended to cause the apprehension of contact or contact itself. There does not have to be malice.
a. Transferred Intent applies here. If ∆ throws a stone meaning to his someone else, but Π is fearful the stone will hit her, Π can sue ∆ for assault.
b. Talmadge v. Smith: ∆ sees kids on his shed. ∆ throws a stick at them and hit Π. Court held, assuming ∆ used an unreasonable degree of force, he is liable to Π, even though it was not Π he was trying to hit. Same rule applies to if ∆ intended to commit a different tort, like if a ∆ intends to scare Π by shooting at her and actually does shoot her.
3. Imminence: it must appear to the Π that the harm threatened is imminent and that ∆ has the present ability to carry out the threat. Imminence does not mean within striking distance, it is enough that one is so close that he can reach the other almost at once, or that he can make the weapon ready for discharge in a very short interval of time.
4. Π must be aware of the threatened contact (the kiss is not assault, but battery). Π must also be aware that she will be subjected to bodily contact. She cannot recover for apprehension of someone else’s fear.
5. There is no assault if the ∆ has the legal right to compel Π to perform the act in question. (Burglar).
6. Conditional threats do not constitute assault and words alone are insufficient. But “If you don’t leave, I’ll kill you,” is an assault.
a. Tuberville v. Savage: ∆ claimed “if it were not assize time, I would not take such language from you.” Court held that this was not assault and a threatening gesture does not constitute assault when there are words that clearly negate the threat.
c. False Imprisonment: The intentional infliction of a confinement. Remember, imprisonment is not a crime, but false imprisonment is. There must be a good reason for the imprisonment. Accidental confinement falls under negligence.
1. Π must show that ∆ intended to confine him or that ∆ knew with substantial certainty that Π would be confined by ∆s actions. (If a store owner locks a Π in the bathroom because the store is closing, this is not FI because he did not intend to keep her there).
2. The
intent controlling is the intent to complete the act, not the intent to cause injurious consequences.
5. Damages included are nominal damages if no harm actually occurred. (Only the possessor has a claim against a trespasser. (Not necessarily owners). Public Service Co. of Colorado v. Vanwick: pursued trespass for harm attributed to noise, radiation, and electromagnetic field that resulted from approved upgrade in utility system. Distinguished case from physical trespass b/c it was particulate matter, no tangible intrusion. Can use tangible intrusion only if there’s physical damage.
f. Trespass to Chattels: Any intentional interference with a person’s use or possession of a chattel or damage to someone’s chattel (deprivation of chattel is enough).
1. Today, an exclusively intentional tort, but it is unnecessary that the ∆ intends to take harm, she must just intend to do the act which turns out to constitute interference.
2. Only occurs when the Π suffered actual damages. (In trespass to land, Π can recover nominal damages) Losing possession constitutes actual harm.
a. Intel Corp. v. Hamidi: ∆ emails did not constitute a trespass to chattel as there was no interference with the computer users use or possession of the computer. Restatement says some actually injury must have occurred in order for a trespass to chattels to be actionable.
g. Conversion : wrongful possession or dispostion of another’s property as if it were one’s on; an act of willful interference. Conversion is a breach of an absolute duty, which means strict liability (you are responsible for the consequences if you did it). 3 ways to commit a conversion: wrongly taking it, wrongly detaining it, or wrongly disposing it. Poggi v. Scott: Scott bought a building in which Poggi leased a room, Scott allowed bottles of wine owned by Poggi to be sold (thought they were empty). Poggi sued to recover value of sold wine, decision against P reversed on appeal. Intent is hard to prove, but this case shows how “conversion is always an intentional exercise of dominion or control over the chattel, though it does not require knowledge or intent to convert”-RST 223. Most cases of trespass to chattels are usually also conversion and vice versa.
c. Defenses: Burden is on ∆ to prove a defense to an intentional tort.
a. Consent: If Π consents to an intentional interference with his person or property, ∆ will not be liable for that interference. Consent can be express or implied. Generally, lack of consent is evidence in the Πs prima facie case.
1. Express consent: If Π expressly consents to an intentional interference with his person or property, ∆ will not be liable for that interference.
2. Implied consent: Consent may be implied from Πs conduct, custom, or from the circumstances. Π doesn’t necessarily have to consent directly to the person. Silence can also be a consent.
a. Objective manifestation: If it reasonably seemed to the ∆ that the Π consented, consent will be held to exist regardless of the Πs subjective state of mind. (Vaccinations.)
3. Lack of Capacity: Consent is invalidated if Π is incapable of giving it (a child, intoxication, unconscious). Exceptions occur when the patient is unable to give consent because of incapacitation, if there is an emergency to save his life, if there is no indication the Π would not normally consent, or if a reasonable person would consent in the circumstances.
a. Dr. can perform surgery on unconscious Π in emergency room and not be liable for battery.
