TIPS FROM PROF: Argue first – not negligent, but if negligent it wasn’t the cause of Pltf’s harm. Find negligent others break chain of causation between negligent acts of def. Look for things to break the chain. Look at foreseeability. ARGUE BOTH SIDES!
TORTS OUTLINE
I. Tort = Non-contractual civil wrongs for which damages may be awarded.
Purpose of tort law is to compensate & put victim back in position she was in before tort occurred. The only time we try to deter future torts is when punitive damages for wilful, wanton, malicious behavior are awarded. Causation is at the heart of any tort.
A. Types of Damages:
1. Compensatory damages are to restore pltf – can only determine value of injury & pay that.
2. Punitive damages are to punish & deter and are awarded only when def’s actions are extreme & outrageous. Two purposes of punitive damages – deterrence and punishment. We see these more often with corporate cases. The amount of the defendant’s wealth is relevant, though some say it isn’t. Not relevant if there’s no purpose in punitive damages, but always good to ask for them.
B. Three types of tort:
1. Intentional – harm intentionally inflicted by def on person or property of pltf
2. Negligent – harm negligently inflicted on pltf by lack of reasonable or ordinary care
3. Strict liability – harm inflicted on pltf by def who acts w/o negligence or intent to harm.
II. Intentionally Inflicted Harm: Prima Facie Case and Defenses
A. Physical harms
1. Battery:
Definitions:
a. Battery Common Law: The infliction of harmful bodily contact upon another – an unwanted touch. It’s a battery if it’s a non-consensual unwanted touching – period.
b. Battery per Second Restatement–(not a primary source!):
i. Acts intending to cause harmful or offensive contact with person of other or 3rd person, or to cause apprehension of such imminent contact and
ii. Harmful contact w/person of other directly or indirectly results.
Unlawful Act is Unlawful Intent: Vosburg v. Putney (Wis.1891), p. 4 – 2 boys in class – license of the playground doesn’t apply – class had been called to order – if an unlawful act, then unlawful intent. “Eggshell plaintiff” – we take plaintiffs as we find them.
Intent to Act is Intent for Battery: Garratt v. Dailey (Wash.1956), note 3, p. 7 – Whether removing chair was equal to striking pltf. Because the action led to unwanted touch against ground – no intent to harm necessary. “A battery would be established if, in addition to plaintiff’s fall, it was proved that, when Brian moved the chair, he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been.” p. 8
Intent to Harm or Offend Not Needed: White v. University of Idaho(Idaho 1990), note 4, p. 9 – piano teacher – some states (ex: Idaho) did not adopt second restatement – said no intent to harm or offend necessary to prove battery. – it’s a battery if it’s a non-consensual unwanted touching – period. If no injury, only nominal damages. No intent to harm or offend.
Battery By Insane: Wagner v. Utah: Issue: whether mentally ill person commits battery is there sufficient intent? Some states held battery committed b/c only required mental state was intent to make contact, not intent to cause harm. State immune from liability. See
Transferred Intent: Talmage v. Smith (Mich. 1894), note 5, p. 10. Transferred intent – if party intended to batter and injure another person, and injures someone else instead, he is responsible for injuries and should pay. The intent to injure is transferred to person battered. No intent to hit the plaintiff.
General Knowledge Insufficient for Intent: Shaw v Brown & Williamson – second hand smoke. Must prove sufficient intent to batter – generalized knowledge not enough.
2. Trespass to real property: Every unauthorized (so unlawful) entry onto another’s land is trespass, b/c law infers some damage, even treading on grass. Title alone makes the land enclosed. No marking done only changes the degree of injury, not injury itself. Dougherty v. Stepp (NC 1835), p. 10. Trespass to real property can also take place below ground or in the air. Trespassers are liable for damages that occur from acts made while trespassing. No intent to injure needed – only intent to complete act of trespass.
3. Intangible trespass: intangible intrusion may recover under trespass only if the intrusion was intentional and the injured party is able to prove that there is physical damage to property caused by the intrusion, like computer crashing.
4. Trespass to chattels – Whether or not act of trespass to chattels causes injury, the property is owned by another and the act of trespass is unauthorized, so legal injury & injured party should recover. Trespass to chattels not applicable where trespass did not interfere with possessor’s use or possession of, or other legal interest in personal property itself. There is sufficient legal protection from privilege to use reasonable force to protect from even harmless interference. Often actual damages are the same as trespass to real property – difference is availability of damages or injunctions for unauthorized use. Restatement says that in order to recover damages, must show that intermeddling is harmful to owner’s material interest in physical condition, quality, or value, or deprived of use for a subst. time or other legally protected interest in chattel.
Intel Corp. v. Hamidi (Cal. 2003), p. 14 – (e-mails sent by disgruntled former employee) Court held that “under California law the tort does not encompass, and should not be extended to encompass, an electronic communication that neither damages the recipient computer system nor impairs its functioning.”
a. Measure of damages: trespass to chattels used to be a “forced sale” where had to pay full value. Now more relaxed and usually return property if not damaged too much. Must pay for loss of use or repairs. In trespass to chattels damages limited to loss of value. Could force pltf to take chattel back.
5. Conversion – Exercise unjustifiable unwarranted dominion & control over property of another from which injury to owner results. Conversion can be committed by dealing with goods in the role of an owner, by buying, selling, using, altering, delivering, or refusing to surrender the chattel to its proper owner. Does not require knowledge or intent by converter of property. Negligence is not necessary. Poggi v. Scott (Cal. 1914), p. 22 (Wine barrels)
a. Good and bad faith conversions – one situation in which def’s knowledge is important Maye v. Tappan – (ca 1863) – Innocent Conversion – if someone thinks he’s mining his own gold, and it turns out it’s your gold, you can claim conversion, and would be awarded current market price of gold less cost of extraction & refinement. Def’s knowledge only makes difference in amount of damages. Even though pltf did not actually own land, he thought he did, and defendant stole gold-bearing dirt – court decided for pltf for amount of gold less cost of refinement.
b. Conversion of Cells – Moore v. Regents of the Univ. of Cal. (Cal. 1990), p. 26 – Sued for conversion, but court only found coa for breach of dr.’s disclosure obligations. Must show an interference with actual ownership or right of possession. Court ruled that Drs & hospitals owned spleen after it was removed. So no conversion. Drs. knew before they took it out that they would use it. Should sue for lack of disclosure.
c. The Difference between Trespass to Chattels and Conversion – In Poggi v. Scott, if Scott had changed the locks so that Poggi couldn’t get into basement, it would be trespass to chattels.
B. Defenses to Intentional Torts
1. Consent: Mohr v. Williams (Minn. 1905), p. 35 Should have gotten a signed written consent. (operated on wrong ear): The Question: The defendant’s touching of plaintiff unauthorized, so unlawful. Without consent, it’s a battery. Consent to one ear is not consent to another. Only defense was that he did the best thing for the patient, but court didn’t buy it.
2. Implied Consent:
a. Implied From Conduct: O’Brien v. Cunard Steamship Co. (Mass. 1891), p. 38, note 2 – (smallpox vaccine – held her arm out)
b. The Emergency Rule – in cases of emergency can help – urgent need – has to be done – where patient is unconscious and it is necessary to operate before consent can be obtained.
3. Substituted consent (for those who can’t consent):
a. Minors – guardian
b. Incompetents – guardian
c. People in vegetative states (no brain activity) – legal guardian, spouse, or parents. Legal test is what the patient would want, not what guardian wants.
Supreme Court says right of euthanasia overridden by state’s interest in prohibiting criminally. Wash. v. Glucksberg (US 1997); Vacco v. Quill (US 1997) note 6, p. 42.
4. Consent in the Medical Setting: Canterbury v. Spence (D.C. Cir. 1972), p. 244. The Rule Restatement: Volenti non fit injuria (Latin: “to a willing person, no injury is done” or “no injury is done to a person who consents”) battery tort – patient did not consent because leaving out info makes it not valid consent. If there is a chance of serious injury, you have to reveal it even if the chance is low.
5. Mutual combat – The rule
a. Majority – most say no defense. Often state courts say you can be liable.
b. Minority – if you step into the ring y
yn v. Kennedy’s, Inc. (Mass. 1971), p. 88 – Pltf old man accused of stealing scarf in dept. store, says he felt he had no choice but to go with employee, who didn’t tell him who he was, etc., and caused Pltf to have a heart attack. Would weaken pltf’s false imprisonment claim if he only went w/employee to clear his name. Def argue they were acting under the state statute. Another argument for def was that employee acted in a reasonable manner. Pltf argues not reasonable! Defs could also argue that the old man didn’t have to go with store employee.
Bird v. Jones(KB 1845), p. 85 – (way blocked off for boat race) – Jones wouldn’t let Bird pass. Bird sued for false imprisonment. Defense – he could have gone the other way, so no imprisonment. Pltf says I lost my freedom of mobility but court said no false imprisonment, because his way was only blocked in one direction.
Whittaker v. Sandford (Me. 1912), note 1, p. 87 – Pltf said restricted to yacht, so false imprisonment, but allowed to go with husband on islands & on picnic with kids. Still false imprisonment, because freedom restricted. Found to be false imprisonment, but damages were reduced because she was “respectfully treated as a guest in every way” so lack of humiliation & disgrace to confinement.
Weardale Steel, Coal & Coke – as long as the confinement is reasonable, no false imprisonment.
Locked in Freezer Hypothetical – if momentary confinement, excused. Intent was to lock the door, so the amount of damages are the issue. If person is in there for a while, and gets frostbite, caused by defendant’s action, should be compensated by def.
4. Intentional Infliction of Emotional Distress – Purely for emotional distress. Just have to prove emotional distress for damages. Can only be for extreme and outrageous conduct. Before this tort was allowed, had to be a contact. That’s why the conduct has to be so bad now. Rarely provable. Cases only for purposes of evolution – rules are different today
III. Strict Liability and Negligence: Historic & Analytic Foundations
When a duty exists to prevent a reasonably foreseeable risk and a breach of that duty causes harm. Failure to do something the reasonable man would do, or doing something a reasonable man would not do. Causation may be an issue, b/c def can argue harm caused by other element, not my breach of duty. It’s a question of fact: what’s reasonable. Don’t need intent (malicious or otherwise).
1. Strict Liability and Negligence in Modern Times:
Factors to consider:
a. How remote (foreseeable) is the chance that injury will occur, and
b. How serious the consequences might be.
2. Reasonably Foreseeable Risk: Stone v. Bolton –Bessie Stone hit by cricket ball – sued for public nuisance and negligence –Defense – didn’t know with substantial certainty that contact would follow. Issue: whether action that caused injury was realization of a reasonably foreseeable risk, or was unprecedented occurrence which the defendants could not reasonably have foreseen. Balls had been hit outside the cricket field 6 times in 30 years, so the hitting of the ball outside of the field was the realization of a reasonably foreseeable risk…a breach of duty. Defs argued “no possible precaution” would have stopped this particular ball and they’ve done everything a reasonable cricket club would have done to avoid harm. Court applied the “reasonably foreseeable risk” theory of negligence, and found for pltf. The law of negligence is concerned less with what is fair than with culpability. A breach of duty takes place when there’s a failure to take reasonable care to prevent accident. A reasonable man, taking account of chances against accident happening, would not have felt himself called upon either to abandon field or increase height of fence.
