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Torts
John Marshall Law School, Chicago
Lasso, Rogelio A.

Lasso – Torts – Spring 2012
 
INTRO TO RECOVERY IN TORT
Lawyer’s Task: Establish a Prima Facie Case and Overcome Defenses
**Specific conduct: describe the D’s conduct being evaluated
**Mantra:  In order to recover damages, Plaintiff must prove (by a preponderance of evidence) the elements of a prima facie case and must overcome Defendant's defenses.
 
PRIMA FACIE CASE FOR BATTERY (AKA Elements of Cause of Action for Battery)
Rule: a person is subject to liability for battery when s/he acts intending to cause a harmful or offensive contact, and when a harmful contact results.  – Snyder (citing Rest. 2d Torts); Cohen v. Smith, also citing the Restatement
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       I.            INTENT to cause a harmful or offensive contact – Snyder v Turk
A.    Intent may be established without a showing of intent to inflict personal injury; it may be proven by showing intent to offend – Snyder
 
B. Tests to prove intent
a.       Purposeful desire to harm or offend – Garratt v Dailey
                                                              i.      Must be deliberate
                                                            ii.      Intent to act not enough
b.      Knowledge that act is substantially certain to result in a harmful or offense;
                                                              i.      (Objective) reasonable person std. (D knew or should have known) – Garratt v Dailey
1.      This form of intent is superimposed on D, regardless of her or his “subjective” intent
c.       Transferred intent – Hall v McBryde
                                                              i.      Torts can transfer to the same plaintiff or to an “unintended” 3d party.
1.      One who intends tort A upon person A but ends inflicting tort B to person A, is liable for battery
2.      Likewise, if D intends tort A to person A but ends up causing tort A to person B, D’s intent toward A is transferred to D’s intent toward B
 
C.    Intent of children (capacity)
a.       No absolute shield b/c of infancy.  Liability depends on the ability of individual child to form necessary intent
D.    Intent of Mentally disabled
a.       For policy reasons, a mentally disabled person can be held liable for an intentional tort.
                                                              i.      Unless policy reasons do not apply
b. Policy reasons are:
                                                              i.      B/w an innocent P and a person who has caused injury, the latter should bear the consequences.
                                                            ii.      Holding an insane person liable will motivate relatives to restrain her or him;
                                                          iii.      Not holding an insane person liable would motivate tort feasors to pretend insanity to avoid liability
 
    II.             HARMFUL OR OFFENSIVE CONTACT;- Snyder
a.       A contact may be direct or indirect. – Jacor
b.      An offensive contact is one, which is offensive to a reasonable sense of personal dignity. – Snyder
c.       A contact may be offensive if D knew P found contact offensive. Cohen v. Smith; Leichtman v. Jacor
 
III.     Cause-In-Fact
a.       Factual connection between D's act and P's injury
 IV.            Damages – presumed
 
Recovery for Battery Against Third Parties
       I.            P may recover from one who is present and incites another to commit a battery- Jacor
    II.            P may Recover from Batterer’s employer under Respondeat Superior – Jacor
a.       If employee was acting within scope of employment
                                                              i.      Usually a question for jury
 
DEFENSES TO BATTERY
See Defenses to Intentional Torts below.
 
PRIMA FACIE CASE FOR ASSAULT (Elements of a Cause of Action for Assault)
Rule: Assault refers to an act by the defendant that puts the plaintiff in apprehension of an imminent bodily touching that would be harmful or offensive
 
 
       I.            INTENT to put in apprehension of imminent harmful or offensive contact.
a.       Words + other acts or circumstances (some action)
                                                              i.      Words alone not enough to show intent to put in apprehension.  Dickens
1.      But words can negate intent.  (E.g. I’d shoot you but it’s the Sabbath)
                                                            ii.      In some narrow circumstances, a threat to inflict harm unless P fulfills a condition that D is not entitled to require demonstrates intent.
b.      Must be intent to put the other in apprehension of an imminent contact. Id.
                                                              i.      Imminent does not mean instantaneous; it means “without significant delay.” Id.
                                                            ii.      Threats for the future do not prove intent to assault.  Id.
II.     ACTUAL REASONABLE APPREHENSION  
a.       Objective Std.  Must show that a reasonable person would be put in apprehension under these circumstances 
                                                              i.      Means it is usually a question of fact for the jury – Cullison
b.      D’s conduct must be more than mere verbal threats. 
                                                              i.      Words alone not enough unless other acts or circumstances help to put P in reasonable apprehension of an imminent harmful or offensive contact
                                                            ii.      P must be aware of D’s actions & of D’s ability to carry out the threat.
c.       Apprehension created must be of imminent rather than future contact. Dickens
                                                              i.      Imminent … instantaneous; it means “without significant delay.” Id
d.      D’s words may negate P’s subjective apprehension
 III.            DAMAGES – presumed
 
 
DEFENSES TO ASSAULT
DEFENSES TO INTENTIONAL TORTS
 
 I.     SELF DEFENSE
Rules: “one is privileged to use reasonable force to defend against harmful or offensive bodily contact–or against confinement.  This privilege depends on apparent necessity of self defense, not on actual reality.  Thus, if the defendant reasonably, but mistakenly believes she is attached, she is privileged to use reasonable force to forestall the attack or minimize its effects.”  (CB at 82)
A.    Elements
a. Apparent Necessity
                                                              i.      Real threat (danger) of harm or reasonable belief that there is a threat of harm
b. Reasonable Force
                                                              i.      Force commensurate (equivalent) to threatened harm
II.     CONSENT
Rules: Consent is the actor’s subjective willingness in fact that an act or an invasion of an interest by another take place.  Rest. 2d Torts, § 10A.  Apparent (or Objective) consent is based upon a reasonable appearance that the plaintiff consents.  It goes to the idea that a Defendant is entitled to rely upon reasonable appearances created by the Plaintiff.  D must show that circumstances created a reasonable appearance that Plaintiff consents to Defendant’s conduct.
A.    Elements
a.      Was there actual consent – usually in writing
b.      Was there

ized community. – Metzger
(1)   However, liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.  – Metzger
 
 I.     INTENT TO CAUSE SEVERE MENTAL OR EMOTIONAL HARM
a.      Purposeful, subst. cert., reckless disregard
b.      Usually derived from the nature of the conduct – for example:
                                                              i.      D knew of P's vulnerability and nevertheless acted; or
                                                            ii.      D used his/her power over the subordinate knowing its effect
     II.            SEVERE EMOTIONAL DISTRESS and/or physical harm related to the emotional distress (Damages not presumed)
a.      Any type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so. – Metzger
Distress that is so severe that no reasonable person could be expected to endure it. – Bruce
Severity required depends on outrageousness of act.  The more outrageous the conduct, the less severe the distress need to be.
CAUSE-IN-FACT
a.       Factual link between the D’s action and P’s severe emotional distress.
 
 
DEFENSES
 
IIED LIABILITY TO THIRD PARTIES
Rule: Where conduct is directed at a 3d person, D is subject to liability if he intentionally or recklessly causes severe emotional distress to P, if (a) P is a member of the immediate family of 3d person and was present when the actions occurred; or (b) P is not a member of immediate family but was present and suffered physical harm in addition to emotional distress. – Homer v. Long
 
Elements
I)       D acted outrageously toward a 3rd person;
II)    P is a member of the immediate family of 3d person and was present when the actions occurred; or
III) P is not a member of the immediate family but was present and suffered physical harm in addition to emotional distress.
 
 
INTENTIONAL TORTS TO PROPERTY
PRIMA FACIE CASE FOR TRESPASS
Rule: One who intentionally enters or causes an entry upon the land of another is liable for damages even if no harm is done to the land.
 
       I.            INTENT TO ENTER (Purposeful, substantial certainty, transferred)
a.       Proper entry – but refusal to leave satisfies intent to enter
b.      No need to have intent to trespass – just to enter
                                                              i.      A reasonable belief that one is entitled to enter does not absolve D
                                                            ii.      Mistaken entry also does not absolve D.
II.     Actual Entry
a.    Entries above or below the surface can subject one to liability
Damages – presumed
Can recover nominal damages even if there are no actual damages
Can recover extensive parasitic damages
                                                              i.      But no emotional distress
1.      Unless entry is aggravated