TORTS LASSO FALL 2016
PART I: INTRODUCTION TO THE LAW AND TO TORT LAW
A. THE LEGAL PROFESSION
B. OVERVIEW OF LAW
C. THE SOURCES OF LAW
D. THE SOURCES OF AMERICAN LAW
E. THE AMERICAN COURT SYSTEM
F. WHAT IS TORT LAW?
G. EFFECTUATING THE GOALS OF TORT LAW: THE REMEDIES QUESTION
H. RELATIONSHIP BETWEEN TORT LAW AND OTHER SYSTEMS
PART II: INTENTIONAL TORTS
LIABILITY AND THE REQUIREMENT OF FAULT
The requirement of Fault – Van Camp v. McAfoos (37) McAfoos stands for the legal principle that a. To recover in tort, P must allege (and prove) that D's conduct was faulty.
Generally true – except perhaps in strict product liability.
THE ELEMENTS OF THE CAUSE OF ACTION FOR BATTERY
1. Prima Facie Case for Battery (elements of the claim)
A person is subject to liability for battery when s/he acts intending to cause a harmful or offensive contact, and when a harmful or offensive contact results. –(citing Rest. 2d Torts): Snyder v Turk
A contact can be offensive if D knows that P finds the contact offensive and nevertheless proceeds. Cohen v Smith
Underlying Principle behind this rule is protecting our personal integrity, which includes not only our physical integrity but also our personal autonomy.
2. Case Synthesis: elements of a prima facie case for battery
To recover for battery, P must prove:
Intent to cause a harmful OR offensive contact
offensive contact is a contact which is offensive to a reasonable sense of personal dignity
Intent may be established without a showing of intent to inflict personal injury; it may be proven by showing intent to offend
Actual harmful or offensive contact
harmful contact is one which causes injury
offensive contact is a contact which is offensive to a reasonable person’s sense of dignity Snyder v. Turk
A contact may be offensive if D knew that P found contact offensive Cohen v. Smith
ELEMENTS OF ASSAULT
1. Prima facie case for assault
1. INTENT to put in apprehension of imminent harmful or offensive contact.
To determine whether D’s intended to put in P apprehension of imminent (harmful or offensive) contact, look at D’s words + acts and circumstances.
Words alone not enough to show intent to put in apprehension.
But words can negate intent.
“I would kill you, but I love you”
Imminent does not mean instantaneous; it means “without significant delay.”
Threats of future harm do not prove intent to assault
The “Tests for intent” also apply here, purposeful, substantial certainty, transferred
2. ACTUAL REASONABLE APPREHENSION
Objective Standard: Whether, under the circumstances, a reasonable person would be in apprehension by Defendant’s actions
Usually an issue of FACT for the jury to determine
P must be aware of D’s act and of D’s apparent ability to carry out the threat
Apprehension must be of IMMINENT (not future) harmful or offensive contact -Imminent means w/o significant delay
D’s conduct must be more than mere verbal threats
Words alone not enough unless other acts or circumstances help to put Plaintiff in reasonable apprehension of an imminent harmful or offensive contact.
But words may negate an act so apprehension is not reasonable
Defendant’s word may negate Plaintiff’s subjective apprehension
2. Synthesis of the Rule(s) for Assault
Assault is effectuated when one acts intending to cause a reasonable person to suffer an imminent apprehension of a harmful or offensive contact. Cullison v Medley
E. INTRO TO SOME OF THE DEFENSES TO INTENTIONAL TORTS
1. Introduction to Self-Defense
A person 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 attacked, she is privileged to use reasonable force to forestall the attack or minimize its effects.
Elements of the defense
real threat (danger) of harm or reasonable belief that there is a threat of harm
reasonable person standard
Force which reasonably appears to be necessary for protection against threatened harm
force commensurate (equivalent) to threatened harm
Deadly force only to prevent great bodily harm or death
Reasonable person standard
2. Introduction to Consent
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.
a. Actual consent
Usually in writing
b. Apparent consent
Reasonable appearance that Plaintiff consented to Defendant’s conduct
Consider whether there was coercion or lack of capacity
C. DEFINING INTENT (Synthesizing the Element of Intent)
1. Tests to Prove Intent
Defendant acted with the purpose to cause a harmful or offensive contact
It must be deliberate desire to harm or offend
Intent to act is no
h how much less becomes cloudy at the margins. Mere threats of physical force can suffice, threats may be implicit as well as explicit, and confinement can also be based on a false assertion of legal authority to confine. Indeed, confinement may occur by other unspecified means of “duress.” McCann v. Walmart
Test: There is confinement if a reasonable person would feel confined under the circumstances (reasonable person standard)
Plaintiff must know of his or her confinement
Cause in fact
Factual connection between D’s act and P’s injury
Can recover for invasion of the right itself and compensation is not only for out-of-pocket damages
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
To recover damages for intentional infliction of emotional distress, a plaintiff must prove that: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the actions of the defendant caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe GTE Southwest, Inc. v. Bruce
Extreme and Outrageous conduct
Extreme and outrageous conduct is conduct so outrageous in character and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.
Conduct which causes the community to exclaim “Outrageous”
Conduct so outrageous in character and extreme in degree as to go beyond all bounds of decency
HOWEVER, mere insults, indignities, threats, annoyances, inconsideration or petty oppressions do not rise to the level of outrageous conduct.
In determining whether conduct is extreme and outrageous, courts consider
the context and the relationship between the parties including factors such as:
D exploiting P’s special vulnerability of which D knows
P’s vulnerability can be b/c of physical, mental, or other condition
D exploiting P & D’s unequal relationship (hierarchy/power) (a) Doctor or Therapist/Patient; (b) Priest Parishioner (c) Teacher/Student & (d) Employer/Employee