TORTS OUTLINE
Professor Mutcherson Fall 2009
· 1. Intentional Injury, Failure to Exercise Care, and Strict Liability; Basic Intentional Torts
o TORT
§ “A private civil wrong or injury for which a court will provide a remedy in the form of an action for damages.” [Black’s Law Dictionary]
§ Remedies
· Damages (monetary)
· Injunctions
· Restitution
· Self-help
§ POLICY CONSIDERATIONS p. 7-9 in txt
· Liability should be based on fault
· Liability should be proportional to fault
· Liability should be used to deter accidents
· Cost Spreading- spreading costs across a large spectrum
· Cost Shifting- those most able to bear losses should pay them
· Those who benefit from dangerous activities should bear resulting losses
· Predictability
· Facilitate Economic growth
· Administrative convenience
· Discourage waste of resources
· Deference to Co-equal branches of government
· Full compensation for accident victims
§ Minors and Torts
· A minor is as liable for a tort as any other person would be- common law rule [Garrat v. Dailey child moves chair from arthritic woman]
· Immaturity of a child is taken into account in determining whether a tort has been committed
o Child may be too young to form the required intent
· Parents can be liable for minor’s torts if state statute allows for it. Without a statute, common law dictates minor is liable and not parents. txt p. 52-53
§ Continuing Torts
· Where a tort involves a continuing or repeated injury, statute of limitations does not begin to run until the date of the last injury or date the tortious acts cease [Feltmeier]
o According to Discovery rule statute of limitations begins to run when P knows or reasonably should know that an injury exists and that it was wrongfully caused
o CATEGORIES
§ Intentional Injury (Basic Intentional Torts)
· Intent:
o Intent and Mistake: There is liability for an unavoidable mistake, not protected for a good faith mistake [Ranson v. Kitner shooting of dog that looked like wolf]
§ Except if mistake induced by Plaintiff (if dog intentionally dressed as wolf]
§ Contributory negligence not a defense to an intentional tort
o Intent and Insanity: Mentally ill person committing an intentional tort is liable if- (1) can form intent and (2) did in fact have the requisite intent [McGuire p. 47]
o Intent and Intoxication: Intent exists if drunk on purpose, if drink spiked lack of intent due to involuntary intoxication can be a defense
o Transferred Intent:Applies if actor’s blow, if it had struck intended target, would have resulted in an intentional tort “intention follows the bullet”(examples on Class 4 Slide 12, p. 51 in txt)
§ Only works with Assault, Battery, False Imprisonment, Trespass to land, Trespass to Chattels, Outrage (intentional infliction of emotional distress)
§ Requires no proof of actual damages
· Battery: An intentional and unconsented infliction of a harmful or offensive bodily contact upon another
§ Regardless of intent to harm, only need intent to commit the act [Vosburg v. Putney]
§ Respondeat Superior: Employer responsible for employee acting within scope of employment [Lambertson v. US]
§ “Eggshell Skull Principle”: Once a P suffers any foreseeable physical injury, the D is liable for the full extent of harm to P, even if harm is compounded by P’s unique susceptibility (putting tack on hemophiliac’s seat and he bleeds a lot and needs hospitalization)
§ Lack of awareness at time battery committed will not defeat action for battery
§ Indirect force also constitutes battery (throwing water, etc.)
o Damages: Compensatory, Nominal, Punitive
o Required Elements:
1. A volitional act
2. Intent to make contact (Purpose Intent or Knowledge Intent)- Intent can be satisfied by showing of a purpose of causing harmful or offensive contact or with the knowledge that harmful or offensive contact is substantially certainto occur
*Purpose Intent: Defendant’s subjective wishes affect it, exists when D acts with purpose of causing the consequences the law forbids
*Knowledge Intent: exists if the D, regardless of subjective purposes, knows with substantial certainty that the act in question will cause the prohibited result. Absolute certainty not required.
3. Harmful or offensive contact (same def. as for assault)
Contact: Contact with something intimately connected to body is sufficient to support action for battery (as with a camera someone is holding), Objective reasonable person test.
4. No consent or privilege [Brudney, Police Officer had privilege to strike]
· Assault
o Required Elements:
§ Volitional Act
§ Intent (purpose or knowledge with substantial certainty)
§ Causes apprehension (NOT fear) of imminent harmful or offensive contact
· Harmful- term of art, any alteration of structure or function of the body even though the change in no way affects P’s health
· offensive- contact that would offend a reasonable person’s sense of personal dignity
o both are objective tests, certain contacts such as pushing in a crowd do not meet these requirements
· P must believe that D had apparent ability (loaded v. unloaded gun) to carry out threatened battery
§ Lack of consent or privilege
o Words unaccompanied by some threatening gesture generally not actionable
§ Exception: Repeated verbal advances especially vulgar ones
o Future threats not actionable for assault, neither are conditional threats usually
o Damages
§ Compensatory
§ Nominal
§ Punitive
· Intentional Infliction of Severe Emotional Distress (Tort of Outrage) p. 69 txt
o Elements:
§ Intentional or reckless (Intent to cause the emotional distress)
§ Extreme and outrageous
· Conduct is beyond all possible bounds of decency, atrocious, utterly intolerable in civilized society
· Can be outrageous if D proceeds with knowledge of P’s peculiar sensitivity to emotional distress by reason of physical or mental condition
§ Causes emotional distress
§ Severe emotional distress
o Abusive language and insults generally not actionable, but:
§ Liability test is whether D’s conduct would cause severe emotional distress to a person of ordinary sensibilities
§ Also could be liable for insults if D knew P is susceptible to emotional distress by reason of physical or mental condition and D proceeds to insult anyway
o Abusive Language liable if:
§ D is common carrier (airline, busline, etc.) innkeeper, or utility
§ Gross insults that reasonably offend passengers
§ Inflicted by employees acting within scope of their employment
§ Objective test with some subjectivity- can take into account obvious condition of P
§ P must be a patron
o Bystanders and 3rd Persons only eligible to collect if immediate family member of victim (3rd Res. of Torts). Recovery depend
nces exist when death is likely to result immediately upon the failure to perform an operation or provide other medical services.
o Emergencies and implied consent- court will generally imply consent when:
§ the patient is unable to give consent
§ there is a risk of serious bodily harm if treatment is delayed
§ a reasonable person would consent under the circumstances
§ this patient would consent under the circumstances
§ Capacity to Consent requires
· P appreciate the “nature, extent, and probable consequences of conduct consented to”
· If D knows P is intoxicated and incapable of consenting, P’s failure to object or his active manifestation of consent, will not protect D [Davies hazing drinking club]
· Youth or mental incapacity may also make a person unable to consent
§ Striking a professional athlete outside the rules of the game is a battery, P does not consent to be struck outside the rules of the game (as in a sucker punch during a football game)
§ Healthcare decisions for minors
· General Rule: Parents get to make decisions for their minor children, including decisions about whether to pursue or forgo medical treatment. This rule is not absolute- some exceptions
o Doctor can’t be charged for operating on child without parental consent in a life-threatening circumstance [Miller v. HCA, Inc- baby born premature and disabled]
§ Consent and Mistake (see txt p. 145 for historical analysis of fraud in factum v. inducement)
· Modern view is that any mistake sufficiently material to play a role in P’s decision-making process will invalidate consent.
o Mistake must be reasonable (assuming someone with a doctor is a doctor [DeMay]
o D must know about mistake (even if D did not induce mistake)
o P must not know about mistake
· Mutual mistake does not invalidate consent of Plaintiff
§ Consent and Duress general rule
· Consent given under duress is invalid
o Duress is use or threat of force against P’s or family member’s person or property
§ Economic duress or humiliation threat does not invalidate consent
§ Consent to Criminal Acts depends on jurisdiction (p. 147 of txt)
· Majority Rule: Consent to a criminal act is invalid
· Minority Rule (Also Restatement Rule): Consent to criminal act will bar an intentional tort action if the parties are equally at fault
o DEFENSE OF SELF AND OTHERS
§ Privileges and Defenses typically must be pleaded and proved by the D or else they are not part of the case. Ask:
· 1. Who may assert the privilege
· 2. What belief is required
· 3. What is the effect of a mistake of fact?
· 4. How much force can be used?
· 5. Are there special rules?
Defense of Self requirements (objective reasonable person test and TOTAL DEFENSE
