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Torts
Rutgers University, Newark School of Law
Troutt, David Dante

Intentional Harming

Substantial certainty satisfies the intent requirement. (Garrat v. Daily)
Insurance companies have been forced to pay for children’s intentional acts where result of the act was not intended.
Insurance companies can not be obliged to defend D from assault (public policy)

Negligent Harming

Defendant cannot be liable for failing to prepare for “a contingency against which no reasonable man can provide.” (Blythe v. Birmingham)
But once the event occurs, they are on notice for the future and will be liable.

Vicarious Liability

Master: employer of agent and control’s agent’s physical conduct
Servant: is employed and has physical conduct controlled by master
Independent Contractor: is contracted but not controlled in physical conduct (he is solely liable unless he is contracted to do a non-delegable duty (where liability remains with employer because the task is inherently dangerous to others or require peculiar care and skill).

I. EMPLOYER-EMPLOYEE RELATIONSHIP
A. Respondeat superior doctrine: If an employee commits a tort during the “scope of his employment,” his employer will be liable (jointly with the employee). This is the rule of “respondeat superior. ” (not independent contractors)
1. Applies to all torts: The doctrine applies to all torts, including intentional ones and those in which strict liability exists, provided that the tort occurred during the scope of the employee’s employment. [288] 1. Distinction: The main idea is that an employee is one who works subject to the close control of the person who has hired him. An independent contractor, by contrast, although hired to produce a certain result, is not subject to the close control of the person doing the hiring. [288 – 289] a. Physical details: The “control” required to make a person an employee rather than an independent contractor is usually held to be control over the physical details of the work, not just the general manner in which the work is turned out.
Factors for determining if one is servant vs. independent contractor
1 extent of control master exercises over work, 2 whether employee is engaged in specific occupation, 3 kind of occupation and whether it is usually done under employer or without supervision, 4 skill required, 5 who supplies instruments and workspace, 6 length of employment, 7 method of payment (time or by job), 8 whether work is part of employers regular business, 9 whether they believe it is master/servant relationship, 10 whether principal is business.
C. Scope of employment: Respondeat superior applies only if the employee was acting “within the scope of his employment” when the tort occurred. The tort is within the scope of employment if the tortfeasor was acting with an intent to further his employer’s business purpose, even if the means he chose were indirect, unwise or even forbidden.
Conduct of a servant is within the scope of employment if, but only if:
1. It is of the kind he is employed to perform
2. It occurs substantially within the authorized time and space limits.
3. It is actuated, at least in part, by a purpose to serve the master, and
4. the use of force (if any) is foreseeable by the master
1. Trips from home: Most courts hold that where an accident occurs where the employee is travelling from her home to work, she is not acting within the scope of her employment. If the employee is returning home after business, courts are divided. [290] 2. Frolic and detour: Even a detour or side-trip for personal purposes by an employee may be found within the scope of employment if the deviation was “reasonably foreseeable. ” [290 – 291] (Example: While D, a salesperson, is taking a two-hour trip to visit a business prospect, she makes a five-minute detour to buy a pack of cigarettes. If an accident occurred during the detour, this would probably be held to be “within the scope of employment,” so that D’s employer would be liable. But a two-hour detour for personal business while on a one-day trip would probably not be within the scope of employment. )
3. Forbidden acts: Even if the act done was expressly forbidden by the employer, it will be “within the scope of employment” if done in furtherance of the employment. [291] (Example: D, a storekeeper, expressly orders his clerk never to load a gun while showing it to a customer. The clerk ignores this rule and loads the gun, the gun goes off and the customer is hurt. D will be liable because the loading, though forbidden, was done in furtherance of the employer’s business purposes, i.e., sale of guns. )
4. Intentional torts: The fact that the tort is an intentional one does not relieve the employer of liability. [291 – 292] (Example: X is a bill collector for D. X commits assault, battery and false imprisonment on P in attempting to collect a debt. D will be liable. )
a. Personal motives: But if the employee merely acts from personal motives, the employer will generally not be liable. (Example: Nurse at D hospital has always hated P because of a prior fight. While P is in the hospital, Nurse kills P. D will not be liable, because Nurse has obviously acted from personal motives, not in an attempt to further D’s business. )
Master is not liable when his servant acts outside scope of employment unless: 1. master intended conduct or consequence 2. master was negligent or reckless 3. conduct violated a non-delegable duty of master 4. servant purported to act or speak on behalf of master and relied upon apparent authority or was aided in accomplishing tort by existence of the agency relation

Courts will hold liability for intentional acts where they are intended to serve (however misguidedly) the employer’s purposes. The motivation to serve test! (Restatement leaves it at that) However, there is still an expansive view of torts being “incidental” to employment and thus finding liability.
Courts do deny liability for employer where employee steals something.
Kind of Conduct within scope of employment:
1.Conduct must be of the same nature or incidental to authorized conduct
2. Determination that conduct is similar or incidental is based on:
whether act is commonly done by servants/time, place and purpose/previous relations between master and servant/extent to which business of master is divided among servants/whether act is outside enterprise of master, or if within, wh

armful or offensive contact. Defendant must 1. Intentionally cause contact with the plaintiff 2. the contact must be harmful or offensive 3. and it must be without the consent of the plaintiff. 4. And it must not be privileged.
Intent to commit assault is sufficient to constitute intent for battery if contact results.
Harmful or offensive: causes pain or bodily damage, or is damaging to a “reasonable sense of dignity.”
Battery can occur even if the plaintiff is unaware of it at the time (e.g. during medical procedure, while asleep, etc.)

Battery protects against intentional invasion of the plaintiff’s physical integrity.
Must be the result of a voluntary act intended to inflict harmful or offensive contact or with substantially certain that such contact will result.
Must be without Consent
Must be without Privilege

Intent is required because of higher moral culpability for battery.

Transferred intent: If A tries to hit B, and hits C instead, A is still liable for battery. Reasoning is that actor’s conduct is just as culpable when he hit C. Also works if you throw a rock into a crowd- even though you don’t know who it will hit, you know it is substantially certain to hit someone.
Transferred intent between torts: If a tries to hit B but misses, and B is frightened, A is liable for assault.

Offensive contact “offends a reasonable sense of personal dignity”- reasonable person in the circumstances of the plaintiff, standard.- it does not matter if the defendant thought it would be offensive or not- it counts either way. At the same time, a hyper sensitive person is not protected- unless the defendant knew about their hyper-sensitivity, he is only liable if the conduct would be offensive to a reasonable person. off

Contact can be established even if A uses an instrument to invade B (e.g. pokes him with a stick). A need not even be present at the time of contact. For example, if A sets a trap to injure B and it is successful, he has committed battery.

Substantial certainty satisfies the intent requirement (Garret v. Dailey) (5 year old)

Battery requires intentional bodily contact that is either harmful or offensive. The desire to bring about injury is not necessary, so long as the contact is intended and the result is either harmful or offensive. (White v. University of Idaho) (Piano teacher)

Children have the capacity to intend actions and are liable for battery (Ellis v. D’angelo)

Insane people are liable for intentional torts- can make crazy choices. (Polmatier v. Russ)