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Rutgers University, Newark School of Law
Troutt, David Dante

Professor David Dante Troutt – Torts – Fall 2010

Introduction to Torts

I. What is a Tort? Civil wrongs committed by one person in civil society against another, whose commission entitles the party injured to redress from the party inflicting the injury.

1. Troutt’s definition – legal regulation of acceptable and unacceptable behavior. Purpose is achieved through material damages.

2. Smothers v. Gresham Transfer Inc. – Plaintiff had right to sue for remedy because it trampled on the individual’s right to sue for injury; which is a birthright dating back to the ratification of the Magna Carta.

i. 1995 statute that barred workers from suing for injuries was unconstitutional as applied to the case.

II. Four Types of Torts

1. Intentional Harming – Battery – legal cause for harmful contact with another person makes the actor liable to the other. [Battery is addressed later with more depth]

2. Negligent Harming – Negligence [basic] – omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable person would do.

i. Blyth v. Birmingham Waterworks Co. – Defendant not negligent because severe frost was unexpected; it is unreasonable for the Water Works to anticipate such a rare occurrence.

3. Vicarious Liability – Respondeat superior doctrine – An employer is vicariously liable for any tortious acts committed by his employee within the scope of employment; parents cannot have vicarious liability to their children – use negligence analysis

i. Kohlman v. Hyland – Whether the worker’s driven route can be considered a frolic or detour (permissible zone of deviation) is a matter of the jury

1. Frolic – >Employer not liable; Detour – > Employer liable

ii. Does not apply to torts committed by the employee outside the scope of employment

4. Strict Liability – One who carries on an abnormally dangerous activity is subject to liability for harm to another person, land or chattels, resulting from the activity.

i. Exner v Sherman Power Construction Co – The Power Company is strictly liable for damages because dynamite causes likelihood of risk to others. Thus he is an insurer and is absolutely liable if damage results to third person either from the direct impact of rocks thrown out by the explosion or from concussion.

III. Intentional Torts: Battery

1. Elements –

i. Battery is the intention to cause the infliction of harmful or offensive bodily contact.

ii. Contact is not consented to by the other or other’s consent is procured by fraud or duress and

iii. Contact is not otherwise privileged

1. Intent – R3d – intent requires that:

a) The person acts with the purpose of producing the consequence, or

b) The person acts knowing that the consequence is substantially certain to result

o Garrat v. Dailey – five year old pulled out chair from under his aunt – court held that if D knew with substantial certainty that the plaintiff would try to sit down and fall he had intent (remanded to find facts)

o Beauchamp v Dow Chemical – Mich Supreme Court held that for intentional torts, the standard is if the actor knows that the consequences are certain to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. (Man sues for impairment to bodily functions caused by Agent Orange)

o Court had difficulty deciding which standard for intentional tort to use

o MI Court of Appeals used this test: “the plaintiff must allege that the employer intended the injury itself and not merely the activity leading to the injury.

b. Harmful Contact –

1. White v. University of Idaho – Intent does not require a desire or purpose to bring about a specific result or injury; it is satisfied if the actor’s affirmative act causes an intended contact which is unpermitted and which is harmful and offensive.

iv. Professor was simulating the piano-playing motion on student’s back. Student is severely injured.

v. Troutt’s notes: Minority ruling; most states would rule it was NOT battery. This is an example of how battery element is fulfilled with INTENT TO DO THE ACT THAT CAUSES HARM

2. Ellis v. D’Angelo – Children could be liable for torts (i.e. battery) even though he lacks the mental capacity to recognize the wrongfulness of his conduct.

vi. Facts: Parents of children who commit battery are liable under the idea of negligence – “parent may become liable or an injury caused by his child, where the parent’s negligence made it possible for the child to cause the injury complained of, and probable that it would do so.”

C. Offensive Contact

1. Fisher v. Carrousel Motor Hotel Inc – To be liable for battery, one does not necessarily have to disturb another’s actual body physically, it could consist of an offense to one’s personal dignity.

A. It is also not necessary to touch the plaintiff’s body or even his clothing, knocking or snatching anything from plaintiff’s hand or touching anything connected with his person when done in an offensive manner is sufficient.

B. Facts: A black man had his plate snatched by a white waiter in a Texas eatery. The man sued the waiter and the company that owned the eatery.

IV. Defenses to Battery

1. Consent – is a defense to an intentional tort

i. inferred from peace conduct with other reasonable persons

ii. Content of consent is determined from what reasonable person would und\erstand to have consented to.

iii. Consent is only effective when –

i. There has to be actual knowledge.

ii. Environment of freedom of choice.

d. How is consent communicated?

i. Expressed Consent – Example is from a contract.

ii. Manifest consent –

a. Implied Consent – under the circumstances, the conduct of the individual reasonably conveys consent.

a. O’Brien V. Cunard Steamship Co. – Consent to a physical act rules out the claim for battery.

Facts: A lady was suing for negligence and battery after having an alleged unconsented vaccination. Evidence indicates otherwise since she let her hand out.

b. Presumed Consent – ex. Imposition of consent in medical emergency and you expect paramedics on scene to save a life and nobody can give consent

c. Imposed Consent

a. Kennedy v. Parrott – If the patient is unable to give consent, the doctor may use his sound medical judgment to extend the operation if needed; thus it is not battery.

i. Facts: Woman went into surgery for appendectomy however the doctor discovered enlarged cysts on her left ovary; he got rid of them but the plaintiff ended up suffering from phlebitis. She claims that it is battery/trespass since the surgery’s extension was without consent.

d. Informed Consent

iii. Consent by Law – Emergency professionals have consent by law to perform emergency medical treatment when a victim is unconscious and unable to provide assault.

V. How is consent vitiated (invalidated)?

ii. Incapacity – expressed and implied manifestations be invalid b/c of insanity or retardation or age.

a. Moss V. Risworth – Assumed consent is not a full defense for battery

i. Facts: Defendant performed surgery on a 11-year old patient. He assumed that he had consent to perform surgery since the patient’s aunts brought the patient to him, however parents were not informed. Patient died.

iii. Action Beyond Scope of Consent – Can be invalidated if action goes beyond the consent manifested.

a. Markley v. Whitman – One is liable for battery when another has not consented to participate in a game or other activity.

i. Facts: Defendant was playing a horse-game

dard; however the subjective standard is generally a bona-fide belief by the defendant in the imminence of harm and need to respond to it.

2. Elements

i. Intent – The defendant must desire or be substantially certain that her action will cause the apprehension of immediate harmful or offensive contact. The transferred intent doctrine is applicable to assault

1. State v. Ingram – An overt act or an attempt or unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another is important for demonstrating assault.

1. Facts – Man comes off of the road and ran through the woods seeing some girl. He stopped by a certain area, watched her and did not speak. He eventually turned back but the girl was frightened.

ii. Apprehension – victim must perceive that harmful or offensive contact is about to happen to him.

1. Read v. Coker – Actual touching does not have to occur, just the mere threat of violence can constitute assault.

1. Facts – Man at a factory was threatened with being beaten up w/ the sleeves rolled up.

iii. Immediate – For assault to be actionable the victim’s apprehension must be of imminent harmful or offensive contact.

1. Brower v. Ackerly – Threats to inflict harm to someone, without a clear time frame, cannot be considered assault because the danger is not immediate.

1. Brower received a series of menacing telephone calls at his home. The threats were not accompanied by circumstances indicating that the caller was in a position to reach Brower and inflict physical violence almost at once.

3. Standard used for judgment – Courts generally use the objective standard, in which it is examined through the reasonable person standard EXCEPT for cases of domestic abuse.

4. Reference Cases

i. Reader v. Coker – An assault is a threat of violence or harm, but does not necessarily need to constitute touching.

1. The Plaintiff rented a building from the defendant in which he carried on his business as a paper-stainer. The Plaintiff was behind in his rent, so defendant paid off the landlord and carried on the business as usual.

2. One day, the defendant gathered up some of his men and threatened him that if he didn’t leave, they would break his neck. The plaintiff left fearing the men would strike him. He is now complaining of assault

VII. False Imprisonment – Elements

1. Act or omission on defendant’s part that confines or constrains plaintiff

· Restraint must be substantially total; may be based on a reasonable apprehension of force.

· Restraint must be against plaintiff’s will

2. To a bounded area

· No reasonable means of escape known to plaintiff.

· Plaintiff must consciously appreciate/be aware of the confinement or be physically harmed by it.

3. Intent

· Defendant must intend to impose the restraint with substantial certainty

4. Causation

Example used – The hair relaxer being used on the woman in which she could only remove the relaxer with special gloves. The woman was put into confinement with the threat that she sign this contract or else.