A Tort à A civil action between private individuals not based on a contract.
INTENTIONAL TORTS: Intending to do the act or intending to cause the harm.
I. Battery:
a. Definition: The intentional, unprivileged, and either harmful or offensive contact with the person of another.
b. If you eliminate any of these elements – intent, harmful or offensive contact, or absence of privilege – there would be no battery!
c. 2 Types of Battery:
i. Those causing physical harm
ii. No physical harm but offensive to one’s dignity.
iii. In both cases need to intend the contact, but not necessarily the harm/offensiveness.
iv. Battery: Harmful Contact
An actor is subject to liability to another for battery if
(a)he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
(b)a harmful contact with the person of the other directly or indirectly results.
v. Battery: Offensive Contact (A bodily contact is offensive if it offends a reasonable sense of personal dignity)
An actor is subject to liability to another for battery if
(a)he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
(b)an offensive contact with the person of the other directly or indirectly results.
d. Contact: You must intend the contact, but you do not have to intend the harm.
i. Requires some sort of physical contact à cannot be like spiritual or voice wave contact!
ii. What constitutes a contact?
1. blowing smoke
2. spitting on another
3. stepping on a shoelace
4. moving a chair and another hitting the ground
a. What is the contact here? Her hitting the ground, the contact does not have to involve the defendant directly touching the plaintiff.
e. Intent: Even if the test for offensiveness is objective, the intent element of battery is subjective in both the desire and the knowledge senses of the word intent.
i. Substantial knowledge that she was going to sit in the chair is used as intent in Garratt v. Dailey.
f. Case Examples: Battery: Harmful Contact (rather than Offensive)
i. Vosburg v. Putneyà Wrongdoer liable for all injuries resulting from the act whether or not they are foreseeable
ii. Central enigma of the case: Defendant could be held liable for a battery despite an express finding by the jury that he did not intend to harm the plaintiff.
iii. The judge determined it was the intent to commit that act. The extent of the harm is secondary. Harm does not have to be the intent
iv. The plaintiff did not feel the kick right away. Was it necessary that the he be aware of the contact (that he was hit)? No. Court held it’s a battery whether you are conscious of it or not.
g. Garratt v. Daileyà Intent to cause contact OR the apprehension of contact OR substantial certainty that contact or harm will result.
i. Case establishes “Knowledge-based intent” or “the doctrine of constructive intent” à A legal principle that actual intent will be presumed when an act leading to the result could have been reasonably expected to cause that result! (Need this because we can’t read minds.)
1. If subjective intent is present, then there is no requirement of substantial probability (success be highly probable).
ii. Constructive intent governs situations where the actor does not subjectively desire the harmful or offensive contact!
h. Russian-Roulette Case: Between 2 teens with a gun one barrel filled out of 6 à do we have intentional battery? Is there intent to harm here?
i. No intent to harm, but YES there is substantial certainty! One should assume harm may result from the action of playing. Therefore, we have battery here.
i. Transferred Intentà “If one person intentionally strikes at, throws at, or shoots at another, and unintentionally strikes a third person, he is not excused, on the ground that it was a mere accident, but it is [a] battery of the third person. Defendant’s intention, in such a case, is to strike an unlawful blow, to injure some person by his act, and it is not essential that the injury be to the one intended.”
j. Fisher v. Carrousel Motor Hotel à Contact with something closely associated with the person is going to be enough for a battery!
i. Grabbing a plate from another while calling the other a derogatory name can constitute a battery, so long as there is contact with clothing or an object closely identified with the body.
ii. Example: Insurance agent throws a penny on a client’s hospital bed, that contact established a battery claim à see how far can take the contact requirement in order to get the battery.
k. Ambiguous Contact!
i. Leichtman v. WLW Jacor Communications (smoking case): Contact is particles of smoke!
1. Changes with time how sensitive we are about this smoke contact, result changes in tobacco states versus states like CA.
2. “Glass Cage” Defense à McCracken v. Sloan: Mentioned in above case à Shows tort of offensive battery is elastic and changes with social standards. Here, court says cannot recover on battery charge due to the contact of smoke since you cannot build a glass cage around oneself and hold all liable who infringe on it.
ii. Vosburg v. Puttney
1. Was it necessary that Vosburg be aware that he was kicked? Court ruled no! What do you think?
2. Foreseeability issue here.
iii. Could you have a battery one being kissed while sleeping?
iv. Could you have a battery of someone molested while passed out or drunk?
II. Privileges and Consent
a. Consent: Willingness in fact for conduct to occur, it need not be communicated to the (D)!
b. Consensual Privileges: Depend on the (P) agreeing to the (D)’s otherwise tortuous act.
c. Nonconsensual Privileges: Shield the (D) from liability for otherwise tortuous conduct even if the (P) objects to the defendant’s conduct.
i. Can one consent without intending to?
1. O’Brien v. Cunard Steamship (inoculation case): Can one consent without intending to consent?
2. Trudlow Problem: Mother wanted a civil action against 14-year-old daughter’s sexual partner.
a. How can you argue that a minor did not consent to sex with an adult when she said she allowed it to happen? Not properly aware of the consequences. Does not know what sex really entails. Etc.
b. Two Procedural Devices Allowing Minors to Be Represented in Court:
i. The guardian ad litem (guardian for the suit) à A minor 14 or over may nominate the guardian ad litem to represent him in the suit.
ii. The next friend à brings a suit on behalf of the minor.
iii. Both are representatives who act on behalf of the minor party.
iv. The consent of a minor is not a prerequisite to the appointment of a representative.
v. It stems form the theory that the minor is a ward of the court.
vi. In the end, the court holds the ultimate responsibility for protecting the rights of the minor and can remove a representative it feels is not doing the job right.
3. Barton v. Bee Line – bus driver has sex with minor passenger!
a. If it is held that underage females can recover monetary damages for having consensual sex, this can to abuse. “Instead of incapacity to consent being a shield to save, it might be a sword to desecrate.”
b. Keep in mind that this is a minority view. Most courts have applied statutory rape statutes in civil cases regardless of proof that the individual plaintiff was able to understand the nature and consequences of her act.
d. Majority rule is that consent to a criminal act is no defense.
i. Totally irrelevant in civil cases à in cases of a criminal act, consent does NOT constitute a privilege.
ii. May help to expose and deter clandestine activities by allowing the “willing” victims of such activities to sue for damages!
e. Classic case long ago where there were hunters who were wolf hunting saw what appeared to be wolf, really killed plaintiff’s dog (trespass to chattels).
i. Was this intentional tort? Yes, they hit the bull’s eye.
ii. Are you liable for an accident?
iii. Did intend to kill an animal saw. Liable for mistakes but not accidents. So NOT liable in this case.
f. Professional Responsibility
i. May be situations where this affects privilege and responsibility.
ii. Bang v. Charles T. Miller Hospital – severance of spermatic cords; Kennedy v. Parrott – operate appendicitis find cyst
1. Bang case: The P was under no immediate emergency/threat therefore, the doctor should have explained to him his options.
2. Kennedy v. Parrott is not universally followed.
a. ISSUE of “informed consent” à court held for physician saying when he is given consent to perform a certain medical operation or treatment and thereafter extends the operation or treatment beyond the boundaries of the consent given it is ok as part of sound medical treatment.
b. Informed consent – Hackbart football case (HOLDING: The notion is not correct that all reason is abandoned when one enters the realm of professional football.)
iii. Doctor would need to get consent:
1. Not get when under anesthesia
2. Is there an emergency?
3. Court said generally we will imply consent when the following conditions are all met
a. P unable to give consent at time
b. Emergency situation presented
c. A reasonable person would have consented if had opportunity
d. No evidence that this particular plaintiff would have refused consent
III. Self Defense
a. Saunders v. Petrangelo (thought black man robbing him with a gun at convenience store, was not a gun = umbrella)
i. May not use force “in excess of that which the actor correctly or reasonably believes to be necessary for his protection.”
ii. Imminent not mentioned in the abridged versions of 70 and 71 in the book, but it is there in the full version!
1. Small kid clubs bully with baseball bat
a. Was he facing an imminent threat of equal magnitude?
i. At the time when he applied the force it was not reasonable since the kid was bending over at a locker and the defendant repeatedly hit the unprepared plaintiff with a baseball bat.
ii. The
, boat destroyed, people thrown in lake, suffering injuries.
i. HOLDING: It is clear that an entry upon the land of another may be justified by necessity, and that the declaration before us discloses a necessity for mooring the boat.
ii. In Ploof, if D employee just failed to tie up rather than actively untie the boat, then case may have turned out differently?
b. Vincent v. Lake Erie Transportation (wharf owner prevailed): A vessel had to bring cargo to P, once the cargo was unloaded, the weather had gotten so bad that the workers on the vessel could not depart. So, the vessel was left moored there as the wind knocked it against the dock leaving substantial damage.
i. HOLDING: A defendant may prudently and advisedly avail itself of the plaintiff’s property for the purpose of preserving its own more valuable property.
ii. REASONING: PUBLIC NECESSITY MAY REQUIRE THE TAKING OF PRIVATE PROPERTY FOR PUBLIC PURPOSES, BUT UNDER OUR SYSTEM OF JURISPRUDENCE, COMPENSATION MUST BE MADE.
c. Rule covering both circumstances: GENERAL RULE:
i. Entry upon and use of another’s property may be justified by necessity to save human life or prevent serious harm to property, but in some cases damages to property may entitle the plaintiff to compensation.
d. Should tort law always favor human life over property?
i. Should we shoot one who is attempting to destroy a famous work of art?
e. Problem about the woman who does not let the man needing refuge from the snow storm in to her home:
i. LEFT OFF HERE
ii. Should it make a difference if he gets a foot in the door?
iii. Do technical difference make a difference in liabiltity?
f. RULE: Owner no right to evict trespasser if motivated by necessity
g. RULE: But owner may evict if reasonable believe at risk or family at risk (defense of others)
h. P. 99 Potential for class bias in these cases
i. Look at these cases in the hierarchy privs
i. Ploof a limit on the right of one to defend one’s property à higher priv on defending one’s person or life
ii. Is turning him away the same as cutting away the mooring cables in Ploof? No. In Ploof they were clearly struggling and needed immediate help. Here not clear he needed help, could not understand him or his state. Fearful of him so she turned him away, was mumbling, hiding something behind his back, etc.
j. HYPO: Husband and wife come home, find some people in driveway digging a ditch. Get into yelling match with them. Wife goes inside to call police. When go outside, find husband in ditch. He had suffered a heart attack.
i. A trespass case.
ii. Look to Vosburg v. Putney
iii. We do have liability here, had to intend the trespass, not the hear attack. The contact that resulted in the harm has to be intentional, not the harm.
k. HYPO: A while driving B (an infant) on a sled, to save time throws B to following pack of wolves, so gets to shelter in just enough time. B’s parents sue A.
i. Is A liable? Is it like Vincent?
VII. Intrafamily Immunities
a. Husband/wife immunity
i. When does immunity between husband and wife not make sense? Situation of physical abuse, you should be able to have lawsuit there.
1. EXAMPLE: Case in FL à a woman and other members of the family were attacked by husband with a machete. They divorced. The woman then sued in a tort case for damages, husband said should be excused due to the doctrine of intra-spousal immunity. Court decided in this case there is no reason to keep the husband-wife immunity. In general, this sort of immunity is on the way out. Even if couldn’t do in a tort case, could still do as a criminal case, so what is the point of the immunity?
ii. Why does this doctrine exist? To avoid frivolous lawsuits. Judicial avoidance of acts that could disrupt the family or foster marital discourse. There may be some fraud going on here, going from the insurance pocket to the plaintiff’s pocket which is really the defendant’s pocket.
b. Parent/child immunity: Permitted when the action would promote family discord and interfere with parental control.
