Torts. Professor Ewing. Fall 2010.
RULES
Battery
Intent, Harmful/Offensive Contact
White v. Univ. of Idaho(piano touching)
-Test: would a reasonable person object to the contact?
-Regardless of harm, if the contact was offensive it can be battery
Keel v. Hainline (throwing erasers around)
-The intent can be transferred (if A intended to hit B, but hit C instead, A still liable)
-If the act was wrongful, the intent was wrongful
Manning v. Grimsley(annoyed pitcher)
-Liability exists for anyone who is physically injured as a result for intentional harmful contact
Morgan v. Loyacomo (stolen clothing)
-Not necessary to have actual contact, L as long as action is done in rude or insolent manner
Wallace v. Rosen(crowded world)
-In a crowded world, a certain amount of personal contact is inevitable and must be accepted; the license of a situation and the relationship between the parties will determine the reasonable contact permitted
Consent => (1) willingness for conduct to occur; (2) can be considered consent if words and conduct are reasonably understood
Rule: A doctor who performs additional surgery for patient while patient is under anesthetic is not liable if patient’s willgness to undergo operation exists
Rule: Consent is nullified when there is fraud involved that goes to the very character of the act that is being consented to
Grabowski v. Quigly (ghost surgery)
-Consent to one person cannot be transferred to another
-Where a patient is mentally and physically able to consult about his condition, in absence of emergency, consent of the patient is prerequisite to a surgical operation by his physician and an operation without the patient’s consent is a technical assault
Brzoska v. Olson (dentist/AIDS)
-A battery consists of touching of a substantially different nature and character than that which the patient consented; when the patient is touched in exactly the way he/she consented, that consent is not vitiated
Cohen v. Smith(naked patient)
-Informing others about objections can constitution implicit refusal of contact (patient making condition on consent knowing BEFORE procedure constitutes notice)
Werth v. Taylor (Jehovah’s Witness)
-There are limitations of consent/lack of consent that can be overruled in times of emergency
-Law imposes consent of an unconscious patient to medical procedures needed to preserve patient’s life
Rains v. Superior Court (sluggo therapy)
-Intentionally deceiving another into submitting to otherwise offensive touching to achieve a non therapeutic purpose known only to the physician amounts to legally ineffective consent
Freedman v. Superior Court (Pitocin)
-If the effect of the act that plaintiff consented towards of “essential character, than no liability for the defendant
McNiel (road rage)
-Consent to fight must be treated as utterly void, each party must be left to suffer all the consequence
Hart v. Geysel (illegal prize fighting)
-No man shall profit from his wrong doing; one who has sufficiently expressed his willingness to suffer a particular invasion has no right to complain if another acts upon the consent given
-However, if the consent is exceeded, than its an intentional tort (fist fight, but then gun is used)
Trespass
Liability for Intentionally Intrusions: (1) Enters in possession of the other causes a thing or 3rd person to do so, (2) Remains on land, (3)Fails to remove from land a thing which he is under a duty to remove
Consent Rule: A conditional or restricted consent to enter land creates a privilege to do so as long as the condition or restriction is complied with
Desnick v. ABC
-If consent procured by fraud, may be valid consent/defense as long as entry is not invasive in the interest of P or interference with ownership or possession of land
-If the trespass occurred at a business help open to the public and the information collected was socially useful/for the public good, that its distinguishable from someone who lies in order to gain access to property with intention to snoop around
Knowledge Rule: Relevant intent with regard to trespass is the person’s intent to go where you went, NOT their intention to trespass (C intentionally goes on A’s land thinking he’s on B’s land, C is trespassing on A’s land because he had intention of being there)
Pegg v. Gray (cow/dogs)
-Owner of a dog not answerable for its entry upon lands of another; however, if owner has actual or constructive knowledge that dogs/animals will go on lands of others, that constitutes trespass
-Farmers and Ranchers are held strictly liable for damages done by their trespassing animals regardless of fencing efforts
Malouf v. Dallas Athletic Country Club
-For trespass, one has to have intent to enter land (golfer aiming for flag on your property because they thought it was flag on course)
Van Alstyen v. Rochester Telephone Co.
-A person who intentionally enters the land of another is subject to liability as a trespasser even if he acts under mistaken belief when he is in possession of the land, consent of the possessor has some privilege to enter or remain
-By depositing lead on the plaintiffs land, defendant is liable for consequences regardless of whether the results could or should reasonably have been foreseen of whether acts constituted negligence
-If act interferes with use of property of landowner, even if unintentional act, its trespass
-consent may be given, but if the defendant exceeds boundaries of consent given, that’s trespass
Conversion
Russel-Vaughn Ford v. Rouse (car salesman joke)
-Plaintiff doesn’t need to show that the defendant appropriated the property for his own use; enough that the defendant exercised dominion o
rivation of personal liberty sufficient to constitute false imprisonment
Bright v. Ailshie (mistaken arrest)
-Private persons may arrest other persons if they committed felony but it does not grant authority if person simply as suspicion or has not committed felony
Baggett v. National Bank & Trust (stek up arrest)
-One who instigates or participates in the unlawful confinement of another is subject to liability for false imprisonment; however, if arrest was made solely by police then not false imprisonment
Melton v. LaCalamito (U-Haul case)
-If actor regarded as having instigated the proceeding or that his persuasion was the determining factor in the officer’s decision in arresting another, or he gave false information to influence the authorities to arrest another, he may be held liable
Assault
(1) Intent of offensive/harmful contact; (2) Imminent Apprehension
Brower v. Ackerley (harassing phone calls)
-The assault depends on the immediacy of the physical threat; not the manner in which it was conveyed
-If A threatens to shoot B and leaves room to get the gun, threat is in near future and NOT imminent
Bennight v. Western Auto Supply (attack of the bats, no harm though)
-No physical harm actually needs to be done, but apprehension of an impending harm is required
Outrage/IIED
(1) Intentionally/recklessly causes (2) Bodily harm through (3) extreme and outrageous conduct
Ewings rules:
1) Public figures never win on IIED unless they prove malice
2) The private individual must be in a captive situation (patient in hospital, customer on cruise ship)
3) Where defendant is a profession who owes a duty to plaintiff
4) Where plaintiff can prove no arguable social value for defendant’s conduct
Roberts v. Saylors (some doctor verbally threatens patient)
-The conduct for IIED must be outrageous to the point that it goes beyond the bounds of decency and is utterly intolerable in a civilized society
Greer v. Medders (patients doctor verbally threatens patient)
-Outrageous conduct may be determined by an actor’s relationship with another; patient was under vulnerable care of doctor
Muratore v. M/S Scotia Prince (vacationer gets harassed on cruise ship)
-IIED may be inferred from extreme and outrageous nature of defendants
