Prof. Ewing Torts Outline
Exams:
Fact patternà what lawsuits (average of 4 lawsuits per fact pattern)
In each lawsuit:
Who is the P?
Who is the D?
What are they suing for?
Is the D going to be liable to the P?
Ask:
Determine whether P can make out a primae facia case requirements on the tort?
If not, no liability
If so, ask:
Are there any good affirmative defenses?
If not, D will be liable
Vicarious liability- Are you liable through a tort committed by someone else?
Torts of employees committed in scope of employment
à Address primae facia requirements BEFORE affirmative defenses and general consideration items
Intentional Tort Liability (7)
Understand about the supersensitive Pà don’t take sensitivity into account, deal w/all Ps as though they’re average people EXCEPT where D knows about the sensitivities
Everybody is liable for intentional torts!
Children, mental incompetent people, etc
THEY’RE ALL LIABLE
Transferred intent doctrineà operates in 2 ways:
Intent can be transferred from person to person
Intent can be transferred from tort to tort
From assault to battery (meant to frighten A, end up striking B)
Intentional Torts Against Plaintiff’s Person
Battery- harmful or offensive contact w/ P’s person
Need a harmful or offensive contact
i. Same as UNPERMITTED contact (even if not harmful, this is sufficient)
1. Supersensitive Pà doesn’t count unless D knows about your sensitivity
W/ P’s person
i. Don’t have to actually touch the body, can touch anything connected with P’s person
Vosburg v. Putney- boy kicked lightly made lame àD is L for battery because he intended to kick P (a wrongdoing) so any harm from the kick is D’s responsibility
Knight v. Jewett- touch football, broken fingeràD inadvertently landed on finger causing it to break, if no intent=no COA for battery
White v. Univ of Idaho- piano lesson=injury, batteryàTeaching physical skills might require physical touching, so NL for University
Polmatier v. Russ- crazy guys kills father-in-law àMother-in-law sues for damages. L b/c insane actions are still intentional.
Laidlaw v. Sage- carpetbag bombàD acted in self-preservation, P’s injuries were unfortunate
Kell v. Hainline- erasure fightàD is L even though his actions were unintentional since he was wrong to be in the fight at all
Transferred intentàif A attempts battery against B but hits C, C may sue A for batter. A’s actions toward B combine w/injuries to C to make battery
Manning v. Gimsley- pitcher throws at a crowd; batteryàNL b/c he didn’t intend to injure anyone, just scare them (actually assault, not battery)àMinimum requirements- must touch P in a way that is offensive/harmful
Leightman v. WLW Jacor Comm- smoke was blown in man’s face àD is L b/c smoke is particulate matter than can cause harm
Madden v. D.C. Transit System- bus sprayed oily stuff on PàNL b/c found that there was no malice or specific wrongful intent
Morgan v. Loyacomo (L)- store manager snatched package from shopperàDon’t have to touch the person’s body, only something connected to their body, to offensively touch them and batter.
Wallace v. Rosen (NL)- teacher touched parent so she fell down stairsàNL b/c it’s a crowded world and some contact between people must occur, sometimes you get hurtàNote: Parent was injured so that a reasonable amount of contact that wouldn’t have normally caused a fall did so in this situation
Grabowski v. Quigley (L)- Grabowski signed consent for Dr. Quigley, but another surgeon do the procedure. Grabowski’s left leg negatively affected. àWhen mentally able to consent, a patient can only be performed procedures on by the doctor he or she gave specific consent for
Brzoska v. Olson- HIV+ dentist’s Findingà patients had to have been exposed to HIV (fluid to fluid contact) to have reason to fear infection and hold the estate liable for battery, even when he lied about his HIV status.
Cohen v. Smith (L)- woman asks to not be seen or touched when naked by male doctors and nurses. L b/c she has the right to believe as she likes and those beliefs should be respected as requested.
Werth v. Taylor- Jehovah’s Witness & blood transfusion. The court found not battery b/c when she signed the refusals her life wasn’t in the balance. The doctors took her condition as implied consent and did what they needed to do to save her life.
Rains v. Superior Court- therapists used violence. L b/ physicians cannot have immunity when their actions are offensive and don’t offer any real treatment value.
Freedman v. Superior Court- Dr tells woman a drug will do one thing when it does another, same ends w/o damage. NL b/c both parties knew what the end result would be (childbirth) and plaintiff wasn’t actually harmed
Cartwright v. GeyselàConsent to illegal acts- if one consents to illegal activities (prize fighting) they are not a victim of battery because they chose to participate in an activity where injury (or death) were possible.
Assault- apprehension of immediate battery
Apprehension of
i. Must be Reasonable
1. Supersensitive P- what the average person would have thought
ii. Do NOT confuse apprehension with fear or intimidation
1. All you need is reasonable apprehension of immediate unpermitted contact
2. DO NOT have to be afraid or intimidated
iii. Apparentability
1. Not whether D has actual ability to do something, but whether P has reasonable apprehension
2. Only needs to be apparent enough to create reasonable apprehension
Immediate batter
i. “Words rules”
1. Words alone are not enough- threats are not enough for assault
2. Words couples with conduct are enough- threat + shaking fist, etc
3. Words undo conduct- shaking fist + saying you won’t do something
a. No reasonable apprehension
· Brower v. Ackerly (NL) (Harassing phone calls) Rule: It’s not the nature of the threat or how it’s been made, but the imminent of the dangerà people make stupid threats all the time without imminent danger, so this law weeds out not-so-serious threats
· Bennight v. Western Auto Supply Corp. (L) (Infested w/bats)
Employer forced woman to work in a facility infested with bats, woman was attacked by bats, woman was afraid to return but employer made her go back and she was attacked and bitten again. Found that the store manager intentionally placed wife in apprehension of a harmful or offensive bodily contact with a bat when she was required to work where the manager knew bats existed.
False Imprisonment- sufficient act of restraint and a bounded area
Sufficient act of restraint
i. No rule, common senseà
1. Threats are enough
a. Don’t’ need actual application of force
b. “If you leave this room I’ll kill you”
2. An “act of restraint” can consist of inaction
a. Must find the D has obligation to act to help P and doesn’t do it
3. Must know of the confinement AT THAT TIME
A bounded area (more than mere inconvenience)
i. An area is not bounded if there is reasonable means of escape
1. Not through a rat infested sewage pipe
2. P must KNOW there’s a means of escape for it to not be bounded
· Peterson v. Sorlien (L) Cult de-programming
P given chance to escape. Ct exonerated the parents of false imprisonment & found cult deprogrammers liable for intentional infliction of emotional distress.
· Eilers v. Coy (NL) Cult de-programming 2
Kept in a room with boarded windows, escorted to bathroom; tried to escape, at no time free to leaveàOnly
k” Wedding PhotoàShe submitted her wedding photo to the newspaper and therefore put herself in the public eyeà picture wasn’t chosen by anyone else; The radio show gave their opinion, did not accuse her of anything; No protection from someone saying you’re uglyà freedom of speech
Generalizations:
· Public figures almost never win (Falwell, NY Times)à must prove malice in these cases
o Must prove intention to harm the plaintiff
· Doctrine usually applies when plaintiff is private individual, especially in a vulnerable position
o More likely to go to trial and find liability
· Doctrine usually succeeds when defendant is a business, corporation, or professional that owes a duty of care to the plaintiff (optometrist, cruise liner)
· Doctrine seems to work best in cases where there is no arguable social value or redeeming social value to conduct or words of the defendant (i.e. Pemberton caseà part of the labor management negotiations)
Intentional Torts Againt Plaintiffs’ Personal Property
Trespass to Land
Defendant has invaded P’s land
i. D doesn’t have to personally go on property, but SOME physical invasion of property
Although D doesn’t have to go on property, some physical object does
i. Loud music doesn’t qualify
Don’t’ have to actually touch surface of property, but the space a reasonable distance up or down from property
· Desnick v. ABC, Inc (NL) Sent “undercover” patients to the Eye Care Center
P sued for trespass because he said he would have never allowed them if they hadn’t hidden their identitiesà trespass counts dismissed b/c Only professional conduct was recorded, No invasion in the case of specific interests that the trespass tort seeks to protect, No disruption, intent of theft or stealing trade secrets, etc
àThe intent in Trespass is NOT the intent to trespass, but the intent to go where you wentß
· Pegg v. Gray (L) Allowed dog to startle cattle
Should have considered the dogs scaring the cattle and causing damage, Have knowledge of possible outcome
· Malouf v. Dallas Athletic Club (NL) Golfers hit golf balls into area with cars, hit cars
Must consider that cars were parked at a golf course where you know car could be hit
· Van Alstyne v. Rochester Telephone Corp (L) Telephone repairmen left lead droppings in a yard where a dog ingested it and died. àLeft lead droppings behind on the property and were responsible for the consequences regardless of fault; Had permission to be on the land w/limited access, NO permission to leave behind something dangerous like lead droppings; Had no right in easement to leave behind a dangerous substance
· Hollenbeck v. Johnson (NL) Cow got loose and caused a neighbor’s barn floor to cave
Cow’s owner, because animal was not vicious, showed proper care in his actions when the cow escaped; injuries sustained from the cow’s escape were reasonably unforeseen (Should pay for his neighbor’s injuries)
Trespass to Chattels
Some damage
i. Physical damage
