TORTS MONROE FALL 2014
· Purpose of torts is to compensate Plaintiffs for unreasonable harm they sustain.
o Unreasonableness is measured from broad social utility standpoint. Utility (use or purpose) of the action (ex. running a railroad) is taken into account.
· Courts trying to impose incentive for Defendant that outweighs benefit of harmful conduct.
· Courts will often burden shift to parties able to afford the cost and best bear it.
Considerations of Tort Law
· Prevent people from taking law into their own hands.
· Deter wrongful conduct.
· Encourage social responsible behavior.
· Restore injured parties to original condition.
· Vindicate individual rights of redress.
Scope of Liability
I. Intentional v. Negligence – D in negligence only liable for consequences that are somewhat foreseeable. Intentional torts liable for every result stemming directly/indirectly from conduct regardless of probability.
Ex. D intentionally hits P and sends him to hospital à P dies from treatment à D liable for DEATH
– If negligent tort à D only liable for initial injury. (Rest. 2d 435)
Defendant desires to bring about a particular result
· Intent requires voluntary “volitional” act AND defendant has knowledge the result will occur.
Types of Intentional Torts
Intentional infliction of a harmful or offense bodily contact with person or attached property
· Intent to bring about some sort of physical or mental effect upon another person
· Not necessarily to harm that person à further injuring Ps broken arm while trying to help
· Intent to Commit Different Tort? Still held to have intent and liable for tort committed, regardless of the tort involved. (ex. A accidently hits B in attempt to false imprison B à A liable for battery)
· Act is Intentional if actor desires it or has SUBSTANTIAL CERTAINTY that result would occur.
o Substantial Certainty – greater certainty than highly probable
§ Less than substantial certainty à not intentional tort // may be negligence
· Unforeseeable Consequences – the consequences do not have to be intentional or substantially certain to occur, or even foreseeable.
Act v. Consequences à Intent is based on the act producing result // not resulting consequence
(tapping another on the chin à CONTACT (w/ intent) // tapping chin à BREAKS CHIN (D liable)
Intent to Harm Not Necessary à Intent for conduct important // not harm
I. Ignorance of law no excuse
II. Insane persons are still liable for torts
TRANSFERRED INTENT: If D had necessary intent to injure A, but injures B –> still liable for intentional tort [Talmage] assault/battery, intent to cause physical contact with one party can be considered intent to commit assault/battery against second party when unreasonable force is used, because D has no right to commit such act.
Reckless v. Intent
1. Reckless à knowledge to a substantial degree of certainty that something could happen and a disregard for whether or not it actually happens
2. Intent à knowledge to a substantial degree of certainty that something could happen and a distinct action made to produce that something
Damages – measure of damages
I. Actual Damages (Compensatory) – compensate the party for loss or injury
a. Nominal (token sum) – awarded even if P shows no actual harm
b. Not awarded in negligence torts
II. Punitive – awarded to punish a wrongdoer for outrageous or malicious conduct
a. Not awarded in ordinary negligence torts (Rest. 2d 908)
è Intent (examples of Intent)
o “Desire to cause contract”
o “Desire to frighten” even if contact is intended – just to make P think it would
o “Substantially certain that a harmful or offensive contact will occur” – test is subjective”
skip notes 1-2 on p. 33/34 & notes 6-8 on page 35
Intentional infliction of a harmful or offensive bodily contact
Battery will always include assault
· Intent to commit the act
· Contact à non-consensual with individual or personal effect (clothing)
· Harm/Damage – battery caused actual injures, not limited to physical harm
Casual, everyday touches are inevitable and consent is assumed. Time, place, and circumstances will affect permission of the act // as will relation between parties.
Intent à necessary intent if either
I. D intended to cause harmful/offense contact (D shoots at P) OR
II. D intended to cause imminent apprehension (D shoots at P intending to miss buy actually strikes P)
“Prank Gone Bad” – D pranks P creating intended apprehension, but if harmful contact occurs à battery (Rest. 2d 13)
Harmful or Offensive Contact – Infliction of contact that’s offensive, but possibly not harmful à battery (D during surgery operates to heal other ear à liable for offensive)
“Offensive Contact” – Ordinary person not unduly sensitive
· Casual contact (pushed on train) à not battery
· Knowledge of Sensitivity à not clear [Spivey]
· Beyond contact consent à battery if D goes beyond the contented level
Personal Effects à battery inc. clothing, objects held, or closely identified (Rest 2d 18)
Indirect Contract à Not necessary D touch P, can be indirect contact (Rest 2d 18)
Ex: ordering a dog to attack P, giving P peanuts despite knowing allergy
P’s awareness of contact à not necessary to be actual awareness (Rest 2d 18)
Ex: Sleeping beauty not aware of kiss, still battery
Unforeseen Consequences – if act has intent, D liable for any consequence despite not intending consequence or foreseeing consequence
Damages: recover nominal damages even if no physical injury
– Mental Disturbance – pain, suffering, embarrassment [Fisher]
2. Action results in unlawful confinement of the person
3. The confined person is aware of the confinement
Unlawful Confine – Involves use of force either physically or through words to restrain, words would be around the threat of future physical harm.
P must show that D intended to confine. D knew with substantial certainty that confinement would result. Transferred Intent will apply.
Nature of Confinement à definite physical boundaries, blocking path not enough
Confinement – held within certain limits (Rest. 2d 36)
– Use of Threats – explicit (told)/implicit (display gun) – Rest 2d 40
– Threat to Harm Others à will still count as valid threat – Rest 2d. 40
– Threat to Property à if immediate (taking purse) to dissuade leaving
– Purely Verbal à If P voluntary submits to threats with no force à no false imp.
Escape: Irrelevant if P doesn’t know escape – escape route be reasonable (Rest2d 36)
– Reasonable Escape à not physical dangerous, harmful, offensive to “reasonable sense of decency or personal dignity,” or dangerous to 3rd person.
Assert Legal Author: Tort if D asserts legal authority & P reasonable believe (Rest. 2d 41)
– Right to detain may be valid defense // must be for stated offense
– Submission Necessary: P MUST submit to authority
– Instigation in Arrest: D liable for participation (telling Security to falsely arrest P)
X à D not for filing a complaint or taking proper legal channels unless D takes active role and police do illegal arrest
Elements Instigator Liability: 1) unlawful arrest 2) D actively aided arrest
Duty to Aid in Escape or Release: false imprisonment even if P first consents, then desires to leave and D doesn’t or help escape.
Privilege à detaining a shoplifter
Awareness: P has to be aware at the time of confinement, doesn’t have to remember
[Parvi] – Consciousness of confinement is necessary element of false imprisonment, collection of that consciousness if not. Possible to maintain action even if don’t remember
– Nominal Damages – even if suffered no actual physical or mental harm.
– Mental Suffering, humiliation, loss of time, inconvenience, etc.
– Punitive à if malice is shown