Torts
Fall 2015
Professor Monroe
Tort is a civil wrong, other than a breach of contract, for which the law provides a remedy.
Three types of torts:
1. Intentional
2. Negligence
3. Strict liability
1. Intent
a. Does NOT require desire to harm, only desire to make contact (Wagner v. State)
b. Two kinds of intent (Garratt v. Dailey)
i. Specific Intent
1. Acts “with purpose of bringing about contact”
ii. General Intent
1. Acts “with knowledge that the contact is substantially certain to occur”
a. Not just an appreciation of risk – that’s negligence.
b. “Sliding scale with intent on one end, negligence on the other”
c. Capacity
i. Children can have tortious intent
1. 7-y/o aims arrow at 5-y/o’s feet, strikes eye. Liable.
2. Some fuzzy point before which the kid’s not liable.
d. Transferred Intent
i. “The intent follows the bullet”
ii. Person is liable if intent was present and contact occurred (Talmidge v. Smith)
iii. Intent can transfer between recipients (persons) and tort (e.g. assault à battery)
iv. Applies to the 5 intentional torts (torts that fell w/in trespass writ)
1. Assault
2. Battery
3. False imprisonment
4. Trespass
5. Trespass to chattel
v. Policy
1. Give benefit of doubt to person wronged, not person willing to commit a tort
2. Give people security in their personal space
2. Battery
a. Elements
i. Act with intent to cause harmful or offensive contact
ii. Harmful or offensive contact results
b. Purpose of tort
i. Protect physical dignity and autonomy
ii. Prevent harm
iii. Provide non-retaliative remedies
c. Determining “Act”
i. Passive obstruction of P’s passage not battery (Maybe FI)
d. Determining “Harmful / offensive”
i. Standard = “Reasonable person not unduly sensitive to personal dignity”
ii. Considerations
1. Common sense
2. Time
3. Place
4. Circumstances
5. Relationship of parties
iii. Non-considerations
1. Subjective elements such as culture
a. Slippery slope
b. “Your honor, I’m just naturally rude!”
2. Motive
a. Good intentions don’t matter (Clayton v. New Dreamland Roller Skating Rink)
iv. “Crowded world”
1. Non-tortious contact: Subway brushing, tapping shoulder of someone dropped umbrella (Wallace v. Rosen)
e. Determining “Contact”
i. Contact includes body and anything directly extending body
1. e.g. hat, cane, plate person’s holding (Fisher v. Carrousel Motor Hotel, Inc.)
f. Damages
i. Does NOT require actual damages
ii. Punitive damages allowed when malicious, but NOT when done innocently
iii. Actor liable for all consequences
1. Even injuries more than a reasonable person might have anticipated (e.g. Pokes old man w/ finger, detached retina)
3. Assault
a. Elements
i. Acts with intent to commit battery or place person in apprehension of battery.
ii. Person placed in apprehension of contact
iii. Actor has apparent ability
b. Policy
i. Protect peace of mind
1. “There is a touching of the mind, if not the body” (Kline v, Kline, Supreme Court of Indiana)
ii.
iii. Protect from threat of unwanted physical contact
c. Requires action
i. Words in themselves, no matter how threatening, not assault
ii. e.g. “I’m going to shoot you” + puts hand in pocket
d. Apparent ability
i. Usually question for the jury (Western Union v Hill)
ii. Criminal assault requires actual ability
e. Threats
i. If impossible, not liable
1. “If you weren’t the President, I’d shoot you”
ii. If requires P to forgo legal right, liable
1. “Your money or your life”
2. Even a lawful demand, made in unreasonable manner, may be liable
f. Damages
conduct and emotional distress
iv. Emotional distress is severe
b. Policy
i. Protect freedom from sever emotional distress
ii. Emotional harm can be more serious than physical
iii. No utility from bad actor’s behavior
c. Arguments against tort
i. Emotional states vary so greatly they cannot be anticipated
ii. Open floodgates of litigation
1. Fix: Narrow the tort with high-bar elements (State Rubbish Collectors Ass’n v. Siliznoff)
d. “Extreme and Outrageous”
i. Conduct exceeding all bounds tolerated by society (Slocum v. Fair Food Stores of Florida)
ii. Abuse-of-power behavior often IIED
1. Siliznoff
2. Private detective harassment
3. School authorities abusing power
4. Debt collector harassment
5. Insurance adjusters
6. Landlords
7. High-pressure salesmen
iii. Soliciting woman NOT IIED (Reed v. Maley)
iv. Frivolous lawsuit NOT IIED (Davis v. Currier)
e. “Severe emotional distress”
i. Would a reasonable, not-unduly-sensitive person suffer severe emotional distress?
ii. Hurt feelings not enough (“Vulgar world”)
iii. Crying not enough
iv. Physical injuries not essential, but useful to recovering
v. Context matters
1. Plaintiff’s sensitivities
a. Lady vs. Butte miner vs. US Marine
2. GM assembly line expected to be tough-guy atmosphere (Harris v. Jones)
3. Some courts hold employees ought be entitled to greater degree of protection
f. Transferred Intent
