Select Page

Temple University School of Law
Glennon, Theresa

·         Torts exist…
o   To compensate the damaged individual – to try to reposition them as close as possible to before the tort was committed
o   To prevent violence as a means to settle disputes
o   To deter the harmful behavior in the future
·         General Rule:  must show that the actor knew with substantial certainty that the action would invade the                                                 interests of another in a way that the law forbids
·         Intent
§  Somebody did something with the purpose to make an unconsented contract (aim to do harm, joke, mistake, stupidity all count)
§  Crowded world theory: consent is assumed to any ordinary/customary contacts
§  Respondeat Superior is not applicable for Intentional torts (Lambertson v. US Fed 2d Cir.)
§  Intent of a child: age is only relevant in determining the child’s intent to get results (Vosberg)
§  Respondeat superior: does not apply to intentional torts unless nature of job calls for it (ex: security guard or bouncer)
·         Battery
§  Elements of battery:
§   Intent to bring about offensive or harmful contact (intend the conduct not the harm), AND
§  Harmful contact: any physical impairment (alteration, pain, doesn’t have to harm, can even be beneficial)
§  If there is not substantial certainty that the contact or apprehension will result then there is no intent (Garratt v. Dailey WA)
§  If something is so reckless it can be classified as intent (Wallace v. Rosen IN)
§  However, recklessness by itself is not enough evidence of battery (Wallace)
§  Even if it’s a joke (Lamberton v US Fed 2d Cir)
§  Technical battery – no intent of harm but still responsible for harm that results (Lamberton)
§  Technical Battery applies in Medical Cases (Mink v. U of Chicago IL)
§  No consent (or consent under fraud/duress) to contact is assumed AND
§  Informed consent is needed, can’t do conduct (esp in medical) without patient’s knowledge (Mink)
§  Consent can be inferred
§  Inadequate informed consent is negligence, no informed consent is battery (Mink )
§  Usually a jury question
§  No Privilege
§  Privilege is a valid defense
§  Some contact is ok (aka privilege)
§  Crowded World Doctrine (Wallace)
§  If Duty to act there may be privilege from battery claim –usually statutory
§  Official role in context (Wallace)
§  Offensive conduct/contact
§  Offensive contact:  offends a reasonable sense of dignity
§  Administering the drug = offensive contact (Mink)
§  Contact can be made through an object or agent (Mink)
§  Contact can be object touching person, ie tray they are holding (Fisher v. Carousel Motor Hotel TX)
§  Do not need to be the agent that actually makes physical contact (Mink)
§  If you set the action in motion you are liable (Mink)
§  If found liable for battery, you’re responsible for all injuries, even unexpected ones (Vosberg v. Putney WI)
·         Assault
§  Act or conduct that creates reasonable apprehension of imminent harm or offensive conduct
§  Words alone, without action (ie intentional transmission), cannot be considered assault (Conley v. Doe MA)
§  Elements
§  Defendant must intentionally act
§  Threat needs to be considered imminent (Conley)
§  Have to have reasonable apprehension depending on the situation (trick or treating shooter case) (Bouton v. Allstate Insurance LA)
·         False imprisonment
§  Elements
§  Act intending to confine
§  Mind games aka who has the power to release (Whittaker v. Sandford ME)
§  Can be some degree of physical confrontation (Dupler v. Seubert WI)
§  Acts directly or indirectly resulted in confinement
§  Restraint does not need to be physical (like tied up) can be confinement to where you cannot get out (Whittaker)
§  Either conscious of or harmed by the false imprisonment
§  No touching is necessary for claim to be successful (Whittaker)
§  Defenses
§  Consent to confine can be limited to a specific set of time/situation (Noguchi v. Nakamura HI)
§  Informed and reasoned consent is necessary to an allegation of false imprisonment (Peterson v. Sorlein MN)
§  A nonconsensual detention could be deemed consensual if one’s behavior so indicated (Peterson)
§  But least restrictive alternative is required (Peterson)
·         Intentional Infliction of Emotional Distress
§  Very difficult to prove – harder than battery because of the extreme and outrageous factor (Harris v. Jones MD)
§  Womack Test for IIED (Harris)
§  Conduct must be intentional or reckless
§  The conduct must be extreme and outrageous
§  There must be casual connection between the wrongful conduct and the emotional distress
§  The emotional distress must be severe
§  High standard must be met in order to be awarded damages – usually has to be a violation of a special relationship
·         Consent as a defense of battery
§  Agreement to intentional tort is not a defense to battery (Teolis v. Moscatelli RI)
§  Medical
§  Consent of an individual must be either expressly or impliedly(ex: emergency) given before a surgeon may have the right to operate (Mohr v. Williams MN)
§  Need consent for non-emergency procedure (Mohr)
§  This is a technical battery (no intent to harm is necessary)
§  Consent can be limited to a certain procedure or area of body (Mohr)
§  There can be implied consent if person is unconscious or other emergency status (Mohr)
§  Absence of intent or negligence does not absolve the defendant of the charges of battery – absence of consent alone can be enough (Mohr v. Williams)
§  Plaintiff must establish (Aschraft v. King CA)
§  Consent was limited
§  Defendant intentionally violated conditions while performing the operation
§  Consent can be limited and violating consent makes one liable for battery (Ashcraft)
§  Athletics
§  Generally: ordinary risks of the activity are assumed by participation
§  One can consent to collision in athletic pursuits – consent can be implied by playing the game  (Marchetti v. Kalish OH)
§  Focus is on intent as a violation of rules
§  Draw the line at deliberate intent to injure (ie hitting in retaliation after the play had stopped) in athletic pursuits (Hackbart v Cincinnati Bengals FED/CO)
§  Outside the rules in place to protect players or outside of game play
§  Negligence is not enough for an intentional tort in athletics
§  Teachers & Corporal Punishment
§  Must be reasonable and not excessive (both are subjective), otherwise battery
§  Retaliation is not a form of corporal punishment (Thomas v. Bedford LA)
·         Negligence is the omission to do something which a reasonable man would do or doing something which a reasonable man would not do (Blyth v. Birmingham Waterworks UK)
·         In order for a plaintiff to show negligence, he must show five elements:
o   Duty
o   Breach of Duty
o   Cause-in-Fact: D’s conduct was cause-in-fact of P’s injury
o   Proximate Cause
o   Damages
·         Is There a Duty?
§  Private necessity (rule of necessity)
§  Human life trumps property (Ploof v. Putnam VT)
§  Have to pay back damages that your possession causes even if there was necessity (Vincent v. Lake Erie MN)
§  Public Necessity
§  When done for the public good an act that would be tortious is allowable (Surocco v. Geary CA)
§  Necessity produces the privilege (Surocco)
·         “rights of property give way to the higher laws of impending necessity” (Surocco)
§  If there is a taking for public good then there must be compensation (Wegner v. Milwaukee Mutual Insurance MN)
§  No compensation for public necessity out of emergency
§  Obligation to Assist (a Duty)
§  No general duty to help others (Yania v. Bigan PA)
§  Exceptions:
§  If one puts another in danger they have a responsibility to help unless that would put them in danger (Yania)
§  Duty exists for special relationships (Farwell v. Keaton MI)
§  SR’s: carriers of passengers, employers to employees, innkeepers to guests, spouses, parents to children, common social venture, via invitation
§  If you start to help than you have to follow through to a degree that would be provided by a reasonable person (Farwell)
§  You cannot prevent a third party from helping (Soldano v. O’Daniels CA)
§  Subject to liability for harm caused by the absence of aid, if you prevent someone from helping (Soldano)
§  Source and scope of duty
§  No duty to a third party (Moch v. Rensselaer Water Company NY)
§  Policy:  Would open floodgates
§  Policy:  Liability would prevent companies from providing services
§  Third parties do not have a right to recover from a tort between two other parties (Strauss v. Belle Realty NY)
§  Exception: In

) (Heath v. Swift Wings NC)
o   The Reasonable Person
§  The ordinary man standard is the one to be measured against when considering negligence (Vaughan v. Menlove UK)
§  Professional drivers are held to the standard of ordinary care (Fredericks c. Castora PA)
§  People with disabilities have reasonable standards of care, though they may vary from those of a non-disabled  person (Roberts v. State of Louisiana LA)
o   Note: while this has been largely accepted for people with physical disabilities, it has been largely rejected for people with mental disabilities
§  The standard of negligence for a child varies for each child (Robinson v. Lindsay WA)
o   Exception: when operating a large vehicle (or other adult activities) a child is held to the standard of care of a reasonable person (Robinson)
o   Role of Custom
§  Failure to adhere to industry standards can amount to negligence even if the standards are not required by statute (The T.J. Hoopers I & II Fed. 2d Cir.)
o   Relationship Between  Judge and Jury
§  When a standard of conduct is clear it can be ruled on by the court rather than be sent to a jury (B&O Railroad v. Goodman US Supreme Court)
§  Standards of conduct should be  based on the reasonable person standard rather than a set standard (Ex: getting out of truck at a railroad crossing) (Pokora v. Wabash Railway US Supreme Court)
o   Statutory Violations
§  Negligence per se: an act is considered negligent because it violates a statute (Ex: selling a gun to a felon w/o following statutory rules and him killing someone) (Hetherton v. Sears, Roebuck & Co. Fed 3d Cir)
§  Reasonable standard of care can override statutes in some instances (Ex: pushing shopping cart on side of the road that is safer, even if statutes says you should be on the other side) (Tedla v. Ellman NY)
§  Some courts will not go so far as to find negligence per se, these courts instead might find either of these:  (class discussion during Tedla)
o   Rebuttable Presumption??
o   Evidence of Negligence: P is also in violation of statute, but statute is unreasonable
o   Proving Negligence: Res Ipsa Loquitur
§  Definition: the fact that there is an accident proves that there was negligence.  The act speaks for itself.  (Escola v. Coca Cola CA)
o   Three parts: (Ybarra v. Spangard CA) & (Escola)
§  Defendant must have had exclusive control of the instrument
§  Without the negligence the accident would not have happened
§  Plaintiff must show that they used reasonable care and did not contribute to the accident
o   Burden of proof shifts to defendant to prove they were not negligent (Escola)
§  Showing due care up to the extent capable of proving it is not enough (Cox v. Northwest Airlines Fed 7th Cir.)
§  Res Ipsa Loquitur can still apply when there is an expanded timeline and contact (Escola)
o   When fault for the negligent act can fall amongst multiple parties it is up to each defendant to prove their innocence.  (Ybarra)
o   Liability will be shared amongst all parties failing to prove their innocence
§  Exclusive control at several points (or multiple theories of negligence) can be expanded in some circumstances (Anderson v. Somberg NJ)
§  It is up to the jury to determine which of the defendants is liable.  Jury cannot find that none of the defendants is liable.  (Anderson)
§  In medical malpractice, must show: (not sure of case)
o   Acts so obvious that a lay person can determine the negligence
o   Harm cannot be attributable to anything else