Glennon_Torts_Fall_2009
TORTS
· 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
INTENTIONAL TORTS
· 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
· 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
