TORTS QUICK REFERENCE GUIDE
I. Intentional Torts
1. Actor intends to cause “harmful or offensive touching” with the person of the other or a third person or imminent apprehension of such a contact; or
2. if the actor knows with substantial certainty that the action will cause apprehension of a harmful or offensive touching; and
3. the other is put in such imminent apprehension.
a. Apprehension is different from fright – you don’t have to be actually scared (can use self-defense).
b. It is sufficient for apprehension that the π know that the harm will occur unless something else occurs to intervene.
c. It depends more on the apprehension created in the mind of he person assaulted than upon what may be the intent of the person committing the assault.
1. Actor Intends to cause unlawful harmful touching, or knows, or should know, with substantial certainty that his actions will cause such harm.
a. Intent to commit act is what controls not the intent to cause harm.
i. Ex: Boy who puts rubber ball in pool drain he mistakenly believes to be not sucking is liable.
b. Transferred intent – intent to commit harmful act is transferred to a third party who is struck inadvertently.
c. Substantial certainty – Ex: boy pulls chair out from under old woman as she sits.
2. π does not consent to the touching.
a. Implied consent – arises from circumstances.
i. Ex: victim of accident has implied consent to emergency medical services.
ii. Ex: kids playing on playground have implied consent to foreseeable injuries.
iii. Counter Ex: doctor is liable when he performs surgery on left ear when patient consented to right ear.
b. Substituted consent
i. Ex: a parent or guardian can consent for a minor or incompetent to undergo surgery.
ii. Can be overridden if induced by fraud or non-disclosure of material fact.
c. Duty of Disclosure – true consent can not be given in absence of all material facts.
i. Ex: Doctor must disclose reasonable risks and benefits involved in medical treatments and non-treatments.
d. Volunteers cannot recover for the reasonably foreseeable injuries they incur.
i. Ex: Illegal prize fighters cannot recover from each other, but may recover from the promoter as the driving force because they are the intended class of persons to be protected.
ii. Ex: Football player can recover from blatant injuries contrary to the rules which are not inherent risks.
II. Nonconsensual Defenses
1. Insane persons can be held liable for intentional acts, epileptics are not held liable for uncontrollable acts because as between two innocents, let the actor bear the burden, and guardians of insane persons can be deterred.
1. Actor must be in imminent apprehension of receiving great bodily harm.
2. If the actor wounds a third part
is own more valuable property at the expense of another’s.
a. Ex: cargo ship moored to dock during storm damages the dock.
b. “Incomplete privilege” – ∆ may cause harm if he pays for it prevents “Unjust enrichment” where the cargo ship owner walks away unscathed.
3. “Public Necessity” -a public official may act with immunity if he damages a person’s property to benefit the public at large.
III. Strict Liability v. Negligence.
1. Strict Liability
a. ∆ internalizes the costs imposed on others as if he were the injured party (as between two innocents…)
b. Eliminates difficulty in determining “standard of care”
i. Reduces litigation costs in individual cases; however
ii. Gives incentives for more lawsuits, raising costs overall.
c. Net transfer of wealth from class more likely to reinvest it to a class of victims.
a. π internalizes the costs he would not have avoided.
b. Requires determination of “standard of care” and “reasonableness”.
i. increases cost of litigation in individual cases.
ii. reduces number of lawsuits because costs of litigation outweigh expected compensation.