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Torts
Temple University School of Law
Wertheimer, Ellen

TORTS
-civil wrong committed by one person against another and usually arises outside of an agreement between two parties
v      INTENTIONAL TORTS- the defendant desires to bring about a particular result, substantial certainty can mean intent
o        Intent: intending to bring about some kind of physical or mental effect upon another person
o        No intent to harm
o        Substantial certainty particular effort from actions
o        Act distinguished from consequences (consequences don’t need two above factors)
o        Cases:
 
o        Battery- the intentional infliction of a harmful or offensive bodily contact; un-consented to
o        Not necessary that D means physical harm to P. Has intent if:
§         D has intended to cause a harmful of offensive bodily contact
§         D intended to cause in imminent apprehension on P’s part of a harmful of offensive bodily contact (purposely misses but intend to make fear)- intent to commit an assault= intent to commit a battery
o        Harmful or offensive contact
o        P need not be aware at time of contact (kiss P while sleeping)
o        Cases
§         MINK v. UNIVERSITY OF CHICAGO
§         DES mothers
§         Rule: not negligence because no consent to this treatment
§         Administering the drug is the contact with the person
§         FISHER v. CARROUSEL MOTOR HOTEL, INC.
§         Plate pulled out of black man’s hand by waiter
§         Rule: contact with any part of body or anything attached to it or practically identified with it
§         LAMBERSON v. UNITED STATES
§         Man falls on meat hook- friend on back
§         Rule: Because not accidental, it is battery, can’t sue US
o        Assault- intentional causing of an apprehension of harmful or offensive contact
o        Intent:
§         Intent to create apprehension, even if not intending to follow through
§         Intent to make contact (harmful or offensive)
§         D has requisite intent for assault if D intends to commit assault or intends to commit battery
o        Hostility is not necessary
o        Words are not enough, must be overt act or gesture (exception: D’s past acts or surrounding circumstances)
o        P must be aware of the threatened contact
o        Cannot recover for apprehension that someone else will be touched
o        Conditional threat (D has right to compel P, throw robber out if they don’t get out)
o        Cases:
§         CONLEY v. DOE
§         Student’s death threat paper
§         Rule: reasonable apprehension requires ability to act and make contact
§         BOUTON v. ALLSTATE INSURANCE CO
§         Halloween trick-or-treaters killed
§         Rule: an object standard, must be reasonable apprehension
o        False Imprisonment- intentional infliction of confinement
o        Intended to confine or knew with substantial certainty that would confine, not merely by reckless or negligent acts
o        Confinement, held within- not kept out of
o        Means:
§         Threats
§         Assertion of legal authority, reasonable believed authority
§         Physical
o        P must be aware of confinement or suffer harm
o        Cases
§         WHITTAKER v. SANDFORD
§         Wife on boat trying to get out of colt
§         Rule: physical bounds set (key to room aka boat and ocean)
§         DUPLER v. SEUBERT
§         Woman in office intimidated to quit
§         Rule: must be conscious of confinement or think you can’t leave due to conduct of defendant
o        Infliction of Emotional Distress- intentional or reckless infliction by extreme and outrageous conduct of severe emotional or mental distress, even in the absence of physical harm
o        Intent
§         D desires to cause P emotional distress
§         D knows with substantial certainty that P will suffer emotional distress
§         D recklessly disregards the high probability that emotional distress with occur
§         Transferred intent is very unusual; immediate family present, P is present, P’s presence is known to D
o        Extreme and Outrageous- beyond all possible bounds of decency
o        Causal connection between distress and conduct
o        Cases:
§         HARRIS V. JONES
§         Boss mocks stuttering disability
§         Rule: deter court from mere name calling; was not severe enough; lacking causal relationship (had stutter before)
§         HUSTLER MAGAZINE INC V. JERRY FALWELL
§         Defamed name of celebrity
§         Rule: For defamation you would need a false statement of fact with actual malice; here no one would believe it
§          
v      Intentional Interference with Property
o        Trespass to Land
§         Intentionally enters P’s land without permission
§         D remains on P’s land without the right to be there, even if entered rightfully
§         D puts an object on (or refuses to move from) P’s land without permission
o        Intentional interference with P’s interest in property, no strict liability (pilot loses control and lands on P’s land, no trespass)
o        Particles and gasses- D knowingly causes objects to enter P’s property
o       

ere there is some consent but not enough; The tort theory that informed consent belongs to is negligence; Battery in medicine is now reserved for completely unauthorized contact
o        Express consent- P expressly consents to an intention interference with person or property then D is not liable (asking for it, not battery)
o        Implied consent- from P’s conduct, custom, or circumstances
§         Objective manifestation- if it reasonably seemed to one in D’s position that P consented, consent regardless of P’s subjective state of mind
o        Lack of capacity- consent will be invalidated is P is incapable of giving that consent (child, intoxicated, unconscious, ect)
§         Consent as a matter of law, consent is implied if all of these:
§         P is unable to give consent
§         Immediate action is necessary to save P’s life or health
§         No indication that P would not have consented if able
§         A reasonable person would have consented in the circumstances
o        Exceeding scope- even if P does consent to an invasion of her interests, D cannot go beyond the scope of the consent
§         Emergency exception- an emergency may justify exceeding the surgery
o        Consent to criminal acts- courts are split, majority rule that P’s consent is ineffective if the act consented to is a crime
o        Cases as a defense to Battery:
§         MOHR V. WILLIAMS:
§         Plaintiff consented to surgery in right ear, found worse condition in left ear during surgery and operated on left
§         Rule: He did not have consent, and was not a life-threatening emergency that wouldn’t require consent, lack of evil not excuse, consent was not implied; guilty of battery
§         PAUSCHER V. IOWA METHODIST MEDICAL CENTER
§         Doctor neglected to tell patient of very small risk of death when undergoing IVP procedure after giving birth; consented to procedure without full knowledge
§         Rule: Risk was not material (too small) to have changed the decision
The Patient rule states that the physicians duty