TORTS – FALL 2008
Development of Liability Based Upon Fault
What is a tort?
i. A civil wrong, other than a breach of contract, for which the law provides a remedy
Differences between civil and criminal law
i. Burden of proof
1. Criminal – Beyond a reasonable doubt
2. Civil – Usually a preponderance of evidence
ii. Different procedural requirements and protections
1. Criminal – Indigent defendant appointed counsel
2. Civil – Limited ability to appoint counsel
iii. Different actors
1. Criminal – The state v. the defendant
2. Civil – Private or public plaintiff v. private or public defendant
Purposes of Tort Law
To provide a peaceful means for adjusting the rights of parties who might otherwise take the law into their own hands;
To deter wrongful conduct;
To encourage socially responsible behavior;
To restore injured parties to their original condition (remembering that full compensation might not always be possible).
Intentional Interference with Person or Property
Consequence of Proving Intentional Torts v. Negligence
i. May be different availability of punitive damages
ii. Different defenses available – in a negligence case, contributory negligence.
iii. May affect the applicability of respondeat superior.
iv. Causation elements may be easier to prove for intentional torts.
v. Insurance does not always reimburse for intentional acts.
vi. Different statute of limitations.
vii. Worker’s compensation may not protect employer against claims for intentional acts.
viii. May determine whether U.S. government is proper defendant.
i. Definition of intent
1. “The external manifestation of the actor’s will” (Restatement Second §2)
2. “It is not enough that the act itself is intentionally done and this, even though the actor realizes or should realize that it contains a very grave risk of bringing about the contact or apprehension.”
ii. Transfer of intent
a. Actor intends to commit a tort on one person and actually inflicts one on somebody else
i. Examples – Talmage v. Smith, man threw stick at boys on roof, missed intended target and hit another boy.
2. Operates in two ways
a. Intent can be transferred from person to person
b. Intent can also be transferred from tort to tort
i. Must fall within the five tort categories
ii. Applicable torts (“FIT BAT”)
3. False Imprisonment
4. Trespass to Land
5. Trespass to Chattels
i. A battery is an act done with the intent to cause a harmful or offensive contact with the body of another and that directly [or indirectly] results in the harmful or offensive contact with the body of another.
ii. In order for the defendant to be held responsible for committing a battery against the plaintiff, you must find:
iii. First, that the defendant intended to cause a harmful or offensive contact with the body of the plaintiff; and
iv. Second, that the defendant’s act directly [or indirectly] resulted in a harmful or offensive contact with the plaintiff’s body.
v. Restatement (Second) of Torts
1. § 13. Battery: Harmful Contact
An actor is subject to liability to for battery if
a. he acts intending to cause a harmful or offensive contact with such person of the other or a third person, or an imminent apprehension of such a contact, and
b. a harmful contact with the person of the other directly or indirectly results
2. § Battery: Offensive Contact
1. An actor is subject to liability to another for battery if
a. he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
b. an offensive contact with the person of the other directly or indirectly results
2. An act which is not done with the intention stated in Subsection (1.a) does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.
vi. Definition of battery
1. Intentional infliction of a harmful or offensive bodily contact upon another
vii. Intent of battery
1. The act must be done for the purpose of causing the contact [or apprehension] or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced.
a. Must satisfy one of the following requirements
i. Purpose to cause the tortious contact
ii. Substantial certainty such contact will result
1. Substantial certainty (Garratt v. Dailey)
2. Liability for unforeseeable consequences or injuries (Spivey v. Battaglia)
3. Crowded world theory (Wallace v. Rosen)
4. Items intimately attached to the body (Fisher v. Carrousel Motor Hotel)
a. “To constitute an assault and battery, it is not necessary to touch the plaintiff’s body or even his clothing; knocking or snatching anything from plaintiff’s hand or touching anything connected with his person, when done in an offensive manner, is sufficient.”
i. Definition of assault
1. An intentional, unlawful, offer to touch the person of another in a rude or angry manner under such circumstances as to create in the mind of the part alleging the assault a well-found
with the outrageousness of the conduct, must go beyond bounds of society
iii. Judges fear too much litigation will result from IIED , want to consider that we live in a crowded world, value a very subjective thing and all of us should be able to blow off steam for a little while without being sued.
iv. Should never end up with nominal damages in IIED
v. Cannot transfer intent with this tort
vi. Judges concerns re: floodgates
vii. Nominal damages not awarded
viii. “[T]here is liability only for conduct exceeding all bounds which could be tolerated by society, of a nature especially calculated to cause mental damage of a very serious kind.”
ix. “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society.”
1. Future threats of harm that result in emotional distress can be sued for IIED (Rubbish Collectors Ass’n v. Siliznoff)
2. High level of outrageousness necessary for IIED (Slocum v. Food Stores of Florida; you stink to me results in heart attack)
a. In situations like this other remedies are often pursued
3. Context matters and you are expected to take a certain amount of insult (Harris v. Jones; stuttering)
a. Difference between violent and vile profanity addressed to a lady v. marine
4. Act must be directed at the victim – IIED requires intent (Taylor v. Vallelunga; attacker was unaware of the presence of the victims daughter)
Trespass to land
i. Elements of trespass to land
1. Intent to be present on or interfere with property
a. Unlawful physical entry
b. Land of another
2. Mistake of property possession is not a defense (Dougherty v. Stepp; appraising land because he thought it was his)
3. Property owner is not required to post signs, fences, etc.; however those precautions are helpful for repeat offenders
4. Resulting harm is only necessary to claim damages, can have trespass to land suit without compensatory damages
a. Often claims are made to prevent establishment of squatters rights
1. Setting object in motion on another’s property (i.e. smoke, water, etc.) and dispute over ownership of land above and below property (Herrin v. Sutherland; shooting gun over property)