Torts I
Intentional Torts
P must make out a prima facia case (all elements of the tort) then explore all possible defenses.
A. Intent
Intent can be satisfied either by:
(1) acting with knowledge that there is a substantial certainty the result will occur or
(2) acting with the purpose of bringing about the result.
· Person riding a bicycle and gets stung by bee and loses control and strikes a pedestrian, she suffers injuries and sues the bike rider. Is bike rider liable? No, there is no intent to strike the pedestrian.
· Always err on the side of negligence b/c for intentional torts the actor has to actor with purpose.
· Motive is irrelevant. Ex: D attempts to set someone’s broken arm with good intent, P can still bring a case of battery for unauthorized bodily contact. Relevant intent is not intent to do good (motive) but the intent to touch the P to set her arm.
· Children can have requisite intent.
· Mentally ill can have requisite intent.
DOCTRINE OF TRANSFERRED INTENT
As long as the tortfeasor has the requisite intent to commit an intentional tort, that intent will be applied to anyone who is hurt even if that person was not the intended target as long as the torts fall under the five torts of trespass:
1) Battery
2) Assault
3) False Imprisonment
4) Trespass to Land
5) Trespass to Chattels
If A throws a stone at B intending to scare B, but hits B accidentally then A is liable for battery. Intent to commit a tort of Assault transfers to tort of Battery.
Falls under Doctrine of Transferred intent if
-Same tort/ different victim
-Different tort/ same victim
-Different tort/ different victim
Gun waving hypo.
Person who waives a gun in a crowded room and shoots someone with eyes closed saying ” I hope I don’t hit anyone” is liable for battery. The person is acting with knowledge of a substantial certainty that the result will occur (someone will get shot).
B. Battery
BATTERY- Intentional infliction of a harmful or offensive bodily contact
ELEMENTS
(1) Intent to cause a harmful or offensive bodily contact (or, an unauthorized bodily contact)
(2) Harmful or offensive bodily contact.
· Offensively touching an object closely connected with the person constitutes battery. (plate in Fisher case)
· One does not have to be aware of the battery for the elements to be satisfied.
· Always err on the side of negligence.
LIABILITY FOR EXTENDED CONSEQUENCES
Once you have determined all elements of a tort are satisfied, then that tortfeasor is liable for all consequences resulting from the action. Even the results of those not intended, so long as the harm flows from the tort.
Reasons to Make Distinction between Battery and Negligence
(1) statute of limitations is different for both. (battery -1 year, negligence- 3years)
(2) insurance coverage may be different for both
(3) contributory negligence plays a role in negligence case- not intentional torts.
(4) punitive damages may be available for intentional torts
(5) worker’s compensation benefits may be different.
C. Assault
Assault- the intentional causing of an apprehension of harmful or offensive contact.
ELEMENTS
1) Intent to create apprehension of a harmful or offensive bodily contact.
2) Reasonable apprehension (anticipation of an apparent ability) of an imminent (no significant delay) harmful or offensive bodily contact.
· Not every battery includes an assault.
· Mere Words Rule (Limited Use- only for assault)
Ordinarily, words alone cannot accomplish an assault, it must be accompanied by some
overt action.
Source of Danger Rule- Need not put the plaintiff in apprehension that he himself will harm the plaintiff, but another independent source. Ex: Look out! There’s a rattlesnake behind you.
D. False Imprisonment
False Imprisonment- the intentional infliction of a confinement.
ELEMENTS
1) Intent to confine (against P’s will)
2) Actual confinement
3) Awareness of confinement (most jurisdictions add “or actual injuries” -NOTNY)
· Restatement §36
Confinement has to be within boundaries (but not rigid boundaries). There must not be a reasonable means of escape. It is not considered a reasonable means of escape if there is a chance of bodily harm or even harm to clothing.
· Moral persuasion is not enough of a force for actual confinement. (wanting to clear one’s name)
· Economic duress is not enough to prove actual confinement. (threatening employment)
· If D has a duty to provide an exit and fails to do so, there can be false imprisonment.
· There is no confinement if property is confined but the P is free to move. (double parking)
· However, Duress of Goods- if property is in danger then there is a claim for false imprisonment. (stolen keys)
False Arrest- False imprisonment accomplished by arrest from police office that arrests someone who is un-deserving of the arrest. (Look to legal privilege for defense)
E. Intentional Infliction of Mental Distress
IIED- the intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional or mental distress, even in the absence of physical harm.
ELEMENTS
1) Intent to cause emotional distress/ or recklessness (deliberate disregard of a high degree of probability that emotional distress will follow)
2) Outrageous conduct (beyond the bounds of human decency)
3) Causation
4) Severe emotional distress
· The element of severity is not just for damages but an actual element- you must have severe emotional distress.
· Insults are not actionable under this tort.
Outrageous Conduct
· Look for patterns- abuse of power and repeated acts such as sexual harassment and creditor calls.
F. Trespass to Land
AN INTENTIONAL UNAUTHORIZED ENTRY INTO ANOTHER’S LAND.
ELEMENTS
1) Intent to enter the land
2) Unauthorized entry onto the land of another.
· CONSCIOUS WRONGDOING IS NOT REQUIRED FOR THIS TORT!!!
· Intent is to physically be on the property, one does not have to know that they are trespassing.
· Children may have the requisite intent.
· Trespass may be above and below the land.
· Consent can be revoked and once revocation is given a trespass begins and use of defense is over.
Nuisance- typically used with non-tangible or indirect invasions like noise or tree limbs. Usually there is economic harm and the invasion is substantial.
G. Trespass to Chattels
ELEMENTS
1) Intent to intermeddle with a chattel
2) Actual intermeddling with a chattel
3) Causing disposition or harm to the chattel.
· Intermeddling- conduct that dispossesses the owner of its property or harms the chattel but falls short of conversion.
· Damages are not full market value of chattel.
H. Conversion
Elements
1) Intent to exercise dominion or control over a chattel
2) Exercise of dominion or control
or
A serious or significant interference with the owner’s ability to control.
To determine the seriousness of interference one must factor in:
a) the extent and duration of the actor’s exercise of dominion or control
b) the actor’s intent to assert a right in fact inconsistent with the other’s right of control
c) the actor’s good faith
d) the extent and duration of the resulting interference with the other’s right of control
e) the harm done to the chattel
f) the inconvenience and expense caused to the other.
· Only tangible property can be converted.
· All persons in serial conversion chain are converters.
Damages are the full market value because he possession by the converter was complete. This is a forced sale.
One may convert a chattel through:
1) acquiring possession (stealing)
2) damaging or altering it (intentionally killing an animal)
3) using it (obtaining possession after a purchase from a thief)
4) receiving it (obtaining possession after a purchase from a thief)
5) disposing of it (wrongfully sells the chattel)
6) misdelivering it (delivery to wrong person by mistake so that the chattel is lost)
7) refusing to surrender it (bailee refuses to return the chattel)
INTENTIONAL TORTS- DEFENSES
A. Consent (exception)
A defendant can prevent liability if he proves that plaintiff consented
Exception: ex) statutory rape- even if both parties consent- strict liability
Express (actual consent)- plaintiff shows willingness to submit to defendant’s conduct
Implied consent- consent a reasonable person would infer based on conduct or implied in an emergency situation where plaintiff is incapable to consent
– O’Brien v. Cunard- reasonable person would believe that plaintiff consented by standing on line to get vaccinated- implied through conduct;
Consent through fraud is not a defense- must be knowing and voluntary
– DeMay v. Roberts- consent is not valid if person would not have consented knowingly
Majority of jurisdictions- consent to a criminal act
chool is letting out.
Emergency
Reasonable and prudent action is based on the set of circumstances under which the action took place.
NY gives a separate emergency charge.
Professional Standard
Applies to Architects, Lawyers, Engineers, Doctors. (not teachers, not clergy)
Standard:
A professional standard of care is an objective standard predicated on the rules and guidelines of the profession. Custom
àLocality standard- NY standard
àNational standard
1. Must possess skills and learning of average practitioner
· Must apply that skill ordinary with reasonable care
2. Done something forbidden by medical community
· or neglected to do a required act
3. Must show affirmative evidence of medical standard.
4. Negligence cannot be presumed and no presumption can be made based on death or failure of treatment.
5. Negligence by departure of standard can only be proven by expert testimony
6. Testimony that other doctors would have treated differently is not enough must show a departure from standard.
Always highlight what the allege act of malpractice was.
Causation
P must prove that but for the attorney’s malpractice the P would have more likely than not been successful inwinning the entire case. This is a lawsuit w/in a lawsuit. Burden is high
Error
It is not malpractice if there is merely an error of judgment. The choice must be a professional acceptable alternative.
Attorney Malpractice
The most blatant and obvious form of attorney malpractice is missing a SOL.
Informed Consent
Patient Standard of Disclosure- what a patient needs to know to make an intelligent, informed decision. Subjective standard
· P must prove that had she known the risks that P would not have proceeded with the treatment.
Physician Standard of Disclosure- what a reasonable doctor in that area would tell the patient what the foreseeable risks are.
· P must prove that she had known the risks that P would not have proceeded with the treatment.
· P must prove that a reasonable person also would not have proceeded with the treatment.
Defense
Doctor can show that the patient was unable to receive full disclosure because of an extreme reason. Doctor has burden to prove this.
Negligence Formula
In Determining Non- Professional Negligence, look at:
The likelihood of the harm
The gravity of the potential harm
The burden of preventing it.
Probability Injury Burden
P L B
B < PL
Whether the burden of taking precautions is less than the likelihood that an injury will occur multiplied by its gravity.
Burden also includes the social utility burden. What would we have to sacrifice to engage in alternative conduct?
Violation of Statute- Negligence per se
Can we borrow the statute?
Does it add a duty? (Perry v S.N and S.N.)
Does it make sense, is it ambiguous?
Does the statute create a workable standard?
Is it an easier workable way of determining negligence?
2. Does the P fall within the class of burden/ class of harm analysis?
Is the violation excused? DEFENSE
Categories of Excused Violations
Safety
Emergency
Lack of knowledge of non-compliance (tail light is out)
Inability to complyà tire blow out
Actor’s incapacity à child.
New York
A distinction is made between statutes and everything else. Therefore, statutes may be used as a basis for negligence per se but anything else would be evidence of negligence.
