TORTS I OUTLINE
I. BACKGROUND
a. Tort comes from torque- “to twist”
b. It is a civil wrong that is not a breach of contract for which the court will provide a remedy in the form of damages.
c. Generally a legal redress for physical injury to a person or their property. It does cover some forms of mental distress, defamation, interference of use and enjoyment of your property- nuisance.
d. Purpose: Historically, if someone is injured, all of the costs fell on them. This changed b/c we realized that there are large social costs.
i. Compensation: when you realize the wide spread effects of a wrong
1. We only want to punish when there is an aggravating factor.
ii. Deterrence
e. Tort vs. Crime:
i. Crime:
1. A crime is an offense against the public at large and is commenced by the State
2. High standard of proof: “beyond a reasonable doubt”
3. If you are convicted you are potentially incarcerated, fined, etc.
ii. Torts
1. Action is brought by the injured party using the rules of civil procedure
2. Preponderance of evidence standard
3. Typically the plaintiffs burden, if you “can’t tip the scale, nothing will happen”
4. If liability is established, there is compensation to the victim.
5. Tort grew out of crime; they gradually separated the compensation element out. Today there are some overlaps- in CA, there is the Victim’s Compensation Fund
6. Assault and Battery (fit in both categories)
iii. Differences:
1. You can have a crime that is not a tort (a crime to discharge a firearm)
2. Also a tort claim that would not be a crime. You can injure someone without it being a crime.
f. Damages: Can serve compensation and they can serve as punishment
i. Compensatory: when compensation is provided for the loss
ii. Punitive or Exemplatory when used to make an example- sometimes called actual damages:
iii. General damages: natural, necessary, usual result of this wrongful act or occurrence (running into someone with a car- pain)
iv. Special: they may be natural, but they do not always exist- lost wages, medical bills
v. Nominal damages: in name only, a harm was done but there were no damages done, will not support a punitive damage award
vi. Workers Compensation: Don’t spend any time figuring out who is at fault- you get a low amount, social responsibility. There are generally no punitive damages.
vii. Pain and suffering awards: Because the pain can’t be shifted, they defendant has to shift some money.
1. “Parasitic”: Relates to damages- like a flea on a dog- can’t live by itself- emotional distress damages were always parasitic. You had to have some other harm that the emotional distress resulted from.
II. INTENTIONAL TORTS
a. Five intentional torts
b. Doctrine of extended consequences: if you commit an intentional tort, you are liable for all of the damages that result from your actions.
c. Battery: When D acts with the intent to cause harmful or offensive touching and such a touching actually results.
i. Policy:Protects the interest in physical autonomy: The P’s right to control his/her own body.
ii. An act by the D which brings about harmful or offensive contact to the plaintiff’s person
1. Harmful- pain, disfigurement of the body.
2. Offensive: what we are looking for is the community standard.
a. One which would offend the ordinary person, one which is unwarranted by the social usages present at the time and place at which it was afflicted
b. Exception: Cohen v. Smith: Women in hospital to deliver baby requested that she not be seen unclothed by a male. Male nurse saw her and assisted w/ the C-section. In this case they informed the doctor that the touching was offensive to their community standard.
i. Usually use community standard, but if the D has specific knowledge then the standard can change.
ii. The religious basis is also given a lot of deference
iii. Intent on the part of the D to bring about harmful or offensive contact to the P. Can be established three ways:
1. Specific intent: the D “intends” the consequences of his actions if his goal is to bring about these consequences.
2. Substantial Certainty: At some point, it will be substantially certain that harm will occur. If at that point an action is committed anyway, it is as though it was intended.
a. Garratt v. Dailey: D, who is five years old, pulls a chair out from under P as she is sitting down. Court held that even if D did not desire that P hit the ground, if he knew w/ substantial certainty that she was trying to sit and would hit the ground, he would have the necessary intent to constitute a battery. Remanded to trial court to determine.
3. Transferred Intent:
a. Example: Davis v. White: Two men were arguing outside while another was washing his car across the street. White pointed a gun at his arguee and pulled the rigger, but it hit White instead. The court held that White had a faulty intent but not at Davis and used the tr
on of an imminent harm or offensive touching.
i. Policy: Protects the mental state whereas in battery the physical being is protected.
ii. Prima Facie case:
1. Act
2. Intent: on the part of the D to bring about in the P apprehension of immediate harmful or offensive touching w/ the P’s person
3. Causation: apprehension actually results.
iii. Reasonable Apprehension: Apprehension is equivalent to an expectation- it does not require fear. P is expecting an imminent, offensive contact.
1. Mike Tyson hypo- Bowermaster probably would not scare him, but he would still be expecting a hit.
2. Courts generally do not protect a P against exaggerated fears of contact (unless D knows of the unreasonable fear and uses it to put P in apprehension of immediate harmful or offensive contact).
3. Use “reasonable person” test.
iv. Imminent harm
1. Dickens v. Puryear: Dickens attacked by the father of a 17 year-old that he was sharing drugs and sex with. The court found that D was not guilty of assaulting Puryear b/c the threats of harm were in the future; there was no imminence.
2. Imminent: “mere words are not enough” idea. You need overt actions that help to establish imminence. Words can be used to create apprehension of imminence if in combination w/ an overt act (clenching a fist)
a. Purpose to notify that “The attack has begun”.
b. You have to convince the triar of fact that the attack has become imminent.
c. Times when words alone are enough: “I have a high-powered rifle pointed at your head, don’t move”. The victim is put in a situation where they had to rely on words alone based on the conduct of the perpetrator.
d. Words can sometime negate imminence: “If I wasn’t such a nice guy, I’ll kick your butt”.
v. Knowledge of the act is required—unlike in battery where no knowledge of touching is required.
vi. Transferred Intent:Doctrine applies.
1. Altieri v. Colasso: If the D intended to assault A but ended up battering B, can they be liable for a willful battery? Court says yes, via the transferred intent doctrine.
Also added- you can transfer from the intended
