Stacey Tovino
Torts
Fall 2012
· The major purposes of tort law (policy arguments)
o To provide a peaceful means for adjusting the rights of parties who might otherwise “take the law into their own hands”
o To deter wrongful conduct
o To encourage socially responsible behavior
o To restore injured parties to their original condition by compensating them for their injury
o To vindicate individual rights of redress
· The genesis of tort law
o Writ of trespass
§ Direct and forcible injuries
§ No break in causal sequence
o Trespass on the case (Action on the case)
§ Other tangible injuries to person or property/ indirect
§ Majority of current tort law derives from this
Intentional Torts
· Intent
o Specific intent- Act must be done for purpose of causing contact or apprehension
o General Intent- Or with knowledge that such contact is substantially certain to be produced
o Garratt v. Dailey – Brian Dailey, five years old, pulls a chair out from under P as she is sitting down. The evidence at trial shows that he did not desire that she hit the ground, but he may have known with substantial certainty that she was trying to sit, and would hit the ground. Held, the case must be remanded to the trial court, to determine whether Brian indeed knew with substantial certainty that P would fall. If so, he meets the intent requirement for battery.
§ Children can be held liable for intentional torts
o Spivey v. Battaglia- Defendant gave a friendly, unsolicited hug to P; she suffered sharp pain in her neck, resulting in the paralysis of the left side of her face and mouth. Held, a reasonable man would not have been substantially certain an injury would follow his action; therefore, jury should be charged with negligence instructions, not battery.
o Ranson v. Kitner- Plaintiff was hunting and accidentally shot D’s dog that looked like a wolf. Held, mistakes do not negate intent; D held liable for damages.
o McGuire v. Almy- During a psychotic episode, D hit P with the leg of a chair. Held, mentally disabled (insane) are held liable for intentional torts.
o Talmage v. Smith- D sees X and Y on D’s shed. D throws a stick at X or Y, and accidentally hits Smith (plaintiff). Intent is something constructed. Intent must be borne from the defendant’s actions, not from the defendant’s motivations. Held, assuming that D used an unreasonable degree of force, he is liable to P, even though it was not P he was trying to hit.
§ Note: No transferred intent for IIED and conversion
· Battery- The intentional infliction of a (physically) harmful or (socially) offensive contact
§ Intent
§ Contact with body (or intimately connected to body)
§ Physically harmful or socially offensive
· Note: Awareness or apprehension is not necessary (i.e. sleeping beauty)
o Cole v. Turner (England, 1704)- Established touching and anger requirements. That the least touching of another in anger is a battery. If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently it will not be battery
§ Note: Anger no longer required
o Wallace v. Rosen- During a fire drill, a teacher touched a parent on the shoulder to get her attention to stop blocking a stairway. Held, consent to ordinary personal contact is assumed for all contacts that are customary and reasonably necessary to the common intercourse of life, and in such circumstances, no intent to unlawfully invade another’s interest will be found.
o Fisher v. Carrousel Motor Hotel, Inc. – P, who is Black, is attending a luncheon at the Club located in D hotel. As P is standing in line waiting for his food, one of D’s employees snatches the plate from P’s hand, and shouts that because P is Black, he cannot be served in the club. P is not actually touched, nor is he frightened. He is, however, highly embarrassed. Held, P has suffered a battery. “The intentional snatching of an object from one’s hand is as clearly an offensive invasion of his person as would be an actual contact with his body.”
§ Note: Contact to person’s body or plate doesn’t have to be physically harmful; socially offensive is good enough
· Assault- The intentional infliction of an apprehension of an imminent, harmful, or offensive contact
§ Intent
§ Apprehension (not fear)
§ Imminent
§ Harmful or offensive contact
o I DE S ET UX v. W DE S–P runs a tavern with her husband. One night when the tavern is closed, D demands wine. P leans out the window to tell him to go away and D swings at her with a hatchet. D misses, but P is frightened by the attempt. Held, D has committed the tort of assault, even though P was not touched.
o Western Union Telegraph v. Hill- P was required to have D repair a clock at their respective places of employment. P sexually approached D. Alleged, but disputed, that D attempted to touch but was stopped by the dimensions of desk P was sitting at. Held, for the tort of assault, it is not necessary that the defendant have the actual ability to carry out the threatened contact, only that the P fears D can carry it out.
§ Notes
· Voluntary intoxication does not negate intent
· Apprehension Test
· (1) Must be reasonable (2) Apprehension is not to be confused with fear or intimidation. (3) Apparent ability will meet the apprehension requirement.
· In general, words alone are not good enough for assault
o Illegal condition is assault: “If you do not pay my money, I will have your life.”
· Criminal assault doesn’t require apprehension
· False Imprisonment- Intentional infliction of an unlawful and unwanted confinement
§ Intent
§ Unlawful
§ Unwanted
§ Confinement (area requirement)
o Big Town Nursing Home, Inc. v. Newman – Plaintiff was locked up against his will in a nursing home by the staff of the home. Held, false imprisonment is the direct restraint of one person of physical liberty by another without adequate legal justification.
§ One person cannot give away the rights to liberty of another unless there is (1) a power of attorney, or (2) legal guardianship, or (3) mental incompetency.
§ There is no general right for medical members to take away the liberty of others.
o Parvi v. City of Kingston – Police take the intoxicated P out to an abandoned golf course to “dry out.” After police leave P, he wanders into a highway and is struck by a car. Held, false imprisonment is not suffered unless its victim k
a speech impediment. D physically and verbally mimicked his handicap. P sued for IIED and for the physical ailments he suffered. Held, the court did not find the harm severe enough to hold D liable. Four elements must coalesce to impose liability: (1) conduct must be intentional or reckless; (2) conduct must be extreme or outrageous; (3) must be a causal connection between conduct and harm; and (4) the emotional distress must be severe.
§ When considering those with a preexisting condition, the harm must in someway exacerbate the condition. There must be a measurable increase in the disability.
o Taylor v. Vallelunga – P watches her father being beaten up by D, and as a result of seeing this beating, suffers severe emotional distress. Held, since P does not allege that D knew of her presence (nor that D intended to cause her emotional distress), P’s claim does not state a cause of action. P cannot recover because D did not know of P’s presence.
§ For IIED, the conduct must be directed at the plaintiff (no transferred intent).
§ Being witness to a murder or suicide is not enough for IIED
· Trespass to Land- Intentional and unlawful entry into another’s land
§ Intent
§ Unlawful entry
§ To another’s land
o Dougherty v. Stepp – Defendant, a surveyor, entered Plaintiff’s land , but did not mark trees or cut timber. Plaintiff sued for trespass. Held, every unauthorized entry upon another’s land qualifies as a trespass, even if there is no actual damage done in the process.
o Herrin v. Sutherland- Defendant, while hunting, fired his shotgun at birds flying over Plaintiff’s land. Plaintiff sued for trespass. Held, interference with the airspace over one’s property can give rise to an action for trespass.
§ Below the land is also T2L (i.e. tunneling below property)
o Rogers v. Board of Road Commissioners Kent County – Pursuant to a license, Defendant placed a snow fence and posts upon Plaintiff’s husband’s property with the understanding that it would be removed at the end of winter. Defendant did not remove the fence at the end of winter, and Plaintiff’s husband was killed by an accident involving the fence’s continued presence on his property. Held, when one consents to the presence of a structure or chattel on his property and that structure or chattel is not removed after the consent is revoked or terminated, he may recover for damages resulting from its continued presence.
§ Permission/ consent/ license/ privilege to enter may be limited by:
· Time (winter months)
· Space (front yard vs. back yard)
· Purpose (trick or treating, party
