Torts
Hayes
Fall 2011
I. Background
a. Tort is a civil wrong not arising from a contract
i. “Wrong”- conduct that society deems wrong and for which society and law is willing to give a remedy
1. Wrongs that society takes seriously enough that you get a remedy for it
2. Breach of contract
ii. “Civil” – not all crimes are torts
1. Battery and assault – both criminal and tort
b. Purposes of tort law
i. Compensate victims (corrective justice)
ii. Deterrence
iii. Advanced social welfare
1. Spread the risks of life fairly
c. Reasonable person test – (a.k.a Objective Standard) P must prove that contact would be harmful or offensive to a reasonable person in the same circumstances as P.
d. Three types of harm
i. Physical injury to person
ii. Dignitary and emotional harm
iii. Economic harm
e. Torts may impose liability for:
i. Serious wrongdoings (intent or malice)
ii. Negligence (lack of reasonable care)
iii. Strict liability (D is guilty of no fault)
II. Intentional Torts
a. Battery
i. Elements:
1. Act by D
2. D intended to cause harmful or offensive
a. Van Camp v. McAfoos: D did not have intent to cause harmful or offensive contact
a. Social Policy decision – courts would be flooded and insurance costs would keep going up
b. P’s lawyer wanted to apply strict liability but could not since battery is intentional
b. Garratt v. Dailey: Even if no bodily contact was involved, it was clear D wanted to cause offense and the slightest bit of harm.
c. Caudle v. Betts, et al: Even if there was no intent to harm P, D is still guilty for battery since there was intent to offend which resulted as harmful or offensive.
3. Unconsented contact; and
a. Cohen v. Smith: P did not consent to medical treatment by D.
a. Violation of consent offends personal integrity
b. If P expresses concerns that they do not want to be touched for any religious purposes or any other purposes, P can sue for battery.
b. Mullins v. Parkview Hospital: D did not have intent to cause harmful or offensive contact, did not know that P unconsented to contact.
a. Medical treatment and battery
i. Persons have the right to refuse medical treatment
a. If the person does not consent to medical treatment, any medical treatment could be a battery.
ii. Mohr v. Williams (1906)- while operating on right ear, doctor decided to operate on left ear without consent. P sued and won for battery claim on doctor
iii. Emergency exception
4. The result was harmful or offensive contact
a. Snyder v. Turk: D acts intended to cause harmful or offensive contact and a offensive contact results (Personal dignity harmed)
a. Must prove that D intended to harm or offend
ii. If any element is missing, P fails to prove battery.
iii. D needs to have at least been substantially certain that contact would cause harm and offense
iv. Restatement (Second) §16- Character of Intent Necessary
1. Acts
2. Intention of inflicting an offensive not harmful contact
3. Or intention of inflicting apprehension of either harmful or offensive bodily contact
4. Of another, even if intended contact was for a third party.
v. Transferred Intent
1. When a person intends to directly cause harm to another person but instead inflicts the intended harm to a third person. The person inflicting the harm would be liable for battery by harming the third person.
2. Stoshak v. East Baton Rouge Parish School
a. If a person intends to inflict serious bodily harm while trying to hit another person but misses and accidently hits someone else, the intent is transferred to the actual victim
vi. Extended Liability
1. The defendant who commits an intentional tort, at least if it involves conscious wrongdoing, is liable for all damages caused, not merely those intended for foreseeable.
2. A tortfeasor is responsible for all consequences of the tort, even if the consequences extend beyond what tortfeasor anticipated.
3. Wrongful death is not a tort, must sue for underlying tort
4. Eggshells – does not prejudice the preconditions of what happened
vii. Additional Notes
1. Even if D wasn’t around could still be liable for damages (D put a wire across street and P later trips on the wire)
2. D is liable even if D was touching that a person was intimately touching (wearing, holding, etc.)
3. Outrebounds of touching:Leichtman v. WLW Jacor Communications Inc.,
a. Deliberate blowing of smoke. No other courts has followed Leichtman precedent but may be used to sue someone smoking in a non-smoking area.
4. Battery requires fault.
b. Assault
i. Elements
1. Apprehension
a. Awareness of imminent touching that would result in a battery
b. Cullision v. Medley: Defendant induced apprehension of harmful contact and a reasonable person (jury) could have feared the defendant in that situation
2. Of an imminent touching
a. Must be created by one of imminent contact
a. “Imminent” = there would be no significant delay
b. Cannot take place in the future
b. Act an intention
c. If the act seems threatening but the threat is countered by words, it would probably not be an assault
ii. Transferred Intent:
1. Applies here when a defendant intends to commit one tort (assault) and ends up committing another (battery).
2. When a third party is injured instead of the one the one intended, then the intent transfers
iii. Additional Information
1. Sometimes courts will allow the jury to determine what is an what is not reasonable
2. Sometimes courts will determine what is and what is not reasonable and usually the lower appellate court will do that in response to a motion for summary judgment
a. This takes the case away from the jury
3. Words alone- R2nd “Words alone do not make the actor liable for assault unless together with other acts or circumstances they put the other in reasonable apprehension”
a. Prevailing view
b. Words offering a choice of tortious alternatives – still considered assault
4. Relief is compensatory damage for mental distress
c. False Imprisonment
i. Elements
1. An Actor
2. Intends to confine
3. Without lawful privileges
a. Assertion of authority – submission to an officer’s assertion of arrest under colorable legal authority is sufficient to show confinement
b. Asking police to confine – Police without authority (ex: warrant) who confine are liable as well as the D who instigated or induced the officer to unlawfully detain another
c. McCann v. Wal-Mart Stores, Inc.: A person can be FI when no physical force is being used to confine when the restrain is such that a reasonable person could believe that they would be restrained physically if they sought to leave or that the store was claiming lawful authority to confine them until the police arrived
4. Another
5. Within boundaries fixed by the actor
a. Only a place of limited range of movement, does not count to exclude from a place such as a bar or restaurant.
b. Physical barriers, force, threats, duress
a. Threats and demands – When the claim of confinement by explicit or implicit threats or duress, factual details or crucial
b. Duress of goods – Defendant steals plaintiff’s pants from dressing room and plaintiff doesn’t want to leave without her pants.
c. Confinement by contractual requirements
6. For any appreciable time
7. And Plaintiff must be aware of the confinement at the time or have sustained actual harm
a. False imprisonment is a trespassory tort and a plaintiff can recover damages even if she sustains no actual harm.
b. Actual harm is required to support a claim where plaintiff was not aware of confinement when it took place.
ii. Privileges
1. When an officer of the law improperly arrests a person, tort is usually called false arrest. Rules requiring confinement are the same but the officer, and sometimes others, may have defenses.
2. Duration – Even when an arrest and detention are originally justified, legal justification may dissipate over time”
a. In such cases, defendant may lose its justification to detain the arrestee
d. Torts
ade possible by state law
d. Section makes individuals liable, and under special conditions, cities
i. The state for whom the officer acts is not subject to liability under this statute
ii. It does not make constitutional violations by federal officers actionable
iii. SCOTUS said violations of constitutional rights by federal officers is actionable directly under the Constitution, without a statutory authorization.
e. Federal Constitutional violations that form the basis for liability fall within three categories:
i. Violations of 14th Amendment’s due process or equal protection clause
a. The act “Shock the conscience”
ii. Violations of 4th Amendment’s protections against unreasonable searches and seizures
a. EX: without a warrant or probable cause to believe a crime has been or is being committed.
iii. Violations of 8th Amendment’s prohibition against cruel and unusual punishment.
v. Additional Information
1. Effects of classifying a tort as intentional
a. Plaintiff could be worse off with a judgment against the defendant for an intentional tort in contrast to a negligent or reckless tort as many insurance policies pay judgments for negligent and reckless acts but do not cover intentional torts, thereby limiting the plaintiff’s potential source of recovery.
b. Statutes of limitation for intentional torts are often much shorter than statutes of limitation for negligent torts
e. International Infliction of Emotional Distress
i. R2nd §46:Outrageous Conduct Causing Severe Emotional Distress
1. One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm
2. Where such conduct is directly at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress
a. To a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or
b. To any other person who is present at the time, if such distress results in bodily harm
ii. Elements
1. Must be extreme and outrageous conduct
a. “Extreme and outrageous” means that the conduct is so outrageous in character, and so extreme in degree that it goes beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.
b. GTW Southwest Inc. v. Bruce: The severity and regularity of the abuse and threatening conduct brings such behavior into the realm of extreme and outrageous conduct
a. Common fact patterns for determining “extreme and outrageous” conduct:
i. Repeated or carried out over a period of time
a. Jones v. Clinton: A single request for a sexual contact may be offensive but it is not usually sufficiently outrageous but repeated and harassing requests for sexual attention is.
ii. Nature of conduct
iii. An abuse of power by a person with some authority over the plaintiff (relationship of the parties)
a. Might involve employers and employees, public officials, and those in subordinate positions
iv. Directed at a person known to be especially vulnerable
a. Could be seen as a sub-set of abuse-of-power pattern or could constitute a more specific version of it
