TORTS
SYED
FALL 2013
BASIC OVERVIEW
1. Tort Law: The area of civil law dealing with harms recoverable through monetary damages
a. “Punch-Play-Pollute”
2. Fundamental Question: Someone’s interest has been harmed à who should bear the loss?
3. Basic Framework:
a. Prima Facie Case (P’s Burden) v. Defenses (D’s Burden)
b. Common Elements of Prima Facie Case: (P must show)
i. ACT (voluntary)
ii. INTENT
iii. RESULT
c. Underlying Normative/Policy Issues
4. Fundamental Economic Justifications for Tort Law:
a. Prevention / Deterrence
b. Compensation
5. Forms of Liability:
a. Intentional à Purpose or knowledge (subj.) w/ substantial certainty
b. Reckless à Subjective knowledge of a grave risk.
c. Negligent à Knowledge (obj) of an unreasonable risk (“should’ve” known)
d. No Fault à Strict/Enterprise Liability
6. Reasonableness à Standard of interpersonal fairness
7. Harms (2 types of wrongs): Bases for Liability:
a. Intentional act
b. Non-intentional Risk/Probability?
INTENTIONAL TORTS
(1) IIED (2) Defamation
· Defined by their different “result” and “intent” requirements
Intentional à Purpose or knowledge (subj.) w/ substantial certainty
· Purpose: (3 kinds)
o Motive of Harm
o Motive of Embarrassment
o Motive of Indifference (i.e. hit man who kills for money)
Elements of Prima Facie Case (P must show)
a. INTENTIONAL: Purpose or Knowledge w/ subst. cert. à of what? Depends on tort.
b. ACT: Invasion of Physical/Mental Space: must be voluntary and affirmative
a. Omission à D not liable unless D has a legal duty (Hurley v. Eddingfield)
i. (Country doc refused medical aid, guy died. D not liable)
c. CAUSING:
d. HARM: d/n need to be “actual” harm. Damages can be presumed à “legal harm.”
Legally Protected Interests (LPI’s): (must balance P’s security v. D’s liberty)
1. Bodily/physical security & well-being (harmful battery, assault)
2. Personal dignity – psychological/emotional well-being (offensive battery, assault, IIED)
3. Land and Possessions (trespass, nuisance, defenses of necessity)
4. Reputation (defamation)
Defenses:
1. Consent
2. Self-Defense
3. Defense of Property
4. Public/Private Necessity
IIED:
(1) Intentionally or recklessly, (2) causing severe emotional distress, (3) through extreme and outrageous conduct. (State Rubbish Collectors v. Siliznoff – Traynor)
1. Union strong-arm threat not imminent enough for assault. Recognizes free-standing LPI of “mental tranquility.” Drops imminent req, calls a spade a spade (coin-flip case).
LPI: Freedom from severe emotional disturbance or distress
1. Does not protect against “mere emotional disturbance.”
2. 3 Elements often examined as a whole (Gestalt manner)
a. “Outrageous” à driver of the show
1. Act à Outrageous Conduct
2. Intent à Intentionally or Recklessly
3. Result à Cause Severe Emotional Distress
Outrageous Conduct: (“driver of the show”)
Would average person say “outrageous!?”
1. Was D pursuing a legitimate interest? (objective)
a. Legit: backing out of marriage
b. Not Legit: leaving woman at altar, already married whole time (Jackson v. Brown)
c. Legit: Jehovahs Witness shunning ex-member – religious (Paul v. Watchtower)
2. Was D purusing this legitimate interest through reasonable/legit means?
a. Not Legit: GTE – Drill sgt. boss terrorized female employees. Power relationship v. economic interest of mgmt. (Not efficient? Goes too far? Just an asshole?)
b. Balance interests of parties (fairness, autonomy, freedom).
c. How much deviation from commonplace/acceptable? “Outrageous!?”
i. Whelan – Told wife he had AIDS to get rid of her & son (Costanza!) (yes, O!)
ii. Shieffer – P had affair w/ priest counseling family. Consensual sex, not O.
iii. Meyers v. Hot Bagels – Restaurant owner: “Are you a good fuck?” (yes, O!)
1. Public Place – Owes patron “respectful/decent treatment”
3. Objective Test: Mostly descriptive w/ a little bit of “should” thrown in
a. Brown v. Ackerley – Harassing phone calls. If you can find “outrageous” good chance you can infer “severe” ED.
4. Additional Factors:
a. Various state rules re “special relationships” (employer-employee, etc.)
b. Position of authority to take advantage?
c. If providing “public service” maybe more liable (Meyers)
d. Ongoing pattern more outrageous than one-time/occasional (GTE)
e. Conduct directed at a P who’s known to be sensitive?
RESULT:
Must be severe Emotional Distress
i) Helps if P can show physical manifestations
1. No: “Intentionally hurting feelings” not a tort (Wallace)
a. Wallace – P said waiter gave incorrect change, embarrassed P in front of restaurant.
2. No: “Insisting on rights in a permissible manner” (Davis v. Currier)
3. Yes?: “repeatedly soliciting married woman for sex.” (Samms v. Eccles)
4. Yes?: “leaving woman at altar, having been already married whole time” (Jackson v. Brown)
INTENT: (refers to the emotional disturbance, not the outrageous conduct)
“Reckless:”
1. D knows (subj.) of a grave risk that act will cause severe ED, but acts anyway
2. Knowledge of facts that make the grave (grossly unreasonable) risk obvious
a. Willful blindness / conscious disregard (still knowledge)
b. (Know ß Middle Standard à Should’ve Known)
3. Quantitatively Reckless: Grossly Unreasonable BPL à B = tiny, P = high, L = serious
4. Qualitatively Reckless: Grave Risk BPL à B = irrelevant, P = high, L = serious
DEFAMATION
(1) D voluntarily communicated to a 3rd party, (2) a defamatory statement, (3) of and concerning P, (4) that is false
LPI: Reputation à Interest one has in others’ perceptions of them. 3 types:
1. Economic (do business, get hired, etc.)
2. Social (friend’s opinions, etc.)
3. Self-Esteem (based on the respect of those we respect)
RESULT:
1. Communicated to third party/published. Repeaters qualify too.
2. Defamatory Statement
a. Lowers P’s esteem in community and/or deters 3rd parties from dealing w/ P
b. Pure Opinion not sufficient. Must include factual content.
c. Can be objective or subjective (only P’s friends recognize)
3. Of and concerning P à would reas audience make inferences about P based on statement?
a. Cassidy – Pic of married racer-playboy w/ other woman announced “engagement.” Made actual wife look bad to friends. Was “of and concerning wife.”
b. Stanton – D put P’s pic next to teen sex article. Express connection not req. Defamatory
4. That is false
a. Goes by “Gist” of statement à What would average person infer / think was said?
i. (i.e. “Has P stopped beating his wife?”)
b. For Public figures à P’s burden to show falsity (prima facie)
INTENT:
Depends on: (1) Public or private person? (2) Public or private matter? (Dun & Bradstreet)
1. Must balance P’s LPI (reputation) v. D’s 1st Am. rights/public marketplace of ideas
2. Public People have greater access to channels of communication (can rebut claim)
3. Old common law à SL for publication of defamatory material (even if true).
a. Cassidy – D’s had no reason to think playboy was lying about engagement. Liable.
4. Private Person, Public Matter:
a. Must show negligence (min) à D knew or “shouldve known” statement was
ch)
iii. Lawnmower catching fire? (Mathew – no)
iv. Painter w/ no harness falling off roof? (Stinnett)
b. If it’s never happened before, can it be reasonably foreseeable? (Blythe v. Birmingham)
c. Blythe v. Birmingham –Freak storm, shallow pipe froze for 1st time. Not foreseeable.
i. Alderson Test à “Foreseeable” by ordinary person?
d. One time = now foreseeable? D à “Put on Notice?”
i. Yanking Wheel 2nd time? (Pipher v. Parsell – for jury)
ii. Pipe Freezing, after Blythe? (Steggles – yes!)
e. Statistical Foreseeability
i. 100-120 Poles fall/year = foreseeable (Boston Edison)
ii. 1 golf ball/day = foreseeable (Ammaral)
iii. Statistical certainty – Doesn’t work re intentional torts if unknown P’s/time/space
Reasonably Preventable? à BPL: Do burdens of prevention outweigh PL for not preventing?
1. Three ways to “prevent:” (1) Do activity less/stop; (2) Increase Precautions; (3) Alter Precautions
a. Less/Stop Activity? Only reasonable if B outweighs PL (Bolton v. Stone)
i. Net benefits of activity v. costs of reduced level (slower driving, etc.)
ii. 1 cricket ball every 3-5 years v. no more cricket? NO! (Bolton v. Stone)
b. Increase Precautions
i. If Risk foreseeable & no precautions even “looked into” à Likely BREACH
1. Boston Edison – Pole crash foreseeable, no research into alternatives.
ii. P must point to reasonable, safer alternatives (that pass BPL) to show breach.
1. Put passenger in back, no more yanking? (Pipher v. Parsell)
2. Start mower outside of garage (Mathew)
3. Better pole construction (Boston Edison)
4. Bargee present more often or at certain times
c. Altered Precautions/care
i. Shifting risk from one group to other… reasonable?
1. Harm to pedestrians v. drivers (stronger poles)(Boston Edison)
Comparative Reasonableness à Who was better placed/lowest-cost risk avoider (Burden lower for P or for D?)
1. Are D’s costs of foreseeing/preventing typical risks (place/activity) greater than P’s costs of foreseeing/preventing particular harms (specific to individual)
2. Same precaution at stake: à Unless D had sup. knowledge/ability, P better placed to know P’s own skills/risk
a. Stinnett – Doc hired painter for barn. No safety strap, fell off. P’s fault.
b. Compare D’s burden of warning v. P’s burden of paying attention
i. O’Sullivan – P dove into unmarked shallow pool
c. One precaution at issue, one person should be liable à Case can end here!
3. Different/multiple precautions at issue à Can find two people liable (divvy up share of liability)
a. Both parties should take care if risk is obvious
b. D reasonably relied on 3rd party to protect P?
i. Parents accompanied kid to D’s backyard pool party. Knew about pool (Herron v. Hollis)
c. If D knows of risk à Should give notice to P (Trampoline in backyard)
i. Parents of small chilld didn’t know about pool at D’s house (Perri v. Furama)
ii. Shifts burden to P to take care
