TORTS OUTLINE
Theoretical Underpinnings
Basis For Liability
· Intentional Misconduct
· Negligence
· Strict Liability
Methods Of Analysis
· Fairness Doctrine – corrective justice
· Economic Analysis – most trendy
· Loss Distribution – disbursement of losses over many party’s (ie. insurance companies)
Terminology
· Real Evidence – physical evidence (ie. gun)
· Direct Evidence – (ie. eye witness)
· Circumstances Evidence – tends to prove that other accounts occurred
· Burden of Persuasion – party must prove by preponderance of evidence
· Inference – a deduction of fact that MAY logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action
· Presumption – an assumption of fact that the law REQUIRES to be made from another fact or group of facts found or otherwise established in the action; a presumption is NOT evidence
INTENTIONAL TORTS
Liability
· Child – can be held liable so long as the child has “sufficient capacity” to have the requisite intent, whether or not he/she understands the wrongness of the act
o Garrett v. Dailey – minor pulled chair resulting in fractured hip
· Insane – can be held liable so long as there is an “intent” to commit the act
o Williams v. Kearbey – insane minor shot up school
o Punitive Damages – insane “cannot” be held liable for punitive damages
§ Williams v. Kearbey – insane minor shot up school
Intent
Definition
· “desire” to bring about a harm or knowledge to a “substantial certainty” that the harm would occur
o Garratt v. Dailey
· there NEED NOT be proof that the ∆ intended to cause any serious injury
o White v. University of Idaho – teacher touching students back like piano
· proof of mere reckless behavior is SELDOM considered sufficient to establish an intentional tort
Transferred Intent
includes battery, assault, false imprisonment, trespass to chattel, and trespass to land
if ∆ intends any of the 5 torts listed, but acts instead or in addition, result in any of the other 5 torts listed ∆ is liable, even though she had no intention
Alteiri v. Colasso – ∆ throws a rock in an attempt to scare A, rock hit B in the eye; intent from assault on A transferred to intent for battery on B
Battery
Definition
· an unconsented touching
· an (1)intentional (2)harmful or offensive (3)touching, direct or indirect
Elements
1. Intent – see page 1
2. Offensive – MUST offend the personal dignity of an “ordinary person”
· Leichtman v. WLW Jacor Communications, Inc. – cigar smoke in face
· Fisher v. Carrousel Motor Hotel, Inc. – snatching of plate b/c black
· Doe v. Johnson – failed to disclose HIV+ status before sexual relations
OR
Harmful
· Garratt v. Dailey – minor pulled chair resulting in fractured hip
· Williams v. Kearbey – insane minor shot up school
· Bohrmann v. Maine Yankee Atomic Power Co. – students exposed to radiation
3. Touching – direct or indirect
· victim does NOT have to be “conscious of the contact” at the time of the intrusion
· victim does NOT have to be “conscious of the harmful or offensive nature” of contact at the time of the intrusion
Policy Rationale
· psychological injury is worthy of compensation (offensive contact)
· for a trivial conta
dministrators, act was “legally” carried out (no false imprisonment)
3. Restraint
· MUST confine within “fixed boundaries” with no “reasonable” means to “escape”
o Escape NOT reasonable if it requires victim to be “heroic,” endure “excessive embarrassment or discomfort,” or if victim is “unaware” of the means of escape
o Whittaker v. Sandford – A promises to bring B back to shore (on boat) on request, A denies B’s request (false imprisonment)
· can be accomplished by: physical barriers, force or threat of “immediate” force, omissions where there is a duty to act, improper assertions of legal authority (false arrest)
· NO minimum time
4. Physical Liberty
· actual force is NOT necessary; “threat” of physical force “sometimes” sufficient
o implied threat can work, but CANNOT be “economic or coercion”
o threat CANNOT be for action on the “following day”
o if A wrongfully grabs B’s coat and B refuses to leave w/out her coat, A is liable to B for false imprisonment (abandoning of personal property)
o Dupler v. Seubert – ∆ restrains π with threats wanting π to resign; the accompanying economic coercion influenced decision
· NO “reasonable” means to “escape”
o Escape NOT reasonable if it requires victim to be “heroic,” endure “excessive embarrassment or discomfort,” or if victim is “unaware” of the means of escape
