Torts Outline Spring 2011 Professor Reiss
TORT LAW POLICY ARGUMENTS
i. Corrective Justice: to correct wrongs by victim compensation
ii. Distributive Justice: people who profit from activity should bear cost.
iii. Instrumentalist (Holmesian View):
1. Require compensation only where there is fault.
2. Encourages productive social activity
3. Deter socially undesirable behavior
iv. Law & Economics:
1. Efficient accident prevention
2. Hand formula
3. Externalities
4. Risk Spreading: insurance, spreading costs.
v. Personal Autonomy.
vi. Preventing Self-Help/Vigilantes.
TORT CLAIMS
vii. The Trespass Torts (intent transfers among these torts)
1. Battery
2. Assault
3. False Imprisonment
4. Trespass to Land
5. Trespass to Chattel
viii. Modern Intentional Torts
1. IIED
2. Fraud
3. Defamation
VICARIOUS LIABILITY
a. Rule: employer VL for employee negligence that occurs w/in scope of employment.
b. Scope of employment
ix. Pyne v. Witmer:
1. Facts: Injured victim sues employer for employee’s drunk driving when returning from certification test. Detour or frolic?
2. Test: Conduct w/in scope of employment if/only if:
a. It is the kind he is employed to perform.
b. It occurs substantially w/in the authorized time/space limits.
c. It is actuated (or partly) by a purpose to serve the employer.
b. Independent Contractor v. Employee
i. Kime v. Hobbs.
1. Facts: driver hauled cattle for rancher but Independent Contractor b/c own truck/route/maintenance., sporadic jobs. Contractor not liable.
2. Rule: Employer not liable for independent contractor.
3. Considerations:
a. Control
b. Organization
c. Economic realities
c. Policy PRO VL:
ii. Incentivizes responsible employers, to control employees.
iii. Helps prevent accidents.
iv. Spreads accident costs
d. Policy CON VL
v. Fairness to employers?
vi. Requires employers to over-control employees
INTENTIONAL TORTS
c. Overview
i. INTENT
1. Transferred Intent
ii. BATTERY
1. Voluntary act
2. Intent
3. Causation
4. Harmful or Offensive Contact
5. To a Person
iii. ASSAULT
1. Affirmative Voluntary Act
2. Intent
3. Reasonable Apprehension
4. Of Battery/False Imprisonment
5. Causation/Volition
6. To a Person
iv. DEFENSES TO INTENTIONAL TORTS
1. Consent
2. Self-Defense
3. Defense Against Property (Katco v. Briney)
4. Necessity (Eilers v. Coy, Rossi v. DelDuca)
5. Private Necessity (Lake Eerie Rule)
6. Public Necessity
v. IIED
1. Outrageous Conduct
2. Intent (no transferred intent)
3. Cause/Volition
4. Serious Emotional Harm
INTENT
vi. Elements
1. Acts w/ purpose/desire to produce the consequence; or
2. Acts knowing that the consequence is substantially certain to result from the person’s conduct.
a. Garratt v. Dailey:
1. Facts: 5yr old pulls chair, lady breaks hip, battery suit.
2. Held: π must establish intent element—that D desired for or knew w/ substantial certainty harm would result.
3. Held: Children liable for intentional torts (not negligence)
vii. Transferred Intent
1. Application: Only applies to orig. 5 torts: Assault, Battery, False Imprisonment, Trespass to Land, Trespass to Chattel.
a. Liable if intend to hit x, but mistakenly hit y.
b. Liable if intend to assault, but commit battery.
c. Some jx: liable if attempt to commit any trespass tort.
2. Hall v. McBryde
a. Resident D intended to put youths in vehicle in apprehension of harmful bodily contact by shooting gun and shot V neighbor.
b. Held: D’s intent toward the youths transferred to V.
BATTERY
viii. Elements Overview
1. Voluntary act
2. Intent
3. Causation
4. Harmful or offensive contact
5. To a person
ix. Elements
1. D volu
If the cop wasn’t here I’d hit you = not assault, because not imminent.
2. Apparent ability to carry out threat.
3. P must be aware of threat.
b. Fear not necessary.
c. Exception: D knows of P’s timidity.
d. Vetter v. Morgan: physical/verbal threats to remove V from car sufficient evidence that D caused V apprehension of harm.
4. Of Battery/False Imprisonment
5. Causation/Volition
a. Test: “But For”
6. To a Person.
xii. Note: No attempt in torts.
Overlaps of Assault and Battery
1. Most batteries include assault.
2. Battery BUT NOT assault:
a. If victim is unaware. Ex: punching V from behind.
3. Assault BUT NOT battery:
a. No touch. Ex: attempting to hit, but missing.
4. If battery is easier to get, ignore the assault.
5. If there is any doubt wrt the battery, add the assault claim.
DEFENSES TO INTENTIONAL TORTS
xiii. Overview of Defenses: Consent, Self-Defense, Defense Against Property, Necessity, Public Necessity, Private Necessity
xiv. Consent
1. Must be apparent (more important) and actual.
2. No consent under fraud/duress. (No consensual sex when unknown HIV)
xv. Self-Defense
1. Elements:
a. Use of “reasonable force”
b. D “reasonably believed” [Bradley v. Hunter]
1. Actual belief
2. Reasonable belief
3. Reasonable mistake—still covered.
4. Consider:
1. Parties’ relative size, age, strength
2. Reputation for violence
3. Who was aggressor
a. For aggressor to claim SD, must evidently abandon fight. Juarez.
4. Degree of harm reasonably feared
5. Presence/absence of weapons
