TORTS OUTLINE
UC Hastings, Dorit Reiss, Fall 2014
OVERVIEW: WHAT IS A TORT?
1. Generally
A tort is a civil wrong beyond a breach of contract.
Purpose of tort system:
1. Justice – Making the plaintiff whole.
2. Making policy.
a. Legal paradigms
i. Law and Economics movement: Judge Richard Posner; applying economic methodology to legal problems. Ideas that came from this movement: accident prevention, spreading costs/risk, using the hand formula. One idea is that those committing torts should internalize external costs. Some problems: law and economics tends to ignore costs of litigation, ignore distribution in favor of efficiency.
ii. Critical Legal analysis: legal language is a false discourse that helps perpetuate inequality, power dynamics. Includes critical race theory, critical gender studies, etc.
b. Four types of torts (in order of decreasing culpability)
1. Intentional torts (intentional harm)
2. Recklessness (unintentional harm)
3. Negligence (unintentional harm)
4. Strict liability (unintentional harm)
INTENTIONAL TORTS
2. Overview
a. Direct and indirect injury evolved to a dichotomy of intent and negligence over time.
i. Intent is measured by a subjective standard; needs circumstantial evidence to establish intent, since few defendants ever admit to intent to harm.
1. person has purpose of producing a consequence
2. an actor knew or believed that his conduct was substantially certain to cause invasion of a legally protected interest.
ii. Negligence is more objectively determined
b. Transferred intent: type of scope liability making intent by an original actor applicable to invasions beyond express intent. Because it is more serious, intentional torts come with a broader liability for consequences.
i. Intent across torts (i.e. intent for assault justifies intent for battery)
ii. Aim for at A but hurt B – liable
iii. Some courts – intent to commit any of the following satisfy intent requirements
1. Battery
2. Assault
3. False imprisonment
4. Trespass to chattel
5. Trespass to land
*Not with any other tort
3. Battery
a. Overview of Elements
i. Act (voluntary)
1. Just wishing harm upon someone does not result in a battery.
2. If you are drunk, on drugs, or insane, you are still liable for battery (voluntary).
ii. Intent
1. Purpose or desire to cause harm or offensive contact or apprehension of contact
2. Knew that such contact was substantially certain to occur
3. Transferred intent
iii. Harmful or offensive contact
1. Knowledge of someone’s sensitivity, it may still be harmful even if it is not to a reasonable person.
2. Currently, an unconsented medical operation is a battery. If a patient gives their doctor permission to operate on the left year, but during the surgery, the doctor finds a larger problem and operates on the right ear, it is a battery. (a common law rule, not in statute)
3. If you don’t know a battery is occurring, it does not preclude it from being a battery.
4. Living in a crowded world: i.e. packed in a subway car, there is an assumption that a condition of living in a crowded world the effect of normal people living together, it does not qualify for harmful/offensive contact or battery.
iv. Causation
1. “But for” test: but for the action taking place, the resulting contact would not have happened.
2. A chain of causation qualifies
v. To a person
1. Also applies if someone grabs a shirt off one’s body.
b. Case law
i. Garratt v. Dailey (Wash. 1955) (intent)
1. FACTS: Five-year old child pulls out a chair from under Π. Π alleges purpose and intent. Δ says he was trying to use chair for himself and tried to fix problem when he realized it.
2. QUESTION/HOLDING: Intent? Court remands to answer substantial certainty question.
3. Policy: should children be liable for intentional torts? Parents have incentive to control; children can still have intent; better the actor pay.
ii. Villa v. Derouen (La. App. 3d. Cir. 1993) (intent)
1. FACTS: Δ, while working, engages in horseplay, points cutting torch at Δ to blow air; air ignites, harms Π
2. QUESTION/HOLDING: intent even if no desire to cause harm? Yes, intent exists to blow air, regardless of what unintended results follow. Substantial certainty applies to the air being blown only.
3. Why not sue for negligence? Not as much damages, if at work, negligence goes to workers compensation (typically courts say not sufficient intent)
iii. Leichtman v. WLW Jacor Communications, Inc. (Ohio App. 1994)
1. FACTS: Π going to do radio show, when at studio, employee of Δ blew smoke in his face.
2. QUESTION/HOLDING: Δ as employer liable for battery? Yes, employee acting within scope of employment opens up liability.
a. Harmful/offensive contact? Court holds smoke is particulate matter. Contact is offensive to someone’s dignity.
b. Why offensive if everyone smokes? Δ knew of Π’s sensitivity.
4. Assault
a. Overview of elements
i. Affirmative Voluntary act
1. Words alone insufficient
ii. Intent
1. D’s purpose or desire is to cause the apprehension
2. Substantial certainty rule
3. Transferred intent (Δ attempts battery/false imprisonment and fails)
iii. Causation/Volition
1. But for causation
iv. Reasonable apprehension of harmful or offensive contact (battery)(or false imprisonment)
1. Imminence of threat – no significant delay
2. Apparent ability to carry out threat
3. Π must be aware of threat
4. Fear not necessary
5. Exception: D knows of P’s timidity
v. To a person
b. Notes on assault
i. To protect your freedom from threats. Therefore showing an ability to avoid the contact or run away does not negate the assault claim.
ii. No requirement for fear – it is hard to prove. Fear is not the only reason to prevent an assault; you have a right to be protected from threat even if you are not afraid.
iii. Problem 16 (p800): the point of the tort system is to deter harm. If the ability to carry out a threat is not apparent to the victim (or it is apparent that the actor has no ability), there is no reasonable apprehension. The criminal justice system can deter this still-socially undesirable action.
iv. Big differences between assault and battery
1. Physical contact
2. Reasonable apprehension of harmful or offensive contact
3. Appearance of a threat. If the person didn’t see the gun, there is no assault
v. Strategy
1. If you have a clear battery case, don’t waste time suing for assault.
2. If there’s a doubt about the battery, you may sue for both (i.e. it is unclear whether there is contact)
c. Case law
i. Vetter v. Morgan (Kan. App. 1995)
1. FACTS: Π alone stopped at intersection. Δ (Morgan) and Gaither stopped alongside, yelling and threatening obscenit
and gives notice to his adversary. (the “he started it” rule) Evidence in most favorable view shows Δ pouring beer. 2) As to issue of assault, a person may use reasonable force to protect himself in self-defense, depending on reasonable apprehension of danger.
iii. Rossi v. DelDuca (Mass. 1962) (necessity)
1. FACTS: Π, an 8-yr-old, ran through Δ’s property to avoid German dog, and gets attacked by Δ’s two Great Danes.
2. QUESTION/HOLDING: Δ liable for battery by dogs? Mass. statute states Δ is not liable if Π is trespassing. Π was frightened of dogs, which were between her and her only path home. She ran across the property in an act that was reasonably necessary to prevent serious harm to Π. Court holds for Π.
iv. Vincent v. Lake Erie Transp. Co. (Minn. 1910)
1. FACTS: Δ’s ship attached to Π’s dock. Because of storm, Δ keeps ship at dock through the storm. The ship gets tossed, and damages the dock.
2. QUESTION/HOLDING: Δ liable for damage to dock? Yes. One is liable without fault if one intentionally uses another’s property for one’s own benefit and then in the process damages that property.
6. Intentional Infliction of Emotional Distress (IIED)
a. Generally
i. Fills gap in law where someone deliberately causes emotional distress without a threat of physical harm.
ii. IIED has been at the forefront of efforts to provide remedies for offensive speech and conduct relating to gender, ethnicity, race, sexual orientation and transgender status. (we need to consider whether granting tort remedies for hate speech violates 1st amendment rights)
iii. No need to show specific harm in assault/battery cases. In IIED, you have to show a particular kind of harm in order to get through the door (similar to negligence). This is an emotional tort, so must convince court that this was “outrageous!”
iv. Courts are hesitant to allow any emotional torts go through to begin with.
b. Elements
i. Outrageous Conduct
1. Exceeds the bounds of decency/socially tolerable conduct
a. Protect free speech
2. Words alone may be sufficient (i.e. show repeated history or provocation)
3. Special relationship
ii. Intent of recklessness
1. Purpose or desire to cause such harm
2. Substantial certainty
3. Recklessness
4. High degree of risk of emotional harm & Δ acts in conscious disregard of risk
iii. Causation/Volition
1. But for causation
2. Affirmative voluntary conduct
iv. Serious Emotional Harm
1. Reasonable person of ordinary sensibilities
2. Severe
3. Intensity and duration factors
4. Objective evidence not required but helpful
5. Directed at P
6. Secondary party exceptions:
a. Family members present and known to D
b. Others – extreme violence and strong likelihood of shock
