Fall 2004 Torts Outline
INTENTIONAL TORTS
1. Intent
– Two types of intent.
1. Desire to cause consequences. (purpose) This is a want for the outcome to result.
2. Substantially certain that consequences will result.
– inadvertent result of an action is not intentional: must intend all of the elements of an intentional tort.
No Exceptions
Rationale: Between an innocent party, a tortfeasor, and the general public, the tortfeasor should bear the burden of his behavior; regardless of whether the tortfeasor can be at “at fault” because of his diminished mental capability.
1. Children: age is not an excuse to evade liability. (There are limitations for negligence.)
– However, for very young children in complex situations the court may be less likely to find “substantial certainty” of the outcome.
2. Insanity: Not a defense to intentional torts.
– Most courts will not award punitive damages, since the actor cannot form the requisite malice. Punishment is not the rationale for awarding damages/ liability.
– Williams v. Kearby: Minor shot several people in his high school but was held liable despite the fact the court’s finding that he might have been insane.
Mistakes
Majority: Under Mistake Doctrine in intentional torts, it is no defense that the defendant mistakes, even reasonably, the identity of the person or property that he acts against.
Ex. Defendant shoots what he thinks is a wolf, which is okay to kill, but in fact kills a dog, for which he is liable.
Minority: Doctrine is not always applicable, the Restatement does not endorse it.
Encouragement
– An actor who encourages another to intentionally commit a tort is liable as an intentional actor.
1A. Transferred Intent
Rule: Intent to commit any of 5 traditional torts can constitute the necessary intent to commit any of the five other intentional torts. Those torts are:
1. Battery, assault, false imprisonment, trespass to land, trespass to chattel
– Not the transferability between property torts and personal injury torts.
Rationale: between a tortfeasor, the general public, and an innocent defendant, the tortfeasor should bear the burden of his acts.
Intent can be transferred among parties.
– Intent to commit a tort against a particular person constitutes intent against any other person, no matter how unforeseen, who is instead or also a victim of one of these torts. Foreseeability of the victim is not required.
Restatement: does not endorse the doctrine generally, but incorporates the transferred intent into the definition of assault and battery.
Case:
Alteiri v. Colasso: Defendant intended to throw a rock at one boy to scare him (not to hit him), but accidentally hits a third person; because defendant intended to assault third party, he is liable for battery to plaintiff under transferred intent. Both the victim and the tort transferred.
Mistake Doctrine also applies here.
1B. Battery
A. Restatement definition
An actor is subject to liability to another for battery if a) he acts intending to cause a harmful or offensive contact with the person of the other (or a third person) and a b) harmful or offensive contact with the person of other directly or indirectly results.
– Battery commonly and easily embodies the concept of transferred intent with
respect to other plaintiffs and assault.
B . Elements
1. Intent (desire or substantial
2. To do harmful or offensive contact (objective measure)
3. No privilege, consent or permission by the plaintiff
4. Harmful or offensive contact results.
C. Harmful Contact
Case:
Bohrman v. Maine Yankee Atomic Power Co.
– exposure to radiation without consent constituted harmful contact.
-This holds even if the company complies with the federal safety standards.
– Compliance with federal standards merely demonstrates lack of negligence.
– Worker’s comp generally precludes all but intentional torts.
HIV Cases: engaging in sexual contact without disclosing HIV status can constitute battery, but nonsexual contact is not battery.
D. Offensive Contact
– Contact that is offensive to a reasonable sense of personal dignity.
Restatement Definition: Offend personal dignity of an ordinary person.
Case:
Leichtman v. WLW Jacor Communications: P blew smoke in the face of D for purpose of causing physical discomfort, humiliation, and distress. Damages are trivial, but it is battery.
– An accident cannot constitute battery, so second hand smoke is not considered battery, because tortfeasor did not intend for contact with a particular defendant. (courts also hold there is no substantial certainty for a particular individual)
1C. Assault
Majority Definition: Assault is the intentional placing of another person in reasonable apprehension of imminent or offensive contact. (objective test)
Minority Definition: Does not require that apprehension be reasonable.
Restatement Definition: “An actor is subject to liability to another for assault if a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and b) the other is thereby put in such immediate apprehension.
1) restatement definition embodies transferred intent with respect to the tort of battery and with respect to third persons.
A. Elements
1. Intent
2. Cause apprehension of offensive or harmful contact
3. Imminent threat
4. Apprehension results
B. Must be apprehension of imminent battery:
– Absent some additional circumstances inducing a reasonable apprehension of harm (ex. Drawing back fist, showing weapon) words do not typically constitute assault.
– Threats cannot be forward-looking, must be imminent.
Case:
Castro v. Local 1199: Plaintiff alleged assault for defendant’s threatening language and for slamming hands on the table. Court found it was insufficient for assault.
C. Contemporaneous Perception- Apprehension requires awareness
– Unlike battery, person must be aware of the act in order to feel apprehension.
– Someone who is unconscious is therefore unable be apprehensive or harmful contact.
Examples:
Not Assault: I’m sleeping and someone shoots at me with a squirt gun, but misses.
Assault: Someone threatens my life with a squirt gun. There was an attempt to put me in imminent apprehension and I experienced imminent apprehension.
Mental Distress’ role?
1D. False Imprisonment
A. Definitions:
Restatement Definition: “The intentional, unlawful, and unconsented restraint by one person of the physical liberty of another.”
– Actor is liable if:
1) he acts intending to confine another within fixed boundaries, and
2) his act directly or indirectly results in such confinement, and
3) victim is conscious of the confinement or is harmed by it.
Case:
Dupler v. Seubert: employer held employee and wouldn’t let her leave until agreed to sign. Met all the requirements and was found liable.
B. Intent
– Transferred intent applies with respect to other persons. (mistake doctrine)
C. Confinement
– Restatement: Means of Confinement:
1) physical barriers
2) force or threat of immediate force (can be express or implied).
3) omissions where there is a duty to act
ex. Where defendant and plaintiff go out on a boat, and defendant had promised to bring plaintiff back to shore but refuses to do so.
4) Improper assertion of legal authority (False arrest)
ex. Where police officer arrests suspect without probable cause and holds him for seven days before arraignment, officer liable for false arrest.
– Bounded Area: It is not false imprisonment if the plaintiff can proceed in some direction, even if it is not preferred direction.
– Can be implied or express (can be inferred from conduct of the tortfeasor)
– Highly coercive, non-immediate physical threats do NOT constitute false imprisonment.
ex. Parishioners force bishop to meditate in isolation for a week under threat of revealing his adulterous relationship with another parishioner. There was no physical restraint and therefore no false imprisonment.
– Threat of economic retaliation and / or employment termination do NOT constitute false imprisonment.
D. Consciousness of Confinement
Majority view: Victim must be conscious of his confinement
Minority/ Restatement view: Liability without consciousness if defendant is harmed.
Other: There is no consciousness due to infancy or incompetence. (Can be liable to the party that has legal custody.)
Case:
Maniaci v. Marquette University: defendant not liable for false arrest / false imprisonment because defendant’s used a legal method to restrain plaintiff
E. False Arrest
– A form of false imprisonment whereby the improper assertion of legal authority
can unlawfully restrain a victim.
Examples: NO!! Police w/ warrant (try malicious prosecution or abuse of power)
YES!! -Police w/o proper warrant
– Pretending to be a police officer
– false statements to police to induce a arrest
1E. Malicious Prosecution
A. Elements
1. Institution of judicial proceedings against victim brought by plaintiff
– traditionally only criminal proceeding, now many states allow civil proceedings.
2. termination favorable to the “defendant.”
3. absence of probable cause
– must be unreasonable. Closely related to malicious intent.
– where probable cause supports plaintiff’s arrest, there cannot be malicious prosecution unless the defendants subsequently learned that plaintiff was innocent and still continued prosecution.
4. Improper or malicious purpose (split)
malice = ill will, desire to hurt/punish for revenge.
5. damages to the defendant (plaintiff in the malicious prosecution case)
Element #2- Cannot bring the action until the litigation is terminated, so criminal charges or litigation that is dropped is not considered termination in favor of the accused.
– There is a trend for courts to become more flexible with this requirement
Element #4- Restatement lowers the threshold to require only that the defendant acted with an intent other than bringing the plaintiff to justice. Whether there was actual malice or ill will toward the victim/ plaintiff is irrelevant under the Restatement test.
– essence of tort is “perversion of proper legal procedure.”
Restatement Definition: A private person who initiates or procures the institution of criminal proceedings against another who is not guilty of the offense charged is subject to liability for malicious prosecution if (a) he initiates or procures the proceedings without probable cause and primarily for a purpose other than that of bringing an offender to justice, and (b) the proceedings have terminated in favor of the accussed.
– Prosecutors and judges are immune from liability for their official actions. Police and private parties may be held liable.
1F. Abuse of Process
Generally characterized as misuse of either criminal or civil legal process for an ulterior purpose, which results in damage to the defendant.
– Malicious Prosecution distinction: No favorable termination is required, so defendant can file immediately.
– The purpose for which the process is used is the only thing of importance.
Case:
Maniacci v. Marquette: Plaintiff tried to quit school but was legally detained by defendants. School not liable for false imprisonment or malicious prosecution, but probably for abuse of process.
Common example: Misuse of subpoenas.
2. Intentional Infliction of Emotional Distress
Definition: Intentional infliction of emotional distress exists when the defendant, by extreme and outrageous conduct, intentionally or recklessly causes the victim severe
ic Relations
– Only applies to 3rd party intermeddler. Wrongfulness?
A. Elements
1. Valid contract (for interference of a contract) or valid economic expectancy (interference with economic expectancy) between plaintiff and 3rd party.
2. Defendant has knowledge of the contract or economic expectancy/relationship.
– perfect knowledge not required. Defendant only needs to know facts that lead to contractual duty. If plaintiff knows facts and mistakes whether they are a contract, he is liable. (Texaco v. Pennzoil)
3. Intent by defendant to interfere. (Minority and CA, only includes desire, not substantial certainty. Majority has both.)
4. Interference caused by defendant.
5. Damages to Plaintiff.
Economic Expectancy:
– Ordinary recovery for IIEE requires proof that the P had a valid economic expectancy, and not merely the aspiration or hope of economic success.
B. Factors in Determining Impropriety
a) Nature of actor’s conduct
b) actor’s motive
c) Interests of the other with which the actor’s conduct interferes
d) Interests sought to be advanced by the actor
e) social interests in protecting the freedom of action of the actor and the contractual interests of the other.
f) proximity or remoteness of the actor’s conduct to the interference
g) relations between the parties.
C. Justifications (Limitations)
Traditionally: Defendant has burden of proving justification
Modern Trend: Plaintiff has burden of proving that D has no justification
IIEE only:
Advancement of legitimate business policy for which actor has economic interest.
IIEE and terminable, at will contract only:
Fair competition. Only applies to competitors in same business.
Texaco v. Pennzoil: Getty was negotiating contract to buy Pennzoil and had just reached tentative agreement when Texaco interfered and ruined deal. Pennzoil brought suit and court held that ‘fair competition’ justification was inapplicable because contract had been formed, therefore Texaco was liable for IIK.
Limitations on both:
– protecting welfare of another one is responsible for.
– Providing truthful information or honest (even if inaccurate) advice within the cope of a request.
– Assertion of bona-fida property right
– Interference w/agreement that is illegal or in violation of public policy
Cases:
Calbom v. Knudtzon:
– After Calbom provided legal services to Henderson, defendant suggested to Henderson she get a new attorney. Court ruled defendant interfered w/contract and had no viable justifications, therefore was liable for IIK.
Lowell v. Mother’s Cookies:
– Plaintiff’s trucking business had oral contract with Mother’s Cookies. When Plaintiff tried to sell business, Mother’s told prospective buyers they were going to end the relationship in hopes of driving down price and buying it cheap. Court reversed dismissal and allowed it to go forward.
Election Results:
– In CA, relaxed standard for valid economic expectancy due to public policy interest in election context. Minority opinion.
Sports?
5. Wrongful Termination of Employment
– Employer liable for wrongful termination where the termination violates public policy.
CA requirement for public policy:
1) Public policy must be delineated in either constitutional or statutory provisions
2) “public” in the sense that it benefits the public rather than the individual
3) Well established at the time of discharge
4) substantial and fundamental
Foley v. Interactive Data:
– Foley was fired after he notified his ex-boss that he was concerned that his new boss might have a criminal record. Court granted D’s motion to dismiss because termination was not in violation of any clear public policy.
Wrongful termination applies equally to at-will contract and non-terminable one
– Against public policy typically construed as:
1) refusal to commit a crime
2) Reporting criminal activity
3) Reporting unsafe work conditions
6. Tortious Breach of the Covenant of Good Faith and Fair Dealing
– implied covenant of good faith and fair dealing is essentially a contract term
Restatement: every contract imposes upon each part a duty of good faith and fair dealing in its performance and enforcement.
– Brought in addition to breach of contract. Allows for award of punitive damages and mental distress.
– Breach must be intentional and malicious (bad faith); cannot be negligent.
A. Majority of jurisdictions hold that it only applies to insurance companies.
Egan v. Mutual of Omaha:
– Defendant did not thoroughly investigate claim before denying the claim. Court
found a tortious breach of the covenant of good faith.
B. Minority of courts extend it to generally cover contracts where unequal bargaining power exists.
– Hawaii expands i
