TORTS EXAM GUIDE
Prof. Lee Fennell
University of Chicago Law School
Fall Quarter
Intentional Torts
Prima Facie Elements
· Action: There needs to be an action, and it needs to be voluntary (that is, non-compulsive).
· Intent: The action must be intentional—i.e. tortfeasor must have either (1) acted with the purpose of producing the consequence or (2) acted knowing that the consequence is substantially certain to result.
o Transferability of Intent: Intent follows the tort rather than the mind of the tortfeasor. It transfers in several different ways:
§ Between Persons: Keel v. Hainline (Oklahoma, 1958) (eraser-fight, bystander injured).
· Between Different Intentional Torts: Manning v. Grimsley (warning pitch).
· Between “Flavors” of the Same Intentional Tort: (harmful to offensive battery e.g.)
· Between People: See Talmadge v. Michigan (throw stick at one, hits another, battery transfers)
· Causation: Eggshell Skull Doctrine: One is liable for an unforeseeable extent of a foreseeable type of harm. Vosburg; White v. U. Idaho
· Damages: Harm (actual damage) is always a requirement.
A Few Other Notes on Intentional Torts
· Statistical Certainty does not count as substantial for tortious intent doctrine. Construction foreman example.
· Insanity no Defense: See Polmatier v. Russ (incentivizing others to take care).
Intentional Torts Against the Person
Battery
Intentional infliction of harmful or offensive contact. As mentioned above, the intent can entail either purpose (purposive action) or a more passive position with “substantial certainty.” But the underlying intent needs to be there—or else it is negligence. See Posner bedbug case (although don’t cite) and Benight v. Western Auto Supply (liability here was for both assault and battery, though the excerpt focused on assault).
The contact is intended by one person to another—but it can transfer to others. Also damages don’t need to be foreseeable. Vosburg, White.
It usually concerns the P’s body, but it can also attach to intimately placed articles (like a hat, or a plate being held). Fisher v. Carousel Motor Hotel.
Contact can sometimes happen through intermediaries/instrumentalities but courts will only take this so far. (shining light exe. from E&E)
The use of the instrumentality needs to be part of the intentional act. Compare Leichtman v. Jacor (blowing smoke in your face) to Madden v. DC Transit (pollution by buses—this would be negligence).
Negligence Threshold: Is the action intended to harm or offend (someone, somehow…)?
Offensiveness: This doesn’t mean the actor must consciously intend. It’s an objective reasonability standard—all that’s required is that the conduct could harm or offend a person “not unduly sensitive to his dignity” (Restatement). Courts have carved out exemptions for ordinary & reasonable contact.
Courts don’t extend this shield when the tortfeasor knows about special sensitivity, however.
Sleeping Beauty Doctrine: Battery can exist if the plaintiff/tortfeasee is unaware of the battery at the time it occurs.
Way Out There: Battery Negated by Self-Preservation: See Laidlaw v. Sage this was ruled involuntary. Probably not the best of law.
Good motives no defense—Mohr v. Williams—although custom is a defense vis-à-vis objective reasonability.
Assault
“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 imminent apprehension.” Restatement (Second) 21.
Intent—again (1) purpose or (2) substantial certainty.
Thus assault liability extends toà (1) imminent apprehension caused by near battery and (2) other means of imminent apprehension (there’s a truck coming toward you!)
More Than Mere Words à this is rigidly enforced.
Must be Imminent à No far-off threats. Brower v. Ackerly (phone call threats), Tuberville v. Savage (at the next sessions).
Ability Requirement à D needed to have had ability to inflict the harm. Don’t confuse this with the question of whether P could have defended himself. Even a wrestler versus a geek—the geek could still lay hands (batter) the wrestler. (Self-defense is where this other issue comes up).
Classic example is the empty pistol—if the pistol is empty, no assault.
Eggshell Skullà you’re on the hook for whatever happens—physical or psychological. An innocent prank works. Langford v. Shu.
No Mergerà assault doesn’t merge into battery.
Tailoringà Assault isn’t governed by an objective standard. Newell v. Whitcher. [ come back to this— YESà Subjective.
False Imprisonment
False imprisonment occurs when the defendant intentionally confines the plaintiff. The plaintiff is confined when his will to leave a place with fixed boundaries is overcome in a way that would overcome the will of an ordinary person in the plaintiff’s position.
Additional Requirements
· Duration: The confinement has to be more than transitory
· Nature of Confinement: Confinement must occur through a few, pre-determined ways:
o Escape-Prevention: Either all exits are blocked or the only available escape puts an unreasonable burden (of humiliation or degradation) on the plaintiff. If this doesn’t apply and physical exit is possible, no false imprisonment.
o Duress: Plaintiff was confined via immediate apprehension (i.e. assault). Like assault, this requires immediacy—far off threats don’t work. Words alone are enough, though, if they are threatening enough (I guess because of the power asymmetry of situations like this).
o Property Threats: Surprisingly, courts have sometimes allowed property threats to count for confinement—like a merchant seizing a shopper’s bags and refusing to give them back.[1]
o False Authority: Confinement can occur through false authority (e.g. pretending to be a police officer).
Maggie Simpson Rule: à “Under the rule stated in § 35, there is no liability for intentionally confining another unless the person physically restrained knows of the confinement or is harmed by it.” Restatement (Second) 42.
Transferability: In several situations liability for false imprisonment can transfer. For instance: if a private citizen participates in an arrest that turns out to be have been unlawful (by, say, knowingly giving false information) she might be liable for false imprisonment even though she had nothing to do with the arrest. L
Mistake No Defense: If person A is shopping in a department store and the store’s detective thinks that person B stole something and prevents B from fleeing by locking the store’s doors, the detective will be held as having the requisite intent to confine A.
Cult Cases: Law goes both ways w/r/t/ excusing false imprisonment for attempts to deprogram cult members by family, etc. Peterson v. Sorlien allowed it as an exception to false imprisonment; Eilers v. McCoy did not (à and both were Minnesota cases). Largely an extra-legal policy issue.
Outrage (IIED)
“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.” Second Restatement 46.
è Note that this is the one area of intentional torts where reckless conduct is allowed (at least by the Restatement and some case law—see Blakely v. Shortall’s Estate, involving a suicide in somebody’s house and subsequent emotional trauma)
Reasonable Person Standard: Conduct needs to be such that would cause this reaction in a reasonable/ordinary person—although courts have been willing to tailor in situations of extreme power asymmetries (like bill collectors). There’s a general commitment to objectivity, and an unwillingness to reward for reactions largely based in peculiar individual psychology.
Eggshell Skull: You’re on the hook for subsequent harm both mental and physical
Third Parties: This is usually an intentional tort. But normally intent doesn’t transfer with outrage. If I intend to inflict emotional distress on A but actually do it to B, I’m not liable to B. There are two exceptions:
· When the third party is a family member who is present
· When the third party suffers physical injury as a result of the distress
Remember, however, that assault is transferable, meaning that if the outrage involved could also be classed as assault it could be transferable. Not all instances of outrage are also assaults but remember this distinction.
Remember to distinguish between intentional infliction of emotional distress and negligent infliction of emotional distress—see below
Intentional Torts Against Property
Trespass (to land)
A trespass to land occurs
(1) when D enters the P’s land, or causes another person, or object, to enter the land
(2) when D or an object remains on the land after right to do so has expired
(3) D violates the conditions of consent that permit being on somebody else’s land.
è Trespass is something like a strict liability tort. Defendants are strictly liable for trespassing on the land of others. They
Consent
Reasonable Person Standard: Issues of implied consent are determined on the basis of what a reasonable person would have assumed the existence of consent. If A asks to kiss B, B says nothing but actually doesn’t want it, and B kisses her consent is implied via the reasonable person standard.
Consent as a Matter of Law in Emergencies: Courts will infer consent in emergency situations where the person who would give consent is unable. But the situations have to be emergencies. See Mohr v. Williams (ear surgery case where it was not enough of an emergency).
No Indication to Non-Consent: There also has to be no evidence that, were the consenting party aware of the situation, she wouldn’t consent. See Werth v. Taylor (which states this rule in kind of an indirect way—the Jehovah’s witnesses and the blood transfusion)
Ghost Surgery: Courts have ruled different ways on the issue of whether surgical consent attaches to a particular party. They have sometimes ruled that such “ghost surgery”—where the surgery is contracted with one party, but another performs it—is battery: see Grabowski v. Quigley (Pennsylvania, 1996). But sometimes the opposite view is taken (for instance, by the Second Restatement: see CB, p. 20).
Consent and Crime: There’s a majority/minority split here. Majority: Most courts hold a Plaintiff’s consent to be ineffective if it attaches to a criminal act. For instance, if the P and D agree to fight each other, most holds claim that the P can still recover. See Hart v. Geysel (Washington, 1930) concerning a prizefight in Seattle where one fighter died—for an example of the majority view. Minority: In eight states and in the Second Restatement, however, consent to a criminal act is always effective—even when a breach of the peace is involved.
Statutory Negations: Statutes can negate consent. Statutory rape, for instance. Presumably this applies in the civil realm—you could subsequently sue for battery in a statutory rape case (I think).
Another possibility valuable distinctionà fraud in the factum (doctor assaults patient, vitiates consent) vs. fraud in the inducement (I say I don’t have STDS to get sex)
Discipline: The common law provides certain defendants with limited privilege to impose discipline in various circumstances; this privilege permits parents and teachers (acting in place of parents or in loco parentis) as well as some others to use force to maintain order. Changing public policy and social norms affect discipline. The discipline that was once allowed in schools, on ships, and in marriages is no longer allowed. The objective test is what a reasonable person in society would expect. Normally used by people in positions of authority
Defenses of Person and Property since criminal law is the lodestar, here, there’s some variability
Person against Person
Force can only be justified in situations of
§ Battery (harmful of offensive contact)
§ Assault (threat of harmful or offensive contact)
§ False imprisonment
Deadly force is permitted in even narrower circumstances: threat of death; serious bodily injury; rape/sexual assault.
Third Parties: Force can be used in the defense of third parties generally
No Intent Requirement: The conduct in question doesn’t have to be intentional—it can be negligent or reckless.
Reasonability Requirement: Force can only be used in self-defense when it is reasonable.
§ Force must be proportional.
§ One must exhaust all alternative means of escape/diffusing the situation. ß REMEMBER THIS, BUT IT ONLY APPLIES SOMETIMES (IN RESTATEMENT)
§ There is an exception in one’s home (Castle Exception) ß THIS ALWAYS APPLIES IN COMMON LAW
[1] Assume there’s no shopkeeper’s privilege.
