Torts Outline

TORTS OUTLINE

Professor Lee Fennell

University of Chicago

2013

I. Introduction

a. Tort definition

i. Civil wrong. Violation of some obligation proposed by law, but doesn’t arises out of a contract

b. Frameworks of Tort Law

i. Corrective justice – setting right wrongs, Δ wronged Π and law trying to set this right

ii. Compensation – people suffer losses in society, how should we deal with it

iii. Incentives – creating the right incentives to engage in certain actions, deter would be Δ from committing an action, takes two to tort, maybe things can be done on both sides

c. Intentional Torts

i. Assault – creating a reasonable fear of imminent contact, doesn’t require contact

ii. Battery – Requires harmful or offensive contact

1. Usually hear assault & battery because when you suffer from a battery, usually there is some apprehension that occurs beforehand

iii. False imprisonment

iv. Intentional Infliction of Emotional Distress

v. Trespass to Land

vi. Trespass to Chattels (moveable/personal property)

vii. Conversion

II. Intentionally Inflicted Harm: The Prima Facie Case and Defenses

a. Physical Harms : Trespass to Person, Land and Chattels

i. Battery:

1. RST §13. Battery: Harmful Contact

a. “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. Harmful contact with the person of the other directly or indirectly results.

2. Intent Requirement

a. Π has burden of proof

b. RTT §1. Intent: A person acts with the intent to produce a consequence if:

i. The person acts with the purpose of producing that consequence; OR

ii. The person acts knowing that the consequence is substantially certain to result

c. Intent is also created when the Δ causes an imminent apprehension of a harmful contact

d. Not necessary to intend harm

e. Once intentional tort is established, Δ is responsible for all ensuing harms, foreseeable and unforeseeable

3. Intent to cause contact in a setting where contact was unlawful non-consensual touching

a. CASE: Vosburg v. Putney (1891)

i. FACTS: Boy kicks other kid in the shin while sitting in the classroom; causes extensive damage

ii. ISSUE: If no intent to do harm, does Π have a cause of action for assault and battery proceeding?

iii. HOLDING:

iv. OTHER ISSUES:

1. Deciding Damages – he could recover damages for the time of healthiness of limb lost

2. Poor Π v Wealthy Δ – depending on jury, argument could go either way. Poor Π taking advantage of Δ’s wealth, or Wealthy Δ spoiled brat used to getting his way

3. Egg Shell Skull Rule – holds an individual liable for all consequences resulting from his or her activities leading to an injury to another person, even if the victim suffers an unusually high level of damage (e.g. due to a pre-existing vulnerability or medical condition). Δ must “take their victims as they find them”

4. Pl’s Negligence: Should he have been wearing a shin guard? Not in classroom

a. Implied License in classroom is different than on playground. Had the boys been on the playground and the Δ was free of malice, wantonness or negligence and intending no harm, outcome would have been different

b. CASE: White v. University of Idaho*

i. FACTS: Piano teacher touches student on her back

1. Intending contact or intending a strange or inappropriate act can be treated as wrongful.

4. Intent Requirement satisfied if D is substantially certain that contact will follow from his act

a. CASE: Garratt v. Dailey* (1955)

i. FACTS: Boy pulls chair out from under old woman who is in the act of sitting

5. Battery Hypotheticals

a. A struck in eye by a stick that B threw at C & D, who were trespassing. (Talmage v. Smith)

i. Battery. B liable because he intended to hit someone and it caused an unwarranted injury, for which B is still responsible. Transfer of Intent (intent can be transferred amont people and sometimes among torts)

b. A intends to shoot just over B’s head, wants to shoot behind him. Misses target and hits B.

i. Battery. Act created imminent apprehension (intent) and causes injury

c. A smoking in apartment, tosses lit cigarette out of window. B is walking on street and get hit with the cigarette.

i. Battery. If crowded street, substantial certainty that you could cause harm

ii. No Battery. If empty street, no substantial certainty that act would cause harm.

ii. Trespass to Land

1. CASE: Dougherty v. Stepp (1835)

a. FACTS: Δ enter on, surveyed and claimed Π’s land as his own. No physical damage to property.

b. ISSUE: i) What actions constitute trespass to land? ii) If trespass to land has occurred, under what circumstances can damages be recovered?

i. Unauthorized (unlawful) entry (or use that interferes with possession) onto another person’s property (NOTE: No trespass in instances where there’s a necessity (i.e. taking someone to the hospital)

ii. For every unlawful entry, landowner is entitled to damages of varying degree depending on the level of harm done. Some value in being able to keep people off. Even if no damage caused, people can receive nominal damages (court’s recognize rights to exclude)

2. Coase Theorem – when trade in an externality is possible and there are no transaction costs, bargaining will lead to an efficient outcome regardless of the initial allocation of property rights. In practice, obstacles to bargaining or poorly defined property rights can prevent Coasian bargaining

a. Trespass – individuals crossing boundary lines; low bargaining price

b. Nuisance – harder to make deals to make efficient things happen, high bargaining price

3. Ad coelum – if you own the soil, you own the area above and beneath it

a. Smith v. Smith* – Δ was found to be trespasser when the eaves of his barn overhung the plaintiff’s land (trespass of real property can occur on, above or below the surface of the land.

b. Neiswonger v. Goodyear Tire and Rubber Co.* – Δ found guilty of trespass because airplane overflights within 500 feet of the ground violate air traffic rules

i. Government set regulations for airlines to allow them to fly at a particular level in the sky to prevent lawsuits and because transaction costs would be too high to get everyone’s permission for a service that benefits the public on the whole

4. Intangible Trespass (pollution, radiation, etc.)

a. Case: Public Sevice Co. v Van Wyk* –

i. Intangible trespass. Π must prove “physical damage to the property caused by such intangible intrusion”. Intangible trespass must be intentional.

ii. Δ can pollute but will have to pay Π damages.

iii. Example of nuisance

b. Property rules v. Liability rules

i. Property rules – protects our property from people going on it.

1. Π can take preventive measures or

2. Take action once trespass has occurred

ii. Liability rules – Violate right

1. Π can’t prevent it, but can get damages after act has been committed

iii. Trespass to Chattels (personal property, not real estate)

1. If no damage to chattel then claim not actionable

a. RST §218 Illustration: If A climbs on B’s dog and pulls its ears, no harm has occurred to the dog or any legally protected interest of B. A is not liable to B.

b. B can take dog to property and prevent A from pulling dog’s ears

2. CASE: Intel Corp. v. Hamidi (2003)

a. FACTS: Former Intel employee sent distracting emails to Intel employees, no harm or disruption to Intel’s computers

b. ISSUE