TORTS (PROFESSOR EPSTEIN, WINTER QUARTER)
INTENTINALLY INFLICTED HARM: THE PRIMA FACIE CASE AND DEFENSES
<INTENTIONAL TORTS>
· Physical Harms
· Trespass to Person: in order for there to be a battery/trespass to person, there must be intent, and an act by the ∆ and a rude or offensive touching of the π
§ Intent need only be an intent to affect a legally protected interest in a way that will not be permitted by law—basic judgment is that anyone who deliberately violate the bodily space of another takes the risk that his actions will produce a harm greater than or different from the one intended
§ In Vosburg v. Putney ∆ kicked π below the knee where π had been previously injured, and was later found guilty of battery b/c the kick became the “exciting cause” of further injury, even though ∆ did not intend any harm
· Held that π must show either that the intention was unlawful, or that ∆ is in fault—if the intended action was unlawful, then the intention to commit it must also be unlawful
· If incident in Vosburg took place on the playground, π would have assumed the risk of an accidental injury—court treated school room as a place where π did not assume the risk of accidental harm
§ In Garratt v. Dailey child pulled a chair out from underneath π, and arthritic lady, and she fell on the floor and received serious injuries…court followed the restatement view that intention is used “to denote that the actor desires to cause consequences of his act, or that the believes that the consequences are substantially certain to result from it”
§ In White v. University of Idaho ∆ was π’s piano teacher and a guest in her house, and ∆ came from behind and touched π on the back and π experienced serious injuries—he court found battery b/c of the deliberate touching w/o consent, and offered ∆ no refuge behind his innocent intentions
· Trespass to Land: every unauthorized person or thing on the land in the possession of another is a trespass—if the ∆ intends to be on the π’s land, whether the ∆’s presence is based on mistake, ignorance, claim of right, or some other matter, he is liable for trespass. To recover π need not prove damages or actual harm to the land
§ In Dougherty v. Stepp ∆ entered π’s land with a surveyor to survey land, claiming it was his own–∆ found guilty of trespass b/c every unauthorized entry on to the land of another is trespass.
§ In Brown v. Dellinger two children entered π’s land w/o permission and accidentally set fire to the house—even though they meant no harm but they assumed the risk of damage when they trespassed so found guilty.
§ In Cleveland Park Club v. Perry boy swimming in pool inserted rubber ball into suction pump where it caused extensive damage—Court held that the relevant intention was “the intent to complete the physical act and not the intent to cause injurious consequences”—boy was not impliedly license to fool with pool equipment.
§ [INTANGILE INTRUSIONS] In Public Service Co. of Colorado v. Van Wyk Court ruled that noise, radiation, and electromagnetic fields are intangible invasions that only give rise to a claim for trespass “if an aggrieved party is able to prove physical damage to the property caused by such intangible intrusion”
§ [ELECTRONIC INTRUSIONS] In Intel Corp. v. Hamidi court ruled that ∆’s electronic communication, which neither damaged nor impaired the functioning of π’s computer does not constitute the tort of trespass to chattels.
· Defenses to Intentional Torts
· Consent: consent of the π or the existence of a privilege in the ∆ will exonerate ∆ from liability for an act, which on its face, would otherwise give rise to tort liability—burden is on ∆ to plead and prove the existence of a privilege or consent. The general rule consent by the π to an act that would otherwise give rise to tort liability will act as a bar to an action based on the act. Problems arise as to whether the plaintiff has in fact given, or has the capacity to give, consent (principle of self-regulation)
§ [FRAUD] consent procured by fraud is void. Similarly, consent received w/o disclosure of a material fact negate consent…see McPherson v. McPherson where ∆ failed to disclose his medical condition (STD) to his wife and she contracted the disease
§ [PROOF] Consent must be known to the rest of the world, and oftentimes is communicated by formal contractual arrangement—can be oral or written. π’s binding consent to intentional contact might rightly be inferred from customary or informal understandings alone w/o formal agreement
§ [MEDICAL CONTEXT] In Mohr v. Williams Court ruled that ∆, a surgeon, committed assault and battery when he consulted to operate on π’s right ear, and after putting her under he found more problems with the left ear and operated on that ear—π claimed surgery caused more harm and she did not consent to surgery on that ear
· Usually if it’s the same incision won’t be considered a battery under a theory of implied consent set forth in Kennedy v. Parott.
· Also, if there’s an emergency situation and the patient’s life is endangered, consent is implied, a rule set out in Schloendorff. V. Society of New York Hospital.
§ [UNLAWFUL ACTS] In Hudson v. Craft π was injured in an illegal boxing match, and sued ∆ the promoter for assault and battery for convincing him to fight—Court held that ∆ was liable for battery b/c the law is meant to protect participants in boxing matches
· Public policy to prevent a breach of the peace and protect the young π from promoters was an undertone of this case—point is that π was a member of a protected class (RST §61)
· In Hart v. Geysel π’s husband was killed by a hit in an illegal prizefight—Court decided that a volunteer can suffer no wrong (volenti non fit injuria) and no action shall arise out of an improper or immoral cause (ex turpi causa non oritur action)
§ [ATHLETICS, FORMALLY] It is generally held that π’s consent to injury from blows administered in accordance with the rules of the game, but not when the blows are deliberately illegal
· In Hackbart v. Cincinnati Bengals π was allowed to sue for injuries caused by ∆’s player who “out of frustration and anger” savagely struck π with his forearm, ending π’s career—inquiry is whether the standard league contracts bar any private right of action…like, workman’s comp?
· In Nabozny v. Barnhill the Court imposed liability on a soccer player who deliberately kicked the goalie in the head when he could have easily avoided contact under clear violation of the customary norms for the game
o “A player is liable for injury in a tort action if his conduct is such that it is either deliberate, willful, or with a reckless disregard for the safety of the other player so as to cause injury to that player, the same being a question of fact to be decided by the jury” (RST §2 on Recklessness)
§ [MISTAKE OF FACT] sometimes consent is ineffective if given under a mistake of fact or mistake of law.
· In Canterbury v. Spence ∆ held liable b/c he failed to inform patient of risks of procedure beforehand, and failed to tell him that he wouldn’t be able to walk afterward, and π fell after trying to get out of bed–∆ had duty to disclose, and mistake of fact overrode any implied consent arising form the procedure
· Insanity: the insanity defense is limited—if ∆ is insane, his control over his own actions is in doubt, as is his capacity to be deterred by the threat of liability—imposing liability on an insane person is considered unfair and archaic, however the pendulum is swinging back in the opposite direction
§ In McGuire v. Almy Court found that an insane person can have the requisite intent for assault and battery, and where an insane person does intentional damage to another person or property, the insane person is liable to he same degree that a sane person would be—though ∆ is not morally to blame, is legally à good public policy
· People legally charged w/ care of incompetents will be more aware and watchful
· An innocent victim should not have to bear the damages caused by an insane person when the insane person is able to make restitution
· Mental capacity is difficult to determine, and civil matters should just assume sanity
· Self-defense: one of the most important privileges is use of self defense—general rule is that one may be privileged to use force in self-defense if such force appears reasonable for the protection of the actor
§ Non-deadly forceà can use non-deadly force where there is a reasonable belief that there is the danger of immediate harm…cannot go beyond the necessities of the situation
§ Deadly forceà force likely to cause serious injury or death can be used where actor reasonably believes another person’s conduct will cause her death or serious injury—no duty on part of actor to retreat from the threatened harm. The minority view requires retreat
§ Retaliationà there is no right to retaliate. Where the danger has passed, the privilege of self-defense expires.
§ Excessive forceà where an actor uses excessive force, the other party then has the privilege of protecting himself against the degree of force being exerted
§ Defense of othersà privilege can extend to defense of another, subject to same limitations as the defense of oneself—actor’s rights are traditionally viewed as the actor should stand in the shoes of the person whom she is defending.
§ In Courvoisier v. Raymond self defense was allowed when ∆ shot a policeman in the middle of the night, during a riot, thinking he was a robber, and the circumstances were such as to lead a reasonable person to believe his life was in danger
· In Morris v. Platt Court held that there is no liability if somebody accidentally harms an innocent bystander by force reasonably intended in self-defense to repel an attack
· The general rule indicates that there is no duty to retreat if the actor is in his own home.
· In Boston v. Muncy Court said that fear of harm needs to be reasonable, and isn’t that of a squeamish and nervous person (can’t be ultra-sensitive)
· Defense of Property: privilege of self defense also extends to the defense of property, including not only land and improvements but all sorts of moveable property—law seeks to protect innocent persons from aggression and to minimize the total harm from dangerous interactions
· [REMOVING TRESPASSING CHATTELS] A person in possession of land or chattels is privileged to use reasonable force to remove chattels belonging to another in order to protect his interest in his own land or chattels. The “reasonableness” of the trespassing chattels is determined by the relative value of the actor’s property as opposed to the value of the trespa
nd, then deliberately entered π’s land to recover the thorns and thereby caused damage for which π sought recovery—Court held ∆ strictly liable for his trespass b/c he did not have any necessity or other privilege to enter π’s land—held that “when the principal thing is not lawful, then the thing which depends upon it is not lawful”—∆ could have avoided trespassing
· [BEST EFFORTS] In Millen v. Fandrye Court did not impose liability when a man chased his dog onto somebody else’s property when the dog would not come b/c he did his best effort to recall the dog
o The best efforts defense tolerates the use of excessive force when the ∆ tries in good faith to minimize the excess (in Thorns Case Court felt like ∆ could have avoided dropping thorns in first place)
· [JUSTIFICATION] In Tithes Case Court raises a variation on the necessity issue encountered in Vincent—raises problem of asymmetrical incentives encountered in the public necessity cases…why would anybody act to benefit a stranger if must be held strictly liable (held ∆ liable for failing to rescue π’s goods in time of necessity)..Court says that although ∆’s intent was good, shall be called a trespasser and held liable (SL)
o In Smith v. Stone the Court refused to impose liability when a third party forced ∆ to trespass on π’s land b/c one cannot be guilty b/c of the compulsion of another, but in Gilbert v. Stone the court imposed liability for trespass even when ∆ was just trying to save himself from an angry mob.
· [INEVITABLE ACCIDENT] In Weaver v. Ward Court held that when ∆ accidentally shot π against his will he is strictly liable b/c no man shall be excused of a trespass except it may be judged utterly w/o his fault—Court’s reasoning began shift from SL to negligence, b/c it looked at the ∆’s intent.
o Idea of inevitable accident is often though of as a backhanded way of saying that ∆ acted neither negligently nor with intent to harm—one possibility is that inevitable accident occupies a niche midway between strict liability and ordinary negligence.
o In Gibbons v. Pepper Court held that ∆ is still liable if an animal causes ∆ to trespass b/c the animal should be treated as a passive instrument of any third party who incites it to injure π
o In Butigan v. Yello Cab Court really outlines idea that ∆ should not be held liable to an unreasonably high level of care, and where a superior or irresistible force causes ∆ to trespass, ∆ should not be liable
<FORMS OF ACTION> à in common law courts only two writs were available—trespass and trespass on the case
· Actions had clear jurisdictional significance in so far as actions brought under one writ could not be successfully prosecuted under the second, no matter the validity of the underlying claim
· Trespass: provided relief for all direct and immediate forcible injuries to person or property—covered unintentional as well as intentional injuries, required no proof of actual damages, and did not require fault on the part of the defendant (e.g. wrongful intent or negligence)
o Causation is direct when ∆ throws a log on π’s head, or even lets it drop and let gravity do the work
· Trespass on the case: provided relief for injuries that were intended but were either not forcible or not direct—usually π was required to show actual damages and wrongful intent or negligence on the part of ∆
o Causation is indirect if ∆ places or drops the log in the road where it comes to rest in a position ready for π’s horse to trip over it
· In Scott v. Shepherd, the tension between the forms is clear–∆ threw a firecracker into a public market where it landed, still lighted, on the stand of third party. Another person picks it up and throws it, and then so does another person, and when that person threw it exploded and took out π’s eye. à Was Scott’s decision to sue at trespass correct?
o Majority held that trespass was proper and that ∆ should be held liable based on foreseeability
o Once we know the exact chain of events with motions on one hand and motivations on the other, what judgments do we make about responsibility?
o Case provides two complementary ways to determine the boundary line between case and trespass:
§ Trespass lay where the harm was direct and case where it is consequential
