Torts Fall 2011
INTENTIONAL TORTS:
Battery: Battery is the intentional harmful (physical contact) OR offensive (personal dignity) contact with a person (Snyder v. Turk).
EXCEPTION: If D knows of a particular sensitivity of a person.
Majority 2 things: (Ohio): Single Intent Jurisdiction: Intent to contact (subjective) + content is harmful or offensive to a reasonable person (objective).(Wagner v. State)
Restatement Third of Torts defines intent as a purpose to produce a certain consequence or knowledge that the consequence is substantially certain to occur.
Reckless, Wilful, and Wanton conduct which shows intent to harm or conscious disregard for others’ safety. It is a hybrid between negligence and intentional torts.
Minority 3 things: (Colorado): Dual Intent Jurisdiction: Intent to contact + Intend the contact to be harmful or offensive (subj) + contact is IN FACT harmful or offensive to a reasonable person (objective)..(Mullins v. Parkview Hospital)+(White v. Muniz)
Person can have a good motive, but still have intent to harm
Ordinary rules of battery apply to insanity cases
Example:
Medical Malpractice: Doing anything kind of medical care without consent is battery, actual harm such as pain or a bruise is not necessary (Cohen).
Egg Shell Skull Theory: Wrongdoer is liable for all injuries resulting directly from the wrongful act, whether or not they could have been foreseen.(Brown v. Railway Co).
Smoking: Harm caused by indirect contact such as tobacco smoke can still be battery if intent is to harm/offend.(Leichtman)
Substantial Certainty: Battery exists when a person acts with substantial certainty that harmful contact will occur.(Garratt v. Dailey)
Defenses to Battery:
1) Assumption of the risk is NEVER a defense for intentional tort but CONSENT is.
2) Respondeat Superior: Employers are NOT responsible for Employee intentional torts because it is not within the scope of their employment but if the Employer encourages this kind of behavior, RS might be able to be claimed.
Assault: Apprehension/ Awareness/Worried of a possible battery (subjective) + the D has the apparent present immediate threat/ ability to carry out the act (objective).
Apprehension is the awareness of an imminent touching that would be a battery if completed.
Assault exists where a reasonable person would apprehend being injured(Cullison v. Medley)
Generally, words alone cannot be assault but there are exceptions like you will never see your child again.
Words can negate an apparent attempt to effect immediate touching.
Words offering a choice between tortious alternatives are sufficient to support a claim of assault
Restatement Second: “The apprehension created must be one of imminent contact in the future.Imminent does not mean immediate, only without significant delay.
Battery may apply in the absence of assault if the plaintiff does not see the attack coming
If a defendant attempts to commit one tort but instead commits another, this is an example of transferred intent.
Trespass to Chattles: Intentional interference with personal property of others (never land). You have to deprive a person of a property for a period of time. (CompuServe).
Example: Spamming.
Case:
Intel v. Hamidi: Transpass to Chattels usually requires some sort of damage done to the chattles.
Kuprewicz: Action of trespass to chattels will lie large volumes of electronic material are sent to a person’s hard drive such as to damage its computer systems/hard drive space/processing power.
Conversion: Substantial interference of property- wrongful exercise of dominion or control over property that belongs to someone else and interferes with the rights of the true owner to control it. (D can steal, damage, receive stolen property, or refuse to give something back to P).
Used to apply only to personal, tangible property, but now applies to things like stocks, bonds, domain names, and in some cases intellectual property.
Tip: Stolen Goods: Conversion, Awareness of D receiving stolen goods NOT required.
Tip: Plaintiff can make D pay for the full market value of what was lost, and in turn the D gets to keep it for a “Forced Sale”.
Tip: Bailee/Bailment- Duty of ordinary carem bailed property is damaged by bailee, you can bring a negligence action, if the entire thing is destroyed on purpose then you can bring a conversion claim, remember this is an INTENTIONAL Tort not an Oops Tort.
Medical Research: Conversion does not lie when a doctor appropriates patient cells/blood etc. to research purposes. (Moore v. Regents…)
Usual remedy for conversion is damages
icant danger, excessive force such as shooting a gun to scare fleeing trespassers may be actionable for tort liability. (Brown v. Martinez)
State Crime prevention laws – Some states have laws that protect landowner against liability hen acting with deadly force to prevent a crime. (Ex: Arizona and Texas)
Recapture of Chattels: Persion may recapture chattells if done immediately or in hot pursuit.
Repossession – one cannot repossess consumer goods such as cars unless one can do so peaceably. Owner has right to defend possession with reasonable force even if he/she is in default.
4) NECESSITY [Public Benefit]: Individual rights of property give way to the higher laws of pending necessity(Surocco v. Geary)
Private Property shall not be taken, destroyed or damaged for publ
ic use without just compensation (Wegner v. Milwaukee Mutual) (Vincent v. Lake Erie)
5) CONSENT
Incapacity to consent: adults.- Incapacity of an adult is usually established only by showing that the adult cannot manage his/her affairs.
Defense: Necessity (“Choice of Evils”)
CL RULE [Natural Threat Only]: 1) Must choose the lesser evil, 2) Threat of imminent harm injury to people and property, 3) where no reasonable legal alternatives except to crime 4) D’s act must prevent equal or more serious crime, 5) cannot create the situation, and 6) not disproportionate and 7) Life can never be taken.
STRICT LIABILITY- No intent required, D can be careful but still pay even with reasonable care, P do not need to show since there is no burden of production.
Examples: Animal bites. Typically this is reserved for extraordinary risk of abnormally dangerous activities.
DEFENSE: 1) Assumption of Risk, 2) Pure Acts of God (Superseding Cause), 3) Comparative negligence.
NEGLIGENCE
Duty
Breach
Causation (Cause in Fact: BUT FOR + Proximate Cause: How far? Cardozo)
