Torts Pandya 2012
i. Basis of Liability – someone did something that the law could hold them liable
1. 3 Forms of fault: Intent, Negligence, Aggravated Negligence (Recklessness)
2. Strict Liability – imposed regardless of fault
ii. Proximate Cause & Damage
iii. Affirmative Defenses
Garrett v. daily – 5 year old pulls chair
All things are as per the normal person
Intentional Torts against the Person (7-38)
Battery – 1) Intentional infliction of 2) harmful or offensive 3) bodily contact.
i. Intent: Acting with the desire or the substantial certainty that harmful contact with the plaintiff will occur or the desire Or substantial certainty that the plaintiff will become apprehensive that harmful or offensive contact will occur.
ii. Harmful: Injury
iii. Offensive: Unauthorized (as per the ordinary person OR if special sensitivity is known to defendant)
iv. Contact can include items in direct contact with plaintiff
1. Fischer v. Carousel Motor Hotel – plate slapped out of hand
v. No Damage Required
Assault – 1) The intentional causing of 2) an apprehension of 3) harmful or offensive 4) bodily contact
i. Apprehension as per the ordinary person (unless special sensitivity IS KNOWN to the defendant
ii. Words alone are not enough, but words can change the meaning of the gesture
iii. Imminence: It must appear to P that the harm being threatened is imminent, and that D has a present ability to carry out the threat.
iv. No Damage Required
False Imprisonment – 1) Intentional 2) confinement 3) Which is unlawful and 4) is either aware of or harmed by the confinement
i. Intent: The Desire or Knowledge to a substantial degree that the plaintiff will be confined.
ii. Confinement: 1) Overcoming the defendant’s will to leave 2) in a way that would overcome the ordinary person’s will to leave
1. You cannot confine an unconscious person
2. They must have a will to leave to be falsely imprisoned
iii. Some jurisdictions have the burden of lawfulness on plaintiff and some on defendant
iv. No Damage Required
v. Confinement can be established in various ways: by physical barriers, by physical force, by threats of immediate physical force, by other duress, or by asserted legal authority.
vi. Peterson v. Sorlien, 299 N.W.2d 123 (Minn. 1980)
IIMD – 1) Intentional or reckless 2) extreme or outrageous 3) conduct, inflicting 4) severe 5) emotional or mental distress, 6) even in the absence of physical harm.
i. All in light of the ordinary person, special sensitivities only count if KNOWN to defendant.
ii. Some states require some sort of physical symptoms
iii. Tayloy v Vallunga – daughter witnesses father’s assault, but attackers could not hae known she was watching so they weren’t guilty of IIMD
iv. Unknown case – mother successfully sues for IIMD against child molesting babysitter
v. Slokum v. Foodfair – Worker rude to shopper and it caused a heart attack – jury felt that insulting language was not outrageous enough to inflict mental sufferein
vi. Contreus v. crownzillaback
vii. Anbrow v. alcorn engineering
1. Ethnic minorities continuously insulted for their ethnicities at work, the defendants must have known about these sensitivities, so they were guilty
viii. California case – injunction against an employer using ethnic insults in the workplace; supreme court denied certiorari
ix. Wilkinson v. Downton, 2 Q.B.D. 57 (1897)
Transferred Intent – If D held the necessary intent with respect to person A, he will be held to have committed an intentional tort against any other person who happens to be injured.
Intentional Invasions/Interferences with Property (39-58)
Trespass to Land (Intentional) – Defendant 1) intentionally and 2) unauthorized 3) enters the plaintiff’s land -OR- causes another person or object to enter the plaintiff’s land
i. No Damage Required, plaintiff is entitled to any damage that does occur
ii. Note: Unintentional = Negligent entry, not trespass see Negligence
iii. Intent does not require any knowledge that a right is being violated, only that defendant intended to enter the land (even if they think it’s their land)
iv. This includes reasonable airspace and underground space
v. Scott v. Shepard, 2 Wm. Bl. 892, 96 Eng. Rep. 525 (1773)
i. Trespass to Chattel – Defendant 1) Intentionally 2) interferes with the plaintiff’s use or possession of 3) a chattel [A mere Intermeddling] ii. Conversion – Defendant 1) Intentionally 2) so substantially interferes with P’s possession or ownership of property that 3) it is fair to require D to pay the property’s full value. [Exercise of dominion or control] 1. Remedies:
a. Trespass to Chattel: Get back chattel and damages
b. Conversion: Get forced sale (requires much more serious conduct)
2. Intent – Desire to affect that particular chattel even if you thought it was yours or intended no harm
3. Interference – doing something that only the rightful possessor of the chattel was entitled to do
a. Damages – No Damage = No Tort; Damage includes:
i. Temporarily depriving owner of possession (even if owner sleeps through it)
ii. Damage to reputation
iii. Present or future financial harm
Affirmative Defenses to Intentional Torts (59-94)
Consent – A Complete Defense
i. Expressed – Spoken or Written
ii. Implied – Nonverbal, custom, reasonable
iii. Implied by Law – P is 1) unable to consent and 2) a reasonable person in the circumstances would consent
iv. Consent is ruled not effective when:
1. Conduct exceeds scope of consent
2. Fraud – Consent cannot be based on fraud
3. Duress – Threats both drastic and immediate are shooting ones' child, beating one senseless, and arresting one immediately.
4. Person is incapable of giving consent/unable to appreciate consequences (under age, drunk, mentally deficient, etc.)
5. Public policy prevents the person from consenting
Defense of Self – Use of 1) reasonable force* 2) to prevent the 3) threatened harm
Defense of Another – Use of 1) reasonable force* 2) to defend 3) another person 4) from attack
Defense of Dwelling – can use deadly force to prevent “the commission or consummation of the felony . . . involving the breaking and entry of a dwelling house.” [Restatement 134] Defense of Property – Use of 1) reasonable force* 2) to defend 3) her property, both land and chattel
i. A warning must be given before force can be used to evict from property, but person with a reasonable belief that a warning would be futile is not required to warn
ii. Detaining D until police arrive is acceptable
the law. No such thing as the Andrews view of duty.
iii. Wagner v. International Railroad Co.
1. If you had a duty to the person who was hurt, you have a duty to the rescuer, because it is foreseeable that a rescuer will come along.
2. “Danger Invites Rescue” & “The risk of rescue is born of the occasion” -Carzodo
3. Plaintiff was traveling w/ cousin on train which took a curve at an unreasonable rate of speed; cause cousin to fall out onto the tracks. Train stopped, P climbed down to help cousin and was injured in the process – sued
4. Railroad admitted that Cousin was a foreseeable plaintiff, but P’s injury was not. P wins
iv. Res ipsa Loquitor (the thing speaks for itself) – 1) No direct Evidence of D’s Precise conduct 2)the harm is a type that does not normally occur except through negligence 3)the instrumentality which caused the harm was at all times within D’s exclusive control 4) P must show that the injury was not due to P’s own negligence.
1. Res ipsa does not automatically win the case, but establishing it will allow P to avoid summary judgment for D on the account of P’s inability to prove negligence.
Negligence per se – 1) Harm is caused through 2) an unexcused violation of a statute by D where that statute 3) was intended to guard against the very kind of injury in question. – This conclusively established that D was negligent without regard to reasonable behavior
i. A few states do not have negligence per se and the statute violation serves only as evidence of negligence or arises a rebuttable presumption of negligence.
1. Example: Law that decks must have railings (intent is to prevent falls)
2. P falls off unrailled deck – Negligence per se is established
3. Run away truck runs over the deck and smashed into house and injures guests inside, a railing would have stopped the injury. – Negligence per se is not established, because this is not the kind of injury that the statute was intended to prevent.
ii. Example 2 – Lighting a joint causes a gas explosion – not established, b/c the statute banning pot was not intended to prevent gas explosions.
iii. Note: Statutes could be designed for more than one thing, so don’t just say that it’s not designed for one thing b/c its designed for another, but show why it could not be designed for that.
iv. Excuses: circumstances beyond control, an emergency that made violation safer than than obedience.
Negligent Infliction of Emotional Distress
i. Bystander Rule – generally must be a close relative of the person who was physically hurt, was nearby and perceived the event with her own senses.
1. Dyllan v. Legg
a. Little girl run over by car and killed, mother and aunt sue for negligent infliction of mental suffering – won
b. Disagreements on how close bystander must be, some say within the zone of physical danger,
ii. Direct Victim Rule: Sometimes mental suffering can be collected if P is a direct victim of P (b/c of an owed duty of reasonable care)
1. Moliene v. Kaiser Hospital
a. Hospital mistakenly diagnoses woman with syphilis, she left her husband assuming infidelity. Husband sued hospital for IIMD.
iii. Even though there was no direct contact with the husband, he is entitled to collect b/c he is a direct victim of the negligence.