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Torts
University of Connecticut School of Law
Utz, Stephen

Torts Utz Fall 2017

Torts fall into these main categories:

Intentional torts
Negligence
Strict liability activities
Products liability

Sources of law: Statute, Regulation, Restatement (Second) of Torts, treatises on torts law, and common law.

Plaintiff’s Burden of Prove:

Beyond a reasonable doubt (very high percentage)
Clear and convincing evidence (somewhere between “preponderance” and “beyond”)
Preponderance of the evidence (“more than 50%”)
Res ipsa loquitur is the last of these for a specific type of evidence. Res ipsa loquitur shifts the burden to one or more defendants if all were in control of the instrumentality that caused plaintiff’s injury and plaintiff does not have access to evidence that could establish negligence on their part

Review Hypo:

A tailgates another person, repeatedly speeding up and coming close to the car ahead, then slowing down
B, suffering from senile dementia, reaches out and strokes the hand of an attendant
C, suffering from senile dementia, slaps the attendant when she pinches C accidentally while adjusting her mattress
D Shoots a gun at an intruder into D’s house and hits a neighbor
E puts stretches a thin wire across the sidewalk and a neighbor falls over it and is injured
F pushes another swimmer in anger when that swimmer kicks her accidentally

The law sometimes holds a person liable for

any injury of another or
intentional injury of another only or
both intentional injury of another and unintentional injury caused by a person’s intentional conduct

The law never holds anyone liable for causing an injury by an involuntary movement of the actor’s body (not “conduct” or “act”)
Some but not all of the second category are intentional torts, for which the actor is liable for all consequences. Intentionally injuring another is a tort if the intent falls into the categories of battery, assault, or intentional infliction of emotional distress, but these categories do not include all types of intentional injury. Example: intentional infliction of emotional distress that does not rise to the level of outrage; intentional injury without contact or threat of contact
Negligence law holds voluntary actors liable for some but not all of the category of unintentional injury caused by a person’s intentional conduct

The contrast between intentional torts and negligence depends on the kind of intent required for each. A defendant is liable for any injury that results from (is caused by) the contact (battery) or threat of contact (assault)

I. INTENTIONAL TORTS

1. Battery – A defendant is liable in damages for any action with the intent to make unpermitted physical contact with another person if the action causes injury.

a. Voluntary act (muscular reaction counts unless purely reflexive reaction). – Act requirement

b. Intent to cause (based on purpose or knowledge with substantial certainty that it will result – a subjective test) unpermitted physical contact (harmful or offensive contact). – Intent requirement (dual intent (White v. Muniz))

“Harmful contact” must be physically harmful. (Waters v. Blackshea) (Polmatier v. Russ) (Nelson v. Carroll)
“Offensive contact” may include Any other contact which the targeted victim does not ”permit” (consent to) or Only unpermitted contact that is objectively offensive (Friendly unsolicited contact (Andrews v. Peters), abuse of power or violation of the victim’s rights (Taylor v. Barwick)) (Leichtman v. WLW) (White v. Muniz) Restatement (Second) of Torts §19: a bodily contact is offensive if it offends a reasonable sense of dignity. – An objective test.
A person with “diminished capacity” (suffering from mental illness, defect, or possibly drunk or stoned) may be capable of forming the intent to cause unpermitted contact (Palmatier v. Russ), but cannot commit a crime that requires appreciation of the possible injury to another. Insane or other mental deficiency persons (unless an actor is a child) are commonly held liable for their intentional torts. While there are very few cases, the same rule has been applied to their negligence. As to mental deficiency falling short of insanity, as in the case of stupidity, lack of intelligence, excitability, or proneness to accident, no allowance is made, and the actor is held to the standard of conduct of a reasonable man who is not mentally deficient, even though it is in fact beyond his capacity to conform to it.
The defendant need not intend the specific injury caused. (Nelson v. Carroll) (Polmatier v. Russ)

c. Harmful or offensive contact results (offensive contact can still result if victim is unconscious).

Injury and Harm: An injury denotes the invasion of any legally protected interest of another. A harm denotes the existence of loss or detriment in fact of any kind to a person. An injury causes a harm if the injury actually has a detrimental effect on the plaintiff.

Extended person rule – touch something attached to person, counts as act directly on the person. A battery may occur through a defendant’s (direct or) indirect contact with the plaintiff. (Nelson v. Carroll)

Extended Liability Rule – intentional tortfeasor is liable for all damages caused (NOT limited to those specifically intended or those that were foreseeable). A defendant’s liability extends, as in most other cases of intentional torts, to consequences which the defendant did not intend, and could not reasonably have foreseen, upon the obvious basis that it is better for unexpected losses to fall upon the intentional wrongdoer than upon the innocent victim. (Andrews v. Peters)

Waters v. Blackshear, 591 N.E. 2d 184 (Mass. 1992) – (Minor Defendant placed firecracker in sneaker of minor Plaintiff and lit it. Plaintiff sustained burn injuries. Plaintiff and his mother seek recovery in theory that Defendant was negligent. Jury found for Plaintiff, and the trial judge allowed defendant’s motion for judgment notwithstanding the verdict on the ground that the evidence showed intentional and not negligent conduct. Plaintiff appealed.)

Holding: Defendant’s conduct was intentional. (Affirmed). The court cited Restatement (Second) of Torts §13 (1965) and two treatises, and reasoned that the intentional placing and intentional lighting of the firecracker brought about a harmful contact that defendant intended.

Rule:

Restatement (Second) of Torts §13 (1965) – An actor is subject to liability to another for battery 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] a harmful contact with the person of the other directly or indirectly results.

Polmatier v. Russ, 537 A.2d. 468 (Conn. 1988) – (Defendant with mental illness beat and shoot his father-in-law. Plaintiff (wife of decedent) sued to recover damages for the wrongful death of the decedent. The trial court rendered judgment for Plaintiff and awarded compensatory damages. Defendant appealed.)

Holding: There is no error. (Affirmed). An insane person could have an intent to harm another, even though his reasons and motives for forming that intention were irrational. The trial court correctly implicitly found that Defendant committed an “act” for liability purposes. The trial court did not err in failing to find that Defendant intended that the death would result from that act, because Defendant need not intend the specific injury caused.

Rules:

Restatement (Second) of Torts §2. “act” is used “to denote an external manifestation of the actor’s will and does not include any of its results, even the most direct, immediate, and intended.” Comment b. A muscular reaction is always an act unless it is a purely reflexive reaction in which the mind and will have no share. (First, an external manifestation is something that can be perceived. Second, the movement or failure to move must result from the actor’s will.)

Restatement (Second) of Torts §895J, comment c. An insane person may have an intent to invade the interests of another, even though his reasons and motives for forming that intention may be entirely irrational.

Restatement (Second) of Torts §8A. “Intent” is used “to denote that the actor desires to cause consequences of his act, or he believes that the consequences are substantially certain to result from it.”

Nelson v. Carroll, 735 A.2d 1096 (Md. 1999) – (Defendant shot Plaintiff in the stomach in the course of an argument over a debt. Plaintiff sued to recover damages for battery. Defendant argued that the actual gunshot accidentally occurred. The trial court entered a motion for judgment on the issue of liability for battery for Plaintiff. Defendant appealed.)

Holding: The motion for judgment as to liability should have been granted, with the only question that remained for the jury being damages that resulted from the guns’ discharge. The defendant’s claim of “accident,” under the circumstances, was not a defense. An indirect contact, such as occurs when a bullet strikes a victim, may constitute a battery. It is enough that the defendant sets a force in motion which ultimately produces the result. The defendant’s actions evidenced an intent to commit a battery.

Leichtman v. WLW Jacor Communications, Inc., 634 N.E.2d 697 (Ohio Ct. App. 1994) – Plaintiff sued Defendant a radio station co-host for battery, invasion of privacy, and a violation of a local smoking regulation, alleging that the co-host repeatedly blew smoke in his face. The trial court dismissed his complaints. Plaintiff appealed.)

Holding: The court affirmed the dismissal of the invasion of privacy and violation of a local smoking regulation claims but reversed the dismissal of the battery claim. The court held that no matter how trivial the incident, a battery was actionable, even where damages would be nominal. The blowing of smoke on one’s person meets the requirements of a cause of action for battery, i.e., the defendant acts intending to cause an offensive or harmful contact and an offensive or harmful contact actually results.

Andrews v. Peters, 330 S.E.2d 638 (N.C. Ct. App. 1985) – (Plaintiff was injured when Defendant came up behind her and tapped the back of her right knee with the front of his right knee, causing her kneecap dislocated. Plaintiff sued for intentional assault and battery. A jury returned a verdict for Plaintiff and awarded damages. Defendant appealed.)

Holding: There is no error. The intent with which tort liability is concerned is not necessarily a hostile intent, or a desire to do any harm. Rather it is an intent to bring about a result which will invade the interests of another in a way that the law forbids. Defendant may be liable although intending nothing more than a good-natured practical joke, or honestly believing that the act would not injure the plaintiff, or even though seeking the plaintiff’s own good.

White v. Muniz, 999 P.2d. 814 (Colo. 2000) – (An eighty-three year-old Alzheimer’s patient struck a professional caregiver at a Personal Care Cent

ephone callers. The court reversed and remanded for trial on the tort of outrage, rejecting the argument that the injured party’s alleged emotional distress was not severe. The threats were not accompanied by circumstances that indicated that callers were in a position to reach the Plaintiff or inflict imminent physical violence. It is the immediate physical threat that is important, rather than the manner in which it is conveyed.

Rule:

Restatement (Second) of Torts§ 21: (1) 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. (2) An act which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

3. Transferred Intent – transfer intention regarding a) person targeted vs person actually harmed, and/or b) tort intended and tort accomplished (only applicable to the following): Assault, Battery, False Imprisonment, Trespass to Land, and Trespass to Chattels.

Intent to commit battery is sufficient for assault, if the defendant does not make the unpermitted contact but a plaintiff fears harmful or offensive contact.
Intent to commit assault is sufficient for battery, if the defendant actually makes contact with the plaintiff.
Intent to commit battery or assault on one person is sufficient for either battery or assault on another, if that occurs.

Examples:
If A intends to strike B with a stick but misses, A is liable to B if B falls and injures herself while trying to dodge the blow.
If A intends to frighten B by swinging a stick at B, A is liable to B if A actually strikes and injures B.
A is not liable for battery or assault on B if A was only throwing the stick for A’s dog to catch (A might be liable for negligently injuring B).
If A intends to strike B with a stick, A is liable to C if A accidentally strikes C instead.
If A intends to frighten B by swinging a stick at B, A is liable to C if A unintentionally makes C fear being struck and C suffers a related injury.
A is not liable in either case if A was only throwing the stick for A’s dog to catch (A might be liable for negligently injuring C).

Hall v. McBryde, 919 P.2d 910 (Colo. Ct. App. 1996) – (The tortfeasor was at his home when a group of youths approached the home in a vehicle. The youths began shooting at the tortfeasor’s home. The tortfeasor retrieved his parent’s gun from beneath their mattress and fired four shots towards the car. During the exchange of gunfire, one of the bullets struck the neighbor victim in the abdomen. Victim sued tortfeasor to recover damages for battery and tortfeasor’s parents for negligent maintenance of a weapon and negligent supervision. The trial court entered a judgment in favor of the tortfeasor and his parents. Victim appealed.)

Holding: The court affirmed that the trial court properly entered judgment in favor of the tortfeasor’s parents on the victim’s claims for negligent maintenance of a weapon and negligent supervision, and reversed the trial court’s judgment in favor of the tortfeasor on the battery claim. The tortfeasor’s mother had no knowledge of the gun’s existence and the tortfeasor’s father acted with reasonable care to conceal the weapon’s existence from his son. The evidence established that the tortfeasor intended to put the youths in the vehicle in apprehension of harmful bodily contact. The tortfeasor’s intent toward the youths in the car was transferred to the victim.

Rule:

Restatement (Second) of Torts §16: (1) If an act is done with the intention of inflicting upon another an offensive but not a harmful bodily contact, or of putting another in apprehension of either a harmful or offensive bodily contact, and such act causes a bodily contact to the other, the actor is liable to the other for a battery although the act was not done with the intention of bringing about the resulting bodily harm. (2) If an act is done with the intention of affecting a third person in the manner stated in Subsection (1), but causes a harmful bodily contact to another, the actor is liable to such other as fully as though he intended so to affect him.