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Torts
University of Dayton School of Law
Laufer-Ukeles, Pamela

Torts Outline

2010 Laufer-Ukeles

Hyper-linked Index

I. Intentional Torts

A. Prima Facie Case

B. Interference with Persons

C. Interference with Property

D. Defenses/Privileges

II. Nuisance

A. In General

B. Private Nuisance

III.Negligence

A. Prima Facie Case

B. Duty of Care

C. Breach of Duty

D. Causation

E. Damages

IV. General Considerations for All Tort Cases

A. Vicarious Liability

B. Multiple Defendant Issues (Joint & Severally)

End of TortsI

I.Intentional Torts

A.Prima Facie Case

1.Act by defendant – must be volitional movement by defendant

2.Intent

a)Specific: commits an act with the purpose of bringing about harm either with contact or apprehension of harm

b)General: an actor “intends” the consequences of his conduct if he knows with substantial certainty that harm will be produced

c)Single Intent Rule (Majority): Requires only that the actor intend contact (and that contact is objectively tested as “is it offensive to a reasonable person’s ordinary sensibilities”)Wagner v. State of Utah – intent to contact was sufficient for battery if contact was offensive to reasonable person

d)Dual Intent Rule (Minority): Requires that the actor intend the contact be harmful/offensive and substantially certain harm/offense will occur. White v. Muniz – Adult Alzheimer patient struck care giver in throat while attempting to change diaper. Not liable because didn’t intend contact to be harmful.

e)Actor need not intend injury – a person may be liable even for unintended injury if he intended to bring about contact. Ex) A intends to push B and does, B falls and breaks arm, liable even if didn’t intend to break harm, because intended contact

f)Mistake of Fact doesn’t matter – makes person responsible for their actions. Ranson v. Kitner – hunters mistakenly shot dog (thought it was wolf) held liable for value of dog.

g)Transferred Intent

(1)When actor has intent to commit tort (limited to: assault, battery, false imprisonment, trespass to land or trespass to chattels) on one person but inflicts tort on another. Talmadge v. Smith – adult threw stick intending to frighten kids off his roof, caused damage to kid he didn’t see – liable

(a)Can be liable if commit a different tort against than intended

(b)Commits the same tort as intended but against different person

(c)Commits a different tort against a different person

h)Minors and Incompetents can have intent

(1)Garrat v. Dailey – children can be sued it is a question of level of intent for children.

(2)Why sue – to get payment from insurance

(3)Parents can’t be liable unless they had some tortious behavior themselves

(4)Homeowners insurance covers negligence, not intent

3.Causation – result giving rise to liability must have been legally caused by the defendant’s act or something set in motion thereby. The causation requirement will be satisfied where the conduct of defendant is a substantial factor in bringing about injury

4.If reasonable persons can differ as to the adequacy of the proof, the issue should be submitted to jury; if no reasonable jury could find otherwise, the court should direct a verdict for the defendant.

B.Interference with Persons

1.Battery – actor is subject to liability for battery if:

(1)He acts intending to cause harmful contact and substantially certain harm will occur (Dual Intent Rule); or

(2)He acts intending contact and such contact is offensive to reasonable person; AND

(3)Contact which is harmful or offensive to other person directly or indirectly results. (No liability if the plaintiff expressly or impliedly consented; no liability if contact was privileged)

a)Contact has to be with plaintiff’s person – for purposes of a battery, anything connectedto the plaintiff’s person is viewed as part of the plaintiff’s person (Fisher v. Carrousel Motor Hotel – manager of hotel snatched dinner plate from plaintiff – liable for battery)

b)Cases:

(1)Brzoska v. Olson – Dentist with HIV treated patients – Apprehension not necessary – fact that person doesn’t discover the offensive nature of the contact until after the event does not ipso facto, preclude recovery. Court applied reasonableness standard – said small chance of transmission, the fear of contracting disease without exposure is unreasonable. Law doesn’t permit recovery for extremely sensitive person. Rather contact must be offensive to reasonable person(contact which is unwarranted by the social usages prevalent at the time and place at which it was inflicted

c)Damages – Actual Damages not required. Plaintiff can recover at least nominal damages even though he suffered no severe actual damage. In a majority of jurisdictions, punitive damages may be recovered where defendant acted with malice

d)Transferred Intent – applies in battery

2.Assault – actor is subject to liability for assault if:

(1)An act by defendant creating a reasonable apprehension in plaintiff of immediate harmful or offensive contact to plaintiff’s person

(2)Intent to cause a harmful or offensive contact or imminent and apprehension of such contact

(3)The other person feels contact is imminent

(a)Other person has to see it/ be aware of it (subjective)

(b)(Objective) – Reasonable that imminent contact could occur

a)Defendant’s Apparent Ability to Act is Sufficient – A person may be placed in reasonable apprehension of immediate harmful or offensive contact even though the defendant is not actually capableof causing injury to the plaintiff’s person. For such apprehension to be reasonable, it is necessary that the defendant have the apparent ability to bring about such contact. (Ex. Defendant has unloaded gun, and points it at Plaintiff, it is reasonable apprehension that could be shot, even though Defendant not capable)

b)CASE LAW: Western Union Telegraph v. Hill – defendant reached over counter and said “I’ll fix your clock.” Counter was of such height and width that it was questionable whether defendant could contact plaintiff. This type of question was for jury – they found defendant liable for assault. Used both subjective and objective standard to determine reasonable apprehension of imminent harmful or offensive contact. (Plaintiff felt it (subjective) Defendant apparent ability to act (objective)

c)Effect of Words

(1)Overt Act Required – Some overt act is necessary. Words alone, however violent, generally do not constitute an assault because they cannot create a reasonable apprehension of immediate harmful or offensive contact. A different result might occur when such words are accompanied by some over act (ex- a clenching fist). Also, words may negate an as

not be sustained if a person remains in the area merely because he is responding to the exertion of moral pressure

(2)Future Threats– a cause of action will not be sustained if a person remains in the area in response to future threats against person or property

(3)Employees Detained – Where employees are suspected of stealing from Company, the Company often threatens that if employee does not agree to stay and answer question with regard to alleged theft, the employee will be fired. The threat of firing or the desire of the employee to stay and clear his name does not constitute false imprisonment (Lopez v. Winchell’s Donut House). However – if employee brought in closed room with security police present and the atmosphere may become sufficiently coercive such that the employee stays on because he believes that he cannot leave. These cases are fact sensitive, and the issue of whether or not the plaintiff was coerced is for jury to decide.

e)No Need to Resist – plaintiff is not under an obligation to resist physical force that is being applied to confine him. Similarly, where there is a threat of force, he is not obligated to “test” the threat where the defendant has the apparent ability to carry it out.

f)Time of confinement – doesn’t matter how long the person is confined, it only helps in determining amount of damages. (Exception – in the shopkeeper privilege)

g)Causation – plaintiff’s confinement bust have been legally caused by the defendant’s act or something set in motion thereby, either directly or indirectly.

h)Transferred Intent – applies in False Imprisonment

i)Damages – not necessary to prove actual damages (other than person being aware of confinement). Nominal damages will be awarded. Also, punitive damages will be awarded if defendant’s conduct was motivated by malice.

4.Intentional Infliction of Emotional Distress – an actor is liable for IIED if:

(1)Conduct must be intentional or reckless (only dual intent applied in these cases)

(2)Conduct must be extreme and outrageous

(3)Must be a causal connection between wrongful conduct and Emotional Distress

(4)Emotional Distress must be severe(elevated amount of damages)

a)Some Courts Reluctant to recognize this tort – this tort covers situations where the defendant intentionally “shocks” the plaintiff but there is no physical injuryor threat thereof. States are reluctant to enforce this tort because of the difficulty of proving “shock” and the ease with which it can be falsified, the speculative nature of the damage, and fear of a flood of litigation. Historically, IIED was recognized as an incidental tort coupled with battery, assault etc. Now, with advances of modern medicine in field of psychology, it is becoming more recognizable.