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Torts
University of Denver School of Law
Pepper, Stephen L.

TORTS
PEPPER
2010
 
 
Chapter One: Introduction
In tort law, must satisfy a “preponderance of the evidence” whereas in criminal law you must prove “beyond a reasonable doubt.”
1.     Organization of Book
a.     Intentional Torts – assault, battery and intentional infliction of emotional distress
b.     Unintentional Torts – negligence and recklessness, where one person’s carelessness injures another. A tortfeasor will have an obligation if he had a duty to the plaintiff, or failed to be reasonably careful.
c.     Strict Liability and Product Liability
 
Chapter Two: Intentional Torts
1.     Intro
a.     Functions of Tort Law – as a whole tort doctrines express society’s standard for types of conduct that are acceptable and what kinds of effects one actor may impose on another.
b.     Categories:
                      i.    Intentional – P may recover w/o proof that D meant to cause injury if P proves that D’s conduct was less careful than law requires
1.     Battery
2.     Assault
3.     Intentional Infliction of Emotional Distress
                     ii.    Unintentional –
1.     Negligence
2.     Recklessness
3.     Strict Liability
2.     Battery – protects a person’s bodily integrity – the right to be free from intentionally inflicted contact that is harmful or offensive. Items that are an extension of us count as well – t-shirt, cane, etc. Someone keying your car is not the same as it’s not a personal extension.
a.     Intent to Contact (D must satisfy an act requirement to be liable)
1.     Walter v. Blackshear – firecracker was placed in the heel of the P’s shoe – D came up from behind him and placed it there. This shows intent. The contact was unpermitted.
2.     Polmatier v. Russ – D killed his father-in-law with a shotgun. Even though he was insane, he still intended harmful contact. Insanity does not negate intent. He understood the consequences of shooting a gun.
b.     Intending Contact That is Harmful – an actor who commits a battery may be liable for harms the actor did not intend and could not have reasonably have foreseen.
1.     Nelson v. Carroll – Unintentional shooting in nightclub over money
i.      Rule – if contact intended but not injury, still liable for injury no matter what injury is – can’t limit amount of injury intended to produce.
ii.     Must have intent, but don’t need specific intent to cause the type of harm that occurred.
c.     Injury vs. Harm
1.     Injury: the invasion of any legally protected interest of another. To commit an intentional tort, actor only needs to intend an injury.
2.     Harm: the existence of loss or detriment in fact of any kind of person – the measure of how bad the “hurt” is.
d.     Intending Contact that is Offensive:
1.     Leichtman v. WLW Jacor Comm – smoke blown in face is battery
i.      there is injury, but not much harm – can have an injury without harm
ii.     Rule: battery because offending personal dignity is offensive contact
2.     Andrews v. Peters – Jokingly tapped on back of knee, fell, injury
i.      Contact was offensive, intentional, harmful – even though the injury was not intentional
ii.     Rule: nature of intent required is irrelevant – intent to invade.
iii.    This was not socially appropriate conduct; physical jokes will typically be battery.
3.     White v. Muniz – nursing home, dementia, hit nurse
i.      Difference between Polmatier: Russ had intent to kill, even though he was insane.
ii.     In this case, D lacked the mental state to recognize that her acts were harmful – the action must be a voluntary movement.
iii.    If she had been on the street and struck a pedestrian would be different b/c there was no duty.
4.     White v. University of Idaho – p 35 check class notes
e.     Damages for Intentional Torts:
1.     Types of Damages:
i.      Compensatory – awards suffered for harms
ii.     Punitive – damages intended to punish the D rather than compensate P.
iii.    Nominal – may be awarded instead of compensatory damages when P has suffered an injury but no harm; acknowledge act is harmful, but you won’t get any money for it. 
2.     Two Goals of Tort Law:
i.      To make victim whole again
ii.     Deterrence
3.     Taylor v. Barwick – inmate poked, but no actual injury à only nominal damages
i.      Law still recognized an invasion of his rights.
1.     Assault
a.     Definition (imminency + intent)
1.     Apprehension of contact; if someone throws a knife at your back, would only be battery b/c you didn’t perceive the harmful contact.
2.     Injury can be both assault and battery if victim perceives the impending contact.
3.     Has an intent requirement – can be inferred
4.     Harm or threat of harm must be imminent
5.     Policy behind this tort – want to have the peace of mind from harmful contact; we want to create a civil society.
b.     Intending Apprehension of Imminent Contact
1.     Cullison v. Medley: Man flirts w/ 16 year old girl; father and family threatens him w/ gun later that night
i.      Apprehension is one which must be normally aroused in a reasonable person
ii.     Psychological suffering not relevant to finding assault, but useful for damages as part of the harm suffered
iii.    Assault is not the amount of harm; but “was there a threat”
2.     Brower v. Akerly: billboards, threatening phone calls
i.      Phone calls did not provide imminent threat – threat must be immediate in nature to be assault.
ii.     To prove assault, must show imminency + intent.
iii.    Fear not necessary element
iv.    Word alone are not enough to make an actor liable “unless together with other acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person.”
v.     Apprehension of imminent threat based on perception of victim.
c.     Transfer of Intent Among People and Between Torts:
1.     Hall v. McBryde: shoots at drive by, accidentally shoots neighbor (would have to make sure that bullet was from D’s gun to find him liable)
i.      Restatement: if act is done with the intention of affecting a third person, but causes harmful bodily contact to another, the actor is liable to such other as though he intended to affect him.
ii.     Since he wanted to inflict harm on others, the intent transfers to his victim.
d.     Defenses to Assault and Battery
1.     Consent – arises when a person voluntarily relinquishes the right to be free from harmful or offensive contact or imminent apprehension thereof.
i.      McQuiggan v. Boy Scouts – paper clip game, hit in eye, knew risk, consented
a.     If consent to game, consent to possible injuries as well.
b.     Consent is express or implied; consenting to contact rather than particular harm.
c.     An actor who consents to invasion of interest does not consent to all possible conduct – just the rules of the game.
ii.     Hogan v. Tavzel – gave genital warts, did not tell her – battery
a.     Consent to sex does not = consent to be infected with STD
b.     Without full knowledge, no consent
iii.    Richard v. Mangion – fight b/w two boys, both show up to fight (implied consent);
a.     once given consent to fight, results of the fight have also been consented to, unless one uses excessive force.
2.     Proportionality Principle – Defense of Self and Others
i.      Definition: arises where tort law grants an individual the privilege to use threats or to contact others in ways that would otherwise be treated as assault and battery. In defense of one’s self, of another, or one’s land or property, actor may use force proportionate to:
a.     The interest the actor is protecting
b.     Injury or harm threatened by the other (law values life over property)
ii.     Slayton v. McDonald: Slayton advances, McDonald retreats to house, warns and shoots Slayton in knee, court held that McD used reasonable force.
a.     May use self defense (commit batter

required
c.     Defendant caused direct and proximate
d.     Harm to the plaintiff.
1.     Usually summarized in “duty, breach, causation, and harm”.
2.     Reasonable Person Standard: We can assume that other people will be “reasonably” careful not to injure us, and we do not need to anticipate their particular personalities and capabilities.
1.     Three Categories of RP standard: 1) Full knowledge of all risks, 2) require them to have all knowledge a reasonable person would have, or 3) the knowledge they do have. (#2 is the most common)
b.     Defining and Justifying the Reasonable Person Standard
1.     Vaughan v. Menlove (1837) – hayrick badly built, fire, destroyed P’s cottages
i.      Must apply the objective reasonable person standard – we have to create incentive for people to act/behave/drive better than their own standard if it’s below the reasonable standard.
ii.     It would be impossible to judge cases subjectively, if it were based on the “best judgment of the person.” It would extensively prolong litigation.
2.     Parrot v. Wells, Fargo & Co. – shipment of nitro-glycerin; leak, examination with chisel, crate exploded, killing all present; destroyed property and D’s buildings.
i.      D was not aware of the contents, and could not be liable for damages. Used reasonable care.
ii.     You couldn’t run an efficient shipping firm if you have to open every box. (cost-benefit)
c.     Reasonable Conduct as a Balancing of Costs and Benefits: 
1.     McCarty v. Pheasant Run: P was assaulted at their hotel by an intruder who had entered through an unlocked sliding glass door.
i.      McCarty lost – failed to show that the mishap could have been prevented by precautions of reasonable cost and efficacy.
ii.     Hotel had a duty, but a reasonable duty to keep resident safe. There was no breach of duty – only the chain was engaged, but not the deadbolt. Would have been expensive to ensure that the door facing the balcony was sufficiently locked by deadbolt.
a.     Unreasonable Conduct: failure to take precautions that would generate greater benefits in avoiding accidents than precautions would cost.
iii.    Formula for Negligence (Learned Hand):
a.     B (burden of Prevention) < PL (take precaution if it’s less than the magnitude x probability) 3.     Range of Application of the Reasonable Person Standard a.     Especially Dangerous Instrumentalities 1.     Stewart v. Motts – P helped D repair car fuel tank; car backfired, explosion, P burned i.      P argued that D should have used a higher degree of care than reasonable care – does not exist. The care employed by a reasonable person is proportionate to the danger of the activity, so therefore only one standard of care. a.     The more risk, the greater degree of reasonable care. b.     Emergency Doctrine 1.     Myhaver v. Knutson – K swerved to avoid oncoming car, and collided with an oncoming car when swerving. i.      Significance of Emergency Doctrine: Sudden emergency, spontaneous act, not a though-out action – reaction is reflexive. Can’t deter reflexive, spontaneous acts. a.     Knutson was not liable, sudden emergency, spontaneous reaction. b.     Apply B