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University of Denver School of Law
Garcia Hernandez, Cesar Cuauhtemoc

Torts Fall 2014

Professor Garcia Hernandez

I. Intentional Torts

1. Battery: harmful or offensive touching; designed to protect bodily integrity of victim

A. Elements of Battery: act, harmful or offensive contact, and intent

1) Act: volitional bodily movement not reflexive or convulsive

2) Harmful or offensive contact

a. Harmful: causing pain, injury, or illness

b. Offensive: contact a reasonable person, not unduly sensitive, would consider offensive

3) Intent: 2 prongs; subjective standard; decided by trier of fact based on circumstantial evidence

a. person acts with the purpose of producing that consequence

b. person acts with the substantial certainty that that consequence will occur

B. Rules and Doctrine for Battery

1) Indirect Contact: bullets, knives, etc.

2) Unintended Consequences: when an actor intends contact, the results are irrelevant, so long as they are harmful or offensive or both. *BE SURE TO MENTION CONTACT WAS MADE*

3) Rule of Damages in Actions: the wrongdoer is liable for all injuries resulting from the wrongful act, whether or not those injuries were foreseeable (kickin it at school)

4) Eggshell Plaintiff Rule: the defendant takes his plaintiff as he finds him and is liable to compensate him in a manner that makes the plaintiff whole

C. Case Law

1) Cecarelli v Maher: “Dance the night away” elements of battery, crim cases are separate from torts

2) Paul v Holbrook: “Sexy times at work” circumstances may dictate definition of offensiveness

3) Fisher v Carousel Motor Hotel: “we don’t serve your kind” h/o ctc with an object connected to a person’s body can satisfy h/o ctc element of battery

4) Vosburg v Putney: “kickin it at school” settings dictate appropriate behavior; Damages in Actions (Brown v Railway Co.): wrongdoer is responsible for damages, whether or not they were forseeable

5) Cole v Hibberd: “kickin it in the back” intent to cause contact matters and not intent to cause harm

6) Nelson v Carroll: “gun to the head” intent to invade another’s physical well-being through h/o ctc; liability extends to whatever results from that ctc

7) Wagner v State: “crazy about Utah Wal Mart” the actor need not intend that his contact be harmful or offensive, so long as he deliberately made the contact, insanity does not negate tortious liability (Prosser), sovereign immunity (Martin v TN)

D. Defenses

1) Transferred Intent: One who intends a battery is liable for that battery when he unexpectedly hits a stranger instead; π need only show ∆’s intent to harmfully contact originally intended victim

a. In Re White “shot in the driveway” transfer across torts, victims, etc.; can’t transfer any other element of tort

2) Consent: π actually and reasonably agrees, under appropriate conditions, to endure a bodily contact, or an apprehension of contact (assault), or a confinement (FI), that would otherwise be tortious; express and implied consent

a. Koffman v Garnett “coach tackles player” battery in progress negates time for apprehension for assault; circumstantial evidence shows implied consent

3) Self-Defense: reasonable use of force can be used to protect oneself where there is a sincere and reasonable belief that harm is imminent

a. Hauessler v. De Loretto “neighbor shoved out” objective test for reasonable belief

4) Defense & Recapture of Property: can use reasonable force to protect property

a. Katko v. Briney “spring gun” proportional use of force only; doctrine of unclean hands – injury in commission of crime generally not actionable

2. Assault: (1)acting so as to (2)intentionally cause the (3)reasonable apprehension of (4)imminent (5)harmful or offensive contact

A. Elements of Assault: (1)act, (2)intent to cause the reasonable apprehension, (3)imminence of (4)h/o ctc; seeks to protect against reasonable apprehension of h/o ctc apprehension of imminent harmful or offensive contact, causation

1) Reasonable Apprehension: objective standard of what a reasonable person would apprehend; cognizance and awareness that h/o ctc will occur imminently

2) Imminence: speaks to immediacy; no significant delay between action and contact

B. Rules and Doctrine for Assault

1) Temporal element of immediacy must be satisfied

2) Words alone never constitute assault

3) Apprehension is based on an objective standard

4) Future threats never constitute assault

C. Case Law

1) Brooker v Silverthorne “threats over phone” imminence req

2) Vetter v Morgan “threats while driving” apprehension judged

using objective standard

3. False Imprisonment: (1) defendant acts (2) with the intent to confine (3) the plaintiff is confined (4) plaintiff is aware of confinement

A. Elements of False Imprisonment: act, intent to confine, confinement, awareness

1) Confinement: restriction of a person’s ability to depart

2) Awareness: can’t be drugged, asleep, too young, mentally challenged

B. Rules and Doctrine for False Imprisonment

1) when determining if plaintiff is con

of law whether duty exists

i. Foreseeability of harm to π

ii. Degree of certainty that π suffered injury

iii. Closeness of connection between ∆’s conduct and injury suffered

iv. Moral blame attached to ∆’s conduct

v. Policy of preventing future harm

vi. Burden on ∆ and consequences to community of imposing duty to exercise care with resulting liability for breach

vii. Availability, cost, and prevalence of insurance for the risk involved

B. Test: Existence of a duty will turn on foreseeability of the injury

i. objective standard of a reasonable and prudent person’s ability to foresee the injury

C. Misfeasance: affirmative act creating unreasonable risk of harm; engaging in a risk creating activity

i. General duty of care applies

1) Gen Duty of Care: Doing what the ordinarily reasonable and prudent person would do under the same or similar circumstances

2) This is a measure of standard of care once duty has been established via misfeasance

3) Mussivand v. David: STD given to husband

a. no question of ∆’s duty to warn his lover of risk of STD

b. ∆ also had duty to warn her husband

D. Nonfeasance: failure to intervene

i. No legal obligation owed by ∆ to π, so no duty of care applies

1) Osterlind v. Hill: canoe rented to drunk

a. ∆ had no duty to refrain from renting to intoxicated π

b. Duty of care decided by court

ii. Important exceptions to rule include special relationship and categories of prop owner

3. Standard of Care

A. Duty and Premises Liability: duties owed by possessors of land

i. ∆’s standard of care based on legal classification of π

1) Invitee: person who enters or remains on premises at the express or implied invitation of the land owner for purpose associated with owner’s business or other public purpose.

a. Most protected category of π

b. Standard of Care = reasonable care in maintaining premises

c. Property owner must fix danger or warn invitee if possessor is aware of danger