TORTS LIDSKY FALL 2010
Preliminary concepts
Goals of tort law
a. Regulatory Law regulates human behavior
b. Reparations: making wrongdoers pay for harm done is clearly one way of discouraging unwanted behavior. Making reparations for the consequences of failures without regard to individual fault.
c. Neutral refereeing function in transferring the economic consequences of civil wrongs b/n disputing parties.
Economic goals of tort law
a. Compensating victims of torts
b. Optimally modifying the behavior or tortfeasors
c. Providing the legal system
o Liability insurance: to receive insurance recovery
· Victim free of fault
· Insured Δ negligently caused the injury.
· Common law fault and individual responsibility remain as cornerstone in the law
Law of torts is comprises of judicial opinions. Each opinion has what is call corpus juris which is the precise holding of each case.
Historical characteristics -causes of action
· Judges wanted to acknowledge a cause of action in circumstances under which action had never been recognized in the past. And that the law produces no remedy under those circumstances , an also not every harmful episode gives remedy (damnum absque injuria)-There are cases when the act of one man may cause a damage or loss to another, but for which the latter has no remedy. He is then said to have received damnum absque injuria.
· Doctrine of stare decisis or precedence. Judges not make law but only discover it piece by piece. Each american state has an appelate court of last resort, most often called supreme court, which is the ultimate precedent-making court of the state. Sometimes american courts deviate from precedent.
· Early english law: writ system (document from court) very limited circumstances.
· From the early action two are imp
o Assumpsit: antecedes the modern law of contracts
o Trespass: antecedes the modern law of torts
· Trespass vi et armis: physical intrusion on the Π person or property with force and arms
· Trespass quare clausum fregit: unlawful entry upon the Π land
· Trespass de bonis asportatis: Δ seize the property and unlawfully make away with it. (disposessing and carring away Π property)
· This action presupposed some sort of direct action by the Δ culminating in immediate harm.
· If action where not recognized by a form of action Π usually were denied relief. Due to this another less rigid action was invented
o Trespass on the case: the modern law of negligence comes from it.
· Also there is the strict liability which are wrongs that tort law will remedy despite the absence of any intention to do harm (trespass) or negligence (case)
o MODERN STRICT LIABILITY
· Harms cause when a property owner makes use of land in a novel way and damages a neighbor
· Harm cause by dangerous defects produced by commercial enterprises.
Stanley v Powell
Facts The Plf worked as a retriever in a pheasant shoot, and was hit by a bullet fired by Def intended to hit a bird, but which ricocheted off a tree and hit him in the eye.
Held No trespass to the person b/c there was no intention to hit him. Judgment for the Δ. Where Plf is injured by force brought upon him directly by the Def, the burden rests on the Def to prove the absence of both intention and negligence on his part
· According to the court the judgment is for the Δ since and action for the an injury by negligence the Π failed to establish negligence and if it was an action of trespass and the Δ (and he must) supposed to have plead a plea denying negligence and establish that the injury was accidental.
Significance? FAULT BASE LIABILITY OF TORTS
Fowler v. Lanning 1959
Facts: P was shot by the D; P sued for trespass to the person.
Rule of Law: In the absence of a claim of negligence or intent to harm, there is no basis for P’s c/a for trespass to the person.
A claimed in trespass, alleging only the fact of the shooting, and leaving it to B to justify the conduct (as by proof that it was an accident). No trespass to the person unless A could establish in B intention. Or negligence, for that tort.
· Change in law: trespass to the person restricted to intentional acts
· Trespass on the case the burden of proof of Δ negligence lay upon the Π. Negligence: burden of proof on Π. –
· Trespass to the person: injury to the Π was direct consequence of the personal act of the Δ, proof that the Δ did the act and that the Π was was injured would normally be prima facie evidence of the Δ negligence sufficient also to sustain and action on the case. (In commom law prima facie denotes evidence which – unless rebutted – would be sufficient to prove a particular proposition or fact).
· Therefore there can be little difference b/n the 2 actions:
o Trespass: onus of negativity negligence lie upon the Δ
o Case: onus of proving negligence lay upon the Π
· There is no trespass if the Π’s injuries, although direct consequence of act of the Δ, was caused unintentionally and without negligence on the Δ’s part.
· The onus of proving negligence where the tresspas is not intentional lied upon the Π whether the action is framed in tresspas or negligence
· TO PREVAIL THE Π MUST PROVE EACH AND EVERY ELEMENT OF THE CAUSE OF ACTION UPON WHICH THE Π CASE IS BASED.
Litigation process
Pleadings: make allegations and to isolate the points in dispute
Evidentiary trial: point is to resolve the issues that remain in dispute, usually about the facts
Appeal: purpose is to correct errors made by the trial judge during the pleading and trial stages. You cannot present new evidence or make new arguments
Procedures
· Complaint to begin a lawsuit. Must allege facts to rise a valid action
· Answer: Δ response to deny Π allegations and also allege defenses that would defeat the Π causes
· In some part any party can make a motion “I agree with all the fact that the Π/Δ has alleged but I maintain that those facts do not establish a cause of action (affirmative defense). Early laws called demurred in modern laws called motion to dismiss.
· Motion for summary judgment: pre-trial device for testing the sufficiency of the evidence the parties are able to adduce if the trial is permitted to take place. Before trial after discovery. A judge has to say that facts are undisputed and judge has to say that Δ or Π wins. Π all facts cannot make a case based on undisputed fact. If they are disputed facts they go to jury if there are undisputed facts then it goes to trial. There is opportunity also to do partial summary judgment in cases for Ex: that there is case for assault and battery and if the facts for assault are undisputed then the parts can request a summary judgment to go in the assault part but go to trial in the battery case. No reasonable jury based on the undisputed facts will rule against the moving party (whoever have the reason according the facts).
· Motion for directed verdict: using during the course of a trial for testing sufficiency of the evidence actually submitted. Π ordinarily must produce all the evidence available to prove the prima facie case before the Δ present any defensive evidence . And in this motion the Δ doesn’t need to present evidence since the Π failed to prove the allegations.If the judge knows that the Δ is going to win base on the facts he just rules in favor of defense.
· Π presentation of their case
· Witnesses show prima face case
The defense presents the motion for direct verdict before presenting a defense.
If the judge makes an error here and it goes to appeal there has to be re-trial with new jury.
· Motion for judgment nonobstante veredict: NOV request the judge to render a judgment notwithstanding the jury’s verdict against the moving party. The jury already had a verdict and the judge had an opposite ruling going against the jury decision. In the appeal if the trial judge makes an error in here the appellate court will reinstate the decision of the jury and the plff wins.
GHASSEMIEH v. SCHAFER. 1982.
· Normally parents are not liable for the torts of their kids.
· Unlike torts system which is fault base workers compensation is not on fault since you don’t need to prove it.
· The money on this case torts comes from the homeowner insurance. Which is basically a third party insurance (most liability insurance cover negligence cases but not intentional torts): Legal defense, Indemnification
· In the appeal you have to have a legal error, in this case the legal error was the legal instruction given to the jury. And indeed there was an error but the Π didn’t win
· The Π said there is no battery b/c Elaine didn’t intent harm. This objection was wrongfully done. He should have said that there should not have been given any instruction on battery since the case is about negligence. Negligence and battery are not exclusive.
· In this case Ghassemieh didn’t object with correct especificy since she could have gone with this argument about not mutual exclusivity b/n negligence and intent at trial Court not in the appellate court.
· Issue on appeal Did the Π lawyer objection to the battery instructions comply with appellate rules to allow him to raise on appeal to whether battery and negligence are exclusive? The purpose of the case was to teach about procedural aspect and to make specific objections.
· She cannot sued again since res judicata doesn’t allow to sued to trial on the same facts.
· Substantial aspects: Intent to harm is not required in battery, there is no need to have intent to harm or cause injury
· Negligence and battery are not mutually exclusive Ghassemieh case is about intentional act with unintended consequences. –
· Negligence is defined by the failure to use reasonable care for the safety of a person
· INTENTIONAL ACT WITH INTENTIONAL CONSEQUENCES IS BATTERY
· INTENT IS A SUBJECTIVE STANDARD. IS IN THE INDIVIDUAL Δ HEAD.
· In Battery for battery there is no standard, they are liable for the intentional torts they commit, children=adults so long as capacity to form intent. They don’t have to intent to harm just the intent to is offensive to reasonable people. You acted you are paroled. In some jurisdictions determined that under 5 years old they don’t have intent.
· Negligence in children is different b/c reasonableness takes time to be evolved. The standards is we compared the child to a reasonable child with the same age and characteristics.
Intentional torts to the person (p569)
Elements of the prima facie case
· Tresspas viet armis
· Battery
· Assault
· False imprisonment
· False arrest
· Common law origin
· Deceit
· Malisious prosecution
· Civil
· Criminal
· Abuse of process
· Modern origins
· Interference with K
· Intentional infliction of mental distress
Mental state of the Δ
There is no general meaning of intent. For every tort is different. The common element is that the actor must have intended to bring about some sort of physical or mental effect upon another person. Its not necessary that he
the game.
· When the Δ is playing with his friends and hit his friends and miss and hit somebody else there is no transfer intent b/c his intent is a consented contact not a wrongful act from the Δ b/c they engage in the course of conduct. But could be held liable for negligence. If the intent is to batter then it is transferable since initially the act was wrongful which was happen in this case.
· Hypo: Δ – intents to batter B (no consent to play) but hit A (who consent). The intent is transferable since is was wrongful initially. But it is negated b/c A consent.
Negligence : failure to use reasonable care
Recklessness Conscious disregard of a high degree of unreasonable risk of injury to another. Its important to determine since it will give a cause to Punitive damages. HYPO: driving drunk and hit somebody is not battery is recklessness.
McDonald v. Ford
· Π appealed a Florida trial court judgment granting Δ’s motion for directed verdict in her negligence action. Π argued that the court erred in finding that Δ’s unwanted sexual advances constituted a battery, which precluded submission of the case to the jury under a negligence theory.
· At the close of Π’s case, Δ moved for a directed verdict on the ground that Π’s proof conclusively showed that a battery had been committed and that precluded submission of the case to the jury. The trial court granted the motion and Π appealed. The appeals court affirmed. The court reasoned that in the latter stages of the incident when Π tried to free herself and get away, Δ’s conduct became assault and battery, which was an intentional act. Thus, b/c Π sued upon a negligence theory, which connoted an unintentional act, the grant of directed verdict was proper.
· Shaffer court say that negligence and battery are not exclusive and Mcdonald holds the opposite that you have to sue for battery and get battery and negligence to get negligence, since they are exclusive. The two courts decisions is not reconcilable.
ASSAULT
Intentional causing apprehension of harmful or offensive contact. Assault protects a interference with peace of mind, even when there is no physical invasion of the victims’s person or property, assault protects a form of mental tranquility, the right to be free from fear of apprehension of unwanted contact.
The restament defines assault as:
· An actor is subject to liability to another for assault if
· He acts intending to cause harmful or offensive contact with the person of the other or third person, or an imminent apprehension of such a contact, and
· The other is thereby out in such imminent apprehension
According to this the elements of battery are
o Act with intent
o Place the victim in apprehension of a harmful or offensive contact or to make such contact
o The victim must reasonably be placed in apprehension of such contact.
There is two different intents each one suffices for assault
o Intent to create apprehension: Dff intents to put Plff in imminent apprehension if the harmful or offensive contact even if Deff doesn’t intent to follow through (deff threatens to shoot but doesn’t intent to actually shoot)
o Intent to make contact: Deff intents to in fact cause a harmful or offensive contact. D shoots P. He misses. This is assault.
o In summary the intent for assault happens is there is intent to commit assault or intents to commit a battery. The Δ must act with the purpose to cause apprehension of a contact or substantially certain that the apprehension will result.
According to the explanations book if the person doesn’t see the act of Δ then she is not put in apprehension of the attack.
The victim should prove that she was in fear of harmful or offensive contact that would support a battery claim if it actually occurred.
Apprehension means the perception or anticipation of a blow rather than fright. Assault protects against the fear of unwelcome contact but also against the expectation or anticipation of one. The restatement requires that this apprehension is imminent, but it doesn’t mean immediate in the sense of instantaneous contact , it means that there will be no significant delay.
A fear of future contact doesn’t suffice assault ” if you try out for the olympic trial next month I ll bust your nose”, (there is no imminent contact in here)
Normally words alone are not sufficient there has to be some overt act – a physical act or gesture- before Plff can claim been assaulted. The restatement § 31 states that words alone wont suffice assault unless
