Torts Outline – Riskin – Spring 2015
· There are three categories of torts: Intentional, negligence, strict liability
· A tort is a non-contractual civil wrong for which the law recognizes a remedy in damages
Intentional Torts
· Introduction
o To establish a prima facie case for intentional tort liability, it is generally necessary for the P to prove:
§ Act by D
§ Intent – always judged subjectively
· Specific Intent – Actor’s purpose in acting is to bring about these consequences
· General intent – Knowledge with substantial certainty that the consequences will result
· Actor need not intend injury. The intent of the actor is the intent to bring about the consequences of one’s conduct
· Transferred intent
o General rule: Transferred intent applies when the D intends to commit a tort against one person but instead:
§ Commits a different tort against that person
§ Commits the same tort against a different person
§ Commits a different tort against a different person
§ Age is not a factor as long as the person is old enough to have the requisite intent
§ Causation – causation satisfied where the conduct of D is a substantial factor in P’s injuries
Battery
· Intentional unprivileged and harmful or offensive contact with the person of another
· §18 Harmful battery
o Subject to liability if he acts intending to cause a harmful or offensive contact with another, or an immediate apprehension, and a harmful contact directly or indirectly results.
§ There must be intention to cause contact or apprehension, reckless or negligent is not enough
· Elements of Battery:
o Act
o Intent to cause an offensive or harmful contact
§ Always judged subjectively
o Harmful or offensive contact
§ Judged by the reasonable person
o Causation
§ Liable for direct and indirect contact
· Intent can be implied because action is unlawful
o Vosburg v. Putney: Kid kicked another at school w/o intent to do harm. Bc unlawful, intent implied.
· Intent can be satisfied by purpose or knowledge.
o Garrett Rule: when there is no subjective intent, knowledge can create constructive intent
· Contact is defined liberally. Considered offensive if it offends a reasonable sense of personal dignity
o Fisher v. Carrousel Motor Hotel: Racial slur while getting plate slapped from hand. Contact? Unwanted and intentional invasion of someone by taking away possession of object is battery.
o Leichtman v. WLW Jacor Communications: D blew smoke in P’s face. Contact? Smoke was ‘matter’ with physical properties capable of making contact.
· Damages – P can receive at least nominal damages even though he suffered no severe actual damage. Most jur. Allow punitive damages to be recovered if D acted with malice.
Assault
· §21 Assault
o Actor is liable to another for assault if he acts intending to cause a harmful or offensive contact with the person, or an imminent apprehension of such a contact, and the other is in imminent apprehension.
§ There must be intention to cause contact or apprehension, reckless or negligent is not enough
§ *imminent does not mean immediate. It means rather that there is no significant delay.
· Elements of Assault
o Act
§ Words alone not enough (clenching of fist could be enough with words)
o Reasonable apprehension of immediate harmful or offensive contact
§ Reasonable person test
§ Apprehension is the expectation of immediate contact
o Intent (to bring about apprehension)
o Causation
· Damages – No need to prove actual damages to sustain an assault. Most jurisdiction allow punitive damages to be recovered if D acted with malice
False Imprisonment
· §35 False Imprisonment
o He is liable if he acts intending to confine the other or 3rd within fixed boundaries and his act directly or indirectly results in such confinement, and the other is conscious of the confinement or is harmed.
§ There must be intention to confine, reckless or negligent is not enough
· Elements of False Imprisonment
o Act or omission
§ By D that confines or restrains P to a bounded area
o Intent to confine the victim
§ Transferred intent applies
o P must be aware of the imprisonment
§ Exception if they are harmed (even if not aware)
· There must be physical restraint, not contact. The turn of a key is enough.
o Whittaker v. Sanford : Woman refused rowboat from Yacht of cult but free to roam boat. Enough Constraint.
· Shopkeeper privilege: standard for employees to restrain customers. In order to satisfy there must be:
o a reasonable belief of theft
o detention must be conducted in a reasonable manner and only non-deadly force
o detention must only be for a reasonable period of time
· Special relationships may exclude from false imprisonment
o Sindle v. New York City: Bus full of kids tried to jump out window. Holding: bus driver has special relationship and was responsible for students.
Intentional Infliction of Mental Upset
· §46 Outrageous Conduct Causing Severe Emotional Distress
o One who by extreme or outrageous conduct intentionally or recklessly causes severe emotional distress to another is liable for such distress and any bodily harm.
o If directed at 3rd, actor is liable if he intentionally or recklessly causes severe distress to a member of immediate family who is present, or to anyone else if bodily harm results.
· Elements of Intentional Infliction of Mental Upset
o Act – Extreme or outrageous conduct
§ Transcends all bounds of decency
§ Offensive language not outrageous unless a special relationship and D is ware of special sensitivity
§ Common carriers and innkeepers owe special duties to patrons, lower level of outrageous
o Intent – intentional or reckless behavior to cause severe emotional distress
§ Reckless conduct is acting in reckless disregard of a high probability that emotional distress will result
o Causation – actual and proximate
o Damages
§ Actual damages are required, but NOT necessary to prove physical injuries.
· Outrageous words alone not enough, especially if public speech
o Snyder v. Phelps: church protesting military funerals. Court had to decide if 1st amendment protected from tort liability. Held that it was public speech so not a tort.
Privileges/ Defenses to Intentional Torts
· D bears the burden of both producing proof to support the privilege/defense and persuading the jury of validity
Consent
· D is not liable for an otherwise tortious act if the P consented to the D’s act. Consent may be given expressly; it may also be implied from custom, conduct, words, or law. Consent does not have to be reasonable.
o If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effecti
y Force
o Deadly force only allowed if actor reasonably believes that intruder likely to use deadly force on actor or 3rd
· ‘Tort law should not tolerate conduct that risks life to preserve property’ – Katko v. Briney (20 guage)
· Efficiency approach: no absolutes, must weigh the various factors to decide if killing or injuring is acceptable to protect property. Simple cost/benefit analysis. Judge Posner.
Defense of Necessity
· §197 Private Necessity
o Privileged to enter or remain on land of another if reasonably appears necessary to prevent serious harm to person or his property. Though allowed, still subject to liability for harm done.
o Ploof v. Putnam: Storm cam brewin, P moored to D’s dock. D’s servant unmoored, P and family suffered injury. Holding: for P; Necessity can supersede property rights depending on situation.
o Vincent v. Lake Erie Trans. Co: Bad storm came as D unloaded cargo. D could have left but it was risky, so he stayed tied to dock and damage was caused to dock. Holding: for P; Even if normal care used, and not a tort, D must still pay for damage. Necessity does not nullify damage costs.
Actual Causation
· Identify breach with Specificity before attempting to apply “but for” test
o have to say “but for the defendant’s breach of ______ (can’t just say, but for the Δ’s breach), then the defendant would have been harmed”
o Breach must be A “but for” cause, Not the “but for” cause
o General causation: whether conduct at issue is capable of causing alleged harm
o Specific causation: whether D was conducting such activity and caused harm
§ See Hoyt v. Jeffers: circumstantial evidence allowed to prove spark from mill caused fire
§ But see Smith v. Rapid Transit: a bus caused accident… need minimal circ. Ev., more than math odds
· If actual causation cannot be proven, may try one of the following: Alternative Liability, Substantial Factor test, Joint and Several Liability, or vicarious liability
Alternative Liability
· Applied when two or more persons have been negligent, but uncertainty exists as to which one caused P’s injury.
o P must prove that the harm was caused by one of the persons (must have both been negligent)
o Burden of proof then shifts to D’s and each must show that his negligence not the actual cause.
· § 27 Multiple Sufficient Causes , §28 Burden of Proof
o Summers v. Tice: Two men shot at quail an accidentally shot P. When P can prove that two or more persons caused the harm, the burden shifts to the D’s to prove innocence.
o Ybarra v. Spangard: Ybarra went in for surgery and came out with numb arm. Though no way to prove who caused his harm; the doctrine of res ipsa (inference of negligence) protects vulnerable people.
