Torts Outline

TORTS: PELTZ
FALL 2009
 
ROSCOE POUND PROGRESSION:
Roscoe Pound, Interests of Personality
·         What are we trying to accomplish with a tort system?
o    Honor, Societal Peace, Revenge for Society, Deterrence/Efficiency, Make P whole
·         Evolution in the kinds of injuries: over time, greater possibility to impose liability when there are more and more intangible harms.
o    Physical Injury—doctors bills, lost time at work
o    Honor (Overcoming the will)—sexual harassment, loss of business opportunities, injury to reputations, defamation.
o    Purely subjective mental injuries
·         Progression goes from pure physical injury to affront against one’e will to pure mental injury
 
Role of Insurance
ELEMENTS: 
Accumulation of a fund
Transference of risk
Combination of a large number of separate, independent exposure units having the same common risk characteristics into an interrelated group
Purpose: 
Substitute a small certain cost for a large uncertain loss.
Indemnity: provide security against hurt, loss, or damage.
Loss spreading: spread the loss among many people to cushion the loss
Criteria for Insurance Exposure
Large group of homogenous exposure units
Loss produced by harm must be definite
The loss must be accidental or fortuitous
Loss must be large enough to cause hardship
Cost of the insurance must be economically feasible
Chance of loss may be calculated
The harm must not affect the insured units all at the same time
Types of Insurance:
First-Person Accident Insurance: Insurance you take onto yourself. Without having to show that anyone has been held liable, the insurer will pay for the injuries or illness.
Third-Person Liability Insurance: Insurance you take out in case you injury someone else
Examples of Not an Insurance
Charging hirer prices to build up funds in the case of uncertain sales in the future isn’t a type of insurance.
Transferring risk of a television breakdown from the individual to a store through a warranty isn’t a type of insurance.
Terms in INSURANCE
Risk is uncertainty concerning loss.
Insurance exists to manage risk by combining risk exposures so that individual losses become collectively predictable.
Risk exposure units may be divided into entities (e.g., houses, people) or time (e.g., years, lifetimes).
Insurance manages both pure risk, which can produce only loss, and speculative risk, which can produce gain or loss. Lightening, for example, produces pure risk, while home-buying produces speculative risk.
Insurance works b/c of the law of large numbers (which is one application of the law of averages). This is the same principle by which a penny flipped again and again will yield a “heads” rate approaching 50 percent.
First-party insurance is when one insures against injury to oneself, such as an ordinary health insurance plan.
Third-party insurance is when one insures against injuries to another, as when an employer pays into a workers’ compensation system.
·         Note what insurance isn’t. It’s not simply an accumulation of funds to buttress future losses, such as a healthcare cafeteria plan. Insurance also isn’t a risk transfer, such as a vehicle warranty.
o    Note the seven criteria for viable insurance pools
o    (1) large group of homogeneous exposure units;
o    (2) loss produced by peril must be definite;
o    (3) occurrence of loss in any one case must be fortuitous;
o    (4) potential loss in one case must be large enough to cause hardship;
o    (5) cost of insurance must be economically feasible;
o    (6) chance of loss must be calculable; AND
o    (7) peril must be unlikely to produce loss to a great many exposure units at one time.
·         Finally, note that the loss-spreading function of insurance is also, sometimes, a rationale in tort law, which shifts loss from one party to another. When a corporate manufacturer is compelled to reimburse a single consumer for a product injury, the manufacturer increases the cost of the product to all consumers, thereby spreading the P’s loss through the society. There’s good to this–equity suggests that the P should not bear the cost, after all–and bad to this–ultimate responsibility to pay falls on people not at fault.
 
Compensation Systems and Alternatives to Tort Liability
·         New Zealand Social Insurance System–
·                 1. Lowers admin. costs
·                 2. sacrifice consistency
·                 3. number of lawyers has increased
 
INTENTIONAL TORTS
 
Traditional INTENTIONAL TORTS
As a matter of public policy, damages available for intentional torts tend to be broader and more generous than for negligent torts. In order to preserve individual well-being and overall social welfare, society generally wishes to deter its members from intentionally attacking each other. For example, in the U.S. it’s easier to get punitive damages (damages above and beyond compensatory damages) if one can prove that tort was intentional. But it’s harder to prove intentional torts b/c as with many felony crimes, one must prove subjective elements involving the content of the D’s mind, and Ds don’t always express their harmful intent out loud or in writing.
 
ASSAULT
Elements of ASSAULT:
·          (1) intent, such that
o    (a) the intent is to cause offensive contact, OR
o    (b) the intent is to create the apprehension of offensive contact;
·         (2) P perceives an imminent threat of offensive contact; AND
·         (3) P’s perception is reasonable, i.e., a reasonable person in the P’s shoes would experience the same perception.
·         Note that “imminence” is required and compounds element (2).
o    RULE: The D must have a threatening act that is imminent (carried out at the present time)
o    RULE: Conditional threats are often not held to be assault b/c they are avoidable and therefore not imminent.
o    RULE: Words by themselves without an act are insufficient to show assault, even if it’s said by a menacing person
o    RULE:To constitute assault, there must be something more than the threat of physical violence (Read v. Coker) – Rolling up sleeves, surrounding him, constituted assault.
o    RULE: Not what the P thinks, but if a reasonable person would feel apprehension in that situation (Navratil v. Parker)
§ Navratil v. Parker (menacing dog didn’t make any threatening gestures such as drooling or snarling and was being properly restrained by the police officer, but maybe assault by police office if the dog was called out of the car, similar to drawing a weapon).
o    Words + Menacing Actions = Assault
o    Words + present ability to carry out = assault
o    Threat < attempt, but IS an element of assault o    Must know P’s state of mind, subjective § Problem with subjective: D’s state of mind important too but harder to prove o    Rule for Damages: Most damages are nominal (small) for a claim of just assault. § Rationale for the Rule: Protect interest in not apprehending unwanted touching, dignity o    RULE for The Intention : There will be no cause of action under assault if there is no intention or substantial knowledge of apprehension. So, even if the D doesn’t intend physical contact, if the P is fearful of some contact, then this is an assault. o    RULE: The P doesn’t need to be fearful. Example: If a really big guy is going to be hit by a smaller girl, this is assault even though the big guy knows he can defend himself. o    Physical Contact (apprehension but maybe not actual contact) § There needs to be apprehension of a harmful or offensive physical contact. § But there doesn’t need to be actual contact to have a cause of action under assault. ·         However, if actual contact results, then the other may recover damages for harm that resulted from apprehension. o    NOTE on Offensive contact – offends a reasonable sense of personal dignity o    Subjective v Objective element § Subjective is in Navratil’s head (what he was thinking). Difficulty in using subjective standard is that you can’t for sure know the person is telling the truth § Objective is what you get from the outside. We decide what it is through jury and judges, what a reasonable person would know, this is something we can measure. We can use precedent to come up with what a reasonable person is or might do. o    Unawareness of Act § If the P isn’t aware of the act during its performance, then there cannot be imminent apprehension. Restatement § 22. o    Knowledge of Inability to Act § If the P knows that there is no way for the act to be harmful (i.e. pointing an unloaded gun), then it’s not an assault. Restatement §24. § But if the D knows that there is no way for the act to be harmful, but the P has no reason o know that there is no harm, then it’s an assault. Restatement 33.   Battery o    Elements of BATTERY § (1) intent, as for an assault, ·         i.e., intent to cause harm ·         or intent to cause offensive contact; and  § (2) offensive contact results.  § Note that according to the doctrine of Garrett v. Dailey, which might or might not apply in a given case, the intention to commit some action, from which offensive contact results, may be the basis to infer the intent required by the first element of battery, if the actor can be proved to have harbored knowledge to a substantial certainty that the offensive contact would result. This doctrine is a sort of “transfer” of intent, b/c the intent of the D “transferred” from the action to the offensive contact. o    Battery encompasses things that are closely connected to a person (such a removing someone’s clothes while sleeping). If you accidentally kick someone’s dog when you intend to kick the person, this is still battery b/c the dog is their property. (or someone’s wheelchair or clothing) o    NOTE on Contact - Offensive part of offensive contact means unwanted, i.e. P didn’t have been aware of it at the time. o    NOTE on Intent – doesn’t have to intend harm or offense – can be done by mistaken consent or practical joke § Rule: Unless an actor realizes that to a substantial certainty the contact or apprehension will result, the actor has not the intention, which is necessary to make him liable. Expands intent to include knowledge w/ substantial certainty. o    NOTE on Harmful contact – must produce bodily harm, even minor – damage can be ultimately beneficial (surgery) o    NOTE on Offensive contact – offends a reasonable sense of per