Torts Outline – Wells
Fall 2016
1. Intentionally Inflicted Harms: the Prima Facie Case and Defenses
Physical Harms
and Consent
– requirements for battery
– intent to touch (not intent to do harm)
– lack of consent
– touching actually occurred
– what can be a touching – something that is immediately connected to the P ie touching a shirt, plate they are holding, cane, but not banging down a house door
Vosberg v. Putney
– kid kicked another kid in the shin in the schoolroom
– this is a battery case – you have to show that the intention was unlawful or that the D was at fault
– if the action was unlawful, the intent was unlawful
– it was unlawful here, since there was no implied license (like there would be on the playground)
– court held D liable even if he didn’t intend to do harm – you don’t need an intent to do harm to be liable for battery
– you can also just intend to do offensive contact (like in White v University of Idaho – where the piano teacher touched the kid) and still be liable
– also – if you know with substantial certainty that there will be some touching, then the intent element is met (like in Garrett v Dailey – where the kid pulled the chair out from under old lady)
Mohr v. Williams
– P consented to an operation on one ear, but the doctor intentionally performed the operation on the other ear (the other ear was worse off)
– P was ultimately awarded nominal damages – to punish for the battery – but since the surgery went well, there was no real punishment
– doctor didn’t have intent to do harm, he had intent to do good – but this doesn’t matter – there only has to be an intent to touch
– show the value of personal autonomy – the right not to be touched if you don’t want to be
– important value because –
– an individual is best suited to decide what is in their own interest
– every person is entitled to the same respect of other persons
– other people should respect my judgements
– if we deem someone not able to make their own decisions – due to lack of mental capacity, age, etc – we can appoint a guardian to look out for their interests – called substituted judgement rule
– one competing value for respecting autonomy is medical expertise
– per Kennedy v Parrott – courts can give different weights to different values
– notion of utility – how to get the greatest good for the greatest amount of people
3. Emergency rule
– one of the court’s ways to deal with people who can’t decide for themselves (the other is the substituted judgement rule)
– why should we let the doctor win in the case of an emergency where there is no consent – given the autonomy value?
– an emergency situation consists of serious injury
– we have to so something now – and we can’t ask anyone or wait – and most people would want the thing done
– really doesn’t disrespect the autonomy of most people – really a way to achieve what most people would agree to
– the guardian will take priority over the emergency rule is almost all situations
4. Canterbury v. Spence
5. Hudson v. Craft
– case is about whether the promoter is liable in a boxing match
– if he brings about a touching and if he knows with substantial certainty that the touching will occur – this is all you need
– but he says the guys consented – but court doesn’t buy it
– court’s reasoning – there was a statute to protect people in illegal boxing matches
– 2 rules about liability between combatants:
– majority rule – consent doesn’t matter with regard to liability – since it was an illegal fight
– the state will come in a paternalistically protect people – since the state is a party where there was a breach of the peace
– also a public interest in stopping these types of fights
– minority rule – consent negates liability – since the volunteer suffers no wrong
– you can’t negate the autonomy with respect to his choice to participate in the fight
6. Trespass to land
– for a P to win – needs to show that the D intended to be on the land – you don’t need to show intent to do harm
– Brown v Dellinger – young kids lit an unlawful fire and burned guys house down
– Cleveland Park Club v Perry – kid ruined pool drain by sticking ball in cover
– wrinkle – he was a member of the club, so he had permission to be there; but this permission didn’t extend to what he did so this doesn’t matter
– elements –
– entry onto the land
– an intent to be at that place (not necessarily on the P’s property – ie when the D doesn’t know that it’s the P’s property)
– the entry was without consent
7. Implied consent
– there is a difference between a person’s subjective desires and the objective manifestations of what the person wants based on conduct – but it’s the objective manifestations that matter
– we do value subjective desires – but it’s not fair to the D to expect the doctor to be able to read the patient’s mind
– O’Brien v Cunard Steamship Co – where the girl said she didn’
– thinking that the policeman P is a robber – shoots the P
– per this case – we are entitled to make mistakes while defending ourselves – we are entitled to make the mistakes that any reasonable person would make
– you don’t get off just because subjectively you thought you were being attacked, you get off because a reasonable person could have made the same observations and mistake
b. reasoning
– good idea – you have autonomy and the right to be free of unwanted touchings, so you ought to have some recourse when someone assaults you – and since a lawsuit isn’t automatic recourse that would prevent you from a imminent harm, you can defend yourself
– why is someone able to defend themselves from a non-life threatening touching?
– it’s instinctive
– it’s more cost effective – as opposed to going to court
– we should be free from unwanted touchings
– force used in self-defense should be proportionate to the force you are being threatened with
c. retreat doctrine
– you have to distinguish between an ordinary threat and a serious threat – that which is likely to do great bodily harm
– most courts say that if you have to defend an attach with great bodily harm and it is easy to run away – then you are required to run away
– doctrine is aimed at avoiding escalations of violence – and gives up your right to stand your ground
d. Morris v Platt
– if you injure an innocent 3rd person while acting in self defense
– if the actor is reasonable in his measures for self-defense, the person who is injured has no action for claim
e. Boston v Muncy
– P’s version – D called the P a liar and then hit the P
– D’s version – P took the first swing and then the D struck the P in self-defense
– who is telling the truth is for the jury to resolve
– case was remanded – since the jury instructions mistakenly said that the D had a right to self-defense if he thought that he was in danger of great bodily harm
– they should have just said any bodily harm, not “great”
– since the jury found that the P won, they might have believed D’s version of the facts, but they might still have said that P should win because the D wasn’t in great danger of bodily harm
