TORTS
PROFESSOR EATON
FALL 2010 EXAM
Appeals can be based on:
Motion to Dismiss/Demurrer: after complaint; viewing all of the facts in the light most favorable to p, there is still no legal claim or grounds for recovery (“so what?” defense).
Motion for Summary Judgment: given additional info (affidavits, depositions, answers to interrogatories, production of evidence); viewing all of the facts in the light most favorable to p, there is still no legal claim.
Objections to Evidence and Offers of Evidence
Motion for Directed Verdict/Judgment as a matter of law: viewing all of the facts in the light most favorable to p, the evidence is still insufficient to convict (end of p’s case or end of D’s case).
Proposed Instructions and Objections to Them
Motion N.O.V.: motion not withstanding the verdict; given all of the evidence presented, the jury was unwarranted in deciding as they did.
Motion for a New Trial: due to an error or unreasonable verdict
Tort: wrongdoing (other than contractual) whereby one’s legally protected interest is harmed/violated by another
· Policy: compensation (transfer of wealth/loss), deterrence, peaceful dispute between parties, promote socially responsible/useful behavior
· Moral fault v. strict liability; corrective v. social use; autonomy v. determinism
· Transaction/insurance cost v. deterrence; avoiding overly litigious society
Intentional Torts: Shorter statute limitations 1y than negligence 3y because supposedly more plain to prove
1. INTENT: (R 2d 8) a person acts with intent to produce a consequence if (1) apparent purpose or (2)actor possesses knowledge to substantial certainty with regards to consequence
o Knowledge Substantial Certainty: that acts would result in effect that brought about harm ( subjective, not reasonably objective)
o Garratt v. Daily; trial ct ruling for D overturned bc only instructed apparent purpose, D pulled chair from under P while sitting, SCoWA remanded clarification knowledge of substantial certainty or not that D’s pulling of chair = P fall down (not necessary he intended break hip, trial ct found for P
o Spivey v. Battaglia: SCoFL says its unreasonable to assume D has knowledge to substantial certainty that singular unsolicited hug would result in P neck pain and partial face paralysis (intent v. negligence matter of degree of knowledge; danger must cease to be merely foreseeable risk and become substantial certainty)
o HYPO: target practice hit someone jumps out v. firing into crowd hoping to not hit anyone; hunting intending to harm bear and shoot a person (possible transferred intent)
o More specific = more likely intent; 2d rest took away requirements of anger, hatred in favor of 4 pt formula
2. CAPACITY FOR INTENT
· Minors can form intent, limited to certain v. low age (Bailey v. C.S. 4YO can have intent crush trachea of babysitter BUT Fromenthal v. Clark 2YO too young for intent though severely bit 2 month old, capacity issue not age standard)
§ Policy justification: compensation, not punishment/culpability
§ Garrat v. Daily: experience, capacity, and understanding examined; determined by direct questioning of child (subjective)
§ Parental liability? Family purpose doctrine, car example, generally parents not liable otherwise
o Insane person can be liable for intentional tort when capacity to entertain intent and “did entertain” established (McGuire v. Almy: D had clear purpose to hit P given physical and verbal threats holding pieces of broken furniture) (R2d 13/14)
§ Policy/justification: Fault not required to redress harms, person causing harm should bear the loss not the harmed (corrective); incentive for caretaker to keep from happening; courts wish to avoid addressing question of drawing lines between types/degrees of insanity; prevent deluge of false insanity claims
§ Forseeability: contrast with heart attack (Cohen v. Petty: ct holds not liable bc unforeseeable therefore not chargeable with negligence) where insanity long suffered by D usually
o Some jurisdictions will not find liability when so insane cannot foresee effects of actions/caretaker situation (Gould v. Amer Fam Insur; D was suffering Alzheimer’s, P was nurse with knowledge of condition and its effects, too great burden on D bc P involved in caring/knowledge of what he might do, too great burden on family when did all possible by placing in nursing home, break down policy pts of tort law holding insane persons liable)
o Caretakers may be held liable, since that’s the policy anyways
o Certain torts (deceipt) hold too high a capacity for insane persons to be liable
o Intoxication: if voluntary, does not vitiate intent
§ Janelsins v. Button; P bar employee D patron; D kicked P in face as P and others helped drunk D to car. Appelate ct found voluntary drunkenness not a defense to battery claim.
3. SUBJECTIVE STANDARD, BUT FOCUSED ON ACT
o Mistake: a person is liable for the harm caused by his intentional actions, even if the harm is the result of a reasonable mistake in identity or is meant for another person, assuming mistake not wrongfully induced
§ Ranson v. Kitner: D liable for shooting P dog even though reasonable, good faith mistake thought it was fox bc purpose to harm animal.
o Policy: liability for good faith mistake to prevent unjust enrichment
o Distinguish from “accident”: no intent, or lack of voluntariness in act
§ If mistake did not lead to harm of action, can have no liability (hugging stranger assuming stranger is wife, nature of offensive touch not in the intent, mistake in ID)
4. TRANSFERRED INTENT: Talmadge v. Smith; D liable for battery when he threw a stick/rock meaning it to hit one boy but hit P instead; if an act is intended to cause harm with legal redress, actor is liable even if harm is meant for someone besides the injured person/party.
o NOTE: T.I. covers assault, FI, trespass to land and chattel; cross between any of these claims is okay (shoot to frighten A is assault, guilty of battery if hits B; Brown v. Martinez)
· Lewis v. Allstate: intentional act exclusion of policy applied to intentional arson (trespass to land) resulting in battery of death of man smoke inhalation (unintentional)
ts: insuring intention torts may have bad side effects including spreading cost of tortuous behavior to other reasonable insurance policy holders, reverse of deterrence, encourages intentional torts
§ Ohio Cas. Ins. Co. v. Henderson, 189 Ariz. 184 which disapproves of Vanguard
o Damages start at nominal, punitive, and upward
Assault: (1) an act (2) causes imminent apprehension of injury of offensive touch ( [a. knows of threat (subjective) b. apparent ability (objective) to carry out] (3) intention to carry out the assault
Western Union v. Hill: D employee could reach across desk, therefore reasonable that P fear touch
1. Overt Act: in order to make sure court is protecting P’s interest
a. No harm required: (I de S et ux. V. W de S; swung axe at D(wife’s) head, she dodged
b. Threats generally insufficient (Cucinotti v. Ortmann, threatened to hit P with blackjack and one found on him, but not assault)
i. But threats can compound to lessen over act requirement if specific (Castiglione v. Galpin, unloaded gun on lap, threat, close enough for apprehension, assault);
ii. Less specific/more ambiguous threats, more overt act required
iii. Conditional “if not” threats insufficient to form intent
1. “If you were not an old man, I would knock you down” State v. Crow lack of apparent purpose to strike
2. Intent still applies: is purpose/knowledge to substantial certainty act will result in apprehension of an imminent harmful or offensive contact
a. 2 mindsets: D and P
b. Making a threat conditional when in assault mode does not help, the battery still could have been committed, knowledge of possibility UNLESS manifestation is of intent NOT to commit battery because of X condition
c. “or I’ll take your life” instead of “I will certainly take your life” is not a defense. Who cares, who believes you if you have a gun against the dude?
d. Transferred intent applies; practical joke or intent to be helpful still makes assault
3. Apprehension: P Aware of apparently imminent injury/offensive touch
a. State v. Berry, P did have gun pointed at him but not aware, not assault
b. Attempted battery auto win if awareness
c. Fuller v. State; kissing sign but not attempting to connect, therefore no imminent offensive contact to apprehend/intent
d. No fear, but adding P state of mind here
4. Apparent present ability (subjective, usually decided by jury)
a. Perception of P controls (Allen v. Hannaford, points unloaded gun at P)
