Torts
Wells
Fall 2011
PHYSICAL AND MENTAL HARMS
I. Intentionally Inflicted Harms: The Prima Facie Cases and Defenses
A. Physical Harms
1) Trespass
a) Battery (trespass to the person)
Elements of Battery:
(a) touching
(b) intent to touch
(c) no consent
Restatement of Torts:
Section 13. Battery: Harmful Contact
An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
(b) a harmful contact with the person of the other directly or indirectly results
Section1. Intent
A person acts with the intent to produce a consequence if:
(a) the person acts with the purpose of producing that consequence; or
(b) the person acts knowing that the consequence is substantially certain to result.
i. Vosburg v. Putney (Wis)- defendant kicked plaintiff in school; no implied license existed and such act was a violation of the order and decorum of the school, and necessarily unlawful (unlawful act à unlawful intent). The court found that the action may be sustained.
ii. Rule: indirect touching can be enough to establish liability for battery.
o Garratt v. Dailey(Wa)- plaintiff brought a battery suit against the defendant for removing a chair out from under her, causing a fractured hip. The court ruled in favor of the plaintiff, finding the defendant had unlawful intent in removing the chair out from under the plaintiff.
iii. RULE: Don’t need to show intent to do harm, only intent to touch.
o Wagner v. Utah (Utah)- the defendant, a mentally impaired man, attacked the plaintiff. The court held that battery in fact had been committed because the only required mental state was the intention to make contact with the plaintiff, not the intention to cause harm.
o White v. University of Idaho (Idaho)- the defendant was the plaintiff’s music teacher, and walked up behind her, touching her with both hands on the back. The plaintiff claimed she suffered a strong physical reaction to the touch; the defendant argued he did not intend the touching to be harmful. The Court held that she stated a valid claim for battery even though the def had not meant to either harm or offend her- rejection of the RST.
iv. Rule: intent can be transferred.
o Talmage v. Smith (MI)- the defendant threw a stick at the plaintiff’s companions and struck the plaintiff in the eye instead. The court held that the defendant was liable for battery because the fact that the injury resulted to another than was intended does not relieve the defendant from responsibility.
v. Rule: must have specific knowledge of touch to be held liable, not just generalized knowledge.
o Shaw v. Brown &Williamson Tobacco Corp- the plaintiff truck driver, a non-smoker, shared his cab with a heavy smoker and developed lung cancer as a result. The court found that Williamson’s generalized knowledge that second-hand smoke may reach some non-smokers is insufficient to satisfy the intent requirement for battery.
b) Trespass to Land
Elements of Trespass
(a) individual is on someone else’s land
(b) individual intends to be on the place he or she stands independent of whether he or she intends to actually trespass
(c) generally, no consent; you can still trespass if you go beyond the scope of consent
i. Dougherty v. Stepp (NC)- The defendant entered the unenclosed land of the plaintiff’s, and surveyed what he believed was his part of the land, although he did not mark trees or cut bushes. The Appeals Ct found the defendant liable for trespass because any unauthorized and unlawful entry into the close of another is trespass, and the law infers some damage from such unlawful entry.
ii. Intent
o Brown v. Dellinger-two children ignited a charcoal burner on the plaintiff’s property which caused a fire and loss of the plaintiff’s house; the court held that their acts of igniting an unauthorized fire on the plaintiff’s premises made them trespassers, and they must be held liable for the direct consequences of their unauthorized act, independ of intent.
o Cleveland Park v. Perry- plain operated a social club, def inserted a ball in drain of pool, causing extensive damage to the pool; the court on appeal reversed prior judgment for def stating, “the intent controlling is the intent to complete the physical act and not the intent to cause injurious consequences.”
iii. Intangible Trespass
o Public Service Co. of Colorado v. Van Wyk (CO)- plain sued for trespass for harm attributable to noise, radiation, and electromagnetic fields; court ruled for def stating, “an intangible intrusion may give rise to a claim for trespass, but only if an aggrieved party is able to prove phys damage to the prop caused by such an intangible intrusion.” However, the judge sustained the plaintiff’s nuisance claim; this cause of action requires show that the level of intrusion is unreasonable.
c) Trespass to Chattels
Elements of Chattel (moveable property)
Trespass to Chattels- the intentional interference with the property of another.
Restatement Section 218, comment e
(a) to establish liability, conduct must affect some other and more important interest of the possessor.
(b) only if the intermeddling is harmful to the pos
f claimed he did not know the wine was the property of the plaintiff. On appeal, the court found the def guilty of conversion because he exercised dominion and control over another’s property, stating, “the act itself is unlawful and redressible as a tort…absence of bad faith can never excuse trespass, though it can aggravate it.” The fact that the def did not know the wine belonged to the plain was immaterial (intent and act were still there).
ii. Maye v. Tappan- the def dug up gold-bearing earth after the plaintiff mistakenly told the def he owned the land. The ct awarded the plaintiff damages equal to the value of the gold minus the cots of its extraction and refinement, holding it “immaterial whether the defs acted willfully and maliciously, or ignorantly and innocently…” However, good faith is not irrelevant because it comes into play when assessing damages as seen here.
iii. Kremen v Cohen- Kremen registered the domain name sex.com with the def (Network Solutions). Cohen told def that Kremen’s company had dismissed Kremen and decided to abandon use of sex.com, and Cohen assumed ownership of the domain name, making a significant amount of money. Kremen sued Network Solutions and Cohen for conversion. On appeal, the ct found Network Solutions liable for conversion because it treated another’s property as one’s own even though it did so unknowingly (Cohen had fled the country).
3) Defenses to Intentional Torts
a. Consensual Defenses
i. Mohr v. Williams- def doctor performed an operation on the plaintiff’s left ear when she only consented to surgery on her right ear; plaintiff claimed the operation greatly impaired her hearing and sued def for assault and battery. The ct found def liable for injury to plaintiff, stating, “If the operation was performed without the plaintiff’s consent, and the circumstances were not such as to justify its performance without, it was wrongfulàunlawful.” The ct applied the following principle to reach their conclusion: “Every person has a right to complete immunity of his person from physical interference of others, except in so far as contact may be necessary under the general doctrine of privilege…”
