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Torts
University of Illinois School of Law
Wasserman, Melissa Feeney

TORTS – Wasserman – Sp 2013

Intentional Torts:

I. Battery

a. RULE: Intent to cause harmful/offensive contact w/ a person or 3rd person, OR intent to cause imminent apprehension of such contact. AND offensive/harmful contact directly OR indirectly results. (no accidental touching)

b. CASES

i. Vosburg v. Putney (Kick in the shin, Class called to order, Thin Skull)

ii. Knight v. Jewett (Rough Football, warned she would stop, knocked over and then stepped on, possible consent)

1. No evidence of intent to step on finger and getting knocked over seems to be consented to

iii. White v. Univ of Idaho (Piano Lesson, was this offensive touching? [objective standard])

1. Dinstinguish unwelcome touching from offensive. What’s normal in a lesson? Think about whats normal in a classroom vosburg.

2. If intent was to WOO her à no consent given in piano lesson for romantic touchingàoffensive

iv. Polmatier v. Russ (Though F-in-law was red spy)

1. No insanity defense for intent (Irrrational does not equal unintentional)

a. Deter relying on insanity

b. Give caregiver/family incentives to care

c. Unfair for victim

2. By knowing of insanity f-in-law may have consented to some level of crazy (ie- if pushed etc may not be a battery)

v. Laidlaw v. Sage (Bomber, uses employee as human shield)

1. RULE: Self-preservation from an imminent treat is reflexive/involuntary

2. In Polmatier the threat was not imminent (If had been maybe different result)

3. What was the battery the moving of the clerk or the blast which he knew with substantial certainty would result (or did he?)

vi. HYPO: Kidney Harvesting

1. 3rd party to die without kidney. D drugs and takes P’s kidney to give to 3rd.

a. No self-preservation defense because NOT IMMINENT therefore not involuntaryàintentional

vii. Keel v. hainline (Throwing erasers in classroom, had not been called to order, hits uninvolved girl)

1. Inherently wrongful activity for the setting, therefore even though would not have been battery to one of the consenting parties (they had a defense) intent transfers to bystanders. (Transferred intent)

a. Unlawful conductàtouching offensive

2. Secondary Transferred intent

a. All parties in the throwing also charged

viii. HYPO: Throwing Frisbee

1. Not unlawful or offensive touching to be hit in park by errant Frisbee

2. No intent for any unlawful touching as in Keel)

II. Consent

a. RULE: Express or implied by conduct

i. Implied by law: Consent to emergency med treatment when unconscious and/or unable to provide consent

b. REST § 892

i. Consent is willingness (in fact) for conduct to occur. Action OR Inaction. Need not be communicated to actor.

ii. Words that are reasonably understood to be consent suffice (even if not consent in fact)

c. CASES:

i. Mohr v. Williams (Operated on other ear because saw nothing wrong with correct earànot emergencyàbattery)

1. May have procured third party consent from family dr and family members

ii. Grabowski v. Quigley (Doctor away when P went under other dr performed most operation, found out after the fact, not emergency replacementàbattery)

1. Often times today consent given to the hospital and not to specific dr’s

iii. Brzoska v. Olsen (HIV Dentist)

1. No battery for offensive touching, offensive touching for HIV D would only come from body fluids, which were not touching the Ps.

2. Differ that Quigley because unknown condition and not unknown person

3. If patients actually got HIVàbattery (clearly there would have been offensive touching in this instance)

4. What about alcoholism?

iv. Neal v. Neal (Wife claims she would not have consented to sex with unfaithful husbandàno battery)

1. Fraud only relevant if relating to the prohibited conduct. (lying about STDàthat STD is touching and offensiveà P did not consent to that) Since battery is concerned with touches the fraud must pertain to what the P is touching.

III. Trespass

a. RULE: 158 (No harm need be caused)

i. Intentionally enters or causes a thing or third party to enter the land in possession of another (NOTE: Possessor or person with reversionary interest may file suit) OR

ii. Intentionally REMAINS on land after permission has been removed

iii. Intentionally fails to remove a thing D is obligated to remove.

b. REST 168

i. Conditional Consent: Condition/restriction must be complied with. Cannot invade beyond the allowance.

ii. 164: Intrusions under Mistake

1. No excuse if D Mistakenly:

a. Believes his land or entitled to it

b. Believes given appropriate consent

c. Believes privileged to enter

iii. 166: Non-liability for accidental intrusions

1. Unintentionally/ negligently enter or cause entry by 3rd party or thing à No Liability

a. Exception: Abnormally Dangerous Activity

c. CASES:

i. Desnik v. American Broadcasting (Hidden cameras on e’ees sent into eye dr)

1. Here the alleged fraud was not telling the dr that they were recording for the TV showà nothing to do with their interference with P’s property. They received checkups and did not disturb ordinary business

2. Them being journalists did not interfere with the property rights protected by the trespass tort. (Trespass is concerned with protecting the inviability of land)

ii. Pegg v. Gray (Trained dogs to chase foxesàsubstantial certainty they would enter P’s land)

1. Intentionally sent them after foxes knowing they would enter P’s land. If dog did it on its ownà no liability

2. Sport is subordinate to Property Rights

iii. Malouf v. Dallas Athletic Country Club (Golf balls over fence)

1. No intent by golfers to hit balls over fence. No intent by golf course to train golfers to hit ball over fence (as in Pegg)

a. This is similar to dogs acting under t

choice but to arrest (not a good faith account but unqualified accusations)

1. Pestered officer to arrest and would not back down on his claim for 30 minutes

VII. Assault

a. RULE:

i. Intent to cause harmful/offensive contact OR imminent apprehension of such contact

1. If actor only intends apprehension (not contact) and other knows no contact intended BUT still put in apprehensionàassault (look for possible consent here though)

ii. The other is put in such apprehension

1. Need not be afraid, and may be able to easily allude contact

iii. Negligent/reckless acts are insufficient

iv. Other MUST be cognizant of the assault at the time (cant discover later)

b. CASES:

i. Brower v. Ackerley (P petitioned for removal of billboardsàphone calls from Dà Not imminent or present ability to reach Pàno assault)

1. Even if someone has to leave the room to get a gunàno assault

ii. Bennight v. Western Auto (Bats in the AtticàD knew bats would cause imminent apprehension of offensive contactàforced her to work up thereàassault)

1. Intentionally placed P in position for apprehension

iii. Langford v. Shu (The ol’ foxtail-mongoose boxà Knew that P would be put in apprehension (even though did not intend contact so even if P knew that no contact intended her being put in apprehension is sufficient))

1. Parent aiding and abetting child is sufficient for assault

iv. Tuberville v. savage (Swordsman case)

1. Grabs handle of sword (Probably sufficient for assault) BUT then says if it were not for the court in session I would cut you.

a. Clearly stipulates that he will not use the sword à no assault. No intent of contact or apprehension of contact

VIII. Intentional Infliction of Emotional Distress

a. RULE

i. Extreme & Outrageous conduct that intentionally/ recklessly causes severe emotional distress

ii. Liable for 3rd Person if causes severe ED

1. Immediate family member who is present

2. Causes bodily injury to other persn who is present

b. CASES

i. Roberts v. Saylor (Dr previously sued by P, but not her current Dr.–>insults her and makes her worry he will do something to her in her imminent surgery)

1. Insults alone are not outrageous enough, even in the former patient-dr relationship and in the hospital right before surgery

2. Close case