TORT LAW (Wasserman) (Spring 2014)
I. Introduction to Tort Law
A. General Information: (1) Governs legal responsibility, or civil liability, for wrongs that people inflict on each other by various
means. (2) Is typically based on state common law. (3) Typical remedy is monetary compensation.
B. Two Types: Intentional and Unintentional
1. Intentional: Typically involve deliberate conduct and harms inflicted more or less deliberately
2. Unintentional: Typically involve accidental conduct and harms caused inadvertently (“by accident”)
a. Question of liability for physical harms that are caused accidentally. Two Approaches and Types of Unintentional Torts: (1)
Strict Liability. (2) Liability for Negligence.
i. Strict Liability: Generally holds Δ liable and requires him to pay for damages caused by an activity regardless of the care
Δ took and how carefully the activity was conducted (liable no matter what)
ii. Liability for Negligence: Δ who caused harm by failing to exercise reasonable care needs to pay only for harms caused by
his failure to exercise reasonable care (judged against a reasonable standard of care)
C. Two Rationales: Corrective Justice and Economics, Deterrence, and Regulation
1. Corrective Justice: (1) A moral enterprise, the purpose of which is to produce justice between the Π and the Δ. (2) The rules
are concerned about moral content rather than inducing people to act in certain ways
2. Economics, Deterrence, and Regulation: The most important aspect of a court’s decision is the impact that it will have on the
behavior of other people in the future
II. Intentional Torts
A. BATTERY: (1) Intent to Touch. (2) Touch is Unlawful, Harmful, or Offensive. (3) Actual Contact. (4) Occurrence of Harm.
1. Vosburg v. Putney: LIABILITY
a. Facts: Δ lightly kicked Π in the shin in a schoolroom after the instructor had called the class to order. Δ did not intend to do
Π any harm. The kick aggravated a prior injury Π had suffered and caused his leg to become lame.
b. Rule (INTENT): Π needs to show that the intention was unlawful. If the intended act is unlawful, the intention to commit it
must necessarily be unlawful.
i. The intended act that Δ performed was unlawful because it violated the order and decorum of the school.
c. Rule (DAMAGES): “Thin Skull Rule” – (1) A wrongdoer is liable for all injuries and damages that result directly from his
intentional torts regardless of whether they could have been foreseen by him.
d. Holding (IMPLIED LICENSE): No implied license to do the act complained of existed under these circumstances.
i. IMPLIED LICENSE: (1) Touch Football. (2) Playgrounds.
ii. NO IMPLIED LICENSE: Δ inflicts an injury upon Π in a school after the instructor has called the class to order and the
regular exercises of the school have commenced
e. POLICY: (1) “Offensive Contact Rule” – A person should not be touched when he does not want to be touched. Has to do
with personal dignity. (2) “Thin Skull Rule” and “but for” causation – Π’s leg would not have become lame but for the kick
i. A boy bestows an unwanted kiss upon a girl. BATTERY
(a) The harm does not have to be physical. It can be harm to the personhood or dignity of a person
ii. A girl pulls a chair out from under a boy as he goes to sit down on it. BATTERY
(a) 100% guarantee that a person will hit the floor when another pulls a chair out from under him
iii. A man intentionally exceeds the speed limit and runs over a woman. NO BATTERY
(a) 100% guarantee that the woman or another would be hit is necessary. There was no intent to hit the woman.
iv. A boy nudges his distracted classmate to notify him that the teacher is calling on him
(a) Argument: One consents to nudges as part of the rules of the classroom when he is goofing off and being called on
2. Knight v. Jewett: NO LIABILITY
a. Facts: Π and Δ were playing touch football. Π told Δ she would leave the game if he did not stop playing so rough. The Δ
stepped on and injured Π’s hand. A finger had to be amputated. Π claims Δ pushed her. Δ claims it was an accident.
b. Rule (INTENT): Intent is a requisite element of assault and battery
i. (1) There is no evidence that Δ intended to injure Π or commit a battery on her. (2) Π does not think that Δ had the intent
to step on her hand or injure her
c. Implied License: (1) Π consented to some form of touching by playing touch football. (2) Was any implied license revoked
when she told Δ to lay off? (3) What was the scope of the consent given? “I did not consent to him being so rough.”
3. Vosburg and Knight: (1) Settings were different. (2) No intent to touch in Knight
4. White v. University of Idaho: LIABILITY
a. Facts: Δ walked up behind a piano student and touched her back in a movement a pianist would make in striking and lifting
the fingers from a keyboard. Δ did not intend to cause harm and had occasionally used this contact method in teaching. The
resulting contact generated unexpectedly harmful injuries. Π was surprised by the act, would not have consented to it, and
found it offensive.
b. Holding (BATTERY): Δ committed a battery when he caused harm to Π by making contact with her in a harmful way
i. Counter-Argument: The contact was not offensive. It was contact that a piano student would encounter often in lessons.
c. Two Tests: Subjective and Objective
i. Subjective: Is the touching offensive or unlawful to the specific one who is touched? Subjective factors are not irrelevant.
ii. Objective: Whether a reasonable person in Π’s situation would have found the contact to have been offensive
(a) Usually used because subjective tests have the potential to create a lot of fraud and administrative concerns
i. Δ touches Π because he loves her. BATTERY: His motive is irrelevant. It does not matter if he thought Π would consent
ii. Δ has touched Π the same way before and she has said that she enjoys it. NO BATTERY
iii. Π dies because Δ touched her. “Thin Skull Rule”: Δ is liable for all damages that result from his actions
5. Vosburg and White: (1) Intent to touch. (2) Impermissible and unwelcome touching
6. Polmatier v. Russ: POSSIBLE LIABILITY
a. Facts: Δ killed his father-in-law with a shotgun. He believed that his father-in-law was a spy for the Red Chinese who was
planning to kill him. Δ was prosecuted for murder and found not guilty by reason of insanity.
b. Rule: Insanity is no defense to battery. No allowance for insanity in measuring Δ’s intent. Insanity does not negate intent.
i. POLICY: (1) No incentive for those responsible for the insane to care for them and keep them from causing harm if there
was no liability. (2) Injustice to not let the injured party recover. (3) Concern that individuals will pretend to be insane to
avoid the consequences of their crimes.
c. Holding (INTENT): (1) The fact that Δ meant to shoot his father-in-law is enough to satisfy intent. (2) No requirement that
the choice to touch be rational. (3) The situation is not one in which a person may escape liability owing to an involuntary
reaction; e.g., when a man who has no history of seizures has an epileptic seizure while holding a gun
d. HYPOTHETICAL: A thinks he is Angelina Jolie in The Wanted and can bend a bullet around B. A has no intent to touch in
a harmful or offensive way
7. Laidlaw v. Sage: NO LIABILITY
a. Facts: Norcross threatened to drop a bag containing dynamite if Δ did not give him $$$. Δ placed his hand on Π’s shoulder
and gently moved him in front of Norcross to block the Δ from the possible blast. Norcross pulled the fuse on the bag and
detonated an explosion. Π was injured. Δ was unharmed.
b. Rule (VOLUNTARINESS): (1) The law presumes that an act or omission that is done or neglected under the influence of
pressing danger is done or neglected involuntarily. (2) The fact that an act is done intentionally does not mean that the act is
voluntary. (3) The first law of nature is self-preservation. A person is likely to try everything he can to survive. (4) Appears
that any action will do as long as it is natural and instinctual.
c. Holding (VOLUNTARINESS): The fact that a life was in imminent danger made it so that no voluntary acts occurred
i. Corrective Justice: Δ coolly decided to sacrifice Π’s welfare to save his own life. Monetary compensation is the least the
Δ could do from an ethical standpoint.
ii. Economics, Deterrence, and Regulation: HYPOTHETICAL – A will die unless he gets a new kidney. He drugs his clerk
and harvests a kidney. A has some time to figure things out and can, for example, get his name onto a transplant list.
(a) The deterrent effect will play out more when more time is available
(b) It will not play out when there is imminent danger and instincts come into play
e. Objective Test: Whether a reasonable person under the same circumstanc
consent and consists of a touching of a substantially different nature and character
than that to which the patient consented
i. The consent of a patient is not vitiated when he is touched in exactly the way he consented to be touched
(a) The patients consented to the acts that the decedent performed
d. Holding: NO BATTERY because no offensive touching. No fluid-to-fluid contact or actual exposure to HIV or to potential
HIV transmission. No wound, bleeding, or lesions came into contact with a break in the skin or mucous membrane of a Π
i. Unwillingness to extend the following: One can consent to a particular operation performed by a particular physician on a
particular part of the body
e. POLICY: Allowing liability may lead to a slippery slope. A physician may have to disclose things like the grades he got in
each class. Where should the line be drawn? How much should a doctor have to reveal about himself?
i. The court cuts one off from knowing everything about a doctor because one should not have to disclose his medical records
ii. One could try to couch a bright-line rule regarding ailments that would affect job performance
5. Brzoska and Quigley: An affliction that afflicts a doctor in Brzoska and the identity of a physician in Quigley
6. Neal v. Neal: POSSIBLE LIABILITY
a. Facts: Π discovered that her husband was having an extramarital affair with another woman. She would not have had sex
with him while the affair was occurring if she had known about it
b. Rule (CONSENT): (1) There is typically a battery if a person obtains consent by fraud. (2) Consent may not be vitiated and
a battery may stand when a misrepresentation or fraud is collateral or tangential to the incident in question
c. Disposition: The trial court granted summary judgment to Δ. The Idaho Supreme Court reversed. It is possible for a jury to
find that what happened constitutes a battery
i. It is possible that Π contracted or could have contracted a sexually transmitted disease because of the affair
d. POLICY: Concern about interfering with other types of law better equipped to deal with such situations (like divorce law)
e. Arguments: (1) Π consented to sex with her husband. Whether he was faithful to her or not was collateral. (2) Most people
would want to know whether their spouse has been faithful to them or not
C. TRESPASS ONTO LAND: (1) Intentionally entering into the property of another or causing another person or a thing to do
so. (2) Doing so without the consent of the property owner.
1. Desnick v. American Broadcasting Companies, Inc.: NO LIABILITY
a. Facts: Δ’s producers dispatched employees equipped with concealed cameras to two of Π’s offices. The employees posed
as patients, requested eye examinations, and secretly videotaped Π’s employees examining them. Δ used the videotapes on
an episode of Prime Time Live that was highly critical of Π. Π would not have consented to the presence of the test patients
if their true identities and motives had been known.
b. Rule (CONSENT): (1) Some cases deem consent effective even though it was procured by fraud. (2) The willingness of the
law to give effect to consent procured by fraud is not limited to trespass. See battery.
i. Allows a restaurant critic to conceal his identity when he orders a meal
(a) A restaurant consents to customers. It is collateral as to whether one of the customers is a restaurant critic.
(b) It is possible that he will write a positive review of the restaurant