Torts outline – Fall 2015
Intentional Harms: The Prima Facie Cases and Defenses
A. Trespass to Person and Land
Restatement § 13: 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 contact, and
(b) a harmful contact with the person of the other directly or indirectly results.
b. Vosburg v. Putney
1. Plaintiff: Vosburg
2. Defendant: Putney
ii. Procedural History
1. Plaintiff wins 2,800
2. Defendant appeals – Plaintiff wins 2,500
3. Defendant appeals again
iii. Legal Theory
1. Intentional Torts – battery
1. Vosburg kicks Putney in the shin while in class. It led to injury in Putney’s leg, because he already had in infection, which ultimately led to his leg being amputated.
v. Legal Issue
1. Did Vosburg’s conduct constitute battery?
1. Yes, battery.
1. Timing – Everything was fine until the incident happened.
2. He intended to touch the plaintiff in a harmful or offensive way.
3. There is no social utility to hitting or kicking
4. Defendant argument – The bone deterioration was already there
a. Eggshell Rule
i. You take the plaintiff how you find them
1. Think of how we want defendants to behave
2. We want to deter this behavior in the future
3. Also, want the plaintiff to be able to collect if he is injured wrongfully
c. Garret v. Dailey
i. Little boy pulling the chair from the older woman sitting
ii. Did he intend harmful or offensive conduct?
1. According to the court, yes
2. Does not mean he intended ACTUAL harm
d. White v. University of Idaho
i. Piano teacher showing technique on the student’s back.
ii. Not agreeing to be touched is enough to convict
B. Defenses to Intentional Torts
a. Consensual Defenses
b. Mohr v. Williams
1. Plaintiff: Mohr
2. Defendant: Williams
ii. Procedural History
1. Trial court – verdict for plaintiff
2. Judge rules retrial – both parties appeal
iii. Legal Theory
1. Battery – issue of consent
1. Mohr came in with ear problems. She consented to surgery on her right ear. The surgery takes place, and doctor finds the left ear more diseased and operates on that instead. Mohr claims this was a battery because she did not consent to him touching that ear.
2. Defendant argument
a. No negligence (the surgery was performed well)
b. No harmful intent
3. Plaintiff argument
a. She only consented to the right ear being touched, not the left.
1. Doctor liable for battery.
1. Regardless of outcome, she only consented to the right ear being touched. Skill and good intentions do not matter. He still intended the offensive contact.
vii. Policy – Why Unlawful?
1. We want to protect the autonomy of patients
2. What if emergency?
a. Then allow
b. Why? – Believe the reasonable person would want it if they could choose.
i. Alternative is death, which is irreversible.
c. Kennedy v. Parrott
i. Doctor is doing appendectomy and sees cysts which he uses his best judgment to puncture. The plaintiff sues and loses.
1. It was an extension of the original surgery
2. Already agreed to the appendectomy – no further opening was needed.
3. Also, in major internal operations the patient and surgeon both know that the exact condition of the patient is not stapled down – sometimes other things happen
d. Hypo – Dentist gives un-consented surgery while you are under for teeth cleaning
a. McGuire v. Almy
i. Tort for assault and battery
ii. Legal Theory
1. Plaintiff was taking care of defendant, who was insane
2. On April 19, 1932 the defendant had a violent attack, and the plaintiff went in to try to calm him down. The defendant clobbered the plaintiff in the head with the leg of a lowboy.
3. Plaintiff sued for damages
iv. Legal Issue
1. Did the nurse consent by walking in?
v. Court Ruling
1. She did not consent and the defendant is liable.
1. She had a duty to protect her patient from harm
2. She did not have full knowledge of patient’s harmful intent until it was too late
3. Insanity Defense?
a. Insane people are still held liable for their actions, as they still have intent to cause harm
b. However, not liable for torts requiring malice, because incapable
c. And MUST be intending to hit human
i. If imagining they are attacking a dog – not liable
vii. Policy – Why allow insane people to be liable?
a. Make those watching mentally disturbed people do so more carefully
2. Keeps out fakers
a. Even if you claim insanity, you are still liable
3. Incentives for nurses and caretakers
a. If they cannot collect for injuries on the job, why would they take the risk?
4. What if Almy had not known she was hitting McGuire?
a. The same as transferred intent?
i. You still intended the harm