Torts Condensed Outline
Tort figures from quiz
under 25000 tort cases per yr in state courts
plaintiffs win 27% of med malpractice cases
28,000 is median award to plaintiffs by juries
5% of tort cases include punitive damages
product liability has the lowest frequency of punitive damages awards occur
1% result in jury trial-2/3 are auto accidents/premise liability-15% med mal
# of trials peaked in 1980s-going down since then
Plaintiffs win in 52% of trials-27% of med mal
Intentional Torts-conduct intentionally causing harm with another
1) Battery-direct or indirect conduct intentionally causing harmful or offensive contact with the person of another
a. Harmful contact-results in physical injury, pain, illness
b. Offensive contact-Restatement-“offends a reasonable sense of personal dignity”
Subjective -what did def. desire/know w/ sub. certainty would occur?
Objective-would ordinary person be offended by contact?
*if you know person is hypersensitiveàit DOES matter
A. Intent to the harmful/offensive contact=responsible for ALL the consequences
Ex. trip someone and then they fall downstairs-put bag over head and they hit head on hook—FULL LIABILITY
Garrat v. Dailey-Age-relevant for knowledge but does not excuse liability
**Did this child have requisite intent? Should HE have known with substantial certainty
B. Mistaken intent-does NOT excuse liability Ranson v. Kitner-mistakenly kills dog,
C. Tallmage v. Smith-transferred intentàperson or intentional tort can transfer except I.E.D.
D. Indirect contact (throwing stick/rock) can constitute battery-pulling plate in the hand
*mental illness-matters about forming intent but does NOT remove liability
-intend to hurt someone in a delusion-liable
Minority rule-intent to any contact in enough-
E. Majority-must intend the harmful/offensive contact or know w/ substantial certainty
Brzoska v. Olson-unreasonable fear about contracting HIV disease-not battery
Fisher v. Carousel motor hotel, inc.-intimately connected objects constitute battering person
DiFedde v. Munneke-professor reinacting Garrat v. Dailey to student who isn’t prepared
2 yr old biting 2 week old-battery? Intent to cause harmful/offensive contact-would they know it would be harmful/offensive
Ex. kissing a stranger thinking they are someone you know can be a battery-not defense
X consents to sex w/ Y without knowledge that Y has an STD-is this battery?
-do they intend to transmit the disease? What is the cotact? Sex or sex w/ STD person?
P breaks arm-D manipulates it and applies 1st aid despite protests-battery?
-if D is just a person and not medical professional, probably a battery
-what if D is a medical professional-special privilege?
Beneficial motive is not enough to remove liability-intent to cause the contact-(medical help)
2) Assault-conduct intentionally causing imminent apprehension of harmful or offensive contact
*words must be accompanied by some form of intent to contact
Immiment-generally means this must be moments away from occurring
*failed attempt to batter that was seen can often be assault
Western union telegraph co. v. hill-jury must decide whether there was reasonable apprehension of imminent harmful/offsensive contact
3) False imprisonment-intent to confine, unwillingness to be confined, actual confinement
Intentionally confining another person within fixed boundaries against their will
*potential escape may exist but not be considered reasonable
Threat of force (legal or physical)-goes beyond a verbal “don’t leave”
Grant v. stop-n-go market-stores can only detain for a reasonable amount of time, calling police can be considered confinement
*majority of states require that EITHER you are aware of confinement OR you suffer some injury from confinement without being aware of it
Minority rule-must be aware of confinement
Shopkeeper-detain for reasonable amount of time for suspected theft but cannot be wrong!
Hypo-being on boat with religious sect that won’t let you leave without traveling with them
4) intentional infliction of emotional distress-extreme and outrageous conduct, intentionally or recklessly causing severe emotional distress
“so severe that no reasonable person should be expected to endure it”
3 possibilities depending on jurisdiction
Majority-desired to cause emotional distress or knew with substantial certainty that emotional distress would occur
Minority- recklessly caused emotional distress
1) must be intentional/reckless
2) conduct must be extreme/outrageous
3) must be a causal connection between wrongful conduct and emotional distress
4) the emotional distress must be severe
*common carrier/innkeeperàhigher duty of care generally
This cannot be transferred at all, generally-same with conversion
*is it true that it can be transferred when it is an immediate family member?
Siliznoff case-created this tort as intentional E.D. instead of just negligent-threatened him and
forced him to sign bank notes against his will-Re-READ!
Garbage man collected rubbish in territory of other people-made him ill with threatsànot assault b/c there was no imminent apprehension
Harris v. Jones-must prove clear causation between defendant conduct and the E.D.
5) trespass to land-conduct intentionally causing unauthorized entry into land of another
Dougherty v. Stepp-every unauthorized entry onto land of another is a trespass
Rogers v. Board of Road Com’rs for Kent County–“continued presence on the land of a structure, chattel, etc…that the actor fails to remove after privilege has been terminated=trespass
Shooting at ducks over land of another-is this a trespass? YES
6) trespass to chattel-conduct intentionally intermeddling with the goods of another, causing actual harm
Compuserve v. Cyber Promotions-1997, oh
A attacks B-knocks B down, about to stab B-C doesn’t know either of them-intervenes and hits B over the head with a pitchfork causing serious injury-is C privileged?
C hears A saying he is going to kill B, knocks A down….what if A and B are in a movie and C is mistaken?
5) defense of property-reasonable force to defend land/chattels against intrusion
shopkeeper can detail for “reasonable” amount of time when chattel suspected of being taken
can you enter property of another to quickly retrieve a duck that you shot? Restatement seems to say yes
Look at hypo in privileges about skipper entering premises of landowner in an attempt to retrieve his boat
katko v. Briney-spring gun in home is not reasonable for defense of property-wasn’t even in home at the time-cannot argue self defense
-burden of proof was on plaintiff since he was trespassing but he meets the criteria of excessive force which injured him and directly from the shotgun trap
*higher value on human safety than on property rights
Defense of self using deadly force
Minority rule-must avoid privilege
Defense of self using nondeadly force
6) recovery of property-generally legal redress is best but in “hot pursuit” there can be reasonable/quick forceàcannot be mistaken except for shopkeeper’s privilege to detain
7) partial privilege- Vincent v. Lake Erie Transportation
not a trespass-privileged to be there-but liable for knowingly causing the damages
PARTIAL PRIVILEGE OF TRESPASS
interfering w/ plaintiff’s property to protect your own property from some greater force-This has NOT been extended to battery cases at all
*cannot be harming another to protect property
1) no nominal damages (necessity to be there, no recovery just for the tort itself)
2) no punitive damages
3) but no right to be expelled
4) still have to pay for damages caused
public necessity-no damages-WHAT IS AN EXAMPLE OF A PUBLIC NECESSITY-LIKE AN EARTHQUAKE?
8) legal authority-police-right to arrest, (due process, reasonable force)-right to enter property as necessary
9) CHILD DISCIPLINE-parents (sometimes teachers)-reasonable force as punishment
a. Most school have gotten rid of it except 2 states-force to subdue vs. punish
Cleaning service leaves door open
Security guard forgets to check door
-robbery through door that is open