TORTS Robbennolt Fall 2009
1. INTENTIONAL TORTS. 3
A. INTENT.. 3
Doctrine of Transferred Intent. 4
B. BATTERY.. 5
C. ASSAULT.. 7
D. FALSE IMPRISONMENT.. 8
E. INTENTIONAL INFLICTION OF MENTAL DISTRESS. 9
F. TRESSPASS TO LAND.. 10
G. TRESPASS TO CHATTELS & CONVERSION.. 11
2. PRIVILEGES. 12
A. Consent. 12
B. Self-Defense. 15
C. Defense of Others. 16
D. Defense of Property.. 16
E. Recovery of Property.. 17
F. Necessity.. 17
G. Authority of Law/Discipline/Justification.. 18
3. NEGLIGENCE.. 19
A. Introduction.. 19
B. DUTY.. 20
1. Rescue. 20
2. Economic Loss. 22
3. Emotional Distress. 23
4. Birth/Conception.. 25
5. Owners and occupiers of Land.. 27
C. BREACH.. 30
1. The General Standard of Care. 30
2. The Qualities of the Reasonable Person.. 31
3. Emergency Situations and Reasonableness. 32
4. Role of CUSTOM in determining reasonableness. 33
5. WHO is the reasonable person?. 33
6. The reasonable minor. 34
7. Mental Illness: not taken into account. 34
8. The reasonable professional (doctor, lawyer, etc.). 34
9. Informed Consent. 36
10. Judicially Determined Standards of Care: risk/utility balancing to SET standards of care. 37
11. Judicially Determined Standards of Care: Negligence Per Se. 37
12. Do you have an excuse?. 39
13. Proof of Negligence (incl’d Res ipsa loquitur). 39
4. CAUSATION.. 41
A. Actual Causation.. 41
1. But-for causation.. 41
2. Special Problems of Proof. 42
3. Concurrent and successive causes. 45
4. Problems in Determining which party caused the harm… 46
B. Proximate Cause. 47
1. Reasonably Foreseeable Consequences. 49
2. Superceding Causes. 52
5. Defenses. 54
A. Defenses based on Plaintiff’s conduct. 54
1. Contributory Negligence. 55
2. Comparative Negligence. 55
3. Assumption of Risk.. 56
B. Non-Conduct Based Defenses (Statutes of Limitation). 58
6. Joint Tortfeasors. 58
7. Strict LIability.. 59
A. Animals. 60
B. Abnormally Dangerous Activities. 61
8. Damages. 64
A. Compensatory Damages. 64
B. Punitive Damages. 67
PUNITIVE DAMAGE REFORM… 69
1. INTENTIONAL TORTS
o Bases of liability in torts =
1) Intentional Torts
3) Strict Liability.
Protect security interests in:
o False Imprisonment
o Intentional infliction of emotional distress
o Trespass to Land
o Trespass to Goods
· General Form of Rule:
o Harm to another
o Example: BATTERY (her language, not court’s, example of how to put it in the form):
· Conduct intentionally causing harmful or offensive contact w/ the person of another.
· General rule for intent, and the harm is different in each of the intentional torts.
1. INTENT: Desire or belief in substantial certainty. Whether the Δ had the requisite intent is measured by:
a. Desire to cause the consequences of the act
(e.g., harmful or offensive touching in a battery)
b. Belief that the consequences (in a battery: harmful or offensive contact) are substantially certain to result from it.
c. IN OTHER WORDS, for intent: (only need one)
i. Does Δ desire to cause harmful contact?
ii. Does Δ desire to cause offensive contact?
iii. Is Δ substantially certain that harmful contact will result?
iv. Is Δ substantially certain that offensive contact will result?
d. For intent we are worried about the state of mind of the Δ. If the Δ believes that it will be harmful/offensive (and it turns out to actually BE harmful/offensive).
2. Everyone is “capable” of intent. Incapacity is not a good defense.
a. MENTAL ILLNESS itself does not negate intent. Is possible that the manifestation of the mental illness means the person does not meet the requirements for intent.
b. CHILDREN: there’s no special rule for children, but it might be that because of the child’s age, it will be very difficult for the plaintiff to show intent.
i. Parents and caretakers are generally not liable for the acts of minor or incompetents unless they themselves were negligent for failing to supervise or watch over their charges.
c. Not what a reasonable person would have desired or believed, but what the particular defendant in fact desired or believed.
Garratt v. Dailey
Supreme Court of Washington, 1955
5 year-old Δ Dailey moved the chair & the Garratt fell.
ISSUE: Did Δ have the requisite intent for a battery?
HOLDING: Intent requires no showing of intent to injure or other bad motive. It requires only a volitional act performed w/ knowledge that there is “substantial certainty” that the result will occur.
RULE: If the Δ “knew with substantial certainty” that his actions would cause harmful contact then the Δ is liable for battery.
Volitional act: Brian moves the chair
Result: Defendant falls and breaks her him
[In some courts requisite intent is to cause the contact. (him pulling the chair would be harmful and offensive contact)
But in most courts, the Restatement is followed – you’d have to intend her to hit the ground. The contact would be her hitting the floor.]
Ranson v. Kitner
Δ hunter shot π’s dog because he thought the dog was a wolf.
HOLDING: Appellants are clearly liable for the damages caused by their mistake, notwithstanding they were acting in good faith.
o Did the hunter intend to shoot the dog?
o Intended to shoot that animal
o Even if it was a good-faith mistake, that does not negate intent.
Talmage v. Smith
Δ threw a stick “in the direction” of boys trespassing on his roof. π was hit & lost all sight in his eye.
ISSUE: (a) Is the Δ liable even if he did not intend for the stick to specifically hit π? (YES, He intended to hit the other boy.) (b) Does contributory negligence apply bc the boys were trespassing? (NO)
HOLDING: (a) The Defendant is liable even if he did not specifically intend to hit π, Δ intended to hit someone, and to inflict an unwarranted injury upon someone. (b) The π, in climbing on the shed, could not have anticipated the throwing of the “missile”, and the fact that he was a trespasser did not place him beyond the pale of the law.
Doctrine of Transferred Intent
5 intentional torts which fell w/in the writ of trespass:
3) False Imprisonment
4) Trespass to Land
5) Trespass to Chattels
Intent will be found where a defendant intends to commit one of these 5 intentional torts against a particular person but instead:
1) commits that intentional tort against a different person
2) commits a different intentional tort against that person
3) commits a different intentional tort against a different person
1. Rest. 2d § 13: An actor is subject to liability to another for battery if [all of these elements must be present, no such thing as “attempted” battery]:
a. Δ acts intending to cause a harmful or offensive contact with the person of another or a third person, OR an imminent apprehension of such a contact, and
b. A harmful or offensive contact with the person of the other directly or indirectly results.
c. Shortened form:
iv. harmful or offensive contact with the person of another.
d. Battery does not require that one actually touches the other as long as one person causes contact between the other and something else that is harmful.
e. Battery does not require the π to be aware at the time of the actual contact.
i. don’t have to be contemporaneously aware of the contact, as long it’s offensive, doesn’t matter if you happen to find out about it later (eg: being kissed on cheek while asleep)
2. What is CONTACT?
a. If Brian moved the chair and Plaintiff didn’t fall and have contact with the ground, there wouldn’t be an issue here. HAS TO HAVE CONTACT.
b. If J.R. rear ends a car, the contact of his car hitting the other isn’t the contact. It’s the woman hitting her head on the steering wheel or whatever it is her person hits.
3. What is “HARMFUL CONTACT”??
a. “any physical impairment of the condition of another’s body, or physical pain or illness.” Rest. 2d § 15
b. There is an impairment of the physical condition of another’s body if the structure or function of any part of the other’s body is altered to any extent even though the alteration causes no other harm.
i. Harmful if it injures, disfigures, impairs, or causes pain to any bodily organ or function.
c. Reasonable Person Standard (Objective)
4. What is “OFFENSIVE CONTACT”?
a. “offends a reasonable sense of personal dignity” Rest. 2d §19
b. Restatement language:
Intending to cause harmful/offensive conduct that turns out t
fer to make out the tort?
Western Union Telegraph Co. v. Hill
Western Union employee wants to “love and pet π” before he “fixes π’s clock,” but can he reach over the counter?
ISSUE: Was there such an assault as will justify an action for damages? Was the act of Sapp towards Mrs. Hill, π’s wife, such as to render this Δ liable under the doctrine of respondeat superior?
HOLDING: Court seems to say that this is an issue for the trial court to decide. Because the questionable action was performed by Sapp during his employment but not within the scope of his employment, Western Union Telegraph Co. is not liable under the doctrine of respondeat superior.
· She does not need to be “afraid” to have it be assault. Apprehension is enough.
· The INTENT for assault is the intent to apprehend imminent contact.
· If he believes she’s going to welcome the contact, and it turns out she doesn’t (and a reasonable person would think it’s harmful/offensive), and there IS contact, is it a battery?
· Vast majority of courts say he has to be intending it to be harmful/offensive, or know it will be harmful/offensive
D. FALSE IMPRISONMENT
1. Conduct intentionally causing confinement (willful detention) against the will of another (no consent) without authority of law OR knowledge that confinement is substantially certain to result AND confinement actually results
2. Rest. 2d § 35An actor is subject to liability to another for false imprisonment if:
a. he acts intending to confine the other or a third person within boundaries fixed by the actor, and
b. his act directly or indirectly results in such a confinement of the other, and
c. the other is conscious of the confinement or is harmed by it.
3. Shortened version:
the unlawful confinement of another against his or her will.
4. Don’t confuse actual confinement and intent to confine.
5. SPLIT re π’s KNOWLEDGE:
a. Some jurisdictions require contemporaneous awareness of confinement:
i. ex: guy is drunk, has nooooo idea he’s being falsely imprisoned, and is seriously injured by the imprisonment, no false imprisonment because no awareness!
b. Other jurisdictions (the majority) and the Restatement require EITHER awareness OR injury
i. ex: Baby in the bank – hungry & thirsty, might not know he’s confined but he’s harmed. False Imprisonment under the Rest.
6. POSSIBILITY OF ESCAPE:
a. Irrelevant whether there is some means of escape if the π does not know that means of escape exists
b. If means of escape exists and the π knows about it the means of escape must be reasonable (means of escape can’t be physically dangerous or offensive).
7. Shopkeepers privilege:
a. Reasonable belief a person has stolen or is attempting to steal;
b. Detention for a reasonable time; and
c. Detention in a reasonable manner.
d. Guilt doesn’t matter, but reasonableness does.
e. Shopkeeper is privileged to convey for a reasonable time to conduct a reasonable investigation, someone who they have reasonable belief has stolen something.
i. The reason we have this has to do with ANOTHER defense that’s available:
o May use reasonable force to recover chattel immediately after dispossession (“Recovery of Property”)
o Why can’t this one just cover shopkeepers too? Because shopkeeper’s privilege doesn’t require the item to actually be stolen, just need to “reasonably believe” that something has been stolen.