TORTS OUTLINE-Wexler-Fall 2010
-Prima Facie: “at first view” alleges facts adequate to prove underlying conduct supporting the cause of action and thereby prevail
-Tort: action that injures someone and for which injured person may sue wrongdoer for damages. Civil wrongdoingOverview
· Meaning of Intent: D had act or result as his goal or that he was aware that certain consequences of an act were substantially certain to occur.
· Transferred Intent: permits D to be held liable for an intentional tort even if he was neither purposeful nor knowing Two forms: wrong victim or wrong tort
o So long as the harm protected occurs due to D’s act, doesn’t matter who D intended to do act to
· Insane/immature (young) people may have intent
· Intent need not be hostile: practical joker still liable
· Causation: D’s act must have cause-in-fact and proximate cause at outer limit
I. Physical and Mental Harms
· Intent: subjective desire to cause consequences of action or belief that consequences are substantially certain to result from action
o Must exist at time of action
o Proved circumstantially (by D’s actions)
o Desire to create immediate consequences
o Children are capable of intent
o Intentional torts are usually uninsurable
o Intentional harmful/offensive contact w/ P’s person, or something closely attached thereto
o The tort of battery requires (a) an affirmative act by the D (b) w/ the intent to touch another (c) resulting in an unwanted touching (i.e. harmful/offensive contact)
§ Did D act?
ú D must do volitional act causing offensive/harmful touching of P
§ Was this act intentional?
ú D must desire to make contact or intend to do an act which he was substantially certain would lead to contact.
§ Did this act cause contact with the victim?
ú Actual contact w/ person of P or w/ something closely and physically associated w/ P
§ Intent to contact (with P or other) by D at time of act?
ú Intent to assault is adequate
§ Negligence is an alternative basis of liability for battery when intent is lacking or cannot be proved (harm must be proved for negligence, however)
§ Resulting in harm to P’s person or dignity?
ú Objective standard: whether an ordinary person, would be offended, unless D is aware of P’s peculiarity.
ú D responsible for all direct consequences of wrongful conduct, no matter how severe/unforeseen (Eggshell skull)
ú Proof of Damages not required if prima facie case established
o Intent requires voluntary act and that the act was for the purpose of causing harmful/offensive contact, or realize that such a contact is substantially certain to result
§ Actor desires to cause consequences of his act, or believes that the consequences are substantially certain to result from it.
o Only intent to contact P is required; not required to intend harm; result different than thought or no harm/offense intended is not a defense
§ White v. U of Idaho (piano teacher strums back)
§ Wagner v. Utah (mentally ill attacks man at Wal Mart)
o Transferred Intent: intent to hit someone is enough
§ Talmage v. Smith (D hits P, a trespasser with stick that intended to hit a different trespasser with)
§ Also applies if D attempts to commit one intentional tort and accidently commits another
o P doesn’t need to be aware of contact
o Only actionable if it produces some bodily harm
o Consent: No Tort
o Offense to Reasonable person standard; previous conduct between D and P
§ What if in intending to do act that is offensive to reasonable person but not to subject because of previous conduct between the two, D touches P who finds touching offensive? Transferred Intent? D didn’t have the intent to cause harmful/offensive contact, no battery but negligence/recklessness?
ú Deter unauthorized contacts
o D need not be present when contact happens, an they may touch P with an extension of themselves they directed
o If D commits battery with certain intent and something different happens that he didn’t think was substantially certain to happen, still liable.
o Public Policy: right to have one’s body left alone by others, and seeks to deter relatively minor but offensive contacts that can precipitate breaches of the peace
o The tort of assault is committed when the defendant;s (a) affirmative intentional act (b) places P in apprehension (c) of an immediate (d) harmful or offensive touching
§ Act by D
§ Intent to cause harmful/offensive contact (with P or other) or to cause imminent apprehension of such contact, or substantially certain that P will suffer such apprehension?
ú P must be aware of threatened harm
uring or instigating the confinement, including , including the wrongful aspect
§ Not enough to provide info that aids them
· Intentional Infliction of Emotional Distress
o Did not cover in class
· DEFENSES TO INTENTIONAL TORTS TO PERSONS
§ Defense to all intentional torts
§ Actual Consent: words/conduct intended by P to express a willingness to submit and which are understood as such by D
§ Apparent Consent: Words/conduct that would lead a reasonable person to believe there was consent which are understood as such by D.
ú Issue is not what P subjectively intended, but whether D reasonably believed there was consent
§ Implied Consent: typically arises from conduct of D.
ú Contact as Part of Living in Society: technical battery will be excused
ú Emergency Aid: no battery when a person renders emergency aid to unconscious victim.
· Exception: Negligent care
§ Informed Consent: May be required that P understand what he is consenting to. Depends on info available to P at time of consent
§ Scope of Consent: Permission to accept one sort of contact for a certain purpose is not consent to all types of touching
§ Medical Situations: usually covered by negligence
ú Failure to Warn of Inherent Risks: patient must be fully aware of risks involved; lack of informing invalidates consent; (duty to disclose now under Negligence.)
ú Need for Add’l/Separate Treatment: in absence of express general consent
· Immediate need: if surgery cannot be postponed w/o causing serious add’l risks, Dr. can go outside express consent if he knows a reasonable person would consent to op knowing of condition
· Related to original cure/life saving
· Patient’s Wishes Paramount: if Dr. knows particular patient wouldn’t have consented, even if reasonable patient would, cannot act
ú Gross Deviation from Initial Consent: rise to battery