Bohannan Torts Fall 2015
OVERVIEW (FUNTION OF TORTS)
· Tort claim allows individual to bring claim to seek damages
· Functions
o Compensatory function
o Deterrent Effects
o Punitive function
o Legal redress
Intentional Torts
1. BATTERY
a. Restatement (Second) §13: Harmful contact:
i. An actor is subject to liability to another for battery if
1. He acts intending to cause harmful or offensive contact with the person of the other or third person, or an imminent apprehension of such contact and
2. A harmful contact with the person of the other directly or indirectly results
ii. (essence is a contact occurred and resulted in harm)
iii. (contact could be to third person: doctrine of transferred intent/tort)
b. Vosburg v. Putney
i. Where a defendant, an 11 yr old student intentionally taps π a 14 yr old student on π’s leg inside a classroom after the class has been called to order and the tap causes harm. The tap is wrongful even though the ∆ intended to cause no harm. The ∆ is responsible for all damages resulting even if they are unforeseeable.
ii. If a reasonable person would consider act to contact harmful or offensive = liable for tort
iii. Harmful contact does not have to be the one that was intended. A, is an indefinite article, all you need is the act.
c. Garratt v. Dailey
i. Acting with purpose of causing contact with substantial certainty that contact would result of the act is tantamount to battery.
d. Restatement (Second)§18: Offensive contact:
i. An actor is subject to liability to another for battery if
1. 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
2. An offensive contact with the person of the other directly or indirectly results
ii. An act which is not done with the intention stated in subsection (1)(a) does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm
e. Alcorn v. Mitchell
i. Offensive battery, ∆ spat on π
ii. Offensive to the reasonable person, does not necessarily have to be harmful
iii. D’s act is offensive to a reasonable person’s sense of dignity
2. ASSUALT
Restatement (Second) §21
(1) An actor is subject to liability to another for assault 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 a contact, and
(b) imminent apprehension of such contact directly or indirectly results
(2) An action which is not done with the intention states in subsection (1, a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of cause it and, therefore, would be negligent or reckless if the risk threatened bodily harm
· Analysis
o act?
· Voluntary contraction of muscles
· Not reflexive
o Intent
· With purpose to cause or
· With a substantial certainty that it may result in a harmful or offensive contact
o Apprehension §24 cmt. B
· Not same as fear
· An awareness that it may happen
· Cognitive awareness of something that may occur
o Imminence
· ∆ aware that might happen very soon
· After day, or week, etc. may not be imminence
o Even if the ∆ may avoid the possible assault (like a punch), it does not matter, there can still be apprehension (cognitive awareness is all that is required)
o Mere words
· Do not amount to assault (ordinarily)
§ There is no act (one argument)
· But speaking = voluntary contraction of muscles??? , or
§ No imminent threat something has to come between the words being spoken and the assault or,
§ Words don't necessarily amount to intent
· Speaking factiously
· Hyperbole
§ Freedom of speech
§ There is no kind of imminence with just words
a. I.de S and wife M. v. W. de S.
i. W. de S. intended to cause and did cause an apprehension of harm in the wife of I.De S. when he brandished the hatchet close to her head, and is thus liable for assault
ii. Assault is an overt act intended to cause an apprehension of harmful or offensive contact that causes apprehension of such contact in the victim
b. Tuberbille v. Savage
i. ∆ states, with hand on sword, “if it were not assize-time, I would not take such language from you
ii. ∆ did not intend to create an apprehension of harmful or offensive conduct in π, and is thus not liable for assault. Assault requires intent to create apprehension of harmful or offensive conduct in the victim. The intent must be accompanied by an overt act that actually causes such apprehension of harmful or offensive contact in victim.
3. FALSE IMPRISONMENT
Restatement (Second) §35 FALSE IMPRISONMENT
· (1) An 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
i. (b) his act directly or indirectly results in such a confinement of the other, and
ii. (c) The other is conscious of the confinement or is harmed by it.
c. (2) An act which is not done with the intention stated in subsection (1, a) does not make the actor liable to other other for merely transitory or otherwise harmless confinement, although the act involves an unreasonable risk of imposing it and therefore would be negligent or reckless if the risk threatened bodily harm
d. Intention requirement; Restatement §§34-35 (a) accidental confinement is not included and must be addressed under negligence or strict liability
e. The necessary elements are personal dignity and bodily integrate have been inferred
a. Bird v. Jones
i. ∆ stopped π from walking through closed portion of road
ii. §36 Confinement: Where there is merely a loss of power at the hands of another to move in particular direction but the person is free to move about in any other direction there is no false imprisonment. Boundary of the prison must exist. Imprisonment is something more than mere loss of freedom, it includes the notion of restraint within some limits defined by a will or power exterior to our own
iii.
iii. Established new rule
1. IIED not parasitic on the tort, stand alone
2. Intent to cause physical harm and physical harm results
a. Not enough that π just have emotional distress though
3. Different from battery because there was no contact
4. Court establishes intent because there was substantial certainty that the results were natural to act
d. George v. Jordan Marsh Co.
i. Debt collection: ∆ by extreme and outrageous conduct (badgered with phone calls during late evening hours, sent letters marked “account referred to law and collection department,” wrote her that her credit was revoked and that she was liable for late charges), intentionally causes severe emotional distress to π, with bodily harm (second heart attack) resulting from such distress, is subject to liability for such emotional distress and bodily harm)
e. Constitutional Overtones
i. SCOTUS uses constitutional arguments to limit scope of the common law tort of IIED to protect freedom of speech
1. Hustler Magazine v. Falwell
a. Parodied Jerry Falwell by having him state in a mock interview that his first time was during a drunken incestuous rendezvous with his mother in an outhouse
b. Bottom of page ad contains disclaimer ad parody-not to be taken seriously
c. Rehnquist, Cj., overturned jury verdict for Falwell stressing the press’s need for breathing room under the first amendment
i. Generally speaking, the law does not regard the intent to inflict emotional distress as one which should receive much solicitude, and it is quite understandable that most if not all jurisdictions have chosen to make it civilly culpable where the conduct in question is sufficiently outrageous. But in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the first amendment. Were we to hold otherwise, there can be little doubt that political cartoonists and satirists would be subjected to damages awards without any showing that their work falsely defamed its subject.
ii. Is it an issue of public importance?
1. Westboro Baptist church
f. IIED resides at interaction of a lot of other causes
i. Civil rights, sexual assault defamation of character
g. Transfer of intent doctrine
i. In battery and Assault
1. If person A acted in a way with intent toward B, if instead of person B, contact happens to C, the intent toward person B is automatically transferred to C
ii. In IIED different
1. If A acts toward B there can be liability towards C if A intentionally or recklessly causes harm towards C
