Torts Outline

TORTS OUTLINE

Christina Bohannan

Fall 2016

I. Intentional torts: battery, assault, trespass, conversion

Intent: Refers to the consequences of the act (RST §2).

No insanity defense (McGuire)

Issue: whose can more cheaply control the insane person: family or caretaker? (or: insurance vs. litigation)

Battery: touching without consent

Thing hit can be article as well as body (De Longchamps)
Thing hitting can be object as well as body (e.g. spit, Alcorn)
Issues:

Does intent apply to harm (RST §18) or only to the act that causes harm (Vosburg, Garratt, White)?
Damages: in case of Vosburg, do we want whole life of P under normal circumstances, adjusted to reflect risk of injury due to medical condition blowing up by itself, or adjusted to reflect risk of medical condition blowing up period (including likelihood that someone else kicks it).

Damages can be adjusted to reflect benefits in good-faith cases (Mohr, where surgeon operated on different ear than agreed upon).
Issue: “eggshell P doctrine”; take your P as you find him.

Assault:

Elements (RST §21):

intent to either harm or put in apprehension of harm, AND
apprehension of harm

RST §21 comment b: fear d/n equal apprehension

Example: woman brandishing a gun that she knew to be unloaded guilty of assault b/c others did not (Allen).

Trespass: intentional entry onto the real property of another

intent applies to the act of entry, not to the act of trespass (Dougherty, Perry)
no damages required (Dougherty, Blondell), except with trespass to chattels.
entry can be by any tangible object, such as a rock, your foot, or even floride gas that falls to the ground (Martin v. Reynolds Metals). Cannot be intangible (Van Wyk).

Conversion: exercising domain over someone else’s property

intent applies to taking the object, not to conversion itself (Poggi)

however: good-faith converters cannot be liable for punitive damages, (Maye, where liable for value of gold minus labor to extract it). Nor can they be forcibly resisted in breach of the peace (see self-defense / recapture of chattels, below). Therefore can simply give the item back.

Note: this distinction d/n exist in trespass, so damages for good-faith conversion equivalent to any trespass

Conversion vs. trespass to chattels: w/ conversion liable for whole value of item; w/ trespass liable for loss of temporary possession or damage only.
Conversion applies even to innocent subsequent purchasers (Moore).
Issues:

Medical cases (e.g. Moore): does an organ become abandoned after surgery? Even if the consent was fraudulently obtained? Courts have said no.
Intangible objects: some courts (e.g. Kremen) say conversion applies. Sykes says this “pushes the envelope.”

False Imprisonment

must be an enclosed area (Bird v. Jones)
area of being confined can’t be much bigger than a considerable town (e.g. not “the rest of the habitable world”) (RST)
restraint can be based on implicit threat of force – need not be physical (Coblyn)

Intentional infliction of emotional distress

Three elements:

extreme and outrageous conduct
severe distress (must be physical in case of 3rd party non-family)
intent to cause distress or recklessness (reasonable person should have known it would do it)

Historically damages for emotional distress were parasitic on other tort
Then began to become independent (Wilkinson, where treated as battery)
Courts try hard to avoid creating a “general civility code.”

But: in Howard Johnson, owner wants to know who’s stealing from him; so he begins to fire people in alphabetical order until someone confesses. Appeals court let it go to jury.

Defenses to intentional torts

Consent

Must be reasonably specific (Mohr, consent to operate on a specific ear, rather than operate in general)
Exceptions for emergencies (Allore) and incompetents
Might not be a defense for bad-faith actors (e.g. organizer of fight, Hudson), though minority and RST view is that the consent defense does applies, as volenti non fit injuria (“the volunteer suffers no wrong”).

Bad-faith aspect seems particularly important: court says in Hudson that “promoter is liable… regardless of the rights as between the contestants,” and presumably promoter is more morally responsible than other nitwit fighter.

Note on Hudson: not clear what tort this is.
Issue: which rule discourages fights? Do people tend to think they’ll win (scared of liability) or lose (happy for insurance)?

Fraud: is touching based on fraudulent consent battery?

Examples:

Guy says he has no VD when he does, thereby has sex girl.
Guy says he loves girl when he does not, thereby has sex with girl.

Self-Defense (and recapture of chattels)

reasonable mistakes okay (Courvoisier)

Objective standard (e.g. Coblyn, false-imprisonment even though store honestly but unreasonably thought the old guy was a thief).
Issue: don’t want to deter self-defense, but also don’t want to deter defense of others (that could get you accidentally shot).

forcible recapture of chattels not allowed unless dealing with bad faith actor (Kirby)
no traps unless (alternatively):

to deter rather than injure (Bird v. Holbrook)
even with no trespassing sign, intruder endangering human life or commit