Torts – Outline Fall 2011
I. Overview
1. Intentionally Inflicted Injury
Vosburg v. Putney (Wis. 1891) p 11
FACTS: defendant (12) touched the shin of the plaintiff’s (14) right leg with his foot. Moments later, the plaintiff experienced severe pain and subsequently lost the use of his leg. Prior to this incident, the plaintiff had injured his leg in a coasting accident.
HOLDING: The intent to harm is not necessary for there to be liability. The defendant is liable, even though he did not intend to harm.
REASONING: In the normal classroom setting, there was no implied license to do the kicking (perhaps this would be allowed on the playground), therefore it was unlawful. Sustains the action.
Garratt v. Dailey (Wis. 1955) p 12
FACTS: Dailey moved a chair out from under Ruth Garrett (plaintiff). Ruth fell and suffered a fractured hip and other injuries.
the act must be done for the purpose of causing the contact or apprehension with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced
– EITHER PURPOSE OR KNOWLEDGE OF A WRONGFUL ACT IS SUFFICIENT TO GIVE RISE TO TORT LIABILITY
Restatement: Liability for Battery
An act which, directly or indirectly, is the legal cause of a harmful contact with another’s person makes the actor liable to the other, if
(a) the act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person, and
(b) the contact is not consented to by the other or the other’s consent thereto is procured by fraud or duress, and
(c) the contact is not otherwise privileged.
Cmmt. Character of actor’s intention
“the act must be done for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced”
2. Actions Based on Lack of Care
Doe v. Roe
FACTS: Roe and Doe were in a sexual relationship in 1985. During this relationship, Roe transmitted herpes to Doe. He did not inform Doe of his herpes or take precautions to prevent her from transmitting the disease.
HOLDING: Roe has a duty to Doe; the risk of harm to Doe was foreseeable by the defendant, even if he chose to ignore it.
IF YOU CAN REASONABLY FORESEE A RISK YOU HAVE A DUTY OF CARE TO THE OTHER PEOPLE OR PERSON INVOLVED
Negligence: if a person does not exercise reasonable care under all circumstances.
Elements of reasonable care:
-forseeablity that the conduct will result in harm
-foreseeable severity of the harm
-the burden that would be on the person and others if the person takes precautions to eliminate or reduce that possibility of harm.
Recklessness: Third Restatement
A person acts with recklessness in engaging in conduct if:
(a) the person knows of the risk of harm created by the conduct or knows facts that make that risk obvious to anyone in the person’s situation, and
(b) the precaution that would eliminate or reduce that risk involves burdens that are so slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk .
Cohen v. Petty (
Hossenlopp v. Cannon
Crisci v. Security Insurance of New Haven
1. Purpose – depends upon the defendant’s subjective wishes and exists when the defendant acts with the purpose of causing the consequence that the law forbids.
2. Knowledge – defendant, regardless of subjective purposes, knows with substantial certainty that the act in question will cause the prohibited result.
II. Basic Intentional Torts
1. The Concept of Intent
Intent is a state of mind about consequences or results.
a. Intent to injure
Lambertson v. US
FACTS: Lambertson injured when a co-worker jumped on him. Co-worker says he was just joking, didn’t mean to hurt him.
INTENT TO MAKE CONTACT IS THE REQUIRED INTENT FOR BATTERY, NOT THE INTENT TO INJURE.
b. Mistake and Intent
Ranson v. Kitner
FACTS: Kitner was hunting for wolves, when he came across Ranson’s dog that resembled a wolf. Believing the animal to be a wolf, Kitner shot and killed the dog.
HOLDING: because Kitner was intending to shoot that particular wolf/dog, intending contact with the dog, he is liable; (however in the accidently target shooting hypo, the shooter was not intending to shoot the person sleeping in the grass – unintentional accident. The target shooter’s result was different than what he was intending to do.)
Note: Prosser – generally, in the case of the mistake, the blame (liability) is on the one who made the mistake.
Note: Generally, intentional torts are about morally culpable behavior. Cannot use the plaintiff’s carelessness/stupidity etc. as a defense.
2. Insanity and Intent
McGuire v. Almy
FACTS: McGuire was injured by Almy (an insane person) when Almy threw a piece of furniture at her.
Where an insane person by his act does intentional damage to the person or property of another he is liable for that damage in the same circumstances in which a normal person would be liable.
If intent is necessary in order to render a normal person liable, the insane person, in order to be liable, must have been capable of entertaining that same intent and must have entertained it in fact.
A defendant’s mental condition may bear upon the matter of whether the defendant acted with the necessary intent
f’s “interest in freedom from apprehension of contact” and is actionable only if the defendant actions “actually have put the plaintiff in apprehension of immediate contact”. The plaintiff has to have apprehension of the contract for the assault to stand. No assault if the plaintiff doesn’t know of the defendant’s attempt to inflict harmful or offensive conduct.
Apprehension of Contact – not the same as fear; it is not necessary that the plaintiff believe that the act done by the actor will be effective in inflicting the intended contact. It is enough that the plaintiff believes that the actor is capable of immediate inflicting the contact.
Elements of Intentional Infliction of Emotional Distress:
1) The conduct must be intentional or reckless
2) The conduct must be extreme and outrageous
3) There must be a causal connection between the wrongful contact and the severe emotional distress
6. Intentional or Reckless Infliction of Severe Emotional Distress
a. In General
Recovery for Severe Emotional Distress Damages:
1) as a parasitic claim attached to another tort involving physical injury; incidental to a tort involving physical injury (negligence, battery)
2) as one element of recovery in an action for certain non-physical-injury torts (assault, false imprisonment, insurance bad faith, others)
3) in an independent action for intentional or reckless infliction of severe emotional distress (such as Harris v. Jones, the intentional infliction of emotional distress is a tort on its own) Restatement 2d § 46 – conduct must be extreme and outrageous, intentionally or recklessly causing severe emotional distress.
4) an independent action for negligent infliction of severe emotional distress (where and under the circumstances where it is allowed.) (where there isn’t physical injury and the defendant was negligent and that caused severe emotional distress) (note: normally for negligence to be actionable there must be some kind of physical injury)
Harris v. Jones
FACTS: Harris was teased by Jones for his stuttering. Harris claimed that the teasing worsened the condition and caused him emotional distress.
