TORTS OUTLINE
– civil harm that isn’t contracts (where meeting of the minds required).
Policy Reasons for Torts
Evolves based on society’s needs – driven by policy – continually changes
States have broad discretion
Liability should be based on fault
Liability should be proportional to fault
Liability as Deterrence (sometimes on cheapest cost avoider) over-deterence, strict liability can prevent needed services coming into market (ex: obstetrics)
Costs should be spread broadly: manufacturers can “price in loss” and spread it broadly where a single consumer would be wiped out.
Costs to those best able to bear: related to spreading: deep pockets
Those who benefit from dangerous activities should bear resulting loss
Should foster predictability (fair notice) vs. subjective
Should promote economic growth
Victims should be fully compensated
Prevents “dueling”, vigilantism where no other justice/redress is expected.
INTENTIONAL TORTS (defense is consent, self defense, privilege)
– you can get nominal damages for intentional torts even w/o harm
– higher level of culpability so, highest scope for consequences and damages
BATTERY
1. Intention (knowledge or purpose – substantial certainty) to make contact (or transferred intent) Generally: no intent to harm required – depends no state.
2. Unconsented (Note: scope of consent ex. Medical unless emergent/life threaten)
3. Actual harmful or offensive touching occurs – allows psychological harm, for violation of mores
a) Direct/Indirect (D’s action leads you to be contacted by something – Lasso, Chair, camera Case)
4. Sleeping kiss – unlike Assault, no awareness needed.
a) Offensive Standard: current normal social touching for the place prevalent at that time. Vosbger: kicking was unlawful in classroom, while bumping in subway may not be. Objective standard for “proper decorum” for what is lawful or unlawful contact in the context. Probably not if P’s unusually sensitive unless D knows.
5. Transferred intent: must be an underlying battery (ex. Erasers – if was consented by intended target, no battery, maybe negligence claim).
Cases
Lambertson: Meat packer jumped on his as joke, but caused injury unintentionally. Worker’s comp.
Vosbgerg: no intent to harm, (eggshell) extent of injury irrelevant – liable for all
Mistake: affects whether D can assert Privilege. If A comes to “rescue” B, but B is filming a movie, A had no privilege, A is liable.
a. Ransom v. Kitner: Shot P’s wolfdog during wolf hunting season. Intended to shoot it. Thought it was a wolf. D is liable. (trespass to chattels). Policy: in case of good faith mistake, the innocent who incurred the harm shouldn’t incur the loss. Both blameless.
b. Vs. intending to hit target, but hit bystander. Case for negligence vs. battery bc/ did not intend contact. If A intended to shoot B and hit C, battery, transferred intent.
Domestic Violence: is a continuing tort (re: statute of limitations
Insanity – effect on intent:
· Insane people are not immune from tort liability so long as they can form required intent: Ex: If A throws a knife but thinks it will disintegrate before hitting B, A has no intent to hit B. If A is in a delusional state that makes him want to kill be and he throws the knife, A has intent and insanity is no defense.
· Consent and AOR from caretakers NOT defenses unless known D has been violent before and parents had put in hospital/done all they could. (minority rule).
o P had a duty of care to save D from herself and so was exercising that duty and not consenting to injury when she walked into the room
o Intentional incurring of risks is not always equivalent to consent.
ASSAULT
– like battery for offensiveness, damages for non-physical harm
– every battery is not an assault
– every assault does not include intent to battery (can intend to frighten)
· intentionally create a 2) well-grounded 3) apprehension of 4) imminent, 5) offensive or unconsented 6) bodily contact. Basically, well-grounded fear of imminent battery.
· Knowledge or purpose intent (accidently causing fear is NOT an assault)
o Transferred intent
o Intent to joke: like battery, sufficient.
o vs. Fear: Does NOT have to produce fear, only apprehension of battery (even if P is not afraid of the battery – ability to defend, etc.)
o Words alone: almost never sufficient without gesture, prior history.
o Awareness: UNLIKE battery, you must be aware of the near contact (if your back is turned it doesn’t count).
o Present apparent ability – Only needs to reasonably appear to the victim that the actor might touch them b/c this would cause reasonable fear/apprehension in a reasonable person of ordinary courage, etc. i.e. well-grounded apprehension. It just has to be not totally improbable (irrelevant if D couldn’t ACUTALLY do the threatened act so long as P reasonably thinks he could).
o Imminent – Future harm: if I say I’m going to shoot you but I have to drive 3 miles to get my gun vs. I just have to reach a few
than before or took new medication vs. just that he got somewhat worse, miss work, physical consequences, pecuniary losses. He should have drawn better causal connection and change moving forward. Could/should have kept a journal of his anguish.
FALSE IMPRISONMENT
· Intentionally (transfers) –NOT ‘should have known’, intend consequences – guy who shot toe
· Unconsented
· Unlawful force, threat of Immediate force, or assertion of legal authority – at family, friends or property even though P could leave without the property, she is not required to.
o Coercion/future threat: generally not sufficient. If I say I’ll fire you, hit you tomorrow.
o Real Threat: If P knows D can’t exert the threatened force, no action for false imprisonment lies (ex. If P knows D’s gun isn’t loaded).
· Causes the Confinement
· Within a set boundary – can be VERY large. With no reasonable exit apparent
oPlaintiff must have knowledge (nominal damages) of confinement OR harm
oGood Faith: is NOT a defense…except in Cult Case (rare)..said later consented.
oMERELY doing what someone tells you to do, if not accompanied by threats, is NOT false imprisonment.
oLegal Authority: dog case if a cop has no right in THAT case, he can’t confine w/o cause
oKnowledge: Must KNOWN they were confined.
oEx: threatening to call cops, not enough – must be NO REASNOABLE EXIT. Not just not exit you like.
DEFENSES to claims of false imprisonment
– in cult case – lacking capacity to consent OR consenting later realized their own good – proved by having apparent exit and didn’t go)..even tho later rejoined cult. VERY narrow, limited defense.
TRESPASS TO LAND (didn’t talk about at ALL in class – not important)
– consent is defense, but scope of consent: if you overstay your welcome OR specific part of property you’ve been welcomed to use
· Intent to be present: like battery, intent to consequences/trespass, irrelevant if think it’s your land
· Unconsented by owner
o Good faith is no defense nor is mistake unless the mistake is induced by P.
