Torts Outline

Torts Outline
Professor Clark
Summer 2013
 
·         Basics of Torts Law: it is a common law field that is established largely via cases
o   Core structure of tort law: depth over detail à important to look at the internal driving logic
·         Tort law guards against:
o   Physical Harm to person or property
o   Forcible dispossession of land
o   Taking or conversion of personal property
o   Assaults
o   Affronts to personal dignity and emotional tranquility
·         Battery: Harmful Conduct
o   A person is liable to another for battery if:
§  He does it with the intention to cause harmful or offensive contact or
§  Harmful contact with the person causes direct or indirect results
·         Intent
o   A person is acting w intent to produce a consequence if:
§  The person acts w purpose of producing the consequence
§  The person acts knowing that the consequence is substantially likely to occur
·         Vosburg v. Putney
o   D kicked P & P subsequently became very ill
o   D didn’t intend to cause any harm, however, the kick was the cause of P’s injury  & kick wasn’t accidental, it was committed in violation of normal rules of the school – no implied license
o   Rule: wrongdoer is liable for all injuries resulting from a wrongful act, regardless if he could not foresee the harm he would cause
·         Class Notes:  You can have battery w/o assault – how can D be liable when he didn’t mean to seriously injure P?
o   It was still unlawful – he kicked him and intended to kick him
o   Occurred in the classroom where you don’t expect to be kicked, if classroom kicks were expected, not a tort & there was no consent or implied consent
o   Substantial certainty of subsequent harm = intent
·         Dougherty v. Stepp
o   Trespassing case – D entered an unenclosed plot of land belonging to P & surveyed the land, but left no trace of his presence
o   Rule: every unauthorized (therefore illegal) onto someone else’s land is trespassing – entry, not damages caused, constitutes the trespass     
·         Mohr v. Williams
o   Ear case – D operated on P’s left ear when she thought he was going to operate on the right, she didn’t consent to the left-ear surgery
o   No negligence, but no consent either – court says it’s assault & battery because of the lack of consent
o   Rule: everyone has a “right to complete immunity of his person from physical interference of others, except n the spirit of pleasantry, constitutes assault & battery.  Or we have an autonomy over who touches our bodies.”  This helps explain why unconsented-to-touching is considered a battery.
·         Note: In more modern medical cases, the courts take a less rigid view of the consent requirement
o   In Kennedy v. Parrott, P was denied action because “in modern hospital settings surgeons could no longer turn to the guidance of family members”
o   Hoofnel v. Segal a doctor removed a patient’s ovaries and uterus despite the fact that the patient verbally expressed that she didn’t want to but had signed a clearly worded consent form
§  Doctor was found to be in the right because of the signed form – otherwise legal signatures would be negated
o   Consent can be inferred from conduct
o   Medical treatment is lawful in emergency situations in which there is “implied consent” because the patient requires immediate and urgent care.
·         Class Notes: why do we have the emergency doctrine? We want to encourage people to help each other & not deter them
o   There is implied consent – no question that the person in danger would consent if they could
o   In Mohr, she probably would have consented, but it wasn’t necessary at the time, so there was a lack of consent & it was therefore a tort
o   You have the right to complete immunity of your person – you know what is best for you, if we don’t have this rule, the power is placed with the toucher, not the touchee
o   We have an underlying autonomy interest
o   Why does consent make it OK?
§  We have the right to decide à autonomy
§  If we didn’t allow consent to be a defense, every tackle would be a tort, even if you consented to it
·         Hudson v. Craft:
o   P sustained an injury while engaged in a boxing match
o   Promoter held liable because even though the participants consented, the chief goal of the boxing regulations that were broken were to protect people engaging in that activity.  Combatants consent not valid since ‘no one can consent to a breach of peace.’ 
o   Promoter was liable also because he was the driving force (movant) in creating the circumstances
·         Class Notes: carnival promoter should have known that he was violating all the statutes – he also essentially battered P with other boxer, but we can still sue because we have an area of law that is aimed at protecting a class of people that even if they consent, it’s not a defense
o   Problem is, young men will consent to fight – thus we regulate boxing, we don’t want a rule that says “if you get their consent, it’s OK” because they don’t know what is best for them – them consenting is exactly what we are worried about
§  *Clark believes the ‘no consent for breach of peace’ would fail in contemporary times, mainly for the following reasons:
·         There is an assumption of risk; it’s not fair to penalize people who willingly engage in an activity.
·         It’s vague.  What constitute a breach of peace?
·         People should be able to decide what’s best for them, and make their own decisions about risk.  This protects individual autonomy. 
·         *For this autonomy policy to work—consent must be a defense
·         Breach of peace is not what you are suing for!  We’re talking about disputes between consenting individuals
o   Statutory rape: consent, but illegal because the problem is that there are grown men that can convince teenage girls to have sex with them
§  “If there is a particular interpretation that undermines addressing the problem—the courts will generally avoid that interpretation.” (Ex. Consent is not sufficient to excuse statutory rape b/c ^ convincing, predatory older men exist).
o   Principle: rooted in the idea of consent – did you implicitly consent? Is it something you could reasonably assume would happen?
o   Reckless: Courts usually mean something short of intentional but a bit more than negligent.
§  In sports: is it beyond the scope of the sport?
§  Clark believes that the recklessness v negligence dichotomy doesn’t really make sense in sports.  Only when you go completely beyond what is permissible in the sport (bringing knife to basketball game) does recklessness make sense.
o   We allow people to consent to what would be battery because we want to respect peoples’ autonomy
o   Why don’t we want every late tackle to be a lawsuit?
§  No sports – we want to have that freedom
§  Hard for courts to figure that out, its for the sports people, not courts & judges to decide
·         Self Defense
·         Courvoisier v. Raymond
o   D owns a jewelry store and, after chasing intruders out who were attempting to break in, mistakenly shot D thinking he was a rioter. D, a police officer, told P that he was approaching
o   D says police officer was approaching in a threatening manner & that he thought his life was in danger
o   Initial verdict in favor of P.  Overturned by appeal, as court ruled that jury instructions were erroneous: “the courts instructs you that if you believe from the evidence, that, at the time, the defendant shot the plaintiff, the plaintiff was not assaulting the defendant, then your verdict should be for the plaintiff”
§  Instruction didn’t allow the jury to consider D’s claims that a reasonable person in his circumstances would have felt that their life was in danger.
o   D could plead self-defense even if he mistakenly thought that he was under attack (as long as it was a reasonable reaction).  Thus if there was sufficient evidence of justification in D’s response, then the mistake was excusable in light of the circumstances.
o   D is liable to an innocent 3rd party “only if the actor realizes or should realize that his act creates an unreasonable risk of causing such harm”
·         Class Notes: Self-defense, if you’re using a considerable amount of force to protect yourself and commit what would have been a battery, you’re not liable
o   Deadly force v. lesser force
o   Why is self defense a defense?
§  Not going to make a difference – people will defend themselves anyways
§  Wrongdoer consented to a violent encounter – implicit consent
§  Discourage people from harming others (disincentive)
§  Makes people internalize the costs of their decisions
§  Why is defending yourself good?
·         The person getting hurt should be the wrongdoer – correctly allocating the injury
·         Law recognizes the right to autonomy, you should be able to defend your own autonomy
§  In most American law, misplaced self-defense is justified if it was a ‘reasonable’ response given the situation.  Why may this be wrong?
·         We want the cost of the action to be on the person doing the harm.  This promotes vigilance and discourages ‘blind’ responses in the face of ambiguous situations (black people outside store…inquire or get the gun out?) 
·         From a definitional standpoint—the person on the receiving end of a misplaced self defense did not consent
o   Someone is about to batter you, and you could flee to avoid it, and instead of fleeing, you hit him, have you committed a battery?
§  Reasons why you shouldn’t have to: your autonomy, fleeing doesn’t protect your autonomy, harm has already happened
·         Emotional harm may equally, if not more so, infringe on your autonomy.  SC: Clark says if dude tells him to move out of stool, and embarrasses him publicly, harm has been committed and intrusion on individual autonomy has been made: self-defense would be justified.
§  When acting with a reasonable belief in a situation of self-defe