Torts
EXAM:
It depends on how well you analyze the issues; coz most people have found the issues
Automatically think of the counter arguments
o Cite cases for both sides
Why does that matter?
o E.g. the plane driver is strictly liable because it is dangerous, but why does that matter? you cannot eliminate the danger even if you are careful
Conclusion:
o If it is clear, say the conclusion
o A lot of issues are not clear, you should take a position. Focus on one side, and argue on both sides.
Cite cases
o Combine cases and reasons
§ In XXX case, the court held that … because … (policy reasons)
o If no case law, free to say that the rule should be X, because … you can also say that the rule should be Y, because …
Try to practice explaining a question
The Theme of This Class
Positive/passive externality; that’s what Clark wants us to do
Make policy arguments
Stop the separate staff; tie them together
Combine the doctrine with your arguments
Human skill: Start the other side’s arguments first and come to yours
Chapter one: Intentional Torts
1. Intent
RST 2: intention-to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.
RST3: INTENT- a persona intentionally causes harm if the person brings about that harm either purposely or knowingly.
Ø Purpose. A person purposefully causes harm if the person acts with the desire to bring about that harm.
Ø Knowledge. A person knowingly causes harm if the person engaged in action knowing that harm is substantially certain to occur.
v
The intent must be the intent to act, not necessary to cause harm.
Ø When an intentional tort occurs, D is liable for all consequences that flow from the harmful act, even if P is more susceptible to injury than usual. Vosburg v. Putney
Discussion
a. No intent to harm: D is still liable even if he didn’t intend the harm. E.g., D is liable for pointing a water gun at P as a practical joke if D intended to scare P, i.e., to put P in fear of imminent danger.
b. Resulting harm different from intended harm. D is liable for all harm that naturally flows from his act, even if the harm is different from what he intended. Vosburg v. Putney.
c. Substantial certainty: If D knows with substantial certainty that a particular effect will occur as a result of her action, she is deemed to have intended that harm
v Garratt v. Dailey, p7, Kid is liable for battery for pulling chair from under P as she is sitting down, because he knew with substantial certainty that she would hit the ground.
v Note that “highly likely” is not sufficient. Must be “substantially certain.” Recklessness is not enough.
d. Act distinguished from consequences: The act must be intentional, but the consequence need not be.
v Vosburg v. Putney.
v White v. U of Idaho, p8, Piano teacher intentionally touched student and caused major injuries. Liable for battery even though he did not intend for the consequences to happen.
e. Transferred Intent: If D held the necessary intent with respect to person A, he will be held to have committed an intentional tort against any other person who happens to be injured.
v Talmage v. Smith, p9, D liable for throwing a stick and hitting P even though he was aiming at someone else.
2. Type of Intentional Torts
a) Battery
i. Definition: the intentional infliction of a harmful bodily contact upon another.
ii. Intent: required. It is not necessary the intent to cause physical harm.
1. For battery, the plaintiff must show either that the intentional is unlawful, or that the defendant is in fault.
2. Vosburg v. Putney: If the intended act is unlawful, the intention to commit it must be unlawful
3. Consequence is not required to be foreseen.
iii. Harmful or offensive contact
1. Harmful: causes pain or bodily damage
2. Offensive: damages to a reasonable sense of dignity, e.g., spitting.
iv. Contact: it could be to make another bodily contact with ground or other things.
1. Garratt v. Dailey: the boy moved chair to make the woman fall to ground.
v. Summary: battery is touching another without consent.
E.g. D kisses P while she is asleep. D has committed a battery.
b) Assault
i. Definition: assault is the intentional causing a harmful or offensive contact and putting another person in such imminent apprehension.
ii. RST21: An actor is subject to liability for assault 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 a contact, and
2. The other is thereby put in such imminent apprehension.
o The apprehension which is sufficient to make the actor liable may have no relation to fear.
o If you intend to assault a person that is hypersensitive, it is apprehension to this particular person that there is imminent danger. It is an assault, even if it is only slight emotion that most people won’t have such apprehension.
iii. Intent: The intention to do harm is of the essence of an assault
1. Intent to create apprehension: As long as D’s action put P in apprehension of harmful or offensive contact, D committed assault, regardless of whether D’s intends to actually do the harm.
o Allen v. Hannaford, p61, D brandished an unloaded gun not intending to shoot. Assault.
2. Intent to make contact: D intends to in fact cause a harmful or offensive bodily contact.
o I de S and Wife v. W. de S, D swung hatchet at P wife. Held, assault.
iv. Imminence: It must appear to P that the harm being threatened is imminent, and that D has the present ability to carry out the threat
1. Brooker v. Silverthorne, D threatens P by phone and says “if I were there I’d break your neck.” D’s threat only promises a future injury, no assault. (also words-alone rule)
v. Mere Word Rule
1. Mere words do not amount to an assault.
2. Making a threat at a distance, generally, is not an assault. Brower v. Ackerly: the threat call was not assault, because of the absence of an immediate threat.
3. Special circumstances: However, the surrounding circumstances, or D’s past acts, may occasionally make it reasonable for P to interpret D’s words alone as creating the required apprehension of imminent contact.
vi. P unaware of danger: P must be aware of the threatened contact.
vii. Threat to third party: P must have an apprehension that she herself will be subjected to a bodily contact. She may not recover for her apprehe
p. 1997, p24.
iv. Substituted consent:
1. The guardian’s consent is necessary and sufficient for minors and incompetents
2. Substituted consent for others’ benefit: inconsistent decisions.
v. Consent to illegal activity
1. When D’s act against P is an illegal or criminal act, the majority rule is that P’s consent is ineffective.
2. The organizer or promoter of illegal prize activities, like prizefight, is liable as a principal regardless of what the rule may be as between the combatants
o Hudson v. Craft, p27, promoter of illegal boxing matches liable for battery despite P’s consent in the fight.
o Public policy: to protect the class of young people who often consent to fight but do not know the consequences.
vi. Exceeding consent scope
1. It is battery when D substantially exceeds the consent scope.
2. Mohr v. Williams. P20, P authorized operation on one ear, but D operated on another (good faith judgment). Battery because operation exceeded the scope of P’s consent.
3. Washburn v. Clara, Va. 2002, p22: D instructed a physician to do operations on two spots of the P’s neck, where P only consented to do one spot. The other spot’s operation is unnecessary. The court held that it exceeded the P’s consent.
vii. Fraud, nondisclosure and consent
1. Normally, the defense of consent to physical contact can be overridden if the consent was induced by fraud or even by nondisclosure of some material fact.
2. McPherson v. McPherson: the husband’s action was actionable when he intentionally misrepresented his health condition and therefore communicated a disease to his wife. But the judge refused to impose the liability.
b) Self-defense
i. Definition: A person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact.
ii. Apparent necessity: self-defense may be used not only where there is a real threat of harm, but also where D reasonably believes that there is one.
1. Retaliation: D may not use any degree of force in retaliation for a tort already committed.
2. Imminence: D may not use force to avoid harm which is not imminent; unless it reasonably appears that there will not be a later chance to prevent the danger.
iii. Proportionality of force:
1. Only the degree of force necessary to prevent the threatened harm may be used. If D uses excessive force, he will be liable for damage caused by the excess
2. D may not use deadly force unless he himself is in danger of death or serious bodily harm.
iv. Self-defense against the innocent attacker:
Courts are split. But see Courvoisier v. Raymond, p37, court says may find D excusable in light
