Christina Whitman – Torts 2017
Tort Law: Responsibilities & Redress 4e / Edition 4 by John C. P. Goldberg
Tort law deals with assigning responsibility for injuries: asks who should bear the cost. Concerned with compensation,not culpability: focus is on minimizing the risk/effect of accidents.
Exam tip: Use the facts to make arguments re: foreseeability, expense, etc.
Intentional Torts
Battery, Assault, and False Imprisonment
*Closed categories: i) battery, ii) assault, iii) trespass, iv) IIED, and v) trespass to property (also SL).
*Reqs intent to accomplish certain conseq, or w/actual knowledge that such a conseq substantially certain to occur (subj). *Want to deter/punish D’s behavior (whereas in neg, comp is main goal (no one wanted situation to occur)).
BATTERY
Wrongfulness of battery resides in purposeful touching (Vosburg). The purpose behind making battery a cause of action is the preservation of bodily integrity.
ELEMENTS
A acts;
Ask: was the action of the actor’s own volition? How do we know?
Since battery requires an affirmative act, accidental contact will not be sufficient to bring a cause of action.
Intending to cause a contact with P (accidental touch is not battery);
Ask: did the defendant have the desire to cause the result or the knowledge that the result was substantially certain? How do we know?
“substantially certain” comes from Garrat v. Dailey (kid pulls chair out from under aunt)
“Malice” is not required
Need not be flesh-on-flesh; shootings are a contact
The contact with P that A intends is of a harmful or offensive type; and
Ask: was there either a harmful or offensive contact INTENDED? How do we know?
Two schools of thought
First school: All you need is to intend contact, which then ends up being harmful or offensive
Second school: You need to actually intend to cause a harmful or offensive contact
harmful test is straightforward did actual harm occur to P’s body?
offensive test is objective (QOF) was touch a “certain kind” that would offend a reasonable person’s sense of personal dignityprevailing social standards of acceptable touchings?
EXCEPTION: if you are a hypersensitive person and the defendant knows this, they are held to a higher standard
A’s act causes P to suffer a contact that is harmful or offensive.
Ask: did P actually sustain a harmful or offensive contact? How do we know?
intentional invasion of P’s personal space, not causing of physical harm per se
touching needs not be flesh-on-flesh (blowing smoke in P’s face), nor direct (shooting)
“extended personality” zone around body (Fisher – D “offensively touched” lunch tray in P’s hand)
“offensiveness” can vary based on context (implied license? locus?) and relationship btwn P and D
INTERPRETIVE RULES
Especially sensitive plaintiff
Seemingly inoffensive touch can be rendered offensive if D knew P unusually averse to it. Holbrook: (workplace massage in itself not offensive; circs [gender, relationship, locus, past] make it so. Violates social norms; could be construed as hurtful/offensive by RP.)
Indirect contact
You do not need to touch another person, you can touch something within their zone of bodily integrity, or something within your control can come in contact. I.e. if you commanded a dog to go bite another person, that’s a battery. [Right?]
Substantial Certainty
You can use this to meet the intent element. “A mere showing that harm is substantially certain to result from the actor’s conduct is not sufficient to prove intent; it must be shown that the actor is aware of this.”
Eggshell skull
Defendant takes the plaintiff as he finds him; liable for all damages stemming from unlawful act. Vosburg: (playful kick to the knee goes terribly wrong and shatters the kid’s leg. Oops.)
CASES
Cecarelli: (ballroom beatup the dude) This is a classic battery case; the tf’s acted intentionally and caused harm
Holbrook: (sexual work massages) This case stands for the principle that contact that offends prevailing social norms is sufficient to satisfy the “harm” requirement for a battery cause of action.
Vosburg: (schoolhouse kick) This case stands for the Eggshell skull principle, and that battery requires some sort of “unlawful” act
Cole: (drunken kick in the butt: negligence or intentional tort?) This case stands for the principle that the intentional nature of the contact controls the definition, not the intent to cause actual harm or injury.
Wagner: (attack in K-Mart case) Stands for the idea that special immunity is not given to mentally handicapped people; and, that one only need intend to cause the contact, that is sufficient to bring a cause of action.
ASSAULT
Assault protects against the apprehension of imminent harmful or offensive contact.
ELEMENTS
A acts
Needs to be a volitional movement
Intending to cause in P apprehension of IMMINENT harmful or offensive contact (without consent or privilege), and
A
on; why privileged to engage in conduct, notwithstanding apparent wrongfulness.
*Tort law reluctant to recognize excuses (D’s condition/circs entitle her to exemption) bc not concerned w/D’s culpability. *For intentional torts, longstanding law is that comparative fault or contributory neg is not an available defense.
Six affirmative defenses:
Consent: P voluntarily participated in activity that consisted of the tort.
Consent is difficult to determine. Sometimes you must consider the actions in context (i.e. the vaccination case for the immigrant) What did P believe?
If D can prove consent, rebuts “harmful/offensive” nature of tort.
However, generally can’t consent to somebody committing a crime against you.
D cannot use consent defense if consent secured by misrepresentation, deceit or coercion, or if P
lacks ability/judgment necessary to give meaningful consent, and
RP in D’s position would perceive lack of capacity.
Apparent consent sometimes be deemed ineffective if D knew consent was not freely given
ie, if D had power/authority in relation to P
Scope of consent matters
P must consent to specific form of touching that D committed
difficult to prove in contact sports cases (Koffman – fball coach tackling demo)
comes up w/docs: can’t operate on part of body to which P didn’t expressly consent
Express consent: P clearly (often in writing) permits activity
Implied consent: by nature of actions, P makes clear he is permitting activity
D must actually and reasonably believe, due to P’s acts, P consented (vaccination line)
D cannot argue P would/should have given consent paternalistic, not valid defense
Koffman v. Garnett: (football player slammed to ground by coach) This case stands for the principle that the consenting to some activities is not consenting to unanticipated actions that may be associated with that activity. The scope of consent is limited to the specific form of touching the P anticipates D may cause!
