Mendlow Torts-Grade A Fall 2015
Torts Theory and Generalities
Criminal law focused on proportionality of punishment to blame. Tort law focused on compensating injured party. Criminal law has higher standard of proof because more is at stake.
The victim should not have to bear the cost of tortious activity.
-Victim must, however, take steps to mitigate damages
We do not want victims to take vengeance into their own hands.
For negligence, have to establish each element by a preponderance of the evidence.
Prima Facie: Necessary but not sufficient for wining the case.
Rule v. Standard – Rules are very objective (drive on the right) while standards more subjective (licensee, invitee, trespasser). Rules very clear (for both judges, juries, and citizens) and give rise to efficiency. But sometimes forces a poor decision and too many situations for a rule to fit perfectly. Standards are less clear and efficient by provide more flexibility for grey areas.
We like to put liability on person who is in the best position to prevent the harm.
Least Cost Avoider – Guido Calabresi: tort law should put the cost of avoiding an accident on the person who can most efficiently take precautions to prevent it from happening. In other words, put it on the cheapest cost avoider. For instance, drivers may be better able to avoid accidents than pedestrians.
Intentional Torts
Intend: to desire a purpose or believe it to be substantially certain
Why do we need intentional torts if they are often criminal as well?
No criminal redress to victim
Want to provide outlet for victim besides personal vengeance
Extra deterrence
Battery
Prima Facie Case:
A acts [R2T § 2 an external manifestation of the actor’s will]
Intending [desire a purpose or be substantially certain] to cause contact with P
Majority: must intend to touch (usually unacceptable type), not intend that the touch cause harm or offense
Minority: Must intend to harm or offend
The contact is of a harmful or offensive type
A’s act causes P to suffer such harm/offense
Contact need not be flesh-on-flesh. A certain protective zone around the body is created (extended personality).
Small batteries (spit, slap, uncomfortable touch) would be battery but small comp.
What is harmful/offensive?
Doesn’t matter whether or not the person actually takes offense
Test is whether or not the contact violate prevailing social standards of acceptable touching in the circumstance. Would a reasonable person find it harmful/offensive?
UNLESS the D knows there is something particular about the P and does it anyway.
Vosburg (Kid kicks during class; Eggshell-Skull; Intended Contact Unacceptable Type)
Cole (Drunk Woman Playful Kick; No Need Intend Harm/Offense, Just Unacceptable Type)
Wagner (Requires just Intent to Make Contact; Employer (gov.) Not Liable for Intentional)
If need intent to harm or cause offense, then person will just intend contact and say they didn’t intent harm/offense (shooting gun Wagner example). Unacceptable type is tradeoff between have no need to intend harm/offense (Wagner) and needing intent to harm/offend (Spivey)
Assault
“We have a right to live in society without being put in fear of personal harm.” Beach
Prima Facie Case:
A acts,
Intending to cause in P the apprehension [no need for fear] of an imminent harmful/offensive contact w/ P; and
A’s act causes P reasonably to apprehend such contact
Failure to succeed in battery can still be assault if victim apprehends an imminent harmful/offensive contact (transferred intent).
Words can constitute assault if, “together w/ other acts or circumstances they put the other in reasonable apprehension of imminent harmful/offensive contact w/ his person.” R2T §31
BUT, watch out for conditional threats.
Beach (Unloaded Gun; Threat Does Not Need to Exist; D can make a hollow threat that sometimes is reasonable for plaintiff to apprehend as a real threat)
Brooker (Woman Night Operator; Lacked Imminence and Reasonableness; Words often not enough; Conditional Threat where Necessary Clause would never reasonably happen)
Vetter (Kids Threaten Woman in Car; satisfies prima facie conditions; Biggest question reasonableness; Words are enough here because of the circumstances)
Standard Defense to Battery and Assault
First line of defense would be to negate one of the elements of the prima facie case. Even if plaintiff proves she has a prima facie case, a defendant can prove affirmative defenses.
Statute of limitations as possible easy points.
(1)Consent
1.Plaintiff’s actions can give consent (standing in line on ship for vaccination)
2.Playing sport is consent for harmful touchings (w/in rules of game). Can extend to other activities where touching involved.
(2)No Consent
1.Cannot gain consent through coercion (usually the coercion has to be tortious or criminal, not coach demanding something in front of cheerleaders)
2.No hypothetical consent for “best interest.” (its what P would have wanted if he was better informed)
3.Plaintiff’s consent invalid when defendant gave a misrepresentation.
4.Consented to one type of touching but not another.
Koffman (Hschool Fball; D says P implied consent; Maj says no implied consent because coaches never did this before, not really part of game; Dissent says part of football, implied)
(3)Self-Defense and Defense of Others
1.Must be reasonable, proportional to force attacker and just enough to extinguish threat. If able to retreat and outside your dwelling (or vehicle) then deadly force not option unless in “Stand Your Ground” state.
2.Can defend other if reasonably believe that they are about to be or are suffering bat/assault.
Hauessler (D found P dog and let him in; Self-defense; reasonable force used to defend)
(4)Defense and Recapture of Property
Katko (D set shotgun booby-trap; Cannot do indirectly thru mechanical device what one cannot do were he immediately present – D here in no physical danger; Defense of property does not exonerate a person who committed battery of excessive force)
Transferred Intent
A legal fiction created to achieve sensible result despite lack of intent towards victim. Tortfeasor’s act just as culpable when her aim is bad as when it is good.
Same victim, different intentional tort (try to scare w/ gun, accidentally shoot)
Different victim, same intentional tort
Across both torts and victims
From Things to Person (intend damage to property which harms person)
Intentional Infliction of Emotional Distress (IIED)
IIED R2T § 46(1):
extreme/outrageous conduct (hardest to satisfy)
intentionally or recklessly (easier to satisfy then battery intent because of the reckless part)
causes
severe emotional distress; cmt j. – “no reasonable man could be expected to endure”
Restatement Outrageous: “Not enough
ence” though, not required to continue duty)
Special, pre-tort law relationships (marriage, parent, Tarasoff)
Why No Duty to Prevent?
Need to draw the line somewhere (who had a duty to help; would omission be part of the cause of the harm; and what duty would we impose on a bystander? Each situation would be slightly different)
Free will – can’t require people to be moral human beings
Interveners could cause more harm
Tarasoff (Special Relationship; The result was foreseeable; Therapist knew Tarasoff’s name so somewhat like precedent cases where D had relationship w/ both P and 3rd part; doctors w/ patients w/ infectious disease have duty to other people likely to catch)
Osterlind (D did not have duty to not rent to intoxicated people; No duty established so his omission is legal)
Baker (Duty of Affirmative action to help because (1) business-relationship – P invitee (2) public policy – better to help because they aren’t sure if they caused; Only needs to reasonably aid, no need to hire medical personnel)
Premises Liability
Invitee – business relationship of mutual benefit. Owner has duty to keep area reasonably safe and/or warn of hazards. (affirmative duty to inspect their property, to find potential dangers, and to make those dangers safe or to provide very specific warnings of dangers.)
Licensee – social guest who enters upon property for his own convenience. Duty to avoid willfully and wantonly injuring them and a duty to warn. But many courts have changed to invitee status.
Trespasser – enters upon another’s property intentionally w/out license, invitation, or other right. Owner has duty not to willfully or wantonly inure.
Most reasonable people do not make a distinction between invitees and licensees.
Child trespassers lured by “attractive nuisances” and expected adult trespassers require reasonable care (and probably sign warnings). Only have to keep the particular nuisance safe or the particular area of land that trespassers expected on. Only need to get rid of artificial dangers.
Third Restatement: imposes duty to take reasonable care to make premises safe for all persons, including adult trespassers, but not flagrant trespassers (only willful/wanton for them) such as criminals or those who for no good reason violate right to exclude (§52 and cmt. a) [Some states have gone further, California)
Leffler (P was invitee but became trespasser [he was not expressly or implicitly invited to go out there; though the implicitly was questionable]; Mendlow; did D really do enough to warn? Was planning on welding bars on window but did not, so they knew the danger)
Rowland (Cali. Case, Removed Distinctions between the three. General duty to make reasonably safe and/or warn. Less than 12 states have followed)
