Torts Outline

Physical Harms
Battery –
What’s a battery? 
·         Any unlawful touching, regardless of intent (Vosburg v. Putney, White v. University of Idaho.
o       What about damages? 
§         You’re liable even if the damages were worse than you expected.
·         Any action or inaction that results in harm, so long as you could foresee the harm happening, ex: pulling away chair at last second (Garrat v. Dailey).
o       Restatement says “intent can be both purpose or knowledge.”
·         When you mean to hurt someone, but you hurt the wrong person – transferred intent
o       Someone could be trespassing on your land and you want to throw something at them, you miss and hurt someone else, that’s battery (Talmage v. Smith)
·         When you’re trespassing and you do something that hurts their property
o       It doesn’t matter whether you intended to hurt the property or not, if you thought about doing it, you did it, and something or someone got hurt than you’re liable (Brown v. Dillinger)
Are there any exceptions?
·         Not really, even if you act in good faith, you’re still responsible for compensating the harmed party (Maye v. Tappan).
 
Consent –
Kinds of consent – express and implied
·         Express is easy – A says to B, “do x to me” and B does.
·         Implied is different – A does something where he knows B might be in a position to do x to him, even if he doesn’t really want him to.
 
Situations where there is no consent:
·         When you give someone permission to do one thing and they do something else (Mohr v. Williams)
o       Even if the thing is similar, the court will find that if it’s not consented to its unlawful.
o       Why? Because people are given the right to make their own decisions.
·         When you enter into a situation where public policy has created rules to protect you as part of a class (Hudson v. Clark)
o       Sometimes we as a society realize that certain people will enter into situations that pose a danger to us and consent to things we don’t want you to be able to consent to.
·         Or when you consent to participate in a dangerous activity, but you suffer a harm that falls outside the rules governing that activity (Hackbart v. Cincinnati Bengals, Inc.)
o       Consent to play football, not to get punched in the back of the head
§         If the action is part of the rules of the game or is at least a known and somewhat expected danger, however you can’t claim damages (Turcotte v. Fell).
 
Situations where there is consent:
·         Emergencies, where it is implied that the individual would consent to an action done to save his or her life (Allore v. Flower Hospital)
·         Where you physically consent, but retain a mental reservation (O’Brien v. Cunard Steamship Co.)
 
Substituted judgment
·         When it’s allowed-
o       When it’s a parent or guardian making a decision for a minor (Bonnor v. Moran, Strunk v. Strunk).
o       To discontinue treatment in end of life situations (Matter of Quinlan, Matter of Spring, Brophy v. New England Sinai Hospital)
§         Respect the dignity of an individual, or his/her wishes as best they can be determined
·         When it’s not allowed-
o       When you want to terminate life, as opposed to not extend it (Washington v. Glucksburg, Vacco v. Quill)
o       When you can’t determine whether someone would give consent or not (Lausier v. Pescinski)
 
Self-Defense
·         Court recognizes a right for an individual to protect himself or his property.
o       If you feel threatened, you have right to self-defense (Courvoisier v. Raymond).
·         Limits to self-defense of person? 
o       Can’t attack innocent bystander (Morris v. Platt).
o       Can’t use force excessive to the threat facing you (Boston v. Muncy)
§         Especially true when protecting property (M’Ilvoy v. Cockran)
·         Limits to self defense of property?
o       Excessive force, see above
o       Can’t lay a trap for someone hoping to get to hurt them and pass it off as self defense (Bird v. Holland, Katko v. Briney).
o       If it is necessary for someone else to trespass (Ploof v. Putnam)
§         However, if you choose to protect your property at the expense of someone else’s that’s ok, but you still need to reimburse them for the damage you caused (Vincent v. Lake Erie Transportation Co.)
 
Emotional Harms
Assault
What’s Assault?
·         Creating the apprehension in someone that they’re going to get hit, even if you don’t intend to hit them (I. De S. and Wife v. W. de S.)
o       However, if you make it clear you don’t intend to hurt them, then its not assault (Tuberville v. Savage)
·         An act of malice, one designed to harm a person, even if its not physically hurtful, like spitting (Alcorn v. Mitchell).
 
Intentional Infliction of Emotional Distress
·         Doing something that you know is going to be harmful to the other person, is calculated to do so, regardless if they react worse than you supposed they would (Wilkinson v. Downton).
o       Same as in battery – see Vosburg
·         There is a high threshold to recover damages for IIED. Why is that?
o       Because we have free speech and we don’t want to “chill” it. Because it would lead to a boat load of lawsuits. It’s hard to measure damages. 
 
Strict Liability and Negligence
Introduction and Historical Background –
Negligence is when we say that you are only liable for the harm you cause if you acted in an unreasonable manner. 
Strict Liability is when we say you are always liable for the harm you cause. 
 
The Early Years:
Olde English courts of yore established the idea of negligence. The basic idea was that the courts were trying to figure out what a fair way to deal with the damages that people caused is. Essentially, some of the early cases started talking about the idea of negligence. What they said was that if you make the argument that you took “great care” or you committed no negligence than you got off. If you didn’t make that argument than you paid. (Thorns Case, Weaver v. Ward)
Forms of action were important back then. If you pleaded your case in the writ system a certain way you would get damages, if you didn’t then you didn’t get damages. 
The Squib case is important in the development because it started looking at the KIND of thing you do to try to determine whether we should hold you responsible. This has carried through to today because we still think that some things (explosives, etc.) need strict liability.
The 19th Century
American courts had a dilemma. They were stuck with an old English system that didn’t work. What they came up with was negligence.
The Reasonable Person Standard and Ordinary Care
The first case to really start to deal with this was Brown v. Kendall. What Brown v. Kendall basically said was that if what you’re doing is lawful and the harm was unintentional than you are not liable. It also established the standard that we still use, which is what a reasonable person would do in the same circumstances. It also established that it was the job of the Plaintiff to prove that ordinary care was not used.
Likely to do Mischief
Rylands v. Fletcher was another important case. It established an important principle still in use today which is if you have something which we think is dangerous you are always responsible for the harm you cause regardless of how careful you are. Why? Because we don’t know how to deal with this dangerous thing, you do. Because you are the one who wants it we want you to do everything possible to make sure it doesn’t do what we’re worried its going to do. So if you want a reservoir, you better make sure it doesn’t flood your neighbors land. If you want explosives, you better hope they don’t blow up your neighbors house, etc.
Modern Times
Courts have still struggled with these issues but have generally decided that negligence is the rule most of the time. There are still some questions about how to interpret the two standards, though.
What’s reasonable? 
In Bolton v. Stone the English House of Lords said it was reasonable for a Cricket Club not to put up a fence because the chance of someone actually getting hurt was so small.
What’s foreseeable?
In Hammontree v. Jenner the California courts refused to extend strict liability to cases where someone who is prone to epileptic seizures injured someone in a car accident caused by a seizure. 
Corrective Justice v. Economic Efficiency
We don’t want to stop all harm because some harms are slight and if we had to compensate people for them it would be an economic waste. We also don’t want to force people to take every possible precaution because precautions cost money so as long as the harm done is less than the cost of the precaution we think its probably ok that people get hurt every once in awhile. Those increased costs get passed along to us as consumers so we all end up paying for a lot of prevention that doesn’t stop very many serious harms. 
Sometimes it doesn’t matter who pays, but it does matter how much. For example if you can spread a higher cost among more people then its better than forcing one person to pay for everything, even if it’s a lower amount. (The class 10,000/person 8000 example).
Also, costs are not always easy to measure. Safety features can be annoying or burdensome because they take a little more time or restrict you in a certain way that you don’t like. Sometimes its worth the costs (like with seatbelts), but sometimes its not (like seatbelts on busses).
Negligence
Four Elements of Negligence:
Duty: Does the D owe the P a duty to conform his conduct to a certain standard of care that would avoid him harming others?
Breach: Did the D’s conduct fall below the applicable standard of care?
Causation: Did the D’s action cause P’s injury?
Damage: Did the P suffer harm?
Reasonable Person Standard
The Reasonable Person Standard is an objective one, most of the time.
We don’t allow stupid people to do stupid things and get away with it because they’re stupid. If you’ve been warned that what you’re doing is probably going to cause some harm and you do it anyway we’re going to hold you accountable for the harm you cause because you don’t have an excuse. (Vaughn. v. Menlove).
Holmes, The Common Law: We enforce the reasonable person standard because we want to ensure a certain level of conduct in society. We make some exceptions, for example for children or blind people but for the most part we expect you to conform to our standards if we think you can. 
Making allowances for people’s defects – we don’t do it
If you’re going to engage in an activity that requires a certain standard of conduct, you can’t get out of the harm you cause by arguing that you’re not capable of that standard. For example, the old driver can’t use his age to excuse an accident (Roberts v. Ring).
There are times when we realize that certain people can only take so much care. For example a blind man is only required to take such care as he is able. (Fletcher v. City of Aberdeen). However, the blind man couldn’t drive a car and use his blindness as an excuse.
Beginners and Experts
In general we hold beginners to the same standard as everybody else. Exception: when an expert is harmed by the actions of a beginner he’s trying to instruct. We don’t hold the beginner liable because the expert assumed the risk of teaching the beginner.
In general we hold experts to the same standards as everyone else. Exception is when you hold yourself out as an expert to others and then harm those others.
What kind of thing you’re doing can determine the standard of care you should use
If you take on some activity that carries with it a certain degree of care you must use that degree of care. For example, we think motorcycles are for adults so when you cause harm with your motorcycle you can’t use the fact that you’re a kid as an excuse. (Daniels v. Evans)
When you’ve got a reason to know, you’ve got a reason to use care
Woman who had mental delusions in the past can’t use her mental delusions as an excuse when she crashes her car into another person. (Breuing v. American Family Ins. Co.)
You can’t take care sometimes and not others and call it a day
Worker removed a barricade and didn’t put it back up. Blind guy fell in and the court says that the worker had a responsibility to keep the sidewalks safe for everyone. (Fletcher v. City of Aberdeen).
What’s reasonable depends on the circumstances
If you’re in an emergency and have to make a split second decision (swerve left, swerve right) we generally cut you some slack because we realize that what’s reasonable in an emergency is different than what’s reasonable under normal circumstances. (Lyons v. Midnight Sun).
You have to take into account other people’s abilities
For example, you have to assume that drunk people and blind people will use sidewalks. You can’t blame the drunk person for being drunk when he’s walking down a sidewalk and falls in a hole that a sober person would have seen. To do so would be to essentially outlaw drunkenness. (Robinson v. Pioche, Bayerque & Co.).
Calculus of Risk
Whether or not something is reasonable can depend on the calculation of the risk involved. For example if the potential harm is great and the cost to avoid is small than you should avoid the risk. On the other hand if the potential harm is small and the cost to avoid is large than you shouldn’t. 
Calculus of Risk is closely related to reasonableness because if something isn’t very likely to happen and you’ve already taken all the reasonable steps you should then it’s not negligence. 
For example, where a freak ice storm caused a plug to ice over it wasn’t negligence to scrape the ice from the plug because the harm caused by a freaky storm is not something that a reasonable man would have done. (Blyth v. Birmingham Water Works)
When we act to save someone’s life we generally give you wide latitude. We value human life and we want people to try to protect it. If the benefit (saving life) is high, then it justifies taking a risk that is also high. (Eckert v. Long Island R.R.)
Terry, Negligence: Four factors to be considered when weighing the costs and benefits:
What’s the chance that the action will lead to harm?
What’s the potential harm?
What’s the gain to be had by taking the action?
What’s the necessity of risk? (The chance that you could get the benefit without taking the risk).
The calculus of risk is basically a way to get at what a reasonable person would do. Even if the risk of harm is somewhat foreseeable, if almost all reasonable people would ignore the risk in the same circumstances than it’s not negligence. 
Where driver failed to look out for kid on bicycle before opening his door, its not negligence even though he cased the harm. Why? Because we don’t expect people to look out for bicyclists every time they open their car door. (Osborne v. Montgomery).
One thing we don’t want is to reward people for slight harms that could have been prevented, but only by taking some action that would have led to the likelihood of greater harm overall. (Cooley v. Public Service Co.). 
This is important and it really ties in with everything we’ve been saying so far. 
US v. Carroll Towing Co., Judge Hand and B=PL. 
This is a measurement of how to determine whether or not something was reasonable in light of potential harm. Essentially what it means is that when B (the burden of avoiding the harm) equals P (the probability of the ha