Torts Outline

TORTS
 
 
I.                  Intentional Torts
·         Liability: The intentional tortfeasor will be liable for the results of his conduct even if indirect and no matter how unlikely they may have seemed at the time of his actions. This is different from negligence where the negligent actor is liable only for the consequences which are foreseeable.
1)      For example, if A intentionally hits B on the head and B is slightly injured but has to go to the hospital where a nurse accidentally gives him poison instead of medicine, A would be liable for the death as well.
·         Intent: A person intentionally causes harm when the harm is purposefully or knowingly
1)      Purpose—desire to bring the harm
2)      Knowingly—knowledge that the harm is substantially likely to occur
3)      If act is not substantially likely to bring about the action, the actor would not be liable for an intentional tort but may be liable for negligence.
4)      Mohr v Williams (Minn 1905)
1.      P went to D, a doctor to be treated for pain in R ear, doctor operates and finds that L ear is more severely injured so D operates on L ear. P claims that she was impaired.
2.      Ruled for P, must protect her right to consent, personal autonomy, right to have control of self
5)      Any unlawful touching is an assault and battery—if it was unauthorized it was unlawful—doing something against someone’s will invades their autonomy
1.      for example, if one pulls chair and it is substantially likely that the person will hit the ground then intentional tort. However, if not substantially likely, then not intentional tort.
2.      Transferred intent: as long as one had the necessary intent with respect to one person, he will be held to have committed an intentional tort against any other person who happens to be injured.
a.       Talmage v. Smith – struck in the eye by a stick that D threw at someone else, still liable.
Ø      Vosburg v. Putney (Wis. 1891)
1.      Child kicks another in leg during class. Kick instigates diseased leg (condition pre-existed and defendant didn’t know) and plaintiff will never regain use of leg. Defendant did not intend for there to be any injury although the kick was intentional. “The intention to do harm is the essence of the assault”
2.      But—intent to harm didn’t matter—just intent to do the wrong that caused the harm
 
A.    Battery
·         1) Intentional infliction of 2) harmful or offensive 3) bodily contact to person or something closely related to that person.
·         Intent: actor must intend to either make contact or commit assault which inadvertently results in contact.
·         Harmful (causes pain or physical damage) or Offensive (damaging to reasonable sense of dignity) contact. This can be indirect contact.
1)      Alcorn v. Mitchell – spitting and Garrett v. Dailey – child pulling chair caused old lady to make contact with ground.
B.     Assault
·         1) Intentional causing of an 2)apprehension of 3) immediate 4) harmful or offensive contact
·         Note: mere words do not constitute an assault – but it is an assault if the victim really (and reasonably) believes there will be harm
·         Intent: Actor must have intended to cause either 1) apprehension or 2) battery that resulted in apprehension (I. de S. and Wife v. W. de S. – wife of shop-keep threatened with hatchet by man. He missed her head). Transferred intent applies here too.
·         Apprehension is not same as fear. Person doesn’t have to be afraid.
·         Imminence: it must appear to Plaintiff that harm being threatened is imminent and defendant has present ability to carry out threat.
1)      “Assize time”: Tuberville v. Savage — During argument, A put his hand on a sword and said if it wasn’t assize time he would hurt B. B was not assaulted since despite his physical act of touching sword, he did not intend to commit present harm (evidenced by words).
·         Words may or may not resulting assault depending on other circumstances.
C.    Intentional Infliction of Emotional Distress
·         Must be extreme and outrageous conduct and plaintiff must show that she actually suffered distress (as evidenced for example by physical symptoms).
·         Intent: Actor intended action and it is reasonable likely that person would suffer emotional distress or acted recklessly.
1)      example of A slitting his throat in B kitchen. B found the body and sued A’s estate and won.
2)      Wilkenson v. Downton: man tells woman her husband was in a car accident.
·         Court considers relationship of parties. If plaintiff is child or retarded or if Defendant had position of authority over plaintiff than IIED more likely.
·         Transferred intent: only where person suffering IIED is Plaintiff’s immediate family.
Ø      Wilkinson v. Downtown (England) (76)
1.      D plays joke on P claimer her husband was hurt—she sustains pervious shock injuries
2.      D has to pay transportation and punitive costs for IIED
3.      The act was calculated—motive to cause an emotional response
4.      IIED claims do not have to be parasitic on another tort
5.      Parasitic: in order to gain damaged for a given harm they must be attached to claim for damages from original tort
6.      Here, there is a fear of groundless claims-
§         Administrative Costs – cost of litigation, would be high
 
D.    Trespass to land
·         Trespass to land is the 1) intentional 2) unauthorized entry onto the land of another or the placement of an object on the land of another.
·         Intent: actor knows with substantial certainty, that he is entering other’s land. For example if the owner of a company that releases ash on the neighbor’s land knows about it, he has met the intent requirement.
·         Trespass to chattels: intentional interference with another’s possessory interest in a chattel, resulting in damage to that interest.
 
II.               Defenses to Intentional Torts
·         Falls within 2 groups:
1.      Consent: plaintiff has burden to show no consent.
2.      Privilege: defendant has burden to show his act was privileged.
a.       Self defense
b.      Defense of Others
c.       Defense of Property
d.      Recapture of Chattels
e.       Necessity
 
A.    Consent
·          Consent levels chart
1)      Did Consent
1.      Express: Plaintiff gives consent expressly
2.      Implied: For example by custom or inaction.
a.       Objective manifestation of Plaintiff may reasonably be interpreted as consent even if she really doesn’t give consent (i.e. raising arm at vaccine line). Playing football or boxing generally means you give consent to being hurt in a non-reckless manner. Riding subway means you implicitly consent to physical contact.
2)      Would have Consented
1.      But time/circumstance prohibit—“emergency doctrine”
a.       Consent implied by Law if it’s necessary to save a life or some other cardinal interest in person or property. And one of the following:
                                                                                                                                      i.      P is unconscious or otherwise unable to consider the matter;
                                                                                                                                    ii.      An immediate decision is necessary;
                                                                                                                                  iii.      There’s no reason to believe that P wouldn’t consent if able to do so;
                                                                                                                                  iv.      A reasonable person in P’s position would consent.
2.      but incompetent– “substituted judgment”
3.      but got no chance    Mohr?
3)      Should have Consented: despite the fact that person should have consented, we don’t assume consent here.
1.      But got no chance Mohr?
2.      But refused
·         Consent can’t be used as a defense where:
1)      Act exceeds scope of consent
1.      For example in Mohr v. Williams, surgeon went beyond what the patient had consented to (ear surgery)
2.      In Turcote v. Fell, court found that bumping and jostling was part of the sport and being a jockey. However, in Hackbart v. Cincinnati Bengals: the court deemed a late hit outside scope of the sport and therefore actionable.
a.       In sport reckless conduct is liable.
2)      Fraud: If fraud is used to get consent, then no good.
3)      Duress
4)      Mistake: If Defendant knew about the mistake or was the one to cause it, he can’t use it as a defense.
5)      Incapacity to consent: or example where plaintiff is a minor, intoxicated, unconscious…etc.
6)      Criminal Acts: courts are split on this. For example, consenting to a street fight.
1.      Majority rule: one can’t consent to something illegal (two people in a street fight can recover from each other. Don’t want people “profiting” from wrongdoing.
2.      Minority rule: Consent is good. Want people to bear full liability of their acts.
a.       Exception to this is where the point of making that action a crime is to protect a class of persons against their own poor judgment, the consent is not effective
b.      In Hudson v. Craft, P enters into an unregulated boxing match promoted by D. P gets injured and sues his opponent and D.   Even though P voluntarily entered into the competition, there was a specific statute regarding prize fights that was intended to protect this exact group. Therefore, P’s consent was not effective and Defendant was held liable since he was in position to keep the fighters safe.
·         If there is a lack of consent, even if your actions are reasonable— you are liable
 
B.     Self Defense
·         A person is permitted to use reasonable defense to protect himself if he 1) reasonably believes that there is a real threat of 2) imminent 3) harmful or offensive bodily contact.
·         A person is generally allowed to use a proportional amount of force to avoid harm—if you can prevent the harm with minimal force, you are not permitted to use maximum force. Also, self-defense can’t be used after the fact, as retaliation.
·         Fleeing: if you can flee—you may or may not be able to use force, although a court will never expect you to flee from your own home
Ø      Courvoisier v. Raymond
1.      D was shooting at some burglars and accidentally shoots P, an officer who was checking in on the commotion
2.      If jury finds a reasonable person would have feared for life enough for P to shoot—then actions were warranted
3.      If jury finds that D was wanton and reckless then for P
 
C.    Defense of Others
·         One can use same standards in the defense of others that he uses in self-defense.
D.    Defense of Property
·         Standard is similar to self-defense. Owner must ask intruder to stop first unless the owner reasonably believes force is required to protect her and property.
·         Devices used to protect the home must meet the same burden as if owner was there. For example, the owner of a spring gun would be liable to injury to thief since law requires one to ask thief to leave and only use proportional violence if necessary.
·         If trespass to property creates a personal threat—you can protect your property in the same way you protect yourself.
1)      Special Value placed on home, can’t be expected to flee, home is personal haven
Ø      M’Ilvoy v. Cockran
1.      M’ilvoy assaults Cockran in defense of his property. Ct. holds that assault is justified in defense of property—but not to the extent of wounding.
2.      D should have asked the P  to leave the land
3.      When property is attacked by implied force—should ask them to stop first; when there is actual force- no request to desist is necessary
4.      The D ‘s use of extreme force was not justified (wounding)
 
Ø      Bird v. Holbrook (1825)
1.      Spring guns case.—D set up traps in walled garden to prevent intruders. P hurt when trying to retrieve a bird
2.      P can recover—D’s actions were too severe
3.      D claims Commodum ex injuria non oritur—Plaintiff cannot recover for his own wrongful act
4.      Volenti non fit Injuria
5.      D placed spring guns for the sole reason of doing injury—“If I shall give notice, I shall not catch him”—gun was placed for mischief
6.      D Should have put up a warning sign
 
E.     Recapture of Chattels
F.     Re-entry on Land
G.    Necessity
·         Two kinds:
1)      Public Necessity: Defendant is privileged to cause harm to plaintiff or public property where necessary to prevent harm to the community or large number of people.
1.      In this case, the plaintiff cannot recover against the defendant.
2)      Private Necessity: Defendant is partially privileged to cause tort onto another to prevent harm to himself or a third party.
1.      If no actual damages then defendant not liable (for trespass for example).
2.      However, if there are actual damages then defendant is liable.
a.       Owner may not resist (see Ploof).
Ø      Ploof v. Putnam (1908)
a.       P docked boat on D’s dock. D had servant release the boat.
b.      An entry upon a land to save goods which are in danger by water or fire is not a trespass
c.       Doctrine of necessity applies with special force to the preservation of human life
 
You are NOT a trespasser if:        
·         there’s necessity
·         damage is proportionate
·         You didn’t cause the situation: You can enter another’s land so long as you didn’t foolishly create the situation
Ø      Vincent v. Lake Erie (1910) (52)
1.      Boat imposed damage on dock during a storm—boat was scheduled to leave the dock during the storm.
2.      You are allowed necessary conduct to protect your property—
3.      Court’s will rule based on efficiency – so long as you do less value damage to their property as yours is worth.
4.      Decision is not based on wrongfulness—but that there was a cost imposed
5.      Cost Internalization: if we require the boat own to pay for the damage it imposes—he will only take reasonable risks
§         You will behave wisely when you have to bear the costs.
 
Conditional or Incomplete Necessity: plaintiff must pay for the privilege with reasonable rental value or compensation for lost or damaged property. Must be a reasonable fee
 
III.           Strict Liability & Negligence
 
·         Inadvertent or accidental harm—should the Defendant still have to pay?
1)      Strict Liability—Holds the defendant prima facie liable for any harm he causes to the plaintiff’s person or property
2)      Contrary to Negligence—P recovers only if D acted with insufficient care
·         Inevitable accident:the defendant has acted neither negligently nor with the intent to harm.
1)      Occupies a niche midway between strict liability and ordinary negligence
2)      Accidents that had to happen; whether or not the defendant acted the way he did
 
A.    Early forms of Strict Liability
Ø      Thorns Case (1466) [86] 1.      P sues D for damage to land bc D cut his bushes and walked on P’s land to collect them
2.      Different thoughts on strict liability:
§         Catesby—If a man does some act (lawful), and if by this act tort and damage are done to another against his will—he shall be punished
§         Fairfax—you shouldn’t have to pay if you’ve done no wrong—or there is no malice
§         Yonge—this is an accident, he shouldn’t have to pay [modern interpretation—maybe First party insuranceis better equipped to handle these situations] §         Littleton—If a man suffers damage he should be compensated by the man who caused the damage
3.      There is often a hesitation to implement Strict Liability—
§         Is there a deterrence factor?
§         First party insuranceshould be responsible—more efficient fewer Administrative Costs
 
First Party Insurance
1.      More efficient
2.      You don’t know in life it you’ll be the causer of damage or the receiver of damage—in the end it works out (over all of society—not nec. For individuals)
3.      You know better, the level of insurance you would need based on your risks
4.      Insurance Spreading—people are risk averse—
 
Ø      Trespass and Case
§         Trespass = direct harm
§         Case = indirect harm
§         Both encompassed most torts
Ø      Scott v Shepard (1773) [98] 1.      Squib Case: P sues D for throwing a lighted squib and causing damage/ injury
2.      Nares—if the natural and probable consequence of the act done by the defendant was injury or harm—the act was illegal at common law- Foreseeability
3.      Blackstone—Trespass is a direct harm—Strict liability—case is indirect—Negligence standard
4.      Chain of causation
 
B.     Strict Liability & Negligence in the later 1800s
Ø      Brown v. Kendall (1850) [106] 1.      P and D’s dogs were fighting—D tries to break it up by waving a stick and hits P on the back swing
2.      General rule “One receives an injury from direct force from another; trespass must lie”
3.      This is unintentional