First Semester Torts Outline
Rule: 1) intent (intent to contact; intent to harm; substantial certainty of harm; OR transferred intent); 2) harmful or offensive contact.
· Prima facie case
· What consequences must Δ intend? Intent to contact vs. intent to harm/be offensive
· Vosburg v. Putney (kid kicked another kid in school): intent to cause contact is sufficient intent; don’t have to intend to cause harm.
· 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 result. But if action is merely highly likely, not substantially certain, act isn’t intentional. Recklessness isn’t enough.
· Garratt v. Dailey (kid pulled chair out from a woman about to sit in it): D doesn’t intend to cause contact but knows the contact is substantially certain to follow from her actions.
· 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.
· What constitutes contact?
· Vosburg v. Putney (kid kicked another kid in school): D’s actions result in direct physical contact w/P.
· D’s actions cause P to come into contact with the ground or other harm-causing object (Garratt)
· D’s actions result in physical contact with something closely related to P (clothing, something he is holding, etc.) (Fisher)
· D contacts an object which, sometime later, comes into contact with P (Stratton case on p. 29 – Π ate a piece of fruit Δ poisoned 2 hours earlier)
· Which intended contacts are wrongful?
· Harmful contacts
· Detrimental physical changes to a person, object or thing (harm)
· Any change in bodily condition (bodily harm)
· Offensive contacts
· Contact that offend a reasonable sense of personal dignity
· Fisher v. Carrousel Motor Hotel: Δ snatched plate away from Π and said b/c he’s a Negro, can’t be served; was offensive contact.
· Leichtman v. WLW Jacor Communications, Inc.: talk show host blew cigar smoke in P’s face (P was anti-smoking advocate); smoke was offensive contact.
· McCracken v. Sloan (“Glass cage” defense): the rule is that no person can erect a glass cage around himself such that any physical contact lends itself to liability. McCracken sued Sloan because Sloan continued to smoke in front of him even though McCracken was allergic to tobacco.
Defenses (that can defeat battery claim)
· Express consent: If P expressly consents to an intentional interference with his person or property, D will not be liable for that interference.
· Implied consent: Existence of consent may also be implied from P’s conduct, from custom, or from the circumstances.
· From Π’s conduct – O’Brien v. Cunard Steamship Co (vaccinations on board; P raised arm as if to receive vaccination): if it reasonably seemed to one in D’s position that P consented, consent exists regardless of P’s subjective state of mind. P must expressly object (objective manifestations of consent are what count).
· Consent to criminal acts: Where D’s act against P is a criminal act, courts are split. The majority rule is that P’s consent is ineffective if the act consented to is a crime.
· Barton v. Bee Line, Inc. (15 yr old passenger of Δ’s bus was raped by bus driver; bus driver says it was consensual and wins): Π can consent even if a minor b/c “knew the nature and quality of her act.” Criminal statute saying sex with a minor is a crime wasn’t enough to bar consent in this case – but this is a minority rule. The majority rule is that Π’s consent isn’t effective b/c the act was a crime.
· Consent with full information
· Bang v. Charles T. Miller Hospital (Δ-doctor cut spermatic cords): Where a physician can determine before an operation that there are alternatives and no emergency exists, the patient should be given the opportunity to weigh the different options and make a decision before performing an operation. This gives the patient a chance to make the decision.
· Exceeding scope
· Even if P does consent to an invasion of her interests, D will not be privileged if he goes substantially beyond the scope of that consent.
· Kennedy v. Parrott (Π submitted to appendectomy and doctor burst cysts too which then led to phlebitis in her leg): Where one has voluntarily submitted himself to a physician/surgeon for diagnosis and treatment of an ailment it, in the absence of evidence to the contrary, will be presumed that what the doctor did was either expressly or by implication authorized to be done. Δ didn’t exceed the scope b/c cysts could have also caused Π’s pain.
· Hackbart v. Cincinnati Bengals, Inc. (Cincinnati player intentionally struck Π in the back of the neck; even though playing football, Π didn’t consent to intentional blow, only what was within normal risks of playing the game): consent isn’t valid if goes beyond what was consented to – consented to normal risks of playing football, but didn’t consent to intentional infliction of blows.
· In Knight v. Jewett, SC of CA held backyard games to same std: participants in a touch football game impliedly consent to violent contact, but not to conduct that is so reckless as to be completely outside the range of ordinary activity of the sport.
· Emergency exception: However, in the surgery case, an emergency may justify extending the surgery beyond that consented to.
· Consent by Fraud or Duress (p. 61-62)
· Fraud: Consent is invalid if it is induced by fraud that misrepresents an essential aspect of the interaction.
· Duress: Consent procured under physical threat is invalid. However, as a general rule, economic pressure, while coercive, does not negate consent.
· Incapacity to Consent
· Consent will be invalidated if P is incapable of giving that consent, because she is a child, intoxicated, unconscious, etc.
· Consent as a matter of law: But even if P is incapable of truly gi
Second Restatement holds that: (1) D may use non-deadly force rather than retreating; but (2) D may not use deadly force in lieu of retreating, except if attacked in his dwelling by one who does not reside in the dwelling.  (Example: If P attacks D on the street with a knife, under the Restatement D may use his fists rather than running away, but may not use a gun rather than running away if running away would avoid the danger. If the attack took place in D’s home, where P was not also a resident, then D could use the gun.)
· Defense of Others
· A person may use reasonable force to defend another person against attack if that person would have also been able to use self-defense privilege. The same rules apply as in self-defense: the defender may only use reasonable force, and may not use deadly force to repel a non-deadly attack.  1. Reasonable mistake: The courts are split on the effect of a reasonable mistake. Older courts hold that the intervener “steps into the shoes” of the person aided, and thus bears the risk of a mistake. But Rest.2d gives a “reasonable mistake” defense to the intervener.
· Defense of Property
· Mechanical devices: An owner may use a mechanical device to protect her property only if she would be privileged to use a similar degree of force if she were present and acting herself.
· Katko v. Briney (Δ set up shot-gun trap to prevent people from trespassing in abandoned house and Π set off the trap while trespassing): The law places a higher value on human life than on property. Serious bodily injury cannot be inflicted on a trespasser except to prevent violent felonies or where human life is in danger.
· A person may generally use reasonable force to defend her property, both land and chattels.
· Warning required first: The owner must first make a verbal demand that the intruder stop, unless it reasonably appears that violence or harm will occur immediately, or that the request to stop will be useless.
· Mistake: If D’s mistake is about whether force is necessary, D is protected by a reasonable mistake. But if the owner’s mistake is about whether the intruder has a right to be there, the owner’s use of force will not be privileged.
· Deadly force: The owner may use deadly force only where: (1) non-deadly force will not suffice; and (2) the owner reasonably believes that without deadly force, death or serious bodily harm will occur.