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University of Mississippi School of Law
Pittman, Larry J.

Torts Spring 2014

Larry Pittman

I. Wrongful Death and Survival

A. Wrongful Death

1. Moragne v. States Marine Lines

a. Facts: P’s husband killed working on a boat owned by D b/c of D’s negligence.

b. Issue: Can an action for wrongful death and a survival action be brought together?

c. Rule: Wrongful death suits can be brought along with survival suits for the pain and suffering in the time in between the injury and death

d. Wrongful death: action created by the death of a person due to the tortious conduct of another brought by the beneficiaries or a personal representative of the decedent

i. Beneficiaries are listed statutorily, usually spouse, children, parents, next of kin

ii. Other statues may apply (repose, limitations)

e. Survival action: an action the decedent had before his death that is brought by his executor/administrator on behalf of the estate

f. Felony-Merger Doctrine: CL does not allow recovery for an act that was both a tort and a felony, but it is allowed under modern US law

2. Selders v. Armentrout

a. Facts: 3 minor children killed in a car accident b/c of D’s negligence

b. Issue: How should damages for wrongful death be calculated?

c. Damages

i. Traditional Rule: Pecuniary losses only (pg. 597 note 1): measured by determining the monetary contribution that decedent would’ve made during his lifetime to the P beneficiary

ii. Modern Rule: Pecuniary + Loss of companionship/consortium: the intangibles; sometimes consortium included in pecuniary (chores); many states cap non pecuniary

iii. Grief

iv. Some states allow punitive damages

B. Survival

1. Murphy v. Martin Oil

a. Facts: P’s husband injured in fire on D’s premises, lived for 9 days, then died. P sued under WD and Survival statues.

b. Issue: Whether P can recover for the loss of wages during those 9 days, the destruction of personal property b/c of injury, and the conscious pain and suffering he experienced in the 9 days

c. Policy: allow for adequate recovery of the loss

d. Traditional rule: personal injury suit does not survive if death results from action which caused the injury (i.e. you can only bring the wrongful death suit)

e. Modern rule: WD and survival action for period b/t injury and death can both go forward even if from same injury

f. Statute of limitations: WD starts to run at death, survival depends but usually at injury

g. Recovery

i. Loss of income (WD & S)

ii. Pain and suffering (S & WD–if conscious/pre-impact fright)* where most $ comes from

iii. Medical expenses (S)

iv. Funeral expenses (WD)

v. Property damages (WD)

vi. Punitive damages Note 10 pg. 604

vii. Creditors can attack survival recovery $ but not WD recovery $ (b/c $ goes to decedent’s estate not beneficiaries directly)

viii. Different people recover under WD & S

ix. NOTE 7 to avoid double recovery

h. Defenses to WD or Survival Action

i. S-any defense that could’ve been raised against decedent

ii. WD- contributory negligence can but does not always prevent recovery (note 12 pg. 605)

iii. S-if decedent settles case before death/gets judgment; WD action is precluded even if WD action did not accrue until death (note 14 pg. 606)

II. Intentional Interference with Person of Property

A. Intent

1. Garratt v. Dailey

a. Facts: P adult had chair pulled out from under her by minor child 5 y.o. D, broke hip. Suing for battery.

b. Battery= D knows w/substantial certainty that P would be injured and actually is; harm or offensive contact are the consequences of the intent

c. 2 ways to prove intent

i. Do an act for the purpose of causing the intentional tort

ii. Act with substantial certainty that the intentional tort will occur

d. A child is capable of committing an intentional tort, depending on age and circumstances (notes 3-5 pg. 20)

2. Spivey v. Battaglia

a. Facts: co-workers, P shy and D knew it but D gave her a tight bear hug anyway, thereby pushing her head to the side against his. Ultimately she became paralyzed on the left side of her face and mouth. Suing for assault and battery.

b. Rule: Intent is not necessarily to do harm or be hostile, but where a reasonable man would believe that a particular result was substantially certain to follow, the intent element is satisfied.

c. Difference b/t intentional tort and negligence is the degree. Why differentiate? b/c the damages, defenses, and rules are different. Note 4 pg. 23

i. prior experience v. compact crowd can change something from negligence to an intentional tort

ii. circle of liability larger w/ intentional torts (i.e. you intended to hit person in the arm, he falls, and diesàyou’re liable)

d. the court interprets this very narrowly—the outcome was so bizarre that regardless of the intent to tease (note: NOT intent to harm), paralysis was in no way a substantial certainty that a reasonable person would believe

i. there is a counter argument that the offensive contact was the hug and he should be liable for any and all damages

3. Ranson v. Kitner

a. Facts: D was wolf hunting and killed P’s dog thinking it was a wolf b/c of its likeness.

b. Mistake=liable; mistake in belief of identity/ownership or privilege is not excuse to battery even if reasonable/in good faith

4. McGuire v. Almy

a. Facts: P employed to care for D as a burse. D insane. D had an outburst and threatened to kill P. He hit her in the head with a furniture leg.

a. Rule: where an insane person by his act does intentional damage to another person/property, he is liable as a sane person would be

b. Criminal defense of insanity does not always work in tort

c. Exception- institutionalized mentally disabled people who cannot control or appreciate consequences of their conduct won’t be held liable for harm to their caretakers. Insane’s caretaker may be laible for negligent supervision

d. Degree important again—intent to cause harm or offensive contact required for liability

e. For children/insane, if intent is there, an act with substantial certainty of consequences is not required (think boy pulling chair out)

f. Voluntary intoxication not a defense to intent

B. Talmage v. Smith

a. Facts: P trespassing on D’s land with others. D threw stick at one boy, hit P instead. P lost eyesight.

b. Doctrine of Transferred Intent applies under the scope of trespass to 5 intentional torts

i. to land

ii. to chattels

iii. false imprisonment

iv. assault

v. battery

c. Even if only meant to scare and not harm, but harms him or another, liable

B. Battery

1. Cole v. Turner

a. touching in anger is battery

b. touching in an offensive manner is battery

c. touching in a crowded place w/o violence is not battery

2. Wallace v. Rosen

a. Facts: D touched P to get her to move down stairwell during a school fire drill. P fell down the stairs.

b. The mere knowledge of or appreciation of a risk does not equal intent

c. Consent to contact is assumed in today’s world for all parts of life where it is customary and reasonably necessary and in those settings it is not offensive

d. “rude” touching is subject to strict scrutiny b/c some touching is allowed in a civilized society, old definition that is not used in most states

e. definition of battery depends on state statute*, most commonly used is pg. 34, Rest. §§13, 18: to have a battery, the actor intends to cause (purpose) harmful or offensive contact or there is a substantial certainty that a harmful or offensive contact will occur, and that contact actually occurs

f. context matters re: touching

g. STD transmission is a battery

h. D intends the offensive contact, but not the unreasonable resulting injuriesàLiable

3. Fisher v. Carrousel Motor Hotel

a. Facts: D’s employee embarrassed publicly P with a racial insult, snatched a plate from P’s hands.

b. Rule: actually touching a person is not required, touching something connected to his body (here, the plate) is sufficient. When done in an offensive manner, the contact is battery.

c. “Forceful dispossession” in an offensive manner = battery

s license or go to jail. She didn’t, thinking it ridiculous. Arrested, charged, had to wait for friend to post bond.

b. False arrest = when one is taken into custody by a person who claims but does not have the proper legal authority.

c. No action if officer has a valid warrant or probable cause to believe that an offense has been committed and that the person arrested committed it.

d. See all notes

5. Whittaker v. Sandford

a. Facts: P and D members of religious sect. P wanted to leave Tel Aviv for America via steamship. D offered to take her on his yacht. P apprehensive but D promised not to detain her. She was kept on board for a month after arriving at port, except when monitored by her husband, also detaining her.

b. B/c D was providing her transportation to America, he must allow her to go ashore, not merely transport her to a harbor. Refusing her a boat ashore was wrong.

c. Confinement by not giving them means to escape

d. Note 4—airline passengers have no relief for being on a plane they voluntarily got on that is held on tarmac for longer than trip duration is scheduled to be

F. Intentional Infliction of Emotional Distress

1. State Rubbish Collectors Ass’n v. Siliznoff

a. Facts: P suing D for debt. D’s defense: duress, lack of consideration, also sought damages for assaults made on him. D collected trash for biz Acme, and P asserted that biz in another collector’s territory. P tried to make D pay $ to the other Ass’n member, and D signed the notes. P told D to come and sign the notes that note or get beat up, damage his truck, and put him out of business. D came and P threatened, saying to pay or they would put him out of business. D so scared he got sick, missed several days of work.

b. When it is shown that one, in the absence of any privilege, intentionally subjects another to the mental suffering incident to serious threats to his physical well-being, whether or not the threats are made under such circumstances as to constitute to a technical assault.

c. Traditionally: law didn’t protect mental and emotional tranquility, unless the stress was so intentional & extreme that becoming physically ill could be reasonably foreseen and actually occurred.

d. Modern: protect people from intentional subjection to stress even if there are no physical manifestations (fright only is recoverable)

e. Note 4—Injury to human bodies: D’s mistreatment of burial places & human remains=P’s recovery for mental suffering

f. Note 5—Common carriers and innkeepers: held to a higher standard of conduct

2. Slocum v. Food Fair Stores of Florida

a. Facts: P seeking damages for mental suffering and an ensuing heart attack and aggravation of a pre-existing heart disease, allegedly caused by D’s insulting language while a customer in the store

b. Insult=conduct intended to cause emotional distress only; liability for one who, w/o privilege to do so, intentionally causes extreme emotional distress to another

i. Requisite intent

c. This conduct is not outrageous and extreme as to go beyond all possible bounds of decency. “You stink” (or even calling someone “Nigger”) is not enough unless it extreme (happened continuosly so it becomes terribly degrading)

i. The conduct must warrant the outcome, i.e. saying someone stinks is not extreme enough to cause a heart attach