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Torts
University of North Carolina School of Law
Daye, Charles Edward

Torts
A tort is a civil wrong, other than a breach of contract, for which the law provides a remedy.
 
Usually torts are broken down into three broad categories:
-intentional torts, negligence, and strict liability
The major purposes of tort law are: provide a peaceful means for adjusting rights, deter wrongful conduct, encourage socially responsible behavior and restore injured parties to their original condition.
 
I.                   Intentional Torts
 
Nature of Intent-difficult to form a definition that fits generally to each specific category. The intent must be at least to bring about some sort of physical or mental effect upon another person.
If the actor acted for the purpose or even if the actor did not desire it but it was substantially certain to happen this also represents intent. Garratt v. Dailey
A person can have the intent necessary for an intentional tort even though he does not desire to harm the victim. E.G. intending to kick but not to harm, still intent Vosburg v. Putney.
Insane people have been held to be capable of committing intentional torts-McGuire v. Almy (Δ struck Π caretaker with piece of furniture).
Transferred intent-as long as Δ held necessary intent with respect to one person, he will be held to have committed an intentional tort against any person who happens to be injured. Talmadge. This also applies if a tort is committed, but another tort was intended.
Nominal damages- Judge or jury may award token sum even if Π cannot show that he suffered actual pecuniary harm.
Punitive damages-Π may recover punitive damages if Δ’s conduct was outrageous or malicious. (punish Δ) (Not usually awarded in negligence cases)
Scope of liability-intentional tortfeasor will be held liable for virtually every result stemming directly or even somewhat indirectly from his conduct, however unlikely it might have seemed at the time of the act. (in negligence, Δ only liable for foreseeable results)
 
The Intentional Torts:
 
1)      Battery –intentional infliction of a harmful or offensive bodily contact.
-INTENT: It is the intent to make contact, not to do injury, which is essential to battery. If Δ intends to commit assault but harmful or offensive contact occurs, then a battery has been committed.
-HARMFUL OR OFFENSIVE CONTACT- must do physical or bodily damage for harmful, but for offensive, it must be damaging to the sense of dignity.
-Mohr v. Williams- ear surgery case
-To determine if contact was offensive, objective, reasonable standard is used.
-PERSONAL EFFECTS- A battery may be committed not only by contact with Π’s body but also anything close to the body. Fisher-plate snatched.
-AWARENESS- not necessary that Π have actual awareness of the contact when it occurs.
UNFORESEEN CONSEQUENCES-once it is established that Δ had intent, Δ is liable for any consequences which ensue, even though he did not intend them.
-DAMAGES- Π can recover nominal damages, compensation for mental effects, and possibly punitive damages if Δ’s conduct was outrageous.
2)      Assault-intentional causing of an apprehension of harmful or offensive contact.
-APPREHENSION-interest being protect is Π’s freedom from the apprehension of the contact, thus the tort can exist even if contact never occurred. I. De S. et ux v. W. De. S.-swinging the hatchet at tavern owner
-INTENT: Δ must have either intended to cause the apprehension or the contact itself.
-Attempted battery-if Δ intends to commit a battery and does not intend to put the Π in apprehension of a contact, he also has the necessary intent for assault.
TRANSFERRED INTENT- also applies to assault. (Throwing a stone at X, but scaring P, D liable to P)
-WORDS ALONE RULE- many cases hold that words alone are not enough to amount to assault. These cases hold that some overt act, no matter how slight, must accompany the words for there to be an assault. However, some commentators and the Restatement have said that in exceptional circumstances words alone could constitute assault. Words can however negate an assault, by canceling out the intent to commit an assault or battery. (Old man example)
-IMMINENCE: it must appear to Π that the harm being threatened is imminent.
-Future threats do not constitute assault. Also it must appear to Π that Δ has the present ability to commit harm. Western Union Telegraph v. Hill-(Love and pet you and the counter)
-Π must be aware of the danger of the threatened contact.
-Apprehension is not the same as fear. It is sufficient that the Π believes that if she does not take action, a harmful or offensive contact will occur in the near future.
-UNREASONABLE APPREHENSION- if Π unduly sensitive to threats, Π may not recover for assault if a normal person would not have had apprehension.
-THREAT TO THIRD PARTY NOT ACTIONABLE- Π must have apprehension that he himself is subject to contact.
-Π must believe Δ has the ability to carry out the harm.
-CONDITIONAL THREAT-if Δ threatens the Π with immediate bodily harm unless he pays money or does some act it is still an assault unless Δ had a legal right/privilege to compel Π to perform.
ASSAULT IS NOT ATTEMPTED BATTERY
-ABANDONED ATTEMPT-assault complete as soon as Π suffers apprehension regardless of whether or not Δ has second thoughts.
-DAMAGES-rules the same as for battery.
3)      False Imprisonment-intentional infliction of confinement.
-INTENT-Π must show Δ intended to confine him (a.k.a. for the purpose or substantial certainty).
-TRANSFERRED INTENT-also applies here.
-NATURE OF CONFINEMENT-Π must be confined within definite physical boundaries
-ESCAPE-Π not falsely imprisoned if there is some sort of reasonable escape that Π knows about or reasonably should know about.
-USE OF THREATS-if Δ threatens to use force if Π tries to escape, then confinement exists. It also exists if there is a threat to a third party or Π’s property. However, if Π’s confinement is solely due to his own desire to clear himself of suspicion, there is no false imprisonment. (Shoplifter submitting to search)
-EXCEPTION/PRIVILEGE-even if detention of a shoplifter is not voluntary, the detention may be privileged if it is brief and if Δ has reasonable suspicion.
-ASSERTION OF LEGAL AUTHORITY-false imprisonment can arise out of Δ’s assertion that she has legal authority to confine Π. As long as Π believes Δ, then there is confinement.
-DUTY TO AID OR RELEASE-even if Π consents to initial confinement, there will be false imprisonment if Δ is under a duty to release the Π or to help him escape. Whitaker v. Sandford (refusal of row boat)
AWARENESS-Π must be aware of the confinement when it is occurring.
4)      Intentional Infliction of Emotional Distress-intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional distress, even in the absence of physical harm.
-4 ELEMENTS-Harris v. Jones establishe

n of proving the existence of a privilege.
 
1)      Consent- The non-existence of consent is part of Π’s prima facie case. Under the defense of consent, if Π has consented to an intentional interference of his person or property, Δ will not be liable for that interference. This consent may be either express, or may be implied from Π’s conduct or from the surrounding circumstances. If it reasonably seemed to Δ that Π consented, consent will be held to exist regardless of Π’s subjective state of mind. The test is whether a reasonable person in the position of the Δ would believe that the Π had consented to the invasion of his interests. If Δ can show that it was customary for one in Π’s position to consent to a certain act by Δ, there will be consent. In some circumstances, Π’s inaction by itself could indicate consent. If Π lacks the capacity to give consent, any objectively manifested consent will be deemed ineffective. If Π consents, but Δ goes beyond the scope of that consent, then Δ will be liable. (Mohr v. Williams- the ear surgery case) However, an emergency could justify extending a surgery beyond the scope of consent. The test is to weigh the risks of waiting to bring the patient back to consciousness to obtain the consent, against the risks from the additional surgery. Threats of future, rather than imminent harm, and threats of economic duress are generally not enough to render Π’s consent effective. If the Π consents to the Δ’s trespass or to his own imprisonment as the result of Δ’s threat to use force, the consent will be ineffective.
Exception: The patient’s consent will be implied as a matter of law if all of the following factors exist: 1) the patient is unable to give consent, either because he is unconscious or for some other reason, 2) in order to save his life or safeguard his health, immediate action is necessary, 3) there is no indication that he would not consent if able to, and 4) A reasonable person would consent in the circumstances. Consent of a close relative may also allow a doctor to take action. If medical care is necessary to save a child’s life and the parents refuse to consent, the doctor or hospital will normally be able to obtain a court order overruling the parents.
O’Brien v. Cunard S.S. Co. – Passengers about to leave a ship owned by Δ are told they need to be vaccinated before entering the US unless they have a certificate. Π stood in line with the rest of the passengers, and when she reached the doctor she told him that she had already been vaccinated. He told her that there was no mark and that she should be vaccinated again. Π held up her arm and said nothing. The court held for Δ because it reasonably appeared to Δ that Π consented, regardless of her state of mind.