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University of North Carolina School of Law
Eichner, Maxine

Fall 2010
·         Torts: civil wrongs recognized by law as grounds for lawsuit
o   Defendant intends harm or takes unreasonable risks of harm and harm results for which injured person has cause of action; harm caused is proven by evidence
o   Blameworthiness central feature; standard of blameworthiness is reasonable person
o   Tort liability is grounded in conclusion that wrongdoer was at fault in legally recognizable way (not enough to impose liability that defendant has merely caused harm by accident or happenstance)
§  In majority of cases, perception that defendant is at fault in significant way; in those cases, corrective justice ideals are first to influence decision, and then  may be modified by pragmatic, process, or policy considerations
o   Breach  of contract often not tort, but redressed under rules for contracts
o   Tort law vindicates individual rights whereas criminal law vindicates public interests
·         Standards of liability:
o   Strict liability :
§  No requirement of fault; liability imposed w/out proof of fault
§  Requires duty of care of reasonable person, causation (defendant’s behavior caused damage), injury/damage results
§  Recognized principles imposing strict liability upon manufacturers for activities that cause injury to customer; manufacturers can spread cost of injury/spread risk to customers, so should be liable for any harm regardless of fault
o   Fault-based torts: one is negligence and the other is intentional tort, and under intentional tort is battery and assault
§  Essential element of cause of action for negligence and intentional tort is fault
·         Negligence requires fault in sense that act in negligently wrongful way (unreasonably risky way) that results in harm; violation of reasonableness standard whether consciously aware of that fact or not
·         Negligence requires duty of care of reasonable person, breach of duty of reasonable care (defendant didn’t act the way reasonable person would act), causation, injury/damage results
·         Intentional tort requires fault in sense that act in intentionally wrongful way that results in harm; always consciously aware of act
§  Intent and negligence are mutually exclusive concepts. Negligence entails unreasonably risky conduct; the emphasis is on risk as would be perceived by a reasonable person. Emphasis is not on defendant’s propose or on certainty required to show intent. Defendant may create risks of harm w/out having purpose or certainty that harm will result. Even if defendant recognizes risk and deliberately decides to chance it w/out having purpose or certainty required for intent, not liable for intentional tort, only negligence
·         Tort claims have own elements, particular things plaintiff must prove to succeed on claim
o   Plaintiff must allege facts comprising required elements, or judge will dismiss complaint
o   Plaintiff must prove prima facie case of particular tort; plaintiff bears burden of proof, and if fails to prove prima facie case, defendant will win w/out putting on defense
·         Remedies
o   Once plaintiff has proven damages, for what can he/she recover?
§  1. Lost wages or lost earning capacity, 2. Medical expenses and 3. Pain and suffering endured, including mental or emotional pain
§  Remedy includes nominal damages plus “compensatory damages for bodily pain, humiliation, mental anguish, or other injuries as necessary and natural consequence of tortuous conduct” (ARB v Elkin-children bring action of battery against father)
o   Who assesses damages and determines compensation?
§  Jury is entitled to determine what portion of claimed injury caused by incident, what portion of lost wages/lost earning capacity or medical bills reasonably required, and what the compensation for pain and suffering should be
Intentional Torts
Elements of prima facie case of battery
A.    Liable for battery when act 1. intending to cause a harmful or offensive contact (offensive to reasonable sense of personal dignity) and 2. when harmful or offensive contact results
B.     Intent to contact under which liable for battery:
1.      If intent to contact w/ purpose to cause harmful or offensive contact (Snyder v Turk-doctor grabs nurse’s shoulder in anger and pulls face down to surgical opening; purposefully intends contact to offend nurse)
2.      If intent to contact w/ prior knowledge that contact will harm or offend plaintiff, regardless of whether d has legitimate purpose for making the contact (Cohen v Smith-prohibited from being seen unclothed, male nurse knowingly touched)
a.       Policy justification: protecting personal integrity is important basis for battery (Cohen)
b.      If intent to contact benign and w/out prior knowledge that contact would offend and acting under authority of one who knew contact would offend, not liable under battery (Mullins v. Parkview Hospital-student did not know touch would offend but superiors knew touch would offend, reasonable person would not have known touch would offend)
3.      Where no intent to directly contact plaintiff, but intent to act w/ purpose of causing harmful or offensive contact or intent to act w/ substantial certainty that action will cause harmful or offensive contact, liable under battery
a.       Substantial certainty means that reasonable person would know with substantial certainty (Garratt v Dailey-child does not intend to contact with purpose to hurt or offend, he did not intend to contact at all; if he had intended this as a prank, and he himself did not make offensive contact but acted for purpose of offensive contact, that would be a battery; in this case, judges find no prank, so need to determine whether he knew with substantial certainty that there will be harmful or offensive contact)
4.      When liable for battery under doctrine of transferred intent:
a.       Where intent to contact one person in harmful or offensive manner results in harmful or offensive contact to another, liable under battery by doctrine of transferred intent
b.      By doctrine of transferred intent, if a person intended to contact another person in harmful or offensive manner, but missed and accidentally hit someone else instead, intent is transferred to actual victim. Thus, because intent is transferred, person who intended to inflict harmful or offensive contact is liable to actual victim under battery (Stoshak v. East Baton Rouge Parish School-teacher struck by one of two fighting students)
                                                              i.      Under doctrine of transferred intent, fact that harm/ injury intended for one person unintentionally harms another person does not change fact that their actions were intentional, that would have been liable to plaintiff under battery
c.       Where  intent to put another in apprehension of harmful or offensive contact (intent to commit assault) results in harmful or offensive contact, liable for battery by doctrine of transferred in intent; assault turns into battery when cause harmful contact to someone else unintentionally and liable to him as fully as though intended to contact him (Hall v McBryde-MM fired shots toward car containing other youths and during gunfire exchange one bullet struck plaintiff)
5.      Motive is distinguished from intent and is not considered
a.       Malicious motive will not yield intent; virtuous motive will not prevent intent
C.     Contact results:
1.      Contact with “extended personality” suffices, doctrine of extended personality, defendant doesn’t need to make direct physical contact with plaintiff’s body providing that his act still invades plaintiff’s bodily space (Fisher v Carrousel-pulling tray out of P’s hand sufficient contact for battery; shaking limb of tree on which P sits sufficient contact for battery, but shaking car P was in wouldn’t suffice for contact)
2.      Relatively trivial contact will suffice
3.      Contact with particulate matter will suffice (Leichtman v. WLW Jacor Communications Inc.-blowing cigar smoke in radio talk show guest’s face)
D.    Offensive contact:
1.      Contact is considered offensive if:
a.       Contact is offensive if offends reasonable sense of personal dignity: Jury decides whether the contact is offensive based on the reasonable and prudent person standard, whether a reasonable and prudent person in this community would find the contact in question harmful or offensive (Snyder v Turk-doctor grabs nurse’s shoulder in anger and pulls face down to surgical opening; purposefully intends contact to offend nurse; Borat case/ ladies’ man, where defendant has capacity to think like reasonable person and contact is harmful or offensive to plaintiff, liable)
b.      Contact is deemed offensive if a person has not expressly or impliedly consented to it  (Cohen v. Smith-prohibited from being seen unclothed, male nurse knowingly touched)
                                                                    i.      Policy justification: person’s right to control their own body
                                                                  ii.      In case of mentally disabled person where deliberate contact of another (regardless of whether intends contact to be harmful or offensive), and intentional contact was harmful or offensive to plaintiff, liable under battery (Wagner v State-hold mentally disabled person who attacked p to standard of reasonable person; Polmatier v Russ- insane person may have intent to invade interest of another even though reasons or motives for forming that intention may be entirely irrational)
1.      Reason: deliberate contact could be offensive to person that contacting, even if defendant did not intend for contact to be harmful or offensive; law favors preserving bodily integrity and right to be free of physical contact (from strangers) 
c.       No requirement that contact cause physical injury (Cohen)
E.     Damages:
Defendant is liable for all injuries resulting from the consequences of battery, regardless of foreseeability
1.      Extended liability: defendant who commits intentional tort is liable for all damages caused, not mere intended and foreseeable ones; reason: intentional tort law has purpose to deter unauthorized contacts from the outset, imposing costs of all resulting injuries on the actor
                                                              i.      Egg-Shell Skull Rule: defendant liable for plaintiff’s egg shell skull, even if did not know has egg shell skull
2.      Plaintiff does not have to prove actual damages
                                                              i.      Plaintiff can recover compensatory damages: damages sufficient in amount to indemnify the injured person for the loss suffered
                                                            ii.      In addi

am going to call the police, and they will arrest you later is not immediate
c.       Can be imposed by:
                                                              i.      Physical barriers or physical force, but much less will also do
                                                            ii.      Mere threat of physical force which can be either:
1.      Implicit: acts or words that reasonably imply a person will use force directed at person, property, or immediate family
2.      Explicit: direct threat of force against person, property, or immediate family
                                                          iii.      Assertion of legal authority:
1.      Can be based on submission to officer’s assertion of arrest under legal authority (Asking police to confine-if officer confines w/ warrant or other privilege, officer is liable and defendant who instigates officer unlawfully to detain another is liable)
2.      Can be based on claim of lawful authority to restrain/improper assertion of legal authority (when actor imposing confinement is not privileged under the circumstances), assuming person submits (If you leave now, I will call my supervisor-reasonable person would not feel confined)
                                                          iv.      Duress of goods: take and refuse to return wallet or essential or valuable personal property (Defendant grabs plaintiff’s pants form dressing room and refuses to return. Plaintiff wishes to leave but doesn’t want to leave w/ out pants)
                                                            v.      Contractual requirement
4.      Duration of f.i.:
a.       Plaintiff merely has to be confined for an appreciable time.
                                                              i.      Any time which is considered appreciable to a reasonable person constitutes sufficient time to establish false imprisonment
b.      Even when arrest and detention originally justified, legal justification may dissipate over time (detained for too long even though know she was not person for whom warrant issued; in this case false imprisonment holds)
5.      Consciousness of confinement or harmed by confinement:
a.       Victim must be conscious of confinement at the time of imprisonment or
b.      Even if not conscious of confinement, and harmed by it, defendant liable for f.i.
6.      Exception: exclusion from somewhere is not false imprisonment; f.i. involves limiting one’s range of movement
7.      Damages:
a.       Plaintiff can recover damages even if sustains no actual harm. Invasion of right of freedom of movement itself is enough to get nominal damages
b.      Actual harm required to support claim where plaintiff not aware of confinement at time it took place
8.      Hypo: Plaintiff works at bank, security guard D believes stole money, D holds plaintiff for 15-20 min. Plaintiff repeatedly asked to be released. On common law, will plaintiff succeed on false imprisonment? Under common law, if imprison someone it is at your peril. If there is statute, less clear than under common law—it is going to be question of reasonability under that intent. Gonna turn on issue of reasonability…can we convince jury that behavior reasonable or not reasonable?
Torts to property
Trespass to land
1.      Requires intentional entry upon land of another; accomplished by personal entry or by intentionally causing an object to enter the land
2.      Extent of right to land: right of landowner extends downward beneath surface and to at least reasonable height above ground (digging beneath surface or flying very close to ground would constitute trespass)
3.      Intent: Object of intent need not be to trespassàno requirement that conscious of wrong doing, enough that defendant intended to enter land
a.       Once intent to enter land shown,
i.       defendant does not escape liability merely because did not intend to harm plaintiff’s property
ii.      defendant does not escape liability if believes that this is his own land or that there is a right to be there
b.      Intent to enter if defendant does not have a purpose to enter plaintiff’s land but is substantially certain of entry (Amaral v Cuppels-golf balls form defendant’s property onto plaintiffs’ properties constitutes continuing trespass)