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Torts
University of Oregon School of Law
Weiner, Merle H.

Torts
Weiner
Fall 2011
 
Intentional Torts
I.                    General Principles
a.       P alone bears the burden of proof on each element
b.      Injury alone is NOT enough
c.       No liability without fault (strict liability Is the exception)
II.                  Battery
a.       Intent (REQUIRED)
b.      P must allege in the complaint and then prove by a preponderance of the evidence
c.       ELEMENTS
                                                               i.      Act: must be a VOLUNTARY muscular movement AND must COINCIDE with intent (NON acts: sleep walking, seizures, reflexes, 3rd party/other force of motion)
1.       Garratt v Dailey (five year old pulls chair out from old bag, breaks her hip)
a.       Was there intent? Does the action satisfy the substantially certain to occur reqt?
                                                                                                                                       i.      Ct. says the act has to coincide with the intent.
                                                                                                                                     ii.      Ie. If you let a blind person walk into street just to see: no batt. Intent but no touch
                                                                                                                                    iii.      But if you create a risk of someone being harmed, you have a duty to intervene
                                                             ii.      Intent: DUAL INTENT
 
Intent required (to touch)
Result required (touching)
And one of these: harm or offense
And: harm or offense
1.       Two types of intent: Acting with PURPOSE and with KNOWLEDGE that something is SUBSTANTIALLY CERTAIN to occur
a.       Purpose: doesn’t req risk of injury towards person (didn’t mean to hit him when I threw the rock)
b.      Knowledge: doesn’t req any desire that invasive result occur
c.       McAfoos (Trike riding kid slams into woman)
                                                                                                                                       i.      Can you apply strict liability to childish acts (alleges harm but doesn’t allege negligence)?
                                                                                                                                     ii.      Ct. not willing to extend “no fault” liability to a child (did not exist for an adult in this situation either)
                                                                                                                                    iii.      Case illustrates a guiding precept of tort law: no liability without fault and it is the P’s burden to prove and plead fault.
                                                            iii.      Harmful or Offensive: measured by an objective standard
1.       Would it offend a reasonable sense of personal dignity
2.       Unconsented to touching is offensive
3.       If TF knew of the person’s nonconsensual view, the TF is liable even if a RP would be fine with the touch.
a.       Cohen v Smith (P admitted to hospital/due to religion forbid male to see her naked(told hospital of wishes)/during procedure male nurse touched and saw her)
                                                                                                                                       i.      Battery is not limited to physical contact.
                                                                                                                                     ii.      Protecting personal integrity (impt basis for batt)
                                                                                                                                    iii.      Ppl have the religious right to refuse treatment even if it means death
                                                                                                                                   iv.      Battery if she made demands and hospital continues to treat (to her this was offensive touching)
b.      Turk v Snyder (doctor shoves the nurses head into body cavity and insults her)
                                                                                                                                       i.      Offensive to a reasonable sense of personal dignity
                                                           iv.      Contact or touching
1.       smoke, spit, sound waves (too)
2.       can be DIRECT or INDIRECT
a.       RS§13: battery if: (a) acts intending to cause a harmful or offensive contact with the person AND (b) a harmful or offensive contact w/the person directly or indirectly occurs
3.       Extended personality rule: touching something that is in contact with the P can be a battery (car, a plate you are holding)
d.      Children and Liability
                                                               i.      Majority rule: children are liable for their IT
                                                             ii.      Minority rule: the Rule of 7s. children under 7 are not presumed capable of requisite intent to commit IT (Garratt v Dailey)
e.      Parental Liability
                                                               i.      General Rule: parents are not liable for the torts of their children
1.       Exception: when the parent is somehow at fault or there is vicarious liability
a.       Ie. If the parent directs the child to commit the tort
b.      If the parent is the child’s employer
c.       Statute but that usually req’s child to be willful and wonton and damages may be capped (OR has this)
 
f.        Transferred Intent: d’s intent to commit a battery on A will transfer to B if B is actually the one who suffers the harmful or offensive contact.
1.       From one IT to another (assault to batt)
a.       Non tortious intent does not transfer
2.       From one person to another
a.        Stoshak v E Baton Rouge School (teach trying to break up a fight gets hit by a student attempting to hit another student)
3.       Justification: moral culpability
g.       Extended Liability Rule: d that commits IT is held liable for all injuries caused even if you didn’t intend for all of resulting consequences
                                                               i.      Thin Skull Plaintiff
1.       Take P as you find them
                                                             ii.      Mental States: White v Muniz (old senile person hit orderly) ct. says d mental state is important. Need Dual Intent: he didn’t intend to harm, he was senile.
1.       Insanity: an insane person can be liable for an intnl tort
a.       insanity relevant to whether the d: 1) committed an act 2) had required intent
 
Assault
I.                    D commits an act that puts the P in apprehension of an imminent harmful or offensive bodily touching. D acts with intent.
II.                  ELEMENTS
a.       Act: same as battery- a voluntary muscular movement
b.      Intent to create an apprehension (harmful or offensive):
                                                               i.      Intent: PURPOSE of SUBSTANTIAL CERTAINITY to create an apprehension of a harmful or offensive contact
                                                             ii.      Generally, words are not enough
1.       Relevant because: negates any real apprehension of imminent physical contact, negates d’s intent to have you apprehend an imminent touching
2.       Cullision v Medley (guy asks girl for a coke, girl & family show up at his house, hand on gun, guy is frightened, suffers a lot of emo injuries, is assault when there was no intent to harm and not necessarily foreseeable harms occurred.)
a.       For assault, one needs an intent to cause an imminent apprehension of a harmful or offensive contact. Not intent to frighten.
b.      Reasonable person could’ve been affected like P was
3.       Weiner’s hypo “you and I are going to have some fun tonight”
                                                            iii.      PROVOCATION is NOT assault
                                                           iv.      Apprehension: objective standard: the apprehension must be reasonable
1.       Reasonableness is a question for the jury
2.       Whether the apprehension was one which a RP would think is one
3.       Extra-sensitive P- a person is afraid of vampires, you know this, dress up like one and scare them, and this is an assault.
4.       Does not mean “fear” and does not have to cause fear
c.       Imminence: the apprehension must be of an imminent harmful or offensive contact (without significant delay)
                                                               i.      Factually sensitive, consider timing and geography
1.       Timing: factually intensive (has to add up to be an assault. A threat to harm you today but you hear about it tomorrow is not an assault)
2.       Awareness: one must be aware of apprehension (asleep)
                                                             ii.      Conditional or negating language is not an assault
1.       Some exceptions: may hinge on reasonableness
                

results in bodily harm
b.      To ANY OTHER PERSON who is PRESENT at the time, if distress results in bodily harm.
c.       In most jurisdictions, the D must know the 3rd party is present
d.      In some jurisdiction parents are allowed to recover where there is sexual abuse of a child or a child is kidnapped (despite not being present)
                                                                                                                                                  i.      Instance where a 3rd person would almost never be present
e.      Homer v Long (married couple, wife is seduced by therapist, husband seeks IIED)
                                                                                                                                                   i.      Outrageous or severe must be seen by the wife not 3rd party
                                                                    viii.      Exercising Legal Rights
1.       No IIED claim exists for exercising legal rights (such as firing an at will employee, breaking up with relationship partner, filing for divorce or collecting a debt)
2.       BUT, the person may not in an outrageous or extreme way in exercising the legal rights.
3.       Repeated or carried out over a period of time
a.       Revlon (woman is harassed by boss, tells management they do nothing, she suffers IIED)
                                                                                                                                                   i.      Special relationship, repeated behavior carried out over a period of time, esp. after they knew of her vulnerability
d.      Thin Skull P: if d knew of P’s vulnerability
                                                                           i.      One is responsible for all the consequences of the act, whether foreseeable or not (extended liability rule, one takes one’s P the way they find him)
e.      Intent: One needs intent/recklessness to cause severe emo distress
                                                                           i.      It is not just intent to commit the act, must have intended consequence.
f.        Damages: Must be severe to recover, so severe that a reasonable person shouldn’t be expected to endure it
                                                                           i.      Physical ailments, therapy, outrageousness of act would cause a RP distress
Property Torts
I.                    Trespass to Land
a.       Intentional entry upon the land of another (usually req’d)
                                                                          I.      Intent: doesn’t need to be “to trespass”
1.       It is enough that he intended to enter land
2.       May be having the PURPOSE to enter or acting with SUBSTANTIAL CERTAINITY of entering.
3.       NOT SAME AS OTHER IT!: no dual intent to “trespass” is req’d/strict liability- intent to enter is enough
4.       Once intent is found, d can’t escape liability just because he didn’t intend to harm prop
5.       Involuntary Entry: will not suffice for intent to enter but accidental entry AND refusal to leave will= intent to stay
6.       Direct or Indirect: entry can be personal entry or entry of an object (Durfey throwing a shoe onto neighbor’s property)
7.       These are not defenses:y
a.       D did not intend to do harm
b.      D believed it was his own land
c.       D believed he had a right to be there
d.      D didn’t intend to enter someone else’s land
8.       Transferred Intent
a.       Dual intent transfers to torts of single intent (NOT vice versa) ie. Intent to assault/batt transfers to Trespass BUT intent trespass will not transfer to Assault/batt