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University of Pennsylvania School of Law
deLisle, Jacques

TORTS OUTLINE – deLisle – Fall 2013

I. Intentional Torts

A. Physical Harms

1. Battery and Consent

Battery: intentional infliction of harmful/offensive contact with the person of the plaintiff

· Intentional: purposefully or knowingly caused harm

o ∆ desired to cause harm or knew that there was substantial certainty that harm would occur.

o Intent does not need to be directed specifically to the outcome that occurred

o Microscopic amount of will can suffice

· Infliction: voluntary act and causation

o Has to be affirmative act by ∆ – does not apply to involuntary twitch

· Harmful/Offensive Contact: objective unless ∆ has certain knowledge

o Harmful: physical impairment of any kind – pain, injury, disfigurement, or impairment to the body or its function.

o Offensive: is that which would affront the sensibilities, or personal dignity, of a reasonable person; need not actually cause physical injury.

o Harmful and offensive test is objective – would reasonable person find harmful/objective (unless actor has knowledge of specific condition)

o The conduct was directly or indirectly cause injury. Setting in motion force that causes touching suffices. (leaving a book somewhere where you know it will fall/soap example from E&E)

· With the person of π:

o Pertains to the physical person or her close property, something she is wearing, holding, or touching

o Not required to be person to person – ex. Hitting someone with baseball bat


Eggshell Skull Rule

Vosburg v. Putney: ∆ very slightly kicked π in the shin while in school, limb was in diseased condition from previous incident and π’s never regained use of leg

RULE: ∆ is liable for injury to π where he intents to commit an unlawful act, though he may not have intended the specific harm

HOLDING: ∆ liable for full harm. If act is unlawful, then intention was also unlawful – kick in classroom setting was “unlawful.” Regarding damages, wrong-doer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have foreseen them

· Eggshell skull rule: take the plaintiff as you find him – iron shin Jones v. eggshell shin Vosburg

· Ultra-sensitivity rule: generally ∆ is not responsible for touching that would not cause reasonable person to take offense although the π does take offense

Substantial Certainty of Harm

Garrett v. Dailey: ∆, 5 years old, pulled chair from under π, old lady fractured hip

RULE: Mere absence of any intent to injure π or commit battery does not absolve ∆ of liability if ∆ had acted with substantial certainty that the harm would occur

HOLDING: ∆ claimed he tried to help; π’s sister claimed he pulled chair from under her. Judgment for π. Without the knowledge that harm would occur, no liability – no wrongful act

Rejection of Restatement’s Definition of Battery/Offensive Intent

White v. University of Idaho (Id. 1990): piano teacher walked behind student and touched her back as if he was playing piano. Π suffered strong reaction, broke ribs

RULE: Even though ∆ had not intended to cause harm or offend π, still liable for battery.

HOLDING: Judgment for π

Battery by Second-Hand Smoke (Question of Intent)

Shaw v. Brown & Williamson Tobacco Corp. (1997): non-smoker truck driver shared cab with smoker; developed cancer and sued tobacco co. for battery from second-hand smoke

RULE: Generalized knowledge is insufficient to satisfy intent element of battery claim

HOLDING: Court rejected claim for failure to allege sufficient intent. While ∆ had knowledge that second-hand smoke would reach non-smokers, did not have substantial degree of ceryainty that second hand smoke would touch any particular non-smoker

Transferred Intent

Talmage v. Smith (1894): π was hit in eye by stick that ∆ threw at π’s companions because they were trespassing – ∆ did not see π or intent to hurt hm

RULE: P may recover where D intended, unlawfully, to strike a third party, but in missing, injured P, regardless of person-specific intent

HOLDING: π can recover; ∆’s claim immaterial. “The fact that the injury resulted to another than was intended does not relive the ∆ from responsibility”

Consent: A person cannot be harmed by that to which she consents (volenti non fit injuria). Consent is a bar to battery claims. D carries burden to prove in court. Must be given freely or implied reasonably

Scope/Types of Consent:

· Subjective Consent – you consent and you mean it

o Actual Consent is full formed, volitional, with pertinent facts available for the P to consider.

· Objective Consent – your consent is implied by action or circumstances

o Implied Consent is what a reasonable person would infer from the non-verbal actions of another. (O’Brien)

o Constructive Consent is the consent an ordinary, reasonable person would give in these circumstances – emergency rule

· Substituted Judgment – consent derived from a third party’s estimation of what this particular person would have wanted in this particular condition.

· Flawed consent – consent when there is inadequate disclosure or inadequate understanding, or consent under duress/coercion


Mandatory Consent Must Be Specific to Excuse ∆

Mohr v. Williams (1905): π consulted with ∆, physician, about right ear pain, consented to procedure on right ear. During surgery ∆ found condition of left ear to be significantly worse, operated on that ear instead. Was successful but π claimed it impaired hearing

RULE: Specific consent is required in non-emergency operations. Any unlawful or unauthorized touch of the person of another . . . is assault and battery

HOLDING: P may recover damages when a non-emergency operation is performed upon a particular organ of the body for which consent has not been given. Specific consent required – no implicit consent to operate on other ear. Every person has a right to complete immunity of his person from physical interference of others

General Consent for Medical Procedures (Less Rigid)

Kennedy v. Parrot (1956): ∆ surgeon discovered ovarian cyts while performing appendectomy, non-negligently punctured, which caused harm to π

RULE: Consent construed as general and surgeon may extend operations to remedy other conditions where the exercise of sound professional judgment dictates.

HOLDING: π cannot recover. In modern hospital settings surgeons have difficulty in gaining easy consent to changes from family members

Emergency Rule (Allore v. Flower Hospital)

· An emergency may justify un-consented surgery. This notion is based on the legal fiction of implied consent, on the assumption that the π, a rational person, would have consented to the operation if she could have been asked

o Courts allow hospitals to err on the side of saving life (even if person was attempting suicide so could presume that might not have consented to life-saving procedure).

Implied Consent

O’Brien v. Cunard Steamship Co. (1891): immigrant π’s entry into country required smallpox vaccination – π stood in line and held her arm out and allowed the vaccine, although she told doctor that she had already had it.

RULE: Consent can be measured by objective actions of party

HOLDING: In favor of ∆ – actions of π indicated consent, so ∆ was justified in his act, whatever her unexpressed feelings were

Substituted Judgment for Minors or Incompetents (& for the benefit of others)

Standard rule requires physicians to get consent of guardian when treating minors or incompetents (expect with emergency rule), and law protects guardian’s good faith

· Lausier v. Pescinki (1975): court held that it did not have power to permit removal of incompetent’s kidney, which guardian opposed, although it was needed to save his brother and the risk of harm to incompetenet was slight

· Strunk v. Strunk (1969): court applied substituted judgment to allow kidney transplant when guardian supported procedure

· Curran v. Bosze (1990): court upheld right of mother to refuse to have chukdren tested to see if they could donate bone barrow to half brother who was dying of leukemia – “not possible to determine the intent of a 3 ½ year old child” as to whether or not they would consent to procedure

· Supreme Court has rebuffed the claim that substituted judgment can be used

at that force will be effective

Against Innocent Bystander

Morris v. Platt (1864): court held that accidental harming of innocent bystander is not actionable if force is reasonably intended in self defense

RTT §75: ∆ liable only if the actor realizes or should realize that his act creates unreasonable risk of causing harm

Defending a Third Party

RST §76 notes that a person is privileged to defend a 3rd party under the same conditions under which he could defend himself, as long as he reasonably believes that that person is entitled to use force in self-defense and that his intervention is necessary to protect that person.

Limitations to Self Defense

Boston v. Muncy (1951): ∆ encountered π in bar and attacked him without provocation

Importance of reasonable belief that another person intended to inflict great bodily harm – self defense not valid

Duty to Retreat – Courts. are split on duty to retreat. Some hold you must escape w/o using self defense where possible. Some hold duty to retreat is void when danger presents itself within your own home, or where one is attempting a valid arrest. RST indicates: need not retreat if only using non-deadly force. May not use deadly force if retreat is available.

3. Defense of Property:

Bird v. Holbrook (1825): ∆ sets up spring gun in garden for protection of prop., no warning or signs, π enters to retrieve peafowl and is shot.

RULE: Inhuman to catch a man by means which may hurt or endanger, notice must be given when means of protection are used

HOLDING: For π – deadly force, in nature of traps, may not be used without notice. Proportionality context – measures have to be proportionate to level of harm, reasonably effective and lowest level. Spring guns disproportionate. Dwelling house at night – harm is justified, becomes similar to self defense

· Notice Requirement: distinguishes b/w deterrent purpose & injurious purpose

Katko v. Briney (1971): ∆ owned boarded up house used only for storage, posted no trespass signs, ineffective to prevent trespassers. Set shotgun trap, shot π when he broke into house to steal stuff.

RULE: One may use reasonable force in the protection of his property, but such right is subject to the qualification that one may not use such means of force as will take human life or inflict great bodily injury; such is the rule even though the injured party is a trespasser and is in violation of the law himself.

HOLDING: π can recover against ∆. Such force would only be justified if the trespasser was committing a felony of violence or a felony punishable by death, or endangering human life by his act

M’Ilovy v. Cockran (1820): ∆ shot π while π was attempting to tear down a fence on ∆’s land.

RULE: In cases of actual force, as breaking down a gate or door, it is lawful to oppose force with force., but, but must be reasonable.

HOLDING: π can recover. Where one enters without actual force, there must be a request to depart before possessor can law hands on him.

RST §85: Actor can use device intended or likely to cause serious bodily harm or death for the purpose of protecting his land or chattels from intrusion that he is not liable for the serious bodily harm or death thereby caused to intruder whose intrusion is, in fact, such that the actor, were he present, would be privileged to prevent or terminate it by the intentional infliction of such harm