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University of Pennsylvania School of Law
deLisle, Jacques



Fall 2014

I. Intentional Torts

A. Physical Harms

1. Battery and Consent

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

o Intent must be harmful or offensive

§ Vosburg v. Putney (D lightly kicks P at school without knowledge of previous injury, injury aggravated) – if intention was unlawful, D responsible for consequences of the act regardless of whether the consequences could have been foreseen à incentive for people not to kick others in unwelcome circumstances

§ Substantial certainty – even if no actual intent to hurt P, substantial certainty of harm is enough (Garratt v. Dailey – p. 7, substantial certainty Aunt Polly will fall when chair is pulled is enough even without intent to harm)

§ Reasonable person standard for what is harmful/offensive, unless if D knows P would consider an act offensive even though a reasonable person would not (if D knew P had a back condition, should not slap in the back in a situation where a reasonable person would not consider the slap offensive/harmful)

o Contact – does not necessarily have to be direct contact but must flow directly (Garratt v. Dailey – pulling chair out from underneath can be battery)

o With the plaintiff – must be with a specific person. If company making a tunnel knows it’s likely that 2 works will die during construction, not battery, but it is battery to throw an axe into a crowd and it hits P. Question of degree, no fine line

· Consent – defense to battery

o Should be based on knowing important information but is not coerced

o Objective consent – consent may be inferred from conduct (O’Brien v. Cunard Steamship Co. – p. 17, immigrant holding arm out to receive a vaccination was consent)

o Subjective consent – when a person can’t give consent because unconscious, reasonable person standard usually used (Mohr v. Williams – P consented to surgery on left ear and D operated on right ear. Consent defense unsuccessful because not a matter of life or death, a reasonable person has right to choose medical care)

o Proxy consent – usually only allowed when clear evidence of patient’s preferences. Otherwise, generally use best evidence of what the person or a reasonable person would do

o Implied consent – sports (where event is legal, consent to engage in activity is usually a valid defense to battery except for reckless behavior)

o Illegal consent – generally cannot consent to an illegal act (Hudson v. Craft – a boy could not consent to an illegal boxing match so could sue promoter for battery)

2. Nonconsensual Defenses: Insanity, Self-Defense and Defense of Property

· Insanity

o If the intent is to harm a person (not necessarily the victim), insanity defense will not be successful (McGuire v. Almy – D liable for attacking caretaker even though insane, because he had intent to harm a person). Hypo: if neighbor thinks he is Mozart attacking Salieri, has intent to harm and is liable. If thinks he is attacking an object, does not have intent to harm)

o Justifications: incentive for people not to commit battery and then claim insanity, victim is still a victim regardless of insanity so why should she suffer just because assailant is insane?

· Self-Defense

o Valid only for imminent threats (with a few exceptions, like a domestic violence victim using a safe moment to protect herself for the future or a repeated prison violence victim killing assailant in his sleep)

o If you reasonably believe you’re being attacked by a specific individual, even if you’re wrong, you can protect yourself reasonably (Courvoisier v. Raymond – D shot police officer while being attacked by a gang. D could make self-defense claim because he believed the officer was one of his attackers)

o Defense of others – can defend others unless creates a “reasonable risk” to others (hypo: you can shoot a person who is shooting at others unless they’re in a crowd of people and you’re likely to shoot someone else)

· Defense of Property

o Elements similar to battery. Requires intent to trespass, a voluntary act by trespasser, physical intrusion, defense of own land (not another person’s)

o May use small amount of force to defend property but not deadly/disproportionate force (Bird v. Holbrook – D set up spring gun in garden without notice to prevent burglary. P went to retrieve an object, was shot and badly injured. Defense of property claim not valid because no notice, was meant as punishment and not a deterrent with intent to cause injury

3. Nonconsensual Defenses: Necessity

· Trespass

o Incomplete privilege – where trespass is necessary, permitted to do so but still must pay for damages caused (Ploof v. Putnam – D owned dock, P’s family caught in storm and moored to dock. D unmoored it, causing damage to boat & injuries. P’s were permitted to trespass to protect human life. Vincent v. Lake Erie Transportation Co. – D was permitted to leave boat in P’s dock during a bad storm but was required to pay for damage)

· Public Necessity

o Complete privilege – when government needs to trespass and/or damage private property, not liable for damage when property would have been destroyed anyway (Mayor of NY v. Lord – p. 51, city permitted to burn someone’s house down to prevent spreading of a fire when the house would have burned down anyway)

o Incomplete privilege – when property would not have been destroyed without the trespass, permitted but compensation required

B. Emotional and Dignitary Harms


· Attempted battery ( S. and Wife v. W. de S – trespassed and swung hatcher at wife of owner. Assault because even though wife was not hit, attempted battery) or creating imminent fear of battery (Tuberville v. Savage)

· Fear of battery must be actual and reasonable (actual fear harm might be done and reasonable), unless assaulter knows of an unreasonable fear specific P has (Brower v. Ackerly – p. 58, harassing phone calls at night, threatening to find where he lived, etc not an immediate threat so not assault, Allen v. Hannaford – p. 57, unloaded gun pointed at P was assault because actual and reasonable fear of battery, since didn’t know gun was unloaded)

C. What Does “Torts” Do? – A First Look at Reasons for Liability and Recovery

· Contract Law

o Similar in that making rules for when contracts are too expensive to make (like with other drivers on the road), where we are worried that contract won’t be made but we want it to be made (trespass with necessity or public necessity) – can achieve what we hope contract would be if something didn’t get in the way

o Different in that remedy in contract law is usually expectation damages but reliance in tort law, forcing a contract without negotiation, deals with actual damages (not future damages)

· Criminal Law

o Similar in that it gives added incentive not to do an illegal act, helps achieve efficiency by imposing the result we would all want to get to, policing behavior we think is wrongful

o Different in that sometimes you can consent to tortious behavior, in cases of strict liability unlawful behavior is not required, sometimes we allow wrongful activity (necessary trespass), when we put someone in jail a new loss is created but tort law takes an existing loss and reallocates it, we allow insurance policies for torts (like car insurance) but not for criminal acts

· Corrective Justice – trying to compensate for wrongfully caused harms

· Economic Efficiency – we want a $100,000 boat to damage a $500 dock to protect the more expensive good

II. Strict Liability vs. Negligence: An Introduction to Standards of Liability for “Unintentional Harms”

A. Basic Principles

· Negligence Stand

e – P scared by sound of utility wires falling, D not negligent because alternative measures P suggested would have created more of a risk to others)

· Learned Hand test – look at cost of precaution against the net harm (B PL) (United States v. Carroll Towing – D negligent not to have a bargee on board during the day in busy season because cost of that less than the risk of not having one on, Andrews v. United Airlines – case should be decided based on cost of nets vs. chance of injury from falling bags from overhead bins)

C. Custom: Practice and Reasonableness

· Except in medical malpractice, custom is neither sword nor shield but can help in both areas when it can be shown that there is a clear custom and what it is

· Nonconformity generally works better as a sword than conformity does as a shield

· Problems with using custom standard would be: hard to change because anyone who tried something new/better would be held negligent; entire industry could conspire to keep standards unchanged

· Sometimes custom defense can be successful (Titus v. Bradford – D secured train cars using wood blocks, as per railroad’s standard practice and P knew, P killed when car tipped over. D not liable because standard practice which P knew, was engaging in a naturally hazardous activity)

· Sometimes custom defense is not successful (Mayhew v. Sullivan Mining Co. – D dug a hole and did not put any barriers around it, P fell 35 feet. Court did not allow testimony about ordinary practice because not related to negligence/ordinary care)

· Typical rule is middle-ground between Titus and Mayhew – custom matters but is not decisive

· Conformity usually helps but is not decisive. If the custom is right and is clear, can be significant evidence for one side (The T.J. Hooper – D tugboat company did not lose because it did not have a radio on board, but went against it)

· In medical malpractice, custom is king (Lama v. Borras – doctor liable because failed to conform to standard practice)

o Adjust standard based on the circumstances, including available treatment options (a doctor not liable for not using standard practice if the standard practice is not available at his hospital…)

o Specialists held to higher standard because more knowledge

o Can be multiple options if different schools of though about proper treatment, but the one used must be one of standard options

o Justifications: medical malpractice cases are harder for a jury to understand, already regulations in medicine to determine new customs, doctors already dealing with sick people where bad things might happen anyway à as long as doctors following custom, we accept it, often emotional cases à systematic bias toward plaintiffs

· Doctor’s duty to disclose is based on risks that an ordinary/reasonable patient would want to know, and in order to win the case the plaintiff must also show that an ordinary/reasonable patient would have made a different decision if a material risk had been disclosed (Canterbury v. Spence – new trial ordered to give jury chance to determine whether D was required to disclose risks of surgery to P)