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Torts
University of Pennsylvania School of Law
deLisle, Jacques

 
TORTS DELISLE FALL 2014
 
 
 
 
Battery is the intentional infliction of harmful or offensive contact with the plaintiff’s person. Intentional means acting purposefully or with knowledge to a substantial certainty of the result. Infliction is a voluntary act that causes the harm. Harmful means causing injury, offensive offends sensibilities of reasonable [ordinary] person. The contact must be done to the person’s body or an object associated with it .
Defenses:
·         Knock out PF element (ok under circumstances)
·         Self-defense, where the defendant reasonably believes, mistakenly or not, that he must defend his life. Reasonable perception of imminent harm Force must be proportional
·         Defense of others allows 3rd party to defend a person under same reasonable conditions which he could defend himself. Force must be proportional.
·         Defense of Property, force must be proportional. Spring guns only OK if cld have been used if you were present
·         When an insane person doesn’t know what they’re doing or don’t intend to hit a human (Salieri hits a coffee table
·          Consent because violenti non fit injuria
(implied consent from actions; constructive consent where a reasonable person would consent, proxy.
o   BUT WE DON’T CREDIT A CONSENT WHEN 1) when the act is illegal or violates public policy 2) unknowing or unwilling
Assault: An assault may have occurred if [ ] was put on apphension of an imminent battery right before []/
Assault means the D acts with intent to cause imminent battery or apprehension of it, and the person is put on such imminent apprehension. Intent means purpose or knowledge to cause the harm, imminent means the harm is about to occur, apprehension means the reasonable and actual perception that the harm will be delivered. Doesn’t require a person’s fear that the defendant will inflict harm, just have to reasonable apprehension that the harm will be delivered. It’s a subjective standard, but some degree of proportionality here needed. Conditional threats count
Defenses:
·         Knock out a PF element (no intent, not imminent or about to happen, the person didn’t actually apprehend the battery, or the reasonable person wouldn’t have apprehended the threat—skiddish)
·         Consent given (say you’re playing a Halloween game)
·         Words alone don’t count
·         Couldn’t be done (wheelchair man says he will get up and beat you
Trespass: see also affirmative duties
Trespass is the intentional infliction of harmful or offensive contact to land or property
Defenses:
1.      Public necessity is a complete privilege, where an immediate need to take action for the public good exists (mayor of London tears down house to prevent spreading of fire).
2.      Private necessity is an incomplete privilege, where an emergency arises a person can use another’s property but must pay for any damages incurred.
 
 
 
 
 
 
 
 
 
 
 
 
 
I.  Intentional Torts    Battery                                         Defenses to battery when:    
Battery is the intentional infliction of harmful or offensive contact with the plaintiff’s person. Intentional means acting purposefully or with knowledge to a substantial certainty of the result. Infliction is a voluntary act that causes the harm. Harmful means causing injury, offensive offends sensibilities of reasonable [ordinary] person. The contact must be done to the person’s body or an object associated with it.[1] 1.      Knock out PF element
2.      Self-defense, where the defendant reasonably believes, mistakenly or not, that he must defend his life. Reasonable perception of imminent harm Force must be proportional[2] 3.      Defense of others allows 3rd party to defend a person under same reasonable conditions which he could defend himself. Force must be proportional.[3] 4.      Defense of Property, force must be proportional.
5.      When an insane person doesn’t know what they’re doing or don’t intend to hit a human (Salieri hits a coffee table
6.      Consent because violenti non fit injuria
Intentional: person has to have purpose OR knowledge to a substantial certainty of the result (subj. test).
a.       Insanity[4] If insane person is cognizant they are harming a human or capable of forming an intent → Liable
Infliction: Voluntary contact (spasms don’t count); causation req. (couldn’t have been happening anyway)
Harmful or offensive: “under the circumstances.” Objective test: would an ordinary person find this offensive?[5] Contact with person: hats, clothes, breathing environment count.[6] 4 forms of credited consent that serve as defenses:
·         Actual consent is given
·         Implied consent, where a reasonable person may infer consent from non-verbal actions[7] ·         Constructive consent, when a reasonable person in this context would consent [AND is there no reason to believe this particular person wouldn’t object (b/c of religious or stated objections]?[8] ·         By Proxy: a third party can consent on someone’s behalf so long as reasonable person would do so (parent, spouse)[9]  
But a consent is not credited when:
·         The act is illegal or violates the public interest[10] ·         When it is co-erced or made under duress
·         When there is inadequate disclosure[11]                                                            
 
 
 
 
 
 
 
 
Assault                                                 Defenses to assault
Assault means that the defendant acts with intent to cause imminent battery or apprehension of it, and the person is put on such imminent apprehension. Intent means purpose or knowledge to cause the harm, imminent means the harm is about to occur, apprehension means the reasonable and actual perception that the harm will be delivered.
·         Knock out a PF element (no intent, not imminent or about to happen, the person didn’t actually apprehend the battery, or the reasonable person wouldn’t have apprehended the threat—skiddish)
·         Consent given (say you’re playing a Halloween game)
·         Words alone don’t count
·         No reasonable context for execution (wheelchair man says he will get up and beat you
Doesn’t require a person’s fear that the defendant will inflict harm, just have to reasonable apprehension that the harm will be delivered. It’s a subjective standard, but some degree of proportionality here needed.
·         Swing and miss
·         Conditional threats “money or life” count
 
 
            Trespass                                                                       Defenses to trespass
Trespass is the intentional infliction of harmful or offensive contact to land or property
 
Add Byrd, proporitionaliy, spring guns
1.      Public necessity is a complete privilege, where an immediate need to take action for the public good exists (mayor of London tears down house to prevent spreading of fire).
2.      Private necessity is an incomplete privilege, where an emergency arises a person can use another’s property but must pay for any damages incurred.
·         Ploof v Putnam: P docked ship in storm on D’s dock, who cut it loose. D liable.
·         Vincent v Lake Erie Transport. Like Ploof but boat damaged dock. P pays
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Negligence
[The P] may sue [D] for negligence, which has four elements: 1) a duty, 2) breach, 3) cause 4) damages. []  
The damages are the [ ].
 
Duty: [ ] had a duty not to harm [ general class of p], who are in the foreseeable scope of risk of  [ ]. *no duty to protect unforeseeable P’s**
If affirmative duty:  [The D] had an affirmative duty to avoid causing harm to [P], because 
o   Invitee, licensee, trespasser
o   Duty to rescue when started harm or started rescue (Montgomery)
o   Gratitutious undertaking/promise
o   3rd party issues (special relationship Kline, Tarasoff)
Breach: [Facts] A reasonable [] would not have / [  was ______], which is unreasonable when [ ].  because / peculiarities and stupidity don’t count 
·         BPL: Under BPL, it’s may be a low  burden of [specify a precaution could have taken/warning ]; he could have just [texted ]. There was a high probability of severe harm if someone [ ], which is just what happened here. OR: On the other hand, … hindsight bias makes the numbers fudgy, and polycentricity makes numbers hard to calculate. Activity level changes hard to calculate
o   Custom: Though most others in the industry don’t [use drains], custom is a weak shield and will not save [ ]. OR: Custom is a better sword but not dispositive; the fact that others [] will help P’s claim.
o   Medical Mal: Doctors must live up to a reasonable standard of care in the field.
o   Informed consent: Patient needs to know everything material to outcome that would affect a reasonable person’s decision
o   Statute: WHEN The statute explicitly covers the violation, violation of statute is negligence per se when: 1) the victim is among class of people statute meant to protect; 2) harm was the sort statute meant to protect 3) violation itself was the actual cause of harm When we don’t know whether the statute covers the specific violation, we borrow the statutory standard of due care to show negligence when: 1) victim is among class of people statute meant to protect, 2) recognition of private right of action would promote and be consistent with legislative intent
o   Rule of Law: customs that act like statutes, where judge not jury decides case
o   RIL: When there is a lack of direct evidence, res ipsa loquitur (RIL) allows the fact finder to infer negligence.  RIL has three elements: 1) event does not tend to occur without carelessness 2) instrument of injury was in the exclusive control of D. refined:. 3) no fault on P’s part
Cause: [D’s] conduct [ ] was a but-for cause of the harm, since without [it] there’d be no [ ].
·         Directness: A

was caused by a third-party.[23] 3) no fault on P’s part. Certain events so likely to be product of N that P relieved of usual burden of production[24] Elements: (especially medical mal)
·         nurses and doctors treated as single unit in order to overcome what might be a conspiracy of silence[25] Defenses:
·         There are plausible alternative explanations besides negligence
·         Instrument not under exclusive control of D
·         P contributed in some way
Tough (A): Plane crash. If flown Non-N, crash is 1 in M; if N, 1 in 100K→ Good case for RIL
1.      Tough (B): Plane crash. If flown Non-N over Bermuda triangle, crash is 1 in 100K. If N,  plane has 1 in 50K→ Bad case for RIL, too many plausible alternative explanations
 
Statutes and “Rules of Law”:
Pros: clarity; democratic participation; stronger controls—ppl            
Cons: Legislative intent not always clear—is this a safety; Statute too general to apply to specific cases (Tedla); Capture: legisl. bought by private interests! Courts should play stronger role
[1] Vosburg v. Putney: take victim as you find him
[2] Courvoisier v. Raymond. Not L b/c justified in initial battery (this is also a self-d case)
[3] [4] McGuire v Almy: insane person hurts nurse; still L because deemed capable of forming an intent
[5] Compare hard slap on the butt in a football game vs. in the world
[6] DJ blows smoke into face of anti-smoking campaign leader. Is this contact? Yes! Hats, clothes count.
[7] O’brien Irish immigrant vaccine case where Dr. believed since she waived her arm
[8] Emergency situations
[9] Yes,two questions: is spouse proxy or just someone with special evidence of patients wishes?
[10] Hudson v. Craft, underage boxer hurt but signed contract.
[11] Mohr v. Williams (ear surgery non-consensual contact is an A & B, even if harm was unintended
[12] Vaughn v. Menlove: D burned down cottage with haystack; people told him and he’d chance it. Uncommonly stupid but still found N b/c fell short of reasonable standard of care
[13] Fletcher v, Aberdeen. Facts: worker excavated street forgot to put back the sign around the hole. Blind man fell. D liable—Blind man only required to live up to reasonable standards of blind
[14] Unless there’s adequate foreknowledge that you have a condition. Bruenig (batman insane driver): foreknowledge→ N
[15] kids engaged in kid activities, are free from N BUT NOT kids doing adult things like driving—there they are held to adult standards.[15]  
[17] Andrews v US Air: overhead bin injury happened but very low %. N b/c common carrier; held to a higher standard of care
[18] Eckert v LLRR. Man saves baby in front of tracks; sued for CN. There are justifiable risks that obviate N
[19] US v Carroll Towing. Have bargee on board to prevent cargo from going overboard; busy harbor. Unreasonable not to take PREC
[20] I can drop from 63 mph to 57mph in  55 zone and drop my (L) without actually dropping my (P). If you take the PREC, definitely spending the $, but if you don’t, there’s always the possibility that you won’t have to pay later
[21] TJ Hooper, tugboat lost in storm b/c lacked cheap radio. Not widespread custom to keep radios on board but so what—so cheap that you should have.
[22] Canterbury v. Spence (set standard for informed consent, duty to disclose). didn’t fully disclose risks of paralysis from back surgery, since thought patient would not choose to have it. P got paralyzed
[23] Colemenares Vivas (1986): an escalators handrail stopped but the stairs kept going; injury ensued. Westinghouse made the escalator, but Port Authority (and its insurer, Sun) are on the hook nonetheless. Business owners have a non-delegable duty the premises safe
[24] Byrne v. Boadle (1863) P was walking along the highway struck by a bag of flour from a window above but no one knows how
[25] Ybarra v Spangard (1944): surgical patient suffered nerve damage when placing correctly on the surgical table