Torts Final Outline
Intentional Torts
Battery
Intentional infliction of a harmful or offensive contact with the person of the plaintiff
Intentional
Purpose is to harm
D acts with a desire to bring about harm
Even if small (Vosburg)
Knows that harm is substantially certain to occur (Garrett)
A terrorist knows harm will occur
A tunnel digger may think harm is likely to occur, but he doesn’t know for sure, so he is not liable
Intent can be transferred, in that you are liable to a person you hit even if you meant to hurt someone else (Tallmadge)
Infliction
Requires a volitional act
Involuntary twitch doesn’t count
Wishing for harm doesn’t count
Standing by and watching harm doesn’t count
Harmful/Offensive
Harmful is the infliction of pain, injury or disfigurement
Offensive is that which affronts the sensibilities of the
Use reasonable person standard
Would this be offensive/harmful to the ordinary person
If you are warned about someone’s prior condition then you are liable if you inflict harm that normally wouldn’t hurt the ordinary person, but you know it hurts this person
Contact
Doesn’t require person to person contact
Must be unconsented
D takes P as he leaves him for all the harm he causes
Under an economic viewpoint this policy deters D, because D it’s a gamble whether D’s battery will cause no injury to “steel-shinned Johnson” or will cause a huge amount of injury not comparable to the magnitude of battery (egg-shelled-shinned Vosburg)
D will thus, in many cases, be liable for much more than the average injury cost or much lower when he batters P
** Alternative
You can award average injury costs that would deter D in most cases, but not in extreme cases
Defenses to Intentional Torts
Consent
Actual consent
Must be given volitionally
P has to have access to pertinent facts
P must be the one giving consent (not P’s doctor)
Defenses to this by P
Duress or fraud
All the risks weren’t exposed
The consent you signed was too broad
You can claim that D violated what you consented to by not following your wishes, even if it was beneficial
I can’t operate on your left ear, even if I need to, if I only have consent to operate on your right ear
Implied Consent
What a reasonable person would infer from the non-verbal actions of another
If you role up your sleeve (O’Brien)
Uses objective standard
Constructive Consent
Consent that the reasonable person would have given under the circumstances
Comes up in cases of emergency when P is unconscious
Substituted Judgment
Consent is obtained from estimation by a third party as to what P would have wanted under the circumstances
This has to be done thru pre-commitment
As rewards decrease and costs increase, courts are less likely to allow this defense, since we are mo
You are allowed to make a reasonable mistake (Modern view)
Defense of Property
Can use reasonable force to keep off trespassers
Can’t use malicious force to protect property
Defense against trespassers
Dan only se force that is reasonably necessary to protect and defend your property
You can deter but you cannot defend by intending to injure
Counter Argument: Posting a Warning
Necessity
Public Necessity
You can enter land or interfere with property if its reasonably necessary or it appears to be necessary to avoid disaster
You can prevent fires or enemies using resources by sacrificing homes (Mayor of NY)
Holding otherwise would incentivize public officials not to do their job of protecting the public
The necessity must be immediate and imperative
Not just utilitarian
Needs to be an act for the public good
Private Necessity
If P is acting to protect his interests, the landowner (D) has no right to expel
If my boat is caught in a storm, I can dock on D’s land
If D ejects me, he is liable to any injury that befalls my ship (Ploof)
However, I am liable for any damage done to the dock
