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University of Pennsylvania School of Law
Klick, Jonathan

2009 Torts Outline

Intentional Torts
1. Battery
2. Doctrine of Transferred Intent
3. Trespass to Lands
4. Trespass to Chattels
5. Conversion
6. Assault
7. False Imprisonment
8. Intentional Infliction of Emotional Distress

Defenses to Intentional Torts
1. Consent
2. Self-Defense
3. Defense of Others
4. Defense of Property
5. Recapture of Chattels
6. Necessity
7. Insanity is not a defense

Negligence – as a COA; finding that D was “negligent” is a mix of a & b
To establish a prima facie case, P must meet 4 requirements:
1. Duty – not really going to be tested on, but mention that a duty must exist
2. Breach
a. The Reasonable Person standard
b. Calculus of Risk – “The Hand Formula”
c. Custom
d. Statutes
e. Res Ipsa Loquitur – “the thing speaks for itself”
3. Causation
a. Cause-in-Fact
b. Proximate Cause
4. Damages – Did P suffer real harm

Defenses to Negligence
1. Contributory Negligence standard
a. Imputed Contributory Negligence
2. Assumption of Risk
3. Vicarious liability
4. (Comparative Negligence)
5. Inadequate defenses: dumb, minor, insane, blind, drunk, poor

Strict Liability
1. Animals
2. Ultrahazardous or Abnormally Dangerous Activities
3. Nuisance

Liability of Multiple Defendents
1. Joint-and-Several Liability

Damages Awarded to P
1. Actual Injury
2. Pain & Suffering
3. Economic Losses
4. Punitive Damages (rare)

Note to self:
Causation is always important, don’t forget to argue that for everything (even strict liability, nusiance, etc)

Be more specific when mentioning duty, and then note that D will contest that he had this sort of duty. Then go on “assuming there is a duty of this sort, P will argue..”

Torts in General

A tort is a civil wrong committed by one person against another arising outside of any agreement b/t the parties.

Policy Goals:
1. Efficiency/Econ/Incentives/Deterrence
2. Administrability (how easy will it be for courts to enforce this rule, will juries understand?)
3. Compensation to victims –decision to compensate will affect decisions of ppl in future
4. Fairness (sometimes)

5 steps for each problem:
1. Determine what type of tort this is (intentional, negligence, strict liability)
2. Determine if there is a prima facie case – go through the steps.
3. Analyze what defenses D would raise
4. Discuss applicable damages (cost of the injury, punitive damages, damages for emotional distress, damages for incidental economic loss, etc)
5. Explain the rationale behind the rule – policy, economics

Evidentiary standard is: “more likely than not”
Scope of liability & damages: greater for intentional tortfeasor/strictly liable tortfeasor than for negligent tortfeasor

Intentional Torts

1. Battery is 1) An intentional act resulting in 2) a contact with the person of the plaintiff that is 3) offensive, 4) & unpriviledged
1) The act must be INTENTIONAL
a) A person acts with the intent to produce a consequence if the person acts with 1) the purpose of producing that consequence or 2) the person acts knowing that the consequence is substantially certain to result.
i. Garratt v. Daily, where the boy pulled the chair out from old lady about to sit down. It is substantially certain that contact will result. Intention to act.
b) Intent requires volition and consciousness of likely consequences
i. Ie, calculated, aimed, planned, thought-through, choice behavior, ‘allowed’
c) But, Actions that are involuntary or unknowing cannot result in an intentional tort
i. If D’s act is a spontaneous reflex (wake up, bonk head against onlooker), an unavoidable accident (the knife slips), or he is so overcome by passion, love, anger that he doesn’t know what he is doing & is out of control, his act may not be “intentional”
a. If the blow was accidental, spontaneous reflex, recipient will likely be forgiving. If the recipient is mad, there is more evidence that it was intentional.
d) Doesn’t necessarily mean that you intend to harm. Your motive may be honorable, but if you intend to cause a contact that you know or should know that P will find offensive, it is still battery.
i. Vosburg v. Putney, child was held liable for injury from a kick that he intended to be annoying, even though he didn’t mean harm.
2) The act must cause a CONTACT with the person of the victim
a) Contact = touching
b) Can be direct or indirect
i. D need not touch the P at all, or even be present at the time of contact
ii. This includes objects intimately associated w/ the victim’s body (hats, coat, etc)
iii. Smoke is a contact, light & sound waves are not.
3) The resulting contact must be OFFENSIVE
a) Offensive = would offend the sensibilities of a reasonable person in those circumstances, not necessarily P.
i. P would say that most people are offended by ___.
ii. D could say that a reasonable person would not take offense [‘but this is unlikely to persuade’] b) Prior course of conduct b/t parties
i. can indicate if P finds the D’s contacts more or less offensive than a reasonable person, & the D is required to oblige in the future (ex, don’t slap my back after we win the game, please)
4) The contact must be UNPRIVILEDGED
a) Unpriviledged = unconsented to. Consent can be 1) actual (express) or 2) implied (a manifestation that would lead a reasonable person to believe the behavior was permitted))
i. P was asleep, reacted negatively, love was unrequited, the meeting was accidental, etc
b) Circumstances matter – there might be an “implied consent” defense in certain situations
i. Dicta from Vosburg v. Putney – if the kids were outside on the playground, P might have been deemed to consent to such touchings.
c) D would raise a defense of express or implied consent
b. Damages:
1) If the contact is deemed a battery, D is liable for all harm resulting from the tortious contact, whatever it’s extent may be, whether or not foreseen by D.
2) Imposing all costs serves the deterrence purpose of torts.
3) “Eggshell skull” concept: You take your victim as you find him. Treat everyone as if they are fragile b/c who knows what the consequences of your contact could be.
a) Vosburg v. Putney, where D kicked a fragile P, resulted in huge harm. D held liable for full injuries, even those unforeseen by him.
b) Its unclear how far this goes – does it include victims who have guns or fireworks concealed on their person?

2. Doctrine of Transferred Intent holds that where one 1) intentionally strikes, throws, or shoots at A, and 2) unintentionally hits a third person, B the intent to strike A is deemed transferred to B, the rationale being that one should be liable for the harmful consequence of one’s antisocial act. A “aimed” at C, and unintentionally hit B. Therefore, his intent transfers to B.
1) Easy to administrate, good for fairness, good incentives for deterrence if we hold people accountable for the harm they cause, we want to make sure compensation to victims happens
2) The problem is that it’s a slippery slope – what is the limit? Perhaps we should limit it to consequences for the underlying contact itself, and not for the result of a contact to someone leading to harm to a third person.
b. Even in cases where D does not know that the accidental victim is nearby, intent will transfer to the unintended victim.
1) Talmidge v. Smith, P was struck in the eye by a stick that the D threw at P’s friend. D did not see or intend to hurt P, but the fact that the injury resulted to another than was intended does not relieve D from responsibility.
c. Transferred intent doctrine also allows recovery where the actor attemps one intentional tort but causes another.
d. Transferred intent may not be used to establish the tort of IIED, trespass to chattels, etc – just battery, assualt, false imprisonment
e. It’s not a never-ending chain. Gotta end somewhere.

3. Trespass to Land is 1) Any unauthorized, unlawful 2) entry onto 3) another’s land (above & below it too) is a trespass, 4) even if there is no damage.
1) Examples:
a) D intentionally enters P’s land w/o permission, D remains on P’s land w/o permission even if D entered rightfully, D puts an object on/refuses to remove an object from P’s land.
b) Dougherty v. Stepp, D entered onto P’s unenclosed land by accident w/o injuring it. Court said it doesn’t matter if there was no harm – that will affect the degree of damage awarded. It is the entry that constitutes the trespass.
2) The only intent that matters is the intent to enter the land, not a specific intent to “trespass”
3) Mistake, ignorance, absence of bad faith, etc is no defense.
b. Rationale
1) Granted in order to protect the P’s interest in the exclusive possession of land & its improvements.
2) We have a special relationship with land.
3) For every unlawful entry the law infers damages, even if it is only the treading down of grass (nominal damages).
c. Distinguish from trespass to chattels where you can only collect if the chattel is damaged.
d. Damages:
1) If the entry is deemed a trespass, D is liable for all harm resulting from the tortious contact, whatever it’s extent may be, whether or not foreseen by D. nominal charges if no harm.
2) Imposing all costs serves the deterrence purpose of torts.

4. Trespass to Chattels
a. Definition: 1) Any intentional interference with 2) a person’s use or possession of a chattel that 3) interferes with the owner’s interest in it & 4) actually causes damage.
1) ie, dent to car, kicking dog, taking your car keys away for 3 days and then giving it back
b. Distinguish from Trespass to Property – In trespass to chattels, you may touch it, use it, etc as long as you don’t hurt it or deprive the owner of it. In trespass to lands, as soon as you step onto the land you are hurting the land.
1) Ex: You may pet someone’s dog, b/c that doesn’t injure the dog or deprive the owner of the dog.
2) Intel v. Hamidi – no trespass to chattels b/c the computer & computer system were not damaged, & D’s use did not deprive P of it.
c. Damages:
1) The court will only award real damages for injury to the chattel itself, & will not award nominal damages
a) (opposite of trespass to lands where we want to protect the special relationship of the owner to the land.
2) In order than an actor who interferes with another’s chattel may be liable, his conduct must affect some other & more important interest of the posessor (such as its physical condition, quality, or value of the chattel, or the ability to use it).
a) Intel v. Hamidi – economic losses to Intel denied. Hamidi did not injure the chattel itself or deprive Intel of its use.

5. Conversion is 1) The wrongful possession or disposition of 2) another’s property 3) as if it were one’s own.
1) Ex: D acquires wrongful possession of the chattel, D transfers the chattel to a 3rd party, D refuses to return a chattel to P, D destroys a chattel of P’s.
2) Poggi v. Scott, D committed conversion because he exercised “unjustifiable & unwarrented dominion & control over the property of another, & from his acts great loss resulted to that other”
3) Moore v. Regents, the use of excised cells in medical research doesn’t amount to conversion, even without consent, because it would be against public policy. A patient does not retain ownership or possession of their excised cells, so they can’t claim conversion.
4) Intent:
a) D must have intended to take possession of the property. Conversion is always an intentional exercise of dominion or control over the chattel.
b) Mere nonfeasance or negligence, without such an intent, is not sufficient.
c) Mistake, ign

bystander, D has a duty to avoid infliction of emotional distress that is reasonably foreseeable, including infliction of such distress on indirect victims.
b. Different in each state, but under Dillon v. Legg (the test that is most followed in the US):
1) 1) Negligence of D must cause death or serious injury to another, 2) the bystander P must be in close proximity to the accident, 3) the bystander & the victim must be closely related to eachother, 4) the bystander must contemporaneously observe the accident, & 5) the bystander must suffer an emotional shock from her observation.
2) Upon these criteria, the court will determine if it was foreseeable that the negligent activity could cause emotional distress to a bystander.
c. Dillon v. Legg – mother allowed to recover for shock suffered upon seeing her daughter negligently run over.
d. Other courts use zone-of-danger test. Each has shortcomings.
e. Hard for administrability – huge evidentiary problems for any emotional damage suit, BUT we’re willing to accept that for deterrence & fairness b/c they are real harms.

Defenses to Intentional Torts Action

D may offer facts that negate one or more of the prima facie elements of the tort, or (even if all of the prima facie elements of the tort are show), he may offer an affirmative defense that would excuse the tort:

1. Consent is 1) An actual (express) or 2) implied willingness (ie, requires manifestation upon which the D can reasonably rely) that the act occur.
a. Express Consent (yes, you may operate on me)
1) Via words or signature
b. Implied Consent (consent implied by P’s conduct, custom, or circumstances upon which a reasonable person can rely)
1) Objective manifestation by P
a) Via her words, actions, or gestures
b) Unexpressed feelings cannot be known, so it doesn’t matter if she was actually unwilling in her heart. D can only be guided by P’s overt acts.
c) O’Brien v. Cunard, consent can be inferred from conduct (where woman did not want to be vaccinated but held out her arm, she consented.)
2) Special relationships
a) Prior acquiescence in otherwise offensive conduct may give an implied consent (ie, teammates)
3) Special circumstances:
a) The playground in Vosburg may give an implied consent to touching/jostling (ie, the club)
b) Sports
i. It is generally held that P consents to injury from blows administered in accordance w/ the rules of the game or if the injury is “an inherent risk of the sport” (Avila – no recovery for baseball thrown at P’s head, Turcotte – no recovery for jostling to jockey in horse race)
a. but not when the blows are deliberately illegal (ie, if the boxing match itself is illegal, P did not consent to injury from illegal game – see “public policy” below) (Hudson)
b. and not when D’s conduct is either deliberate, wilful or with a reckless disregard for the safety of the other player. Must be an intentionally flagrant infraction unrelated to the normal method of playing (question of fact for jury) (Hackbart –intentional blow in football, Nabozny – kicking soccer goalie in the head inside the penalty area)
c) Medical world
i. Physicians must usually seek consent from a relative of the patient in cases where they must go beyond the scope of the original consent of P while P is unconscious
ii. Or, they may obtain a blanket consent via signature on a form from P in advance
iii. In Emergencies that threaten P’s life, doctor has limited priviledge to do what a reasonable patient would consent to
a. Implied Consent as a matter of law: (legal fiction – used in the medical field)
1. Consent is implied if all four elements are met:
a. P is unable to consent,
b. Immediate action is necessary to save P’s health or life,
c. There is no indication that P would not consent if able, and
d. A reasonable person would consent in the circumstances
b. Mohr v. Williams – There was no consent b/c this was not a true emergency; D could have brought P back to consciousness & gained consent. (D physician operates on both ears when P only consented to left ear.)
1. However, more modern cases take a less rigid view of consent requirement & consent to surgury is viewed as a general consent & the surgeon may extend the operation to remedy any abnormal condition in the area of the original incision. Kennedy v. Parrott
iv. Consent must be informed consent (see fraud, below)
c. Consent may be invalid because
1) The act is beyond the parameters of the consent
a) If a fistfight is consented to, D may not use a gun
b) If D’s actions excceed the consent given & he does a substantially different act than the one authorized, he is liable for battery – Mohr v. Williams