Ursin / Torts / Spring 2011
I. Assault: (threat of contact) – Intentional voluntary act causing reasonable apprehension of imminent physical harm or offensive contact
A. Elements
1. Intentional act – intent to cause apprehension of offensive/harmful contact
a) Purpose or Knowledge of Substantial Certainty
b) transferred intent applies
2. Voluntary:
a) requires physical movement, not words/threats
3. Reasonable Apprehension: (reasonable fear)
a) Reasonable: Must be “well-founded” apprehension, not just being afraid
i. Need apparent present ability to effectuate battery
§ No need for actual possibility of battery
b) Reasonable person must perceive the contact
i. has to be the apparent present ability
c) do not need the actual ability, just one that a reasonable person would perceive
4. Imminent → must be immediate (“w/out significant delay”)
a) Cannot be fear of future contact
b) Cannot be conditional
c) Bodily Harm or Offensive Contact
II. Battery: intentional & voluntary infliction of harmful/offensive bodily contact on another (w/o consent)
A. Elements:
1. Voluntary Act – actual physical movement by Δ, under his control
2. Intentional
a) Purpose of producing result OR Knowledge that contact is substantially certain
i. Dailey: intent to injure not necessary, intent for bodily contact
ii. Δ must intend battery w/ another person; the person actually injured need not be the person Δ meant to harm/offend
3. Bodily Contact:
a) Harmful: Direct or Indirect (don't need actual physical contact w/ Π's body)
i. Indirect:
§ Δ's acts set harmful instrument in motion. Garrat
§ Contact w/ an object attached to or closely identified w/ Π's body. Picard
§ R(2d) §18: contact with anything so connected with P's body as to be customarily regarded as part of P's person
b) Offensive:
i. Has to offend a reasonable sense of personal dignity
§ offense to the dignity involved in the unpermitted and intentional invasion, not in the physical harm done to his body.
§ Exception: If Δ knows of Π’s about special sensitivity and exploits it
§ Might be offensive in one context, but not in another
§ Altering substance/structure of body could be offensive (surgery)
4. Consent: can be explicit or implied (usually raised as a defense)
a) acts beyond scope of consent are not consented to;
b) unlawful consent is not consent
Transferred intent: the transferred intent doctrine will treat D as having intended to harm B.
– Generally, so long as the Δ has the necessary intent with respect to one person, he will be held to have committed an intentional tort with respect to any person who happens to be injured by his action.
III. False Imprisonment: Intentional unlawful exercise of confinement w/o consent
A. Elements
1. Intentional
a) Purpose or Knowledge of substantial certainty
2. Unlawful Exercise: willful unlawful act
3. Confinement: restraint of Π's freedom of movement
a) Words, acts, or both
b) Π must be unable to escape
i. Not just preventing someone from going somewhere
ii. Threats of future action are not enough
iii. Not just moral pressure to stay
c) Can be effected by words alone / by acts alone -or- both
i. Actual or apparent physical barriers
ii. Overpowering physical force (or submission to physical force)
iii. Threats of physical force (imminent)
iv. Duress
v. Asserted legal authority
4. No voluntary consent
a) if Π asks to leave and is permitted, no false imprisonment
b) Cannot only feel compelled
i. Cannot stay to defend one's reputation
c) Π must be aware of the restraint
i. But, if harm caused by confinement, don't need awareness
IV. Intentional Infliction Of Emotional Distress: Intentional extreme and outrageous conduct that causes severe emotional distress
A. Elements:
1. Intentional or Reckless
a) Purpose (aka wanting to cause)
b) Knowledge that distress is substantially certain to result
c) Recklessness
2. Extreme and Outrageous Conduct
a) to a reasonable person. Unusual susceptibility does not count.
3. Severe emotional distress
a) actual manifestations not requires, but not just feeling hurt or offended
B. Views:
1. R (1st) – courts were skeptical, thought it too difficult to measure. Would only award if ED was reasonably foreseeable.
2. Traynor: don't need bodily harm for ED. Soliznoff made it a free-standing tort COA.
C. Liability: D subject to liability for such emotional distress, and if bodily harm to the other results, for such bodily harm.
INTENTIONAL TORTFEASORS ARE LIABLE FOR ALL THE CONSEQUENCES OF THEIR ACTIONS!
Ø DEFENSES
once P has established prima facie case, D has burden of proof
I. Consent
A. if Π consented to conduct that would otherwise be tortuous, ∆’s conduct is not wrongful
1. Not a valid defense where D exceeds consent
B. Different jurisdictional standards
1. ∆ must have reasonably relied on a manifestation of consent by π (traditional)
2. Express: not reasonable reliance, but affirmative consent (another view)
3. Implied: acts going beyond scope of what is impliedly consented to
a) Implied (when necessary under the circumstances)
i. Π unconscious or otherwise unable to consider the matter
ii. An immediate decision is necessary
iii. Not reason to believe Π would withhold consent if able
iv. A reasonable person in Π’s position would consent
b) consent can be violated: action goes beyond contact that was consented to
C. violating rules of the game violates consent
1. but in some games, you impliedly consent to have people break rules (to a point)
2. unlike boxing, which is a sport, fighting/brawl
D. Unlawful consent is not consent in most jurisdictions.
II. Self-Defense: reasonable use of force under the circumstances to prevent the harmful contact
→WHO WAS THE INITIAL AGGRESSOR
A. Reasonable Use of Force
1. force Δ reasonably believed was necessary to repel the unwanted contact
a) Honesty: Δ must have acted honestly in the situation
2. Proportionality
a) cannot be unreasonable or excessive force
i. if lesser harm – ∆ must use lesser force in defense
b) if attack is repelled → right to self-defense ends
c) deadly force if threat of death or serious bodily harm (rape is seen as serious bodily injury)
B. Duty to Retreat: sometimes if there is a means of escape or retreat then courts will
eved in some cases that juries might have to make intuitive judgments
(b) Juries can make reasonable decisions on negligence standard
E. Cardozo
1. View of Negligence:
(a) Foreseeability test: liability for harm resulting from foreseeable not unduly burdensome to guard against
2. Adams v. Bullock [child electrocuted by guarded trainwire]
(a) Event unforeseeable. Wire placed where no one could reach it. Also conducting lawful activity.
(i) Only an extraordinary event could result in danger.
(b) Similar to Hand Test: Looked at cost to company v. cost to society
(i) If cost to avoid danger greater than cost to society, no negligence
(ii) Advocated fact-specific inquiry to see if liability was reasonable
(iii) Foreseeability balanced against economic costs
F. Traynor:
1. Does not see tort system as one of deterrence but more of a loss-spreading system
(a) Seffert: loss distribution shifting from one of ad hoc system to one of orderly distribution of losses through insurance and the price of goods/transportation
(i) If Π recovers, Δ doesn’t actually pay; corporation pays the cost and then passes it on to the consumer.
(b) Escola: Policy demands responsibility be fixed wherever it will most effectively reduce hazards
(i) Cost to Π is excessive, so it should be distributed among the public as a cost of doing business
(ii) No longer a system of corrective justice
II. Role of the Jury
A. Holmes: Usually decides cases as m/o/l
1. Due Care is for jury to decide unless so obvious that the court can figure it out.
(a) When Judge interferes:
(i) In cases with similar fact patterns that continually arise
(ii) Judge has enough practical experience and sufficient public policy to set standard of conduct
(iii) Where Jury might oscillate
(b) Envisioned a movement away from juries (in tort law)
(c) Sought to create rules specific to facts.
(i) ex: Baltimore RR Co – established Standard Of Care in train crossing cases that driver must stop and get out of vehicle when coming to train crossing.
2. Concerned with finding fair juries/juries not pro-Π
B. Cardozo:
1. Modern View: courts should be hesitant about adopting rules
(a) Jury should decide cases where reasonable people would disagree.
(i) ex: Pakora – Goodman rule ridiculous, futile and dangerous.
(b) Juries should determine questions of due care (should not be a fixed rule, but should be fact specific)
2. Appellate Courts should uphold unless they think no reasonable jury could have found negligence
