Tort, Ursin, Fall 2012
Intentional Torts
I. Battery ( Intent, Voluntary Act, Harmful/Offensive Contact, Lack of Consent )
A. Intent – Purpose of causing contact or knowledge of contact “substantially certain” to occur or purpose to cause apprehension of contact (objectionable behavior, shooting to scare but hits target)
1. Jurisdictions split on
a) Purpose to cause contact or substantially certainty to occur
b) Purpose to cause contact that must be harmful/offensive.
2. Know with “substantial certainty” act will injure person, even if intent was not to hurt person is battery. Garrat
3. Transferred intent, intended to shoot a person, but hits another instead
B. Voluntary Act
C. Harmful/Offensive Contact – Can be unaware, such as being kissed while asleep (not assault)
1. Harmful Contact
a) Can be indirect such as Garrat pulling chair or Picard touching camera
b) Contact can be anything intimately connected to the body (clothing, cane, glasses), anything dangling off an arm or laptop probably not.
2. Offensive Contact
3. Context of the situation. Ok to touch in nightclub or being jostled in bus, not ok to touch in other circumstances.
a) Has to offend a reasonable sensibility for offensive contact. A person can have unreasonable sensibility, but must let people know, otherwise won't be offensive contact.
D. Lack of Consent (Implicit or Implied)
1. Express/implicit – Actual consent, remains valid even if granted by mistake, unless takes advantage of mistake
2. Implied – Being injured in a touch football game isn't battery. Depends on context and severity of the action, which may be battery if it extends beyond the rules of the game (horseshoe in boxing glove). Implied consent if necessary in life and death situation.
3. Cannot consent to illegal activity such as going outside a bar to fight.
E. Defenses to Battery ( Consent/Implied Consent, Self Defense/Defense of Another )
1. Consent/Implied Consent – Context dependent. Cannot consent to illegal activity. Boxing ok, barfight no. Doctor can remove structural part of body if immediately dangerous to life or health.
2. Self Defense/Defense of Another (Reasonable force, imminent harm)
a) Based on available options, if overexert force, can be liable for battery. Allowed to use deadly force if imminent sever bodily injury or death.
b) Required to use reasonable means of escape. Florida doesn't require retreat.
c) Entitled to reasonable mistake of identity. Courvoisier
d) Attack repelled, privilege ends.
II. Assault ( Intent, Physical Act, Apprehension, Imminence, Awareness )
A. Intent – Purpose or “substantial certainty.” Can have transferred intent
B. Physical Act – Offer of corporal injury, voluntary, threatening.
C. Apprehension – need not be fear, threat of force to cause contact
1. Must be aware of act (being kissed while asleep isn't assault)
2. Does not need actual ability to cause contact, as long as a reasonable person would have apprehension (someone behind counter lunges but won't be able to physically hit you, can also be a smaller person, size doesn't matter)
3. A person can have unreasonable apprehension, if he lets you know, it can be assault.
D. Imminence – Immediate, not conditional, no time delay
1. Future contact and conditional threats are not imminent. Words alone insufficient.
III. False Imprisonment ( Intent, Unlawful Restraint/Confinement, Lack of Consent, Awareness )
A. Intent – Can have transferred intent
B. Unlawful Restraint/Confinement – Against will. Restricts freedom of locomotion, victim is aware
1. Physical force – barriers and closed barriers to prevent escape.
a) Can't feel barriers is not confinement. (Not aware)
b) If reasonable means of escape, not confinement. (Jumping off 3rd floor not reasonable)
2. Words alone. Threat of force even if no force exerted
3. Sense of confinement ( if was confined a minute ago but not now, not confinement )
4. Asserted legal authority
5. Not where you want to go. (Trying to go in locked classroom is not False Imprisonment)
C. Lack of Consent
1. Compelled to stay to protect reputation or moral pressure is not False Imprisonment. Lopez, Marcus
D. Awareness
1. If there is “harm” there is no need for awareness of confinement
E. Defenses to False Imprisonment
1. Reasonable grounds there is alleged theft from store. Must be reasonable inquiry and time.
IV. Intentional Infliction of Emotional Distress ( Intent, “extreme and outrageous” conduct, cause severe emotional dmg or bodily harm ) Used to be only liable bodily harm (Traditional) Emotional dmg (Modern)
A. Intent – Knows distress is “substantially certain” to result from conduct.
B. “Extreme and outrageous” conduct
1. Exceeds bounds of decency
2. History and position of authority are relevant
3. Intensity and duration of duress
C. Cause severe emotional dmg or bodily harm
1. Does not need manifestation of physical dmg or bodily harm. Siliznoff
Policy:
– Homeowner's Insurance might pay out and cover liability for torts if the act was caused unintentionally or if an unintended result occurred from an intentional act. (Garret v Dailey suit makes sense this way) Lawyers may also collect money.
-Victim Compensation Fund – State and local treasuries might provide aid for victims of crimes. Small amount.
-Worker's Compensation – No tort action, assured compensation for employee even if negligent. Only injuries arising from work, with limited economic loss that can be recovered, no pain and suffering damages recovered.
-IIED in CA verbal abuse was a part of life, old law IIED was not recoverable, IIED from assault cases was an anomaly. Later can be liable for negligently causing bodily harm if mental stress is intense. New rule, IIED is recoverable for emotional distress and bodily harm resulting from it. Justice Traynor express judicial law making.
Damages ( Policy Issue )
I. Generally a one time shot for compensation
II. Compensatory Damages: Actual dmgs. Want to return P to condition before accident.
A. Pecuniary (wage loss, medical bills) – tangible losses (current and future earnings), can be calculated, intentional torts and negligence cases.
III. Non-pecuniary (pain/suffering, humiliation, anxiety, punitive) – excessive if shocks conscience
A. Intangible losses – physical and emotional pain and suffering, humiliation, etc
B. Award is decided by juries – Jury sees evidence. Estimates dmgs, hard to determine since range of awards is large, settlement is difficult, jury not allowed to know if D is wealthy or insured.
1. If trial judge thinks non-pecuniary award is excessive, then becomes judge's duty to reduce the award.
a) Trial judge acts as 13th juror, can see evidence and judge credibility of witness, issue a remittur to tell counsel to settle with lower award, if not, judge can move for a new trial.
2. D can make a motion for a new trial as an indication that
a) Company not liable for employee negligence to other employees. Helps reduce costs of accidents, promote productivity in industry.
E. Holmes admired CJ Shaw. Thinks a great judge acts for what's good for society. Shaw may not have the best technical knowledge, but had the best public policy. Law changes not by logic, but by felt necessities of time. Judicial policy making in common law, legislature can pass statute if it does not like CL. Controversy when court says legislation is unconstitutional.
F. Holmes foresight in 1881 for compensation in negligence opted for private enterprise. Negligence is more fair than forcing compensation when D is not at fault. Achieves no social goal. But modern times there is social security, unemployment, victim compensation fund. Other alternative to negligence law:
1. State money fund compensate people for injury like health insurance. (New Zealand) Doesn't pay pain and suffering damages but guarantees compensation without litigation.
G. Cardozo (NY 1919) values changed, era changed, moved on from Holme's view of negligence law. More accidents occurring from industrialization. Workers compensation to take employee cases out of tort law.
H. Posner's economic point of view. Negligence system optimal cost for safety, society better off. Avoiding accidents can be more cheap than paying out accidents. Society wants to prevent negligence, if don't, you pay. D would want to avoid. Incentive for optimal safety. If costs more to prevent accident, not liable. Society wants lower figure. Moral disapproval for those who don't want to prevent more cheaply.
Role of Judge and Jury
I. Holme's View (Trad) – Goodman – reasonable person should come out of car to look for train
A. 4 ways to shrink role of jury
1. Jury oscillate, judge should decide
2. Jury rule one way, judge should take away
3. Judge gets more practical experience, judge should take away
4. No clear view, take away from jury.
II. Cardozo's view (Modern) – Pokora – let jury make rule, did not like should come out of car to look for train, may be more dangerous
A. Jury decides, judges need caution in framing behavior as rules of law.
B. Only interfere if jury can reach one conclusion, then can take away, judge does not have expertise in every situation.
III. Traynor's view
A. Follows Holmes view, but also sides with P. Progressive and wants to give more to P and take away from jury.
IV. Baseball cases – Rule of Law (Agree on similar facts, characterize facts as negligent or not)
A. Akins – Similar to Goodman. Judge took away from jury without rule, courts not expert in baseball park designing. No rule is inconsistent, don't know what will happen next case.
B. Davidoff – NY, made rule, less than full duty of due care. Make sense to have rule so stadium makers know how much protection is needed for “ordinary game”
