Torts Outline

 
Ursin, Torts, Fall 2013
 
 
Torts Introduction:
a) Definition: A “tort” is a general classification of several different civil causes of action providing a private remedy (usually money damages) for an injury to P caused by the tortious conduct of D.  Each tort cause is separately named and defined with rules of liability, defenses, and damages.
*Tort law is “judge made law”, no tort code, but increasingly tort statutes
 
I. Intentional Torts
Who is liable?
-diminished mental capacity, SAME as undiminished adults
-parents can be liable for their children (comparative fault if their children pose a certain risk and they do not take proper precautions to ensure the tort is not committed)
-children are liable for tort actions (under a certain age which varies by state they are not)
How do you prove intent of a child?
-child psychologist (testify to the specific age and development)
Insurance Considerations:
Why sue a 6 year old?  Policy: insurance! Your homeowner's covers those issues. 
Liability insurance- but does not apply to “bodily injury cause intentionally”
Hypo: boy pushes girl to move her and she falls and breaks her arm: court ruled that this was covered because it was an unintentional injury caused by an intentional action
 
 
First element of all intentional torts: Intent
Intent:
A) the person desires to cause the consequence
aa) D shoots at P, intending to hit him. D has necessary intent for a battery.
OR
B) the person acts knowing that the consequence is substantially certain to result.
bb) D shoots at P, intending to miss P but scare him.  D hits P.  D has the intent needed for battery.
 
Negligence: failing to exercise reasonable care under all the circumstances
 
Recklessness:
A) the person knows of a risk of harm created by the conduct or knows facts that make the risk obvious to another person in the situation
AND
B) the precaution  that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the person's failure to adopt the precaution a demonstration of the person's indifference to the risk. 
 
A. Battery
Rule: Battery is the intentional infliction of harmful or offensive contact. 
 
In order to have a battery, must have: (Act. Intent. Contact < Harmful or Offensive) Act Act must be voluntary as opposed to, e.g. seizure   Intent to bring about contact (or apprehension of contact) contact does not necessarily have to injure (just harmful or offensive) Courts split on whether just need intent to “contact” that results in harmful or offensive contact Garratt v. Dailey- D pulls chair from under G.  G falls and breaks hip.  D did not intend to hurt her, but intended to move the chair.  D had knowledge that it was substantially certain his actions would result in contact.  This contact caused injury.  Court Opinion: A battery would be established if in addition to plaintiff's fall, it was proved that when D moved the chair, he knew with a substantial certainty that the plaintiff would attempt to sit where the chair had been.  OR intent to “contact that is harmful or offensive”   Intent can be transferred  B wishes to “scare G”, shoots into a forest, hits N.  Transferred intent.  Yes a battery.  Wanted to cause apprehension of contact to G.  Intent is the key in this case. HOWEVER: B shoots into a forest that has both G and N.  It hits N.  (maybe negligent) but not a battery.  No intent to cause fear or apprehension of fear.  The contact was not substantially certain to occur. HOWEVER: B shoots into the forest that has G and N.  Wants to scare B.  Does not hit B and she does not see it.  No charge of assault or battery.  She did not have the apprehension of a harmful or offensive contact (assault) nor the actual contact   Contact with that person is harmful or offensive  D does not need to touch P “Person” includes things attached to or identified with P body, customarily regarded as part of the person (clothing, cane) Picard case: Camera was intended to be touched in an offensive manner, therefore, it was a battery.  It was part of the P's person.    Harmful or offensive Offensive to ordinary person, not one unduly sensitive UNLESS, one knows of sensitivity and seeks to exploit it. Offensive contact is offensive if it offends a reasonable sense of personal dignity, contact need not be directly caused by some act of the actor Wishnatsky v. Huey P sued D for pushing door closed in his face.  Ruling: He's a baby.  Not something that would offend a normal person in the situation.   Offensive depends on context: what is not offensive in a crowded bar might be offensive at a funeral.   B. Assault Rule: Intentional infliction of the apprehension of harm or offensive contact.  Act voluntary as opposed to e.g. seizure Intent the purpose to cause the apprehension of harm or offensive contact D shoots wanting to scare P.  P is scared but it does not hit him.  Assault. D shoots and TRIES to hit P.  D misses.  But P sees it.  Attempted battery is Assault.  OR the knowledge that ones behavior would be substantially certain to cause the apprehension of harm or offensive contact   Apprehension Apprehension Test: 1) must be reasonable, 2) apprehension is not confused by fear or intimidation, 3)apparentability will meet the apprehension requirement P does not need to be actual fear D does not need to have actual malice (does not need to intend harm) must be imminent, cannot be future threats “Words Alone Rule” words usually are not enough, must be coupled with a physical action (unless P's past acts go to make the D believe it is imminent) imminent apprehension of a harmful or offensive contact     C. False Imprisonment Rule: a sufficient act of restraint that confines P to a bounded area.  1)       D wants to have sex with P.  D locks her in the bedroom for two hours waiting for her to agree. P does not.  D lets her go.  Yes False Imprisonment. Intent:  1)       P must show that D either intended to confine him OR 2)       D knew with substantial certainty that P would be confined by D's actions.   Cannot be a negligent or reckless act. Confinement: held within certain limit, not that she was prevented from entering.  D refuses to allow P to return to her home, this is not false imprisonment.    Restraint: Physical: D actually blockades P from escaping. OR Threats : D threatens to use force of P tries to escape