Miranda McGowan_Torts_Fall_2014
I. Background
A. Tort: law of accidents; unintentional or careless harms. Unless intentional tort
B. Restatement of torts: Book written by judges, legal scholars, and elite practitioners. They read relevant cases on different rules in tort law. Summarize what state and federal courts are doing in the area of courts law and find the weight of agreement; find what most states are doing and then restate the law. Also recommend how they feel the law should develop.
C. Common law: Judge made law/case law
II. Intentional Torts
Dual intent is needed in CA: The actor intended to cause a contact AND they intend for that contact to be offensive or harmful
A. Dual Intent Battery: Intentional act that causes harmful or offensive contact with the person of another
1.Acts has to cause immediate harmful or offensive contact with another
AND
2. Actor must intend such contact will actually occur/directly results
BATTERY EXAMPLE:
1. ‘Defendant’ touched ‘plaintiff’ with the intent to harm or offend ‘plaintiff’
2. That ‘plaintiff’ didn’t consent to touching
3. That ‘plaintiff’ was harmed or offended by ‘defendant’s’ conduct
AND
4. A reasonable person in ‘plaintiffs’ situation would have been offended by the touching
B. Intent
1. Purpose/desire that his act will cause harmful or offensive contact
OR
2. Knowledge that such contact is substantially certain to occur
C. Offensive: Harmful or offensive contact element is satisfied if a reasonable person would regard it as offensive (open term)
D. Liability of parents for intentional torts of their minor children
1. Any act of willful misconduct of a minor that results in injury or death to another person or in any injury to the property of another shall be imputed to the parent or guardian having custody and control of the minor for all purposes of civil damages, and the parent or guardian having custody and control shall be jointly and severally liable w/ the minor for any damages resulting from the willful conduct
Garrett v. Dailey
Issue: Did Brian commit a battery if he did not intend for her to fall?
Look to see if Brian knew it was substantially certain that when he pulled the chair out Ruth would fall.
a. Did Brain have to intend to injure Ruth?
-NO, he just has to intend that there would be harmful contact
b. Brian did not have to intend that she actually gets injured he just has to intend the harmful contact.
Holding: Garrett knew that her butt would hit the ground therefore there is intent to be offensive. This is general intent case
White v. Muniz (specific intent)
Issue: Did Everly intend for harm to come from her act of striking the nurse across the face?
They can prove that she intended to hit Muniz, but did she intend for harm to come from it? (Did she understand that consequences that could come from hitting)
Holding: Court did not find Everly or White guilty. One must understand that contact will cause harm. Everly did not appreciate the offensiveness of her conduct in order to be liable.
E. Battery without actually making direct contact with someone
Ex: The intent of throwing tear gas at someone is still to harm that person. The intentional throwing of the gas is an offensive invasion of this person as would be an actual contact with the body.
Snyder v. Turk
Surgery taking place and Dr. gets frustrated with the nurse. Pulls her shoulder and pulls her face towards the surgical opening and says “cant you see where im working? Im working in a hole. I need long instruments.”
Issue: Was this contact offensive to a reasonable person?
Holding: Guilty of battery. Prove Dr’s intent by pointing out that he was insulting her intelligence and implying that she is dumb.
F. Transferred Intent
1. Intend to commit one type of intentional torts, and you end up committing another type of tort, then the intent is still there.
OR
2. The tort of batter or assault may be committed although the person struck or hit by the defendant is not the one whom he intended to strike or hit; the intent is then transferred.
G. Assault: Intentional act that causes imminent/reasonable apprehension of immediate harmful or offensive contact
1. When one acts intending to cause a harmful or offensive contact with the person and you end up miss hitting the person
OR
1. Intending to cause imminent apprehension (fear) of such contact
AND
2. That imminent apprehension (fear) actually occurs determined by a reasonable person
-Imminent: If it is going to happen and you cannot get away
-NO ASSAULT if you are not actually fearful or concerned that a battery will actually occur.
-Threats alone are not assault HOWEVER verbal statements can imply requisite imminence
Pheffer v. Orr
This was not imminent because Orr could have been walking back in his house. The point of giving a right to sue for assault is to avoid the actual battery. Pheffer had the option of going in his house and calling the cops.
H. Self Defense: Has to be contiguous with the tort that one is facing
1. Actual or reasonably apparent threat to plaintiff’s safety
2. Force is neither excessive in degree (the amount) nor kind (force)
-If someone is trying to kill you, you can also defend with deadly force
-Self defense is not about revenge its about protecting yourself
Touchet v. Hampton
Touchet (P) sales manager of car dealership owned by Hampton (D). Touchet fired and left Hampton voicemail cursing. Hampton shows up to Touchet’s work to tell him to stop harassing him and claims he was fearful that Touchet would attack hi
ult liability and a system of strict liability
Bringing lawsuits is costly and time consuming, instead we can simply say it doesn’t matter how it happened, lets just compensate people for what happened
2. To deter certain kinds of behavior; encouraging other kinds of behavior
3. Other policy rationales; loss spreading as a rationale
-We should all bear the cost of worker injuries because we all benefit from workers working
4. Process for channeling an impulse of private retribution; we want to encourage peaceful conduct or peaceful responses
5. Efficiency reasons
**If compensation granted is so inadequate that it shocks the conscious of the court, a new trial may be granted.
Once liability is proven, ‘P’ can recover based off of 4 things:
1. Lost wages
2. Medical Expenses
3. Pain and suffering endured, including mental or emotional pain
4. Any special damages that did not within other categories
A. Punitive damages: Fines
B. Compensatory damages/non-economic damages:
1. Emotional damages
2. Pain and suffering
3. Lifestyle changes
III. Negligence
1. You have a general duty to act as an ordinary person would
-We have to foresee the consequences of our actions
-We have to act to minimize those risks in a way that a reasonable person would
2. Prove that someone breached that duty (acted negligently)
3. Plaintiff was injured
4. The breach was the factual cause of the injury- your action actually caused the injury
5. Your breach was the legal cause/proximate cause
Can we impose liability in our system without fault?
-Strict liability might discourage people from doing things because they are afraid of being sued; we do not want to discourage people from doing certain things
Ex. Building bridges-We do not want bridge builders to use the safest form of construction even if they are just super expensive. This may not be worth it. If there is no bay bridge, then what happens? There could be more auto accidents the more people drive. So, we don’t necessarily want all cost put into avoiding accidents. By avoiding some harm, we may be incurring other harms.
