Torts – Professor Steven Smith – Fall 2015: Tort Law & Alternatives 9th Edition (Franklin, Rabin, Green)
INTENTIONAL TORTS
ASSAULT: (no actual injury/contact need follow)
Physical act X
Of threatening nature
Causes fear of apprehension of injury
BATTERY
Intent to X (contact)
X is
Physical contact that is
Offensive or Harmful
Causes injury
Offensive contact – PICARD: objects are extensions of self and can touching them can = offensive contact
P sued man for assault and battery for approaching her in a threatening way (assault) and for touching the camera she was holding, which caused permanent back damage (battery).
Issues:
What kind of contact is required? With the actual person vs with objects that are an “extension of the person”
What contact is considered reasonably offensive?
Held:
The camera = extension of the person there was physical contact liable
Even placement of finger on camera, though apparently harmless in itself, was intnl and led to harm and reasnble fear of apprehension of injury liable
Test of “reasonableness” = objective
Objective standard
Would it be reasonable for the ordinary reasonable person? (vs subjective: reasonable to the particular person Problem: would allow the “I’m just stupid” defense)
Raises qsn: what is the ordinary reasonable person?
Intent w diminished mental capacity – WHITE: D must “appreciate the offensiveness of her contact”
P sued elderly patient diagnosed w dementia for hitting her in the face when trying to give care
Issue: whether D really intended that her contact be harmful or offensive w her mental capacity
Held: D must not only have intent to contact, but also intent that it be harmful or offensive D did not have mental capacity for that not liable
Transferred intent
If intend to commit one intnl act and then the X for a diff tort results intent from 1st tort can be transferred to support the new X
If intend to injure one person, but end up injuring someone else initial intent can be transferred to new P
“substantial certainty” – GARRAT: intent exists if either desire or know w substnl certnty that X will occur
Woman sued 5 yr old boy for injuries that resulted from boy moving a chair from under her
Issue: can a battery occur when no intent to injure, but there is knowledge (“substantial certainty”) that a harmful contact will occur?
Held: yes, regardless of age, a person acts w intent if:
Acting w a purpose of desire, or
Acting w substantial certainty
AFFIRMATIVE DEFENSES TO INTENTIONAL TORTS
Even if P proves all elements of the crime, D may still win if they prove an AFFIRMATIVE DEFENSE
CONSENT
When consent to particular conduct, have no right to recover damages for injury sustained when someone else acts on that consent
Determining consent: Subjective vs Objective
Objective: if someone behaved in such a way that a reasonable person would believe they gave consent
Subjective: if this particular person actually gave consent
Subjective rule is most common: — HART
P sued bc a man died after participating in an illegal prize fight with D
Issue: does a person have right to recover for injury that resulted from consented to conduct?
Held: No, a person cannot recover. P did give consent bc it was a mutual fight, no anger/malicious intent/excessive force
Subjective rule, but objective methods may be used in determining if P consented
SELF DEFENSE
MOST COMMON: One may use force if in own self-defense, IF it seems reasonably necessary for protection – even if mistaken
Other approaches: only if threat was real in fact & if believe threat was real even if that belief is unreasnble
Reasonableness: COURVOISIER
P police officer sued D for recklessly shooting him after rioters had been loitering outside of his building
Issue: is D liable bc he was acting in self-defense from a reasonable fear of harm even though mistaken?
Held: He is not liable – Even though mistaken, he fired out of self-defense: under the circumstances he had reasonable belief that he was in danger of death or serious harm
Other side: regardless if belief was reasonable or not, there was no real threat to harm should be liable
PRIVATE NECESSITY
Liability despite acting reasonably and proper – LAKE ERIE
Dock owner P sued boat owner for damages done to the dock during a storm bc D purposely kept boat tied/tied tighter to the dock even though was causing damage
Issue: is D liable for damages even though his actions were done out of private necessity/right?
Held: Yes, liable bc even though he was right in protecting his boat, he deliberately did so at the expense of the dock, circumstances were in his control despite the storm liable
UNINTENTIONAL TORTS
Most tort law = law of accidents. Tough to appro
TIVE = most common. Why?
Verifiable (analyzing the individual is less verifiable)
Public must be able to rely on ppl to comply w a certain standard of conduct (policy)
PROBLEMS W OBJECTIVE STD – WHEN TO ADJUST THE STANDARD:
Verifiable physical defect:
Person will be held to the standard of a reasonable person w same defect (ie blindness)
Age:
Small child is subject to the standard of a reasonable child of the same age/intelligence/experience
Emergency: not addressed (unless judge thinks it will clarify)
No time to think, so do something that when viewed in hindsight seems unreasonable (ie car)
Emergency is subsumed in the negligence standard analysis already – states usually do not give jury instruction on emergency as an excuse/adjusted standard
Psychological/mental disability:
Prblm: could simply claim you’re stupid and not at fault – not verifiable
If verifiable mental issue -> may go to insanity plea
ESTABLISHING THE STANDARD OF CARE
How important should customs and statutes be in establishing the standard of care in a particular case?
Irrelevant
Factor/evidence
Conclusive
– FACTOR/EVIDENCE most common
Good measure of standard: what most ppl do probably what is reasonable and expected
Bad measure of standard: sometimes customs are bad/not reasonable
Factor/evidence, but not conclusive. Test is still average reasonable person under the circumstances.
P sued landlord for injury after not changing to shatterproof glass bathrm doors, when that had become the business custom. D claimed no duty to change the glass
Issue: can evidence of business custom be determinative of the standard of care?
Held: yes.
Evidence of custom/practice is admissible – but is nothing more than evidentiary support
Conformity to custom may show due care
Failure to conform may show negligence – this case, it does
