Torts
Wonnell
FALL 2017
Introduction to Tort Law
Law can generally be divided into Criminal Law and Civil Law; Civil Law can be further divided into Contract Law and Tort Law; Tort Law can then be divided into intentional and unintentional torts.
Why tort law?
Torts are to compensate for injuries caused through normal courses of actions, and the desire is not to “stamp out” the actions altogether.
The purpose of tort law is to change behavior. We are trying to get people to behave differently than they are naturally inclined to.
A person who does not bare the risk of a particular activity or situation does not have the incentive to bear the burden to reduce the risk – tort law acts to serve this purpose.
There is a view of tort law that its primary purpose is of an instrumentalist/economic/utilitarian view in which serving the greater good and perform cost-benefit analysis.
There is also a view that tort law serves a corrective justice function.
Economic Concepts
Pareto Efficiency – A change is efficient if it results in a net increase to some (or all), and no one is made worse off (i.e. Net gain, no one loses).
Kaldor-Hicks Efficiency – A change is efficient, regardless of whether or not someone suffers a net loss, as long as those who gain receive enough such that they could compensate the losers and still be better off (i.e. Net gain, regardless of losers).
Coase Theorem – If trade in an externality is possible and there are no transaction costs, bargaining will lead to an efficient outcome regardless of the initial allocation of property rights (i.e. legal rule).
Intentional Torts: Interference with Persons/Property
Intent: To act with the purpose of causing a contact or apprehension or with knowledge that such contact or apprehension is substantially certain to be produced (i.e. intent = purpose or knowledge).
Diminished capacity (such as by that of children or adults with mental retardation or insanity) does not in itself disprove intent. Those with diminished capacity can be held liable for an intentional tort if intent of the actor can be established (Garret v. Dailey, Wash. 1955 – Defendant 5 years, 9 months held liable for battery).
The actor need only commit the unlawful act with the intent to cause contact. Intent to harm or offend is not required. (Garret v. Daily – The fact that the boy did not intend harm or know that harm was substantially certain is not relevant. The boy only must have intended or knew with substantial certainty that contact would result from his actions).
Transferred Intent: If an actor intentionally attempts to make contact with a particular person or property, but accidently makes contact with a different person or property, the intent to contact transfers from the intended to the actual “target” (Talmage v. Smith, Mich. 1894 – the fact that the defendant hit, and thus injured, a different person than he intended does not absolve him of liability of an intentional act; Ranson v. Kitner, – a good faith mistake in which object the defendant intended to damage actually was does not absolve liability).
Battery – The actor acts with intent to cause harmful or offensive contact, or imminent apprehension of such contact, and harmful or offensive contact results either directly or indirectly from that act; “Intentional contact in a manner that is harmful or offensive.”
Brzoska v. Olson (Del. 1995) – Treatment of patients by a healthcare provider that has a deadly disease, without any showing of harm or exposure to the disease, does not qualify as a “reasonable” harm or offense.
Fisher v. Carrousel Motor Hotel (Tex. 1967) – Actual physical contact is not necessary, and contact with an object closely identified with the body is sufficient to establish battery.
Assault – A defendant acts intending to cause harmful or offensive contact, or an imminent apprehension of such a contact, and the other is thereby put in such imminent apprehension.
Western Union Telegraph v. Hill, Ala. 1933 – An employee who made sexual comments at a patron and attempted to contact her did constitute assault, but it was not sufficient to hold the employer liable under respondeat superior because it was not within the scope of his employment.
Conditional Threats – A conditional threat is sufficient for assault if it places the plaintiff in imminent apprehension (e.g. Your money or your life.). However, conditional threats about future harm are not sufficient.
False Imprisonment – An actor intends to confine another within boundaries fixed by the actor, and his act directly or indirectly results in such a confinement, and the other is conscious of the confinement; Willful detention without consent.
Grant v. Stop-N-Go Markets, Tex. 1999 – The court held that there were facts to support that there was willful detention of the plaintiff without his consent, and that the detention may not have been reasonable under the shopkeeper’s privilege. The summary judgment of the trial court was reversed and remanded for a trial.
Shopkeeper’s privilege – Shopkeepers can detain a suspected shoplifter if there is a reasonable belief a person has stolen or is attempting to steal, the detention is for a reasonable time, and the detention is done in a reasonable manner.
Intentional Infliction of Emotional Distress – Extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress to another.
Harris v. Jones, Md. 1977 – Infliction of humiliation does not meet the requirement of “severe.” “The severity of the emotional distress is not only relevant to the amount of recovery, but is a necessary element to any recovery.” Mere insults, indignities, threats, and annoyances are not sufficient to establish IIED.
Courts are not reluctant to direct a verdict if they do not believe the conduct was extreme and outrageous, or if the emotional distress suffered was not severe.
Insurance companies have been held liable for IIED for cancellation of policies. (Liberty Mutual Insurance v. Steadman, the insurance company delayed authorizing payment for a lung transplant for 9 months with the hope that the plaintiff would die before it had to pay; Hailey v. California Physicians Service, the insurance company cancelled the policy claiming there was an omission in the application after it had to pay over $450k in medical bills following an auto accident).
Common Carriers (transportation services) and Innkeepers (lodging services):
Held to higher standards with respect to IIED; insults could amount to IIED. However, courts have recently begun to reject the rule to hold common carriers and innkeepers to different standards.
The First Amendment protects against some forms of speech that may be harmful. The Supreme Court held that speech of public concern, including that related to political, social, or other concern to the community, is protected and not liable to IIED.
Trespass to Land – If a person intentionally enters land in possession of another person without permission, he/she has committed the tort of trespass
Possessors of real property have a right to exclusive possession.
If someone intentionally enters the land, but mistakenly believes it to be their own, they are still liable for the tort of trespass.
A trespass may be committed by the continued presence of an object placed on the land pursuant to a license or other privilege if the actor fails to remove it after the consent or privilege has been terminated.
Rogers v. Kent County Board of Road Commissioners, Mich. 1948 – The failure to remove a stake placed on the plaintiff’s property, upon consent of the plaintiff to build a temporary fence, was sufficient to establish trespass.
Trespass to Chattels – Intentional interference with the personal property of others that is relatively minor, and only requires the defendant, if liable, to pay the value of the harm caused to the chattel. Harm must have been caused to the chattel for the defendant to be liable.
Conversion – Intentional exercise of dominion or control over a chattel which seriously interferes with the right of another to control it such that the actor may be required to pay the other the full value of the chattel.
Factors to determine the seriousness of interference: the extent and duration of the dominion or control; the intent of the actor to assert a right that is inconsistent with the other’s right of control; the actor’s good faith; the extent and duration of the resulting interference with the other’s right of control; the harm done to the chattel; and the inconvenience and expense caused to the other.
Intel Corp. v. Hamidi, Cal. 2003 – The continued sending of anti-Intel e-mails by Hamidi, although unwanted, did not cause harm and did not result in any actual cost by Intel. Harm must be caused to the chattel, and absent proof of harm, the e-mails are lawful and did not constitute trespass to chattels.
Umbrella Intentional Tort – An actor who intentionally causes harm is subject to liability for that harm. This is an umbrella rule included in the Restatement of Torts.
The Monster Intentional Tort – The alien tort statute allows aliens (i.e. people from other countries) to sue for extreme intentional torts.
Abdullahi v. Pfizer, Inc., 2d Cir. 2009 – Pfizer administered testing of a vaccine, Trovan, on children in Nigeria without informed consent that caused death to 11 children and severe defects in others. Pfizer was found liable because their acts violated a norm of international character, was a specific cause of action that is no less definite than the paradigms of the ATS, and was of mutual concerns to State.
Defenses / Privileges
Consent – One consents to the acts of another, or to the consequences of those acts, if he/she is subjectively willing for that conduct or those consequences to occur.
O’Brien v. Cunard Steamship Co., Mass. 1891 – The plaintiff alleged that the ship’s surgeon administered to her a vaccine without her consent. However, the court held that the plaintiff's conduct demonstrates that, by her standing in line, holding out her arm, not protesting the vaccination, and using the vaccination certificate demonstrate her desire to be vaccinated.
Express Consent – Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor.
Implied Consent – The plaintiff’s words or conduct reasonably caused the defendant to believe that the plaintiff had consented, they constitute apparent consent and are as effective as actual consent.
Hackbart v. Cincinnati Bengals, 10th Cir. 1979 – While it may be true that players consent to a reasonable expectation of injury based on the rules and customs of the game, acts that fall outside of the rules and customs of the game of football may be open to tort liability. Consent to the risk of injury for actions not within the scope of the game cannot be reasonably implied.
Christman v. Davis, Vt. 2005 – If the plaintiff consists to a procedure, and the defendant surgeon performs a procedure, but does not go as a far as was originally intended, the fact that the surgeon performed less than was promised does not mean that the plaintiff did not consent since, in fact, the plaintiff consented to more than what was actually performed.
De May v. Roberts, Mich. 1881 – The physician assisting the plaintiff in the birth of her child brought along a friend to assist him with his things. He did not inform the mother or father that his friend was not a medical professional, and given that the circumstances would allow one to believe that his friend was in the house for a medical reason, failure to disclose Mr. Scattergood's disposition constitutes fraud. The element of fraud nullifies consent.
Fraud – Consent, if obtained by fraud, is nullified and cannot be used as a defense for an intentional tort.
Duress – When consent obtained under duress (e.g. threats of physical violence, economic pressure such as loss of job), consent is nullified, and cannot be used as a defense (Grager v. Schudar, N.D. 2009 – The court ruled that consent provided in a jailer/prisoner setting requires that the jury be instructed to consider the prisoner's ability to control the situation or to give consent to someone who has supervisory authority or disciplinary control over her. Consent is not a complete defense in this case).
Lack of Capacity – Consent can be nullified when it is offered by adults with either temporary or permanent diminished mental ability, or by children. No fine line – case by case basis.
Informed Consent – For medical treatments, consent obtained without providing proper information as to the risks of the procedure or possible alternatives may render the physician liable.
Scott v. Bradford, Okla. 1980 – To prove medical malpractice on the grounds of informed consent, the plaintiff must prove: 1) defendant physician failed to adequately inform of material risk prior to securing consent; 2) the plaintiff would have not consented if he/she had known of the risks; 3) the adverse consequences that were not disclosed to the plaintiff occurred and were a result of the treatment.
Self Defense
By Force Not Threatening Death or Serious Bodily Harm – An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself even if he believes he can avoid self-defense by retreating or otherwise giving up a right or privilege, or complying with a command with which the actor is under not duty to comply or which the other is not privileged to enforce by the means threatened.
Courvoisier v. Raymond, Colo. 1896 – The plaintiff need not have assaulted the defendant in order for the defendant to assert self-defense. It is only required that the defendant could have reasonably believed that the plaintiff intended to harm the defendant.
By Force Threatening Death or Serious Bodily Harm – An actor is privileged to defend his/herself against another by force intended or likely to cause death or serious bodily harm, when he/she reasonably believes that the other is about to inflict a contact that threatens death or serious bodily harm. This privilege holds even if he/she believes they can retreat if he/she is attacked in his/her place of dwelling, and the dwelling is not also the dwelling of the other; or by permitting the other to intrude upon or dispossess him/her of his/her place of dwelling; or by abandoning a lawful attempt of arrest.
If someone provokes a fight or altercation, they may be barred from claiming self-defense.
Defense of Others – Would be rescuers are allowed to intervene to assist a stranger, but they are not required to do so.
Type of Force – The type of force allowed is the same as in defense of self as outlined above in “by force not threatening death or serious bodily harm,” and “by force threatening death or serious bodily harm.”
Mistake – Some jurisdictions do not hold would-be-rescuers liable if they intervene in good faith, but they were mistaken. However, some jurisdictions will hold would-be-rescuers liable, stating that they intervene at their own peril.
Defense of Property
Katko v. Briney, Iowa 1971 – Defense of property does not justify protection that will likely result in death or serious injury such as the instillation of a trap gun.
Protection of property is allowed as long as the amount of force used is reasonable – Use of force likely to result in death or serious injury is never justified for protection of property only.
Recovery of Property – One who discovers that another has taken his/her property may use reasonable force against another as long as the rightful possessor acted promptly “in hot pursuit” after dispossession or after timely discovery of dispossession.
Limits on Self-Help – Must act promptly and only use reasonable force. Force likely to result in death or serious bodily injury is never justified.
“Repo Man” – A buyer that purchases personal property (i.e.
s used in some states.
Presumption of Negligence – When the courts presume an act to be negligent, i.e. creates a prima facie case, when the actor acts in defiance of a law prohibiting the act. The actor can present evidence of a justification or defense, which is judged on a standard of reasonableness. This is used in some states.
Negligence Per Se – When the courts deem an act to be negligent when the actor acts in defiance of a law prohibiting the act. This usually requires that the harm caused must be the harm that the statute attempted to protect against, i.e. protected class of person, and the person harmed is in the protected class of persons the statute sought to protect. If the legislature didn't consider a particular harm by a prohibited act, doing the prohibited act which results in a harm that was not considered by the legislature is not recognized by the courts as negligence per se.
Martin v. Herzog – When a car struck a buggy as they were going around a curve in opposite directions, the court ruled that the buggy’s failure to have lights was negligence per se because the legislature intended to prevent the exact harm that occurred (e.g. buggies being struck by cars), and the people involved were included in the protected class of persons (e.g. people in buggies and people in cars).
Reque v. Milwaukee & Suburban Transport Corp. – The court ruled that a buses failure to stop within 12 inches of a curb was not negligence per se. To establish negligence per se, the violation of the law must have caused the risk that the law sought to avoid. Because the law sought to avoid parked vehicles being partially in the street blocking traffic and/or causing accidents with moving traffic, and not to make it easier for people to get on and off of buses, it does not constitute negligence per se.
Negligence per se, if applied, cannot be defeated on the grounds that the actor was reasonable in complying. This would negate the purpose of negligence per se, and render the question “was the defendant reasonable?” The excuse must be of a higher standard.
There are, generally, five categories of defenses/justifications that can excuse negligence per se. Per Impson v. Structural Metals, the five categories of excusable violations are:
Incapacity of the actor;
The actor does not know nor should have known of the occasion for compliance;
The actor is unable to comply after reasonable diligence or care (impossibility);
An emergency situation not due to the actor's own conduct;
Compliance would cause a greater risk of harm to the actor or others.
Statutory Private Rights of Action: Express or Implied – On some occasions, a private right of action is stated directly in a statute, or are structured such that courts can imply a private right of action. If a private right of action is not expressly stated, such as in The Consumer Product Safety Act, it can be implied using a four-step test:
The plaintiff must be a member of the class for whose special benefit the statute was enacted.
There must be indication of legislative intent to create a private right of action.
The private right of action must be consistent with the purpose of the statute.
The plaintiff’s cause of action must be one that is not traditionally relegated to state law.
Later cases modified the Cort test, making the question whether or not the legislature intended to create a private right of action (i.e. a matter of statutory construction).
Proof of Negligence: Res Ipsa Loquitur – This doctrine allows for a plaintiff to recover for damages of negligence even though they cannot prove the exact element of causation that caused the harm. For example, if a decedent’s relatives brought suit for a plane crash, they need not prove that the pilot of the airline was defendant in a particular act, which, absent some excuse, the act was negligent because planes are not supposed to crash.
Restatement, Third, of Torts – § 17. Res Ipsa Loquitur: The factfinder may infer that the defendant has been negligent when the accident causing the plaintiff’s physical harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is a relevant member.
Res Ipsa Loquitur is a form of circumstantial evidence, but implies that the court does not know and cannot know what actually happened in the individual case to cause the accident.
Byrne v. Boadle – • P was walking past the D's shop and a barrel of flour fell on him from a window above the shop. • There was no evidence to connect the D or his servants with the accident.
Lamprecht v. Schluntz– i. The defendants were harvesting wheat approximately two miles downwind from the plaintiff’s farm when the field caught fire and wind quickly spread the fire such that it burned approximately 1,200 acres including the plaintiffs’ property. ii. The origin of the fire was not established with certainty although its likely source was from a grain cart being pulled by a tractor that was headed to unload a combine. iii. The plaintiff sued on a res ipsa loquitor theory and the defendants motioned for summary judgment. iv. The trial court granted the motion on the basis that field fires that occur during harvesting are not uncommon and cannot be said to occur in every situation due to negligence. On appeal, the court affirmed.
Ybarra v. Spangard – After surgery, Ybarra had suffered pain, paralysis, and atrophy in his shoulder and right arm. The court held that it was sufficient that the plaintiff can show an injury resulting from an external force applied while he lay unconscious in the hospital. All of those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct.
Sullivan v. Crabtree – The court stated that res ipsa loquitur can take three different procedural forms: a mere inference for the jury to accept or reject; a rebuttable presumption that the defendant is required to produce some reasonable evidence; or a presumption that shifts the burden of proof onto the defendant. The court held that most cases, including this one, only require an inference of negligence, and that the stronger procedural effects are reserved for cases that warrant a stronger inference based on the strength and weight of the facts.
