Torts Fox Fall 2014
Exam: Throw up info on page, don’t use complete sentences – just bullet points
Defined—a tort is a civil wrong (cause of action) where someone has sustained harm or loss as result of some act or failure to act by another.
I. Development of Liability Based Upon Fault
A. Can have liability without fault Hulle v. Orynge (case of thorns) action leads to injury
B. Lack of fault, but can still liable Weaver v. Ward (gunshot)
C. Ordinary v. Extraordinary std of care Brown v. Kendall (dog fight)
D. No negligence due to sudden unforeseeable sickness Cohen v. Petty (faint driving)
E. Strict liability Spano v. Perini (dynamite blast)
II. Intentional Torts
A. Intent
1. Intent if substantial certainty act will occur Garratt v. Dailey (kid pulled chair)
a. Children can have intent
b. *Policy* Shifting burden of law to shift who has to pay
2. Touching can cause damages, even if no intent but subst. cert. Spivey v. Battaglia (hug caused paralysis)
3. Mistaken Identity doesn’t negate intent/intent to cause action Ranson v. Kilner (man kills dog thinks a wolf)
4. Insane people can still have intent McGuire v. Almy (crazy lady hits nurse)
5. Intent can be transferred person to person Talmage v. Smith (old guy threw stick hitting the ‘wrong’ kid)
a. Transfer of Intent ONLY applies to: BAFTT (person to person & tort to tort)
B. Battery
1. Defined—(1) Intentional (2) touching of another in a (3) rude, angry, or insolent manner
2. Crowded World Doctrine: Not battery if brush up against another Cole v. Turner
a. crowded world, some amount of contact is expected
b. no recovery for merely offensive touching w/o intent
3. Mere intent to touch insufficient; must be harmful or offensive Wallace v. Rosen (teacher taps mom fire drill)
4. Personal indignity essence of battery; includes objects connect to person Fisher v. Carrousel (black guy w/ plate @ buffet)
5. Words alone aren’t battery—must be accompanied by touching
6. Defenses—consent, self-defense, defense of others, defense of property, recovery of property
C. Assault
1. Defined—(1) Intentional, (2) unlawful (3) offer to touch another in a (4) rude or angry manner so as to (5) create a well-founded fear in plaintiff’s mind of an (6) imminent battery.
2. Every battery doesn’t include assault (Sleeping Beauty; unaware)
3. Every assault doesn’t include battery I de S et ax v. W de S (hatchet thrown @ woman missed and damaged house)
4. Plaintiff only need an apprehension of battery, even if no present ability to commit harm Western Union Telegraph v. Hill (guy swiping @ woman over extra-long counter, couldn’t actually touch)
5. Ex. unloaded gun=assault
6. Plaintiff must be aware of threat @ time
7. Future or conditional threats aren’t imminent (unless condition cannot be not met ex: get off street or I’ll kill you)
D. False Imprisonment
1. Defined—intent to confine another. Must know about it.
2. Ways to Confine
a. Physical barriers, force, threat of force, or other duress
b. Words
c. Retention of Property (staying to prevent loss of valuable property)
3. Direct Restraint sans justification Big Town Nursing Home v. Newman (can’t leave nursing home)
4. Must be aware or be harmed by FI Parvi v. City of Kingston (drunk hit by car after cops dropped him off)
5. Fear of loss of job insufficient for FI Hardy v. LaBelles (accused of stealing watch)
6. False Arrest—taken into custody by one who claims but does not have proper legal authority
a. Conviction is an absolute defense
b. Can only be arrested for arrestable offenses Enright v. Groves (arrested for dog after refusing to give cop license)
7. Refusal of certain responsibility Whittaker v. Sandrod (woman trapped on yacht, no rowboat to shore)
8. Means of Escape
a. Unaware of exits=FI
b. Must have reasonable exit routes
c. Naked in lake & clothes taken=FI
9. Defenses to FI: Consent, Authority of Law, Discipline (parents), Justification
E. Intentional Infliction of Emotional Distress
1. Elements
a. Conduct intentional or reckless
b. Conduct extreme and outrageous
c. Causal connection between the
eddles or uses
More Wrong-Complete or Substantial Deprivation
Recover diminution in value
Recover Value of Goods
III. Privileges
A. Consent
1. Expressed consent – clear and unmistakable
2. Overt acts of plaintiff can lead to consent O’Brien v. Cunard (vaccine steamboat)
3. Look at totality of circumstances surrounding incident. Reasonable person.
4. Limit to tortious conduct in sports Hackbart v. Cincinnati Bengals (no consent to intentionally tackling player after play)
5. No medical procedures without consent Mohr v. Williams (surgery in other ear)
6. Implied Consent in medical emergency when:
a. Patient can’t give consent (unconscious)
b. Risk of serious bodily harm if treatment delayed
c. A reasonable person would consent to treatment
d. No reason for doc to believe patient would refuse under circumstances
7. Not liable if lie about STD – policy issue want people to get tested
8. Fraud can undo consent! (ex lying to have sex w/ someone)
a. De May v. Roberts (nondoctor pregnancy-not true consent when identity undisclosed)
9. Can’t consent to getting shot / other injury
10. Drunk not a defense to int. tort-should’ve known what would happen
B. Self-Defense
1. Protects the right of self-preservation
2. Reasonable force against threatened battery
3. Can’t be retaliation
4. A reasonable belief okay for self-defense; can make reasonable mistake
5. Provocation doesn’t justify self-defense.
a. Words (name-calling) can be used to oppose punitive damages
b. Must be accompanied with actual threat of physical force
