Torts Outline

TORTS. David Anderson. CLOSED BOOK EXAM Fall 09

1. Trial Court Procedure
Tort Law – what’s left over after everything’s been carved out; began as all civil law but then entire fields were forged and removed from torts’ reign
Ø “Law of last resort”
Ø Made up of many different types/bodies of law
Ø Tort Reform isn’t really taught in this class, but this class is about tort law today so it’s sort of covered
o Era in most of the 20th Century where tort law was expanding; lots of new fields were created like product liability; since around 1980, tort law has been constricting and liability has been limited
o Constant evaluation of “push” and “pull” of tort liability
Ø The business of being a tort lawyer is attempting to predict what courts will do
o Best way to be a successful predictor is to know as much as you can possibly know about the way(s) the law operate(s)
Ø Litigation-based schematic
o Almost every question confronting a tort lawyer has 2 dimensions
o Substantive Law
o How do I invoke it? What procedural device to use to invoke?

Based primarily on economic considerations as a means of redressing harm
Ø Preponderance of the evidence (51%) vs. Beyond a Reasonable Doubt (much higher)

Procedural Issues:
For a court to dismiss a case is to say this is not a tort. If they hold for the defendant, there is not enough to prove that the defendant is to be held responsible for the tort
Stages of a Tort Suit:
a) Complaint – P states his version of the injury, a statement of facts
b) Motion to Dismiss – first thing a d can file – only saying that, given that all the facts are true, the law affords no relief.
c) Motion for Summary Judgment – can be filed later after some factual development…can be filed somewhat later – evidence is viewed in a more favorable light to the non-moving party,
d) Answer – If motion to dismiss or motion for summary judgment are not granted, D must file an answer: fact pleading, D denies P’s versions of the facts
e) Discovery – court supervised fact finding, incl. depositions, req. for production, interrogatories.
f) Trial:
i) Jury selection
ii) Opening statements — outlining a theory and evidence to be presented
iii) Plaintiff’s case in chief
iv) Cross-exam by D counsel and objections to admissibility of evidence – witnesses and documents
v) Defendants can move for a directed verdict (MDV #1) – granted if no one could conclude that, more probable than not, that D is a liable tortfeasor
vi) Defendant’s case-in-chief
vii) Evidence – witnesses and documents
viii) P’s rebuttal case
ix) MDV #2 (P or D)
x) Closing arguments
xi) Judge’s instructions to the jury
xii) Verdict – general or answer to a set of specific answers
xiii) Motion for judgment on verdict – by winner
xiv) JNOV – judgment notwithstanding the verdict – moved for by the loser. Done so that entire trial will not need to be retried if reversed on appeal.
►A ∆ has 2 ways of winning a tort case:
1) If π cannot prove beyond a preponderance of evidence all elements of the tort by a preponderance of evidence.
2) If π can prove all the elements, ∆ can still win by raising an affirmative defense and proving it by a preponderance of the evidence.

INTENTIONAL TORTS
2. Battery
RSTMT (2nd) Torts § 13: ∆ must act, her act must be
A. Act must be intentional (disjunctive meaning)
a) Purposeful actions
b) Substantial Certainty: The actor must realize with substantial certainty the consequences of her act
i. If the Δ has knowledge, the necessary intent will be established, and the π will be entitled to recover even though there was no purpose to injure or embarrass the plaintiff. [e.g. Elaine and Brian D., no intention to harm, but knew that the πs would hit the floor when pulled chairs] B. Act must cause a contact with victim, and
a) Battery can occur in absence actual touching by defendant. [e.g. setting a wire knowing someone will trip over it.
b) Contact requirement has been extended to include objects assoc. with victim’s body [e.g. Fisher v. Carrousel Motor Hotel – touched his shirt] C. The intended contact must be either harmful or offensive
a) Bodily harm (e.g. G v. S, B v. D)
b) “offends a reasonable sense of personal dignity” (F. v. CMH)
i. Objective standard determines whether conduct is offensive
D. Additionally, victim needn’t be aware of occurrence of a battery when it occurs to sue a tortfeasor for it (unlike assault and false imprisonment) (e.g. kissing someone while sleeping)
►POLICY: Purpose of battery is to prevent invasion of victim’s physical

1. Ghassemieh v. Schafer (Court of Appeals of Maryland, 1982)pp. 1-14
§ FACTS: Δ: 13 year old eighth grader Elaine Schafer pulled chair from teacher (π: Karen Ghassemieh), causing π to fall and injure her back. ·Both parties agree this was a prank without the intention to harm· π suffered and was treated for back pain for 2 years
§ PROC: The statute of limitations for battery (1 year) had passed, thus reason why π filed a suit of negligence (3 years SOL) Teacher’s objections to jury’s instructions never argued that negligence and battery are not mutually exclusive; procedural mistake on π’s part (rule 554); judgment for ∆ .
►TAKEAWAY: Battery and negligence not mutually exclusive.

2. Garratt v. Dailey (Supreme Court of Washington, 1955) pp. 14-18
§ FACTS: In her back yard, π: Ruth Garratt (an adult) started to sit down in wood and canvas chair · The Δ, Brian Dailey (5 years old) pulled the chair out from under her. · The π fell to the ground and sustained a fracture to her hip, and other injuries.
§ PROC: On remand, Ct determines if Brian intended for Ruth to hit the ground (Ans: Yes)
►Intent to touch vs. intent to injure or offend: There is a discrepancy between this case and Ghassemieh v. Schafer). In Ghassemieh, the touching must be offensive, while in Garrat there only needs to be intent to touch.
○ White v. Univ. of Idaho: Music prof. approached seated π, did piano key mov’t on her backàunexpectedly harmful injuries. – Idaho ruled for π because ∆ intended unpermitted contact. Don’t have to intend harm. [Contact would prob. pass objective standard test. Case anomalous b/c tried it as a case of battery so that university would be liable (instead of trying it under negligence)] ○ White v. Muniz: Alzheimer’s patient struck caregiver while he was changing her diaper. In order to possess necc. Intent, patient must appreciate the offensiveness of her conduct. Jury found for ∆ (patient), rejecting reasoning in White v. U of Idaho
○ Vosburg v. Putney: 11 year old kicked 14year boy with foot infection. Wisconsin court found battery even though 11 year old did not intend to cause the harm – egg shell skull rule – You take your victim as you find him

3. Fisher v. Carrousel Motor Hotel, Inc. (SC of TX, 1967)pp.18-21
§ FACTS: · π was mathematician for NASA · ∆ was hotel in Houston · employee of hotel grabbed π’s plate from him as he was about to serve himself from buffet and shouted that Negros could not be served · Fischer not actually touched nor feared or apprehended physical injury
§ PROC: Trial court found JNOV for D on erroneous principle of law. Thought there needed to be physical contact (can be an extension) · Ct of Civil Appeals affirms. · SC of TX reverses both decs.
§ ISSUE: Whether there was evidence that actionable battery was committed? YES.
► To constitute assault and battery, not necessary to touch P’s body or even clothing; knocking or snatching anything from his hand, or touching anything connected with his person, when done in an offensive manner, is sufficient
► What’s the purpose of battery law, particularly when it focuses on touching that is offensive rather than causing major harm? To keep the peace, preserve civility, and preserve personal dignity. ”Personal indignity is the essence of an action for battery”

5a. Assault
RSTMT§21: ∆ must (1) act with intent (2) to place the victim in apprehension of the harmful or offensive contact or to make such contact, and (3) the victim must be reasonably be places in apprehension of such contact. Unlike Battery, no contact is necessary.
ELEMENTS:
1. Intention to:
a. Cause apprehension of imminent harmful or offensive touching, OR
b. Inflict harmful or offensive touching…
i. Measured with substantial certainty test
2. Apprehension of harm or offense must be imminent
a. Imminent does not mean immediate in the sense of instantaneous contact, it merely means that there will be not any significant delay [RSTMT §29, comment b] 3. Apprehension of bodily harm or offense
a. Reasonable belief by victim that actor has capability to inflict the harm [OBJECTIVE] i. EXCEPTION: RSTMT §27: “if an act is intended to put another in apprehension of immediate bodily conduct and succeeds in doing so, the actor is subject to liability for an assault although his act would not have put a person of ordinary courage in such apprehension.”
Ø No actual contact is necessary.
o “Bring on the chainsaws!”, dismember a tree with chainsaw à factfinder can reasonably conclude an assault occurred. Sides v. Cleland

1. Vetter v. Morgan(Ct of A of Kansas, 1995) pp.21-23
§ FACTS: π: Laura Vetter was injured when her van ran off the road around 1:30am ; ∆ (Chad Morgan, Jerrod Faulkner, and Dana Gaither) began screaming obscenities and threatening π while car driven by another pulled up next to her.· π says when traffic light turned green, car ∆ was in swerved sharply into her lane, so she swerved to the right, struck the curb, injured her head on the steering wheel. · ∆ denies ever veering into her lane.
§ PROC: π appeal of summary judgment dismissal of her assault claim against Morgan
§ HOLDING: Trial Court erred in dismissing; whether D’s actions constituted an assault was a question of fact and should have gone to the jury.
► Words can constitute assault if “together with other acts or circumstances they put the other in reasonable apprehension of imminent harmful or offensive contact with his person.”
►π’s ability to have fled or self-defended does not preclude assault

5b. False Imprisonment
False imprisonment is the intentional, unlawful, and unconsented restraint by one person of the physical liberty of another. The confinement must be against the will of the “prisoner.”
►Confinement by threat, by physical barriers (locked doors), w/o person’s consent, must be aware OR suffer harm.
►If locked in room while asleep, doesn’t count as false imprisonment because you are unaware.
ELEMENTS RSTMT: §35:
1. Intent to confine
2. Act directly or indirectly results in confinement
3. Conscious of the confinement
4. Unconsented
5. Restraint against physical liberty of another

2. Herbst v. Wuennenberg (Sup Ct of Wis, 1978) p 23-28
§ FACTS: π’