TORTS
ROBERTSON
SPRING 2013
1. BATTERY
· Intentional
o Intended
o Knew with a substantial certainty that the touch would result
§ Issue à what’s the focus of intent? The harm/offense? Or the actual touch?
§ Restatement à harmful/offensive contact
· Better view – evaluate P lack of consent objectively
§ Strict liability à if harmful/offensive, D liable
· Rationale – some D might truly believe their touch is not offensive
· Ghassemieh v. Schafer à intent to do harm is not essential. The gist of the action is not hostile intent on the part of the defendant, but the absence of consent to the contact on the plaintiff’s part.
o Transferred intent à unintended victim or other tort results
§ doesn’t apply when D mistakenly identifies and targets the victim believing he was someone else. Mistake would apply.
· Touch
o Fisher v. Carrousel Motor Hotel à actual physical contact is not required, so long as there is contact with clothing or an object closely identified with the body (e.g., knocking or snatching)
· Harmful/offensive
o Harmful à resulting in physical pain
o Offensive à a person with a reasonable sense of dignity
2. ASSAULT
· Intentional
o Purpose
o Substantially certain knowledge
· Apprehension of imminent battery – or making such conduct
o No reasonable delay à doesn’t have to be immediate
o P must be aware (e.g., can’s be sleeping, unconscious, or looking the other way)
o P must prove that she feared the type of contact that would support a battery claim if it actually occurred (harmful or offensive touch)
· Apprehension was reasonable
o Apprehension doesn’t mean fear, it means anticipation
o Words + acts or circumstances = assault. Vetter v. Morgan
3. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
ELEMENTS
· D desired, knew with substantial certainty, or recklessly
· Caused P to suffer emotional distress
· Emotional distress was severe
· D conduct was outrageous
o Situations that support a finding of outrageous conduct
§ abusing power or position, that is, by using a position of dominance
§ taking advantage of or emotionally harming a plaintiff he knows to be especially vulnerable
§ repeating or continuing acts that may be merely offensive and thus tolerable when committed only once, when the plaintiff cannot avoid the defendant’s behavior by leaving
§ committing acts of physical violence or threatening violence of serious economic harm to a person or property in which the plaintiff is known to have a special interest
· Critique à outrageous conduct
o Subjective – too variant
o Prohibiting outrageous conduct would give rise to a claim of unconstitutionally vague
· Focus of the tort à emotional distress
o Recklessness à Dana v. Oak Park Marina, Inc
§ Second restatement à subjective acknowledgement of risk + disregard
§ Third restatement à subjective or objective acknowledgement of risk + disregard + precautions were so slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to risk.
DEFENSES
1. CONSENT
· Actual consent is not required (O’Brien v. Cunard)
o Overt acts and the manifestation of her feelings
§ Words, gestures, or conduct
· Invalid consent
o Consent that is based on a misunderstanding of the facts.
§ Due to the D misrepresentation (or failure to reveal crucial facts), P did not appreciate the true nature of the intended contact and this did not meaningfully consent to it.
§ To invalidate consent P must consent to a different touch than the one intended by D. (McPherson v. McPherson)
· D aware vs. D unaware
· If both P and D are unaware of facts that would discourage P from consenting à consent is still valid
· Effect on prima facie case
o Consent negates the “offensiveness” requirement of battery/assault
· Consent depending on the context
o Participation in a game(activity) involves a manifestation of consent to those bodily contacts which are permitted by the rules(and customs) of the game(activity). However, there is a general agreement that an intentional act causing injury, which goes beyond what is ordinarily permissible, is an assault and battery for which recovery may be had. Overall v. Kadella.
2. SELF-DEFENSE
· Use of force to prevent an impending battery or to stop one which is in progress
· Focus à victim’s reasonable belief that force is necessary, even if it’s not.
o Tatman v. Cordingly
· Self-defense vs. Retaliation
o D can forestall an impending battery, not retaliate for prior ones
· Force
o Only allowed to use force that she reasonably believes is necessary to avert the threatened harm.
o Deadly force can only be used when victim is reasonably believes she is threatened by deadly force.
· Duty to retreat à not required when faced with non-deadly force
o Restatement
§ Deadly force à duty to retreat if possible (if doubt about safety of retreat – stand and fight), unless attack oc
considered (Vaughan v. Menlove)
· Mentally ill à P argument could focus not on the negligence at the moment of the accident, but rather on the D decision to engage in the activity knowing that he/she was prone to mental deficiencies (e.g., epileptic who decides to drive and has an attack on the road)
§ Rationale
· Objective test that allows impartial application, avoids subjective judgments about individual character, and allows some measure of prediction about the consequences of conduct.
· Legal judgment not a moral condemnation à neutral instrument for deciding disputes, not a value judgment about a person’s character.
§ Children
· AIE à reasonable person of like age, intelligence, and experience.
· Rationale
o Economic efficiency à entrepreneurial society – allows children to explore without liability
o Corrective justice à Children have to learn to be careful, they shouldn’t be held liable during their learning process. We were all children once.
· Criticism
o Economic efficiency à IE highly variable – expensive procedure to make a determination
o Corrective justice à D should not bear the cost
· Exception à engaging in adult behavior (typically behavior requiring license – driving, drinking)
o The public interest and the public safety require that any consequences due to his/her own incapacity shall fall upon him/her rather than the innocent victim, and that he/she must be held to the adult standard, without any allowance for age.
· Strait v. Crary à where the injury is a result of behavior that is not adult-type activity the exception doesn’t apply, even if the D engaged in adult-type activity prior to engaging in the injury-resulting episode (climbing out of the window – drinking)
§ Experts à considered
· Not held to a higher standard of care, but their expertise is considered a circumstance that affects reasonableness
· Rationale
o A professional will be expected to possess and employ the skill and knowledge of her profession, not of the “ordinary reasonable person.”
