Torts Outline

Torts Anderson Spring 2016
 
 
Trial Court Procedure in Tort Cases
On appeal, appellant must pinpoint error of trial judge, first thing to ask: what does appellant claim the trial court judge did wrong? Most tort cases settle.
Possible stages of a lawsuit
1. P files complaint
2. D’s response may be a motion to dismiss for failure to state a claim, but if not dismissed must file answer.
3. Either side can move for SJ as to part or all of the dispute (Ds most often)
4. If P’s case survives motion for dismiss and SJ, will need to be tired unless parties reach settlement.
5. Judge and lawyers select a jury.
6. Lawyers make opening statements.
7. P’s lawyer puts on the case on behalf of P, D has opportunity to x-examine witnesses
8. D may file motion for directed verdict – not a sufficient basis for holding D responsible under law.
9. If judge denies motion for directed verdict, D will put on its case in chief, P’s lawyer can x-examine.
10. P’s lawyer may have opportunity after to present rebuttal evidence.
11. Either party may move for directed verdict – standard on p.5
12. Even if inclined to believe that there is only one reasonable outcome, judge may deny directed verdict, but judge will have another opportunity to rule for the party who should prevail.
13. If judge doesn’t grant motion for directed verdict, lawyers make closing arguments.
14. Judge instructs jury on law they are to apply.
15. Jury retires, deliberates, and returns with a verdict. Winner will move for judgment on the verdict, and the loser can move for judgment notwithstanding the verdict (JNOV) or for a new trial.
*If the directed verdict motion is granted and the appellate court eventually disagrees, the case will have to be retried because the jury never got to rule on it. But if the appellate court disagrees with JNOV,  jury verdict can be reinstated.
The major stages at which trial judges make tort-law mistakes:
1. Granting or denying motions to dismiss the complaint.
2. Granting or denying motions for summary judgment.
3. Permitting improper statements by counsel (or squelching proper ones) during jury selection, opening statement, or closing argument.
4. Excluding relevant evidence or admitting improper evidence.
5. Granting or denying motions for directed verdict.
6. Erroneous jury instructions.
7. Granting or denying motions for judgment notwithstanding the verdict.
8. Granting or denying motions for new trial, additurs, or remittiturs.
Intentional Harms to Persons and Property
Introduction
P has burden of introducing evidence tending to prove every element in order to have the case submitted to the jury. If P does, P has burden of persuading jury, but D can and has burden of producing evidence and persuading jury on defense (even if P proves every element).
Battery
An intentional touching that is harmful or offensive – D must only have had the intent to commit the touching, not the harm or the offense.
A person acts with the intent to produce a consequence if: (a) the person acts with the purpose of producing that consequence or (b) the person acts knowing that the consequence is substantially certain to result.
Unwanted and intentional invasion of one’s person through dispossession of an object is battery even in the absence of physical contact.
Actual damages for mental suffering stemming from battery may be awarded even when no physical contact is made. (humiliation embarrassment etc.)
A bodily contact is offensive if it offends a reasonable sense of personal dignity. Contact must be one which would offend the ordinary person and as such one not unduly sensitive as to his personal dignity; it must therefore be a contact which is unwarranted by the social usages prevalent at the time and place in which it is inflicted.
Transferred intent: In a case in which contact occurred but the D intended only apprehension, D is still liable for battery, as though the D had intended the contact. Similarly, if D intended the contact but caused only apprehension, D is liable for assault. Or if D intended contact or apprehension to A, but either resulted to B, intent element is supplied by principle of transferred intent
Assault
Intentionally caused apprehension of imminent harmful or offensive bodily contact
Whether D’s actions constituted assault is question of fact for jury.
1. Intentional threat or attempt (there is evidence of a threat, verbal by D to take P from her car) Words alone cannot be an assault ordinarily, however they can if together with other acts or circumstances they put the other in reasonable apprehension of imminent harmful or offensive contact with his person.
2. Coupled with apparent ability to do harm to another (record supports inference – windows could be broken, cars were close, and D was with two other males, late at night so rescuers unlikely) Ability to prevent threatened harm by flight or self-defense doesn’t preclude an assault.
3. Resulting in immediate apprehension (mental suffering) of bodily harm (record sufficient to support – D’s behavior so extreme that P could’ve reasonably believed he would immediately try to carry out threat) It’s not necessary that the victim be placed in apprehension of instantaneous harm, it is sufficient if it appears there will be no significant delay.
In addition to own acts, D could’ve been found liable based on Gaither’s acts (swerving car) because trier could find they acted in concert.
P must prove that D intended to cause apprehension of imminent harmful or offensive bodily contact or intended to cause harmful or offensive bodily contact.
False Imprisonment
Intentional, unlawful, and unconsented restraint by one person of the physical liberty of another.
The defendant’s acts must directly or indirectly result in a confinement of the plaintiffs.
Confinement may be brought about:
o   By overpowering physical force, or by submission to physical force
o   By submission to a threat to apply physical force to the other’s person immediately upon the other’s going or attempting to go beyond the area in which the actor intends to confine him
o   By submission to duress other than threats of physical force, where the duress is sufficient to make the consent given ineffective to bar the action (threat to inflict harm on family)
o   By taking person into custody under an asserted legal authority
Plaintiff must submit to an apprehension of force: There must be credible evidence to support that the plaintiff did not consent to the confinement and that they remained only because D indicated by acts he had the apparent intention and ability to apply force to their persons should they attempt to leave. (Evidence isn’t sufficient to support that D’s actions directly or indirectly resulted in a confinement of the plaintiffs (required element) because plaintiffs remained on the premises although they would’ve preferred not to do so and because they did not submit to an apprehension of force. False imprisonment action protects the personal interest in freedom from restraint of movement. P should have attempted to ascertain whether there was any basis to their assumption.)
Confinement must be within a boundary, excluding someone from a place doesn’t constitute a confinement.
A reasonable and reasonably discoverable alternative means of escape negates a confinement.
Absent an implicit agreement, individuals don’t have an affirmative duty to extricate others from a confinement.
Plaintiff must prove she was aware of the imprisonment at the time or that the confinement caused actual harm.
False imprisonment: wrongfully directing the police to arrest another person (knowingly providing the police with incorrect information)
Intentional Infliction of Emotional Distress
Intentional Infliction of Severe Emotional Distress:
1.     Extreme and outrageous conduct by the defendant (most susceptible to determination as a matter of law)
2.     The defendants intention of causing, or reckless disregard of the substantial probability of causing severe emotional distress;
3.     The plaintiff’s suffering severe or extreme emotional distress; and
4.     Actual and proximate causation of the emotional distress by the defendant’s outrageous conduct
Plaintiff recovers from insurance company for severe mental distress because of deliberate refusal to pay her the proceeds of the policy covering the life of her husband. Insurance company was ful