Torts
Fall 2010
McGarity
I. META
(1) HISTORY
§ Tort: Shifting wealth from one person to another when harm cause by person (shifting wealth, causation) – non-consensual relationship between parties.
§ Origin: common law (though legislature increasingly playing a role: tort reform)
§ Historical origins: King’s writ (def: acknowledged form of action – narrow, must fit into those parameters) vs. Chancellor’s trespass on case (writ for particular case, injunctive relief/equity) – court’s need to explain themselves based on principles: establish consistency (stare decisis) + sense of justice
§ Evolution 1: Causation: he caused me harm, he should be liable
§ Evolution 2: Harm without clear fault: burden on P to show D caused harm (negligence/intent)
§ Evolution 3: Burden on P: prove by a “preponderance of evidence”
§ Evolution 4: Liability regardless of fault (hypo: blasting cases)
(2) META PURPOSE – good rules? good principles? good society?
1. Law sends message
§ 1) Deter wrongful conduct – provide incentive (do now or pay P later)
§ 2) Encourage socially responsible behavior
2. Compensation
§ 1) Restore injured party – to extent law can compensate for injury
§ 2) Vindicate individuals: equality/compensation/what is right and fair (redistribute wealth)
3. Retributive justice (self help)
§ 1) Peaceful means to resolve dispute avoid people “taking the law into their own hands” (tort alternative to violence)
§ 2) Punitive damages to particularly egregious acts
II. INTENTIONAL TORTS
(1) PRIMA FACIA CASE
RULE: To establish a case for intentional liability, P must prove all elements by a preponderance of evidence:
(i) Act
(ii) Intent
(iii) Causation
Elements –
a. Act by Defendant
1. Act for intentional liability requires volitional, deliberate movement of D.
b. Intent
1. The act is done for purpose or with the desire to bring about the consequences of their conduct or;
§ Hypo: A hits B with intent to break leg, but without substantial certainty that he’ll succeed. A battery because hitting done for the purpose of breaking B’s leg.
2. The act is done with knowledge of substantial certainty that consequences of conduct likely to occur [reasonable person test].
§ Hypo: Cohen v. Petty—Man driving car with 3 additional passengers, notes that he “feels sick,” then suddenly faints and crashes car. P suffers injuries. Man may not be negligent if suddenly overcome with illness, had no reason to anticipate, and illness rendered him unable to control vehicle. (vs. liability if knew you were subject to seizures and you drive anyway).
3. The actor need not intend injury/harm.
§ Hypo: 5 yr-old boy pulls out chair from beneath woman who is attempting to sit, she falls and is injured. Boy did not intend to injure her, but knew with substantially certain that women would attempt to sit in chair and fall.
4. Reasonable mistake of identity of person/animal does not negate intent.
§ Hypo: A shoots B’s dog mistakenly believing it’s a wolf. A liable for trespass to chattels for killing B’s dog despite the reasonableness of his belief.
§ Note: D may be able to assert privilege (self-defense, public necessity)
5. Minors and incompetents can have requisite intent.
§ Hypo: McGuire v. Almy—Insane woman attacks her caretaker and intentionally batters her with leg of a lowboy (severely injured). Insane person held liable so long as P can prove she was capable of entertaining intent and formed that intent. Note: be mindful of relevance of assumption of risk/duty to supervise + narrow exception: institutionalized mentally disabled.
o Meta: (1) Encourage & expect caregivers to be more watchful, (2) Adhere to essential justice, (3) Want to keep tort and criminal separate – tort not in the business of analyzing intent.
§ Hypo: A gets drunk and B agrees to drive him home. In his drunken rage A kicks B in face while in car. A liable for battery because voluntary intoxication does not vitiate intent.
6. Exception: D may not be liable if harm was utterly without fault. Burden on P to prove. Rule: intentional liability must be based on legal fault (legal fault defined as: D didn’t take proper amount of care that a reasonable person would take).
§ Hypo: Weaver v. Ward – 2 soldiers horsing around with guns, one accidentally discharges gun injuring the other. D might not be liable for purely accidental injury if D’s action utterly without fault.
§ Hypo: D lawfully attempting to break up dog fight. During attempt, he unintentionally hits P in head (battery). P has burden of proving that D’s actions were not lawful (i.e. not exercising proper/ordinary care), otherwise, cannot recover.
7. Exception: strict liability may be imposed without regard to fault or intent if activity is abnormally dangerous.
§ Hypo: Spano—Companies engaged in blasting held strictly liable for harm caused because even in exercise of reasonable/due care, activity still carries extreme risk. Meta rationale: doesn’t ban activity, merely requires companies that engage into take measures to prevent harm or pay (burden/incentive on blasters).
o Note: Coase theorum: rule doesn’t matter, will converge on most efficient.
8. Transferred Intent: applies where A intends to commit one tort against B (and action unreasonable) but instead commit (i) different tort against B or (ii) or same tort against C or (iii) different tort against C. Exception: intentional infliction of emotional harm (writ of tort: battery, assault, false imprisonment, trespass to land, trespass to chattel).
§ Meta: (1) Discourage self help; (2) Discourage behavior/send a message.
§ Person-to-Person Transferred Intent
o Hypo: Talmage v. Smith—Curmudgeonly old man unreasonably throws stick at trespassing boy A intending to hit him, but without intent to, accidentally hits boy B. Man liable for battery against B.
§ Tort-to-Tort Transferred Intent
o Hypo: Man believes house is empty, intentionally sets fire to house (arson), but turns out young child asleep in house and dies from smoke inhalation. Man liable for battery.
c. Causation
1. Resultant harm to P caused by D’s act or something set in motion by D’s act.
(2) BATTERY
RULE: Battery occurs when defendant acts intentionally to cause harmful or offensive contact with plaintiff’s person and harmful or offensive contact directly or indirectly results. Whether contact
person” test.
Protected Interests –
1) Mental/emotional tranquility
2) Freedom from apprehension of harmful/offensive contact
3) Discourage behavior (even apprehension) + discourage self help
Elements –
a. Intent
b. Apprehension: apprehension of immediate harm as measured by a reasonable person standard.
1. Although defendant may not be actually capable of causing injury, his apparent present ability is sufficient if it creates a well-founded fear.
§ Hypo: Woman brings husband’s clock to be fixed by Western Union employee. Employee makes sexually suggestive comments to her (“fix her clock”) and reaches over counter in an attempt to touch her. Although it was physically impossible for him to reach her, his present ability created a well-founded fear of contact and he was thus liable for battery.
§ Hypo: With hand on his sword, man threatens another man saying he’d take action against him if the judge’s weren’t in town (not assize-time). However, because the judge’s were in fact out of town, man has not committed assault.
§ Hypo: Man standing three-feet from woman, puckers lips and makes kissing gestures at her. However, man makes no effort to kiss her or use force and therefore has not committed assault.
2. Apprehension requires plaintiff’s awareness/consciousness of defendant’s conduct at the time of action.
§ Hypo: Wife asleep in bed, husband walks in, points a gun at her head, but then changes his mind. Although husband’s actions were caught on surveillance camera, he has not committed assault because wife was not put in imminent apprehension at the time of her husband’s act.
3. A person may still reasonably apprehend imminent contact, even if they know they can avoid it or believe they can defend themselves against it.
§ Hypo: KKK members dressed in KKK robes patrol back and forth on fishermen docks displaying guns (but making no verbal threats) commit assault against Vietnamese fishermen.
4. Apprehension must go to plaintiff’s own person, cannot be apprehension of harm to someone else or some property.
§ Hypo: Disgruntled bar patron kicked out of bar, he returns with a hatchet. Wife of bar owner sticks her head out of window and commands him to go home. He swings the hatchet at her and clumsily misses. Patron has committed battery against the woman, but not against her husband who witnessed the event from a safe distance.
5. Apprehension of contact must be immediate, threats of future contact are not sufficient for assault.
§ Hypo: Friend threatens classmate, saying he’s finished and that he is going to kill classmate in his sleep. No assault because threat not imminent enough.
