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Torts
University of Toledo School of Law
Slater, Joseph E.

Torts Outline
Professor Joseph Slater
Fall 2011
Introduction
Torts: miscellaneous civil wrongs that don’t fit anywhere else (3 types):
1. Intentional torts: what they did on purpose
2. Negligent torts: not complying with one’s duty of care
3. Strict liability: small amount, liability without negligence/intent (just someone’s fault)
Require some type of harm to have occurred
Purposes of tort law (3):
1. compensation: someone is harmed and deserves money if other person was at fault
2. fault or fairness: sometimes fair to punish defendant
3. deterrence: society wants to discourage some activities (mugging), but not others (driving)

INTENTIONAL TORTS
BATTERY

Requiring Fault
Battery requires harmful or offensive touching (Snyder v. Turk pp.38)
1. intent:
A. either intent to harm OR intent to offend (doesn’t have to be both)
2. result: must actually have touching
A. touching that either harms or offends
Elements of Battery
1. Offensive touching: an insult of personal integrity to have someone touch you when/where you do not want to be touched (Cohen v. Smith pp.39)
A. medical treatment is inherently part of personal integrity
i. if P does not tell D they do not want a certain person/type of touching, D not liable
B. how to prove offensive touching
i. D truly meant to offend
ii. an uncommon belief D knew about , but touched anyway
4. Consent: both parties agree to a certain kind of touching; because they agree, there would be no offense, thus no intent (Mullins v. Parkview Hosp. pp.41)
A. eggshell rule: if you commit an intentional tort, you are liable for all damages, including those you did not intend
B. you are responsible for reasonably knowing what everyone else knows

Defining Intent
1. Substantial certainty: it must be proved that D was substantially certain that his actions were going to have consequences (Garratt v. Dailey pp.44)
A. substantial certainty: knowledge that the ensuing action would result
i. must be more than realizing the action would be “very risky”
2. Meaning of intent
A. you mean to do something
B. you do something the majority of society knows is wrong
C. P knows D has a minority belief and ignores it
D. you have substantial certainty that your actions will cause harm
3. Dual intent (minority rule), you must intend (White v. Muniz pp.49):
A. the contact
B. the harm that resulted from the contact
i. both are required to prove intent under this rule
4. Majority rule for intent: it doesn’t matter if you intent the harm or not, only that you intended the action
A. single intent; if you do something society sees as wrong
5. Miscellaneous (pp.52)
A. Insanity: immunity not given for intent because of fear that people would fake it
B. Child liability
i. old rule: there could be no intentional tort if the child was under 7yo
ii. ex: 4yo punches babysitter and crushes her larynx; appellate court finds Rule                            of 7 no longer in effect
C. Parental liability: parents are only liable if they were directly responsible
i. ex: parent tells child to kick someone
ii. payment for child liabilities in 2 ways:
a. insurance
b. it doesn’t get paid if family doesn’t have the money
6. Transferred intent (rules pp.56)
A. Trespassory intentional tort: all intentions were made regardless of what actually        happened
i. ex: I meant to scare A, but accidentally hit A offensively. I am liable, I intended                         to hit A.
B. Extended liability principle: D who intends tort is liable for all damages caused, not     just those intended/foreseeable
i. ex: I meant to hit A, but accidentally hit B. I am liable.
C. Why transfer of intent it a fair rule
i. if you intend to act, you should be held liable for the consequences of that act
ii. deters others
iii. it is morally wrong: you meant to act and it is moral for you to be at fault

ASSAULT: an action which intentionally puts another in apprehension of battery

1. D intends to put P in fear of battery, P is actually put in fear
A. no touching required, just apprehension of touching (Cullison v. Medley pp. 57)
B. imminent danger must be shown; P must feel they are seriously in imminent danger   (no significant delay)
i. emotional distress afterwards plays no role in assault; must be imminent fear
ii. ex: “If this cop weren’t here, I’d kill you!” –not assault
2. You cannot make people choose between tortious alternatives
A. ex: “Give me your wallet or I’ll beat you!”

FALSE IMPRISONMENT:

Defendant                                                                                           Plaintiff
Intends to AND confines                                 AND                             conscious of boundaries OR
Victim in boundaries                                                                           harmed by them

1. requires intent to confine (McCann v. Wal Mart pp.61)
A. physical boundaries not necessary so long as P felt something bad would happen if      she left
B. NOT false imprisonment if P can escape safely and reasonably
2. confinement: if P feels they realistically cannot leave
A. UNLESS P does not want to leave (ex: to clear her name)
B. lawful privileges to confine
i. storekeeper’s privilege: store managers have privilege to do reasonable                                                investigation and confinement
a. reasonable: good-faith belief that there was a reason to confine
b. can only take as much time as needed to determine
c. cannot make excessive threats or use excessive force
3. damages: if you have no physical harm, you must at least have been aware of what was happening
A. must be tangible harm and awareness of the confinement

TORTS TO PROPERTY (3 kinds)

1. trespass to land: D directly enter or causes an entry on the land of another; entry is intentional
A. P can be owners or renters
i. ex: if you throw garbage into another yard, you caused entry and you are liable
ii. includes entry under land (ex: tunneling)
iii. intent: only requires that y

-defense after the person has already withdrawn from                             the fray
C. can only use force that would cause death/bodily harm if that is the kind of threat you                        faced
i. minority rule: requires retreat if:
a. it is safe/reasonable to retreat
b. it is a case using deadly force in self-defense
ii. must look at parties involved and what is appropriate (ex: 200lb football player                                    v. 90yo lady)
2. Defense of 3rd person: if D’s belief in protection was reasonable, D has the right to defend the party in reasonable ways
A. some courts (minority rule): if you were objectively wrong you are still liable
i. ex: 3rd party was a criminal, P was a cop
3. Storekeeper’s privilege (Peters v. Menards, pp.80)
4. Transferred intent (Brown v. Martinez): doesn’t apply if you did not have requisite intent in the first place
A. you can use force to get back stolen property if:
i. you are in hot pursuit
ii. you use reasonable force
>special rules for repo men
5. The defense of consent (2 kinds):
1.) actual consent: I explicitly say we can engage (ex: in writing)
2.) effective/implied consent: the facts are such that a reasonable person would believe I                        have consented
i. your behavior makes it reasonable for people to assume you have consented;                            these cases are much more fact-dependent
A. what you consented to did not include certain other activities
i. ex: you consented to fence, but P takes rubber tip off and stabs you (what                                  actually happened is beyond what you consented to)
B. fiduciary duty (power relationships): some states do not allow you to have sexual                     relationships if:
i. doctor-patient
ii. pastor-parishioner
C. minors
i. responsible minor: a 17yo can consent to something a 5yo cannot
D. disabilities
i. if P cannot physically understand the situation
ii. if P does not understand what they are consenting to
E. medical procedures: people undergoing procedures can withhold consent if they                      make it known
i. the law encourages self-reliant doctors who make decisions when patient is                              under anesthesia
ii. construing silence to mean consent