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Torts
University of Toledo School of Law
Parker, Johnny Clyde

TORTS
Professor Parker
Summer 2010

BACKGROUND INFORMATION
§  Difference between Civil vs. Criminal:
o  Damages: In civil the aggrieved party receives money for compensation.
o  Parties: In civil, the action is between parties, whereas in criminal the action is between the government and a party.
o  Criminal: CAN give rise to a civil action. Ex: Michael Jackson’s case spawned civil actions.
à Criminal case GOES FIRST, because burden of proof is higher.
Beyond a Reasonable Doubt (Criminal-99%) > Preponderance of Evidence (Civil 51%)

What is a Tort: A tort is a civil wrong, other than a breach of contract, for which the law provides a remedy.
A.      “Wrong”—the law of torts is limited to which wrongs it will provide a remedy for. That is the scope of the course.
Ø  That the civil law is only concerned with 3 theories:
1)    Intentional wrongs
2)    Negligent wrongs
3)    Strict liability

B.      “Breach of Contract:” a breach of contract CAN give rise to a tort action. For example, Fraud is a tort action that arose from a b/c. Ex: if an insurance company doesn’t pay you, with no legal justification, you don’t sue them in CONTRACT anymore, you sue them in TORT.

C.      Law: There is no law. The hope is that the rule of law will protect us. The rule of law is the sentiment of the people at any time. The hope is not in law; it’s in the rule of law—the proper procedure.

CH. 2 INTENTIONAL INTERFERENCE WITH PERSON OR PROPERTY

SECTION 1. INTENT
Intent: common element for all intentional torts. So we need to know how intent works.
à Operates the same way as flour. Flour itself is not food, but must be added to something else to get cake.

Intent: the focal point is on the actor’s desire to bring about the tortuous consequences, not the volitional movement.

Intent: concerned with the consequences of the actor’s conduct
1) Subjective Purpose: with the subjective purpose of causing the contact or the apprehension thereof; OR
2) Substantially certain to result: With the knowledge that such contact or apprehension is substantially certain to result there from. I.e. Danger ceases to only be a foreseeable risk, but becomes a substantially certainty.

Reckless: a little past negligence, you can get punitive damages for reckless.
Negligence: a foreseeable risk which a reasonable man would avoid; you cannot get punitive damages

Additional Information for Intent:
a.       Good faith mistake: DOES NOT negate intent (Ranson- guy who shot dog thinking it was a wolf)
b.       Insane person: if intentionally commit an act, can still be held liable.
c.        Transferred intent applies: The intent to commit one tort can be transferred to commit another tort. (Talmage – guy threw stick and kid on shed, missed, and struck other kid in eye.)
d.       No need to put causation because the INTENT IS SO BAD, that it doesn’t require causation. In fact, intentional torts also arise to criminal torts.

SECTION 2. BATTERY
Battery: intentional infliction of harmful or offensive contact to another.
1)       Intent
2)       Harmful or offensive
–    Harmful: broken arm, injured eye, physical harm
–    Offensive: proving a reasonable person would be offended/humiliated. Ex: Wallace: the woman during the fire drill was no offensively touch because it was reasonable; however, in Fisher, the guy was humiliated at the buffet. 
àWould a reasonable person be offended in this case? Yes.
3)       Contact:
a.        Directly: touching the actual person. Punch, kick, etc.
b.        Indirectly: the touching of something connected to person. Ex: plate in line of buffet is sufficient for contact.
Additional Information for Battery:
a.       Extra-Sensitive person: the law does not protect the extra sensitive person. Ex: Wallace the woman offended when she was told to move along for the fire drill and was touched on the back by the teacher.
They have to prove that a reasonable person would have been offended.

b.       Implicit consent: aka “ crowded world consent”— a certain amount of personal contact is inevitable and must be accepted. Ex: being at a crowded concern.  Pat on the back at work. A handshake.
àDetermine by looking at the Time, area, relationship, circumstances.

SECTION 3: ASSAULT
Assault: the intentional causing of imminent apprehension with an apparent ability
Prima Facie Case:
-Elements:
1) Intent: (foundation that your legal analysis is built. Have to start at 1 when analyzing)
2) Imminent apprehension: P had a concern for their well-being
(Fear is NOT a requirement, otherwise it would exclude a number of people ex; hulk vs. pee wee hermon)
à Awareness!!!
3) Apparent ability: it is up to the jury to decide whether the D had the apparent ability to effectuate.
à The D was capable of completing the battery had something else not intervened.

Western Union Telegraph: guy went to business to fix clock. He made sexual moves toward, but never touched her because he was too short and she was behind a tall counter. Even though he didn’t touch her, he placed a concern for her well-being.

Additional Notes:
Mere words and future threats: CAN NEVER serve as a basis for an assault.
Law won’t protect the extra sensitive person

BATTERY AND ASSUALT MERGE UPON CONTACT!!!

SECTION 4: FALSE IMPRISONMENT

False Imprisonment: to intentionally restrain someone against his/her will without legal justification
Prima Facie Case:
1.       Intentional restraint
2.       Against will (in order to be against of it, you HAVE TO BE AWARE OF IT)
3.       Without legal justification

Unlawfulness of Restraint
1)       Restraint of an individual against will
2)       Unlawfulness of such restraint

Ex: Enright: Police officer who has no justification to make the arrest. Ex: the woman arrested for not having dog on                                 leash, but the police officer actually arrested her for failing to give drivers license when in fact, there was no                                                requirement for her to do so.
– Conviction: a conviction of an arrest is a complete defense to false imprisonment. So for example if the                                                   woman was convicted of not providing license, then the police officer would be in the clear.

Restraint itself must be physical. That DOES NOT mean it must consist of physical force. So putting her in a boat in the middle of the ocean is physical restraint. The impassable sea is the physical barrier. Ex 2: Locking someone in a room. The four walls and locked door is the physical barrier.

Additional Notes:
§  Must be total: not totaled, if a reasonable means of escape exist.
§  Not reasonable if: if the only means of escaping is dangerous
§  Unreasonable escape: If the P can remain where s/he is safely, but undertakes an unreasonable escape, s/he WILL NOT be permitted to recover for any damages caused in the attempt to escape. 
Ex: breaking glass of window to escape from a room that professor locked. It’s not reasonable because you                                                               could have escaped safely. Parker would be liable for the False imprisonment, but not the injury caused by the broken                   glass.
No requirement of physically fighting back or orally objecting to it: the “against will can be implied.”
Only need to be against it AT THE TIME OF THE FALSE IMPRISONMENT. It doesn’t matter if you don’t remember at the time of trial 
Ex: Parvi: the guy did not want to go to the golf course, but wanted to go home. He also couldn’t remember the                                       incident from being intoxicated. Court found that he inferred that he objected to being taken there. Plus, his not                                        remembering at trial is not an issue; the only issue is if was aware and was imprisoned without his consent.

5.    SECTION 5: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED)

IIED: the intentional or reckless infliction, by extreme and outrageous conduct, that causes severe emotional distress.

Prima Facie requirements:
1)       Intentional or reckless
2)       To cause severe emotional distress
3)       To person of ordinary sensibilities

Additional Information:
a. Physical manifestation of the injury IS STILL REQUIRED!!!!
Ex: vomiting, hair loss, breaking out in hives
b. The court abolishes the impact doctrine (only recover under IIED if you suffer physical impact).
c. Does not protect the Extra-Sensitive Person
d. General Rule: insults, cursed out, petty inconveniences, will NOT serve as an IIED claim. UNLESS
à Unless, you have knowledge of the person’s

ense of property: one may use reasonable force, BUT NOT DEADLY FORCE, to protect their land and chattels.

4.RECOVERY OF PROPERTY
Recovery of Property:
1)       Before any force is used, you have to demand the property
2)       While in the fresh pursuit, you are allowed to use non-deadly force to retrieve the property.

**Note: if he attempts to fight you off, you are no longer in recovery of property, and instead, self-defense kicks in.

Merchant Privilege:
1. Merchant only allows the privilege to detain the suspect where they have probable cause/proper purpose.
2. Must be exercise in reasonable manner and reasonable amount of time.

5.    NECESSITY

Necessity: under necessity, D has a privilege to harm or use property of another in order to prevent great harm.
1)       Public Necessity (community): for public necessity privilege to arise, there must be an imminent AND impending threat to a community interest. So after the event has subsided, the privilege will not work. It’s the BEFORE of the matter, in the context of necessity.
–No obligation to compensate these people when under the privilege. Ex: blowing up home to serve as a fire break.

2)       Private Necessity (person): private property is suspended BUT you have to repay once the disaster is over. So for example, if homeowner points gun at you and doesn’t let you in his home during a tornado, and you are injured, then you can sue the homeowner for the damages. He had to let you in his home.

Private property may not be taken without compensation have been made. The Government cannot take private property.
4 exceptions:
1) Public necessity
2) War time
3) Abate a public nuisance (Katrina exception)
4) Imminent domain. (suppose to pay before you take it)

VICARIOUS LIABILITY

Vicarious Liability
1.    Background:
a.    In order to impose vicarious liability, P must establish a relationship between the culpable and non-culpable party
b.    Only specific relationships impute liability

2. Respondeat Superior (let the employer answer)
a.    The doctrine of respondeat superior is not applicable where the employer is negligent in his or her own right. You don’t’ need it. The employer is negligent.
b.    Two relevant issues to prove:
1)    Have to prove that a true agency relationship existed.
o  Only applies to 3 true agency relationships:
i.         Master/Servant
ii.        Employee/Employer
iii.      Principal/Agent

2)    Must show that the inferior party was acting within the scope of his/her employment.
Ø 3 common law tests determine if the employee is in scope of employment
1)    Acting for benefit of employer; or
2)    Acting in furtherance of employer’s interest; or
3)    Acting pursuant to the control of his employer

c.        Public Policy is the STRONGEST determinant of applying vicarious liability
a.    Where all of the facts are evenly spread, Public Policy is the tie breaker.
b.    Even if facts DON’T FAVOR the D, Public Policy may still apply vicarious liability and dictate the outcome for the P.

d.       Exceptions
1)       Going and coming rule: an employee was not within the scope of the employment if they are going to and from work.
à Exception:
a.    Company vehicle
b.    Getting paid for mileage
c.     Foreseeability: if its foreseeable by the employer is their employee causes damage, then they are deemed to be working within the scope and the going and coming rule does not apply.