TORTS à BERNER SPECIFIC
What is a tort? An actionable civil wrong
Difference between criminal cases and civil cases:
(1) The end result (what we are looking to accomplish) is different
a. Punishment on criminal side – taking away their liberty (sending them to jail)
i. Burden of proof – beyond a reasonable doubt
b. Compensability on the civil side – plaintiff being compensated for his loss
i. Burden of proof – preponderance of the evidence for the compensatory damages part (more than 50%)
1. higher than preponderance but lower than beyond a reasonable doubt for punitive damages – “clear and convincing evidence”
(2) Tort system is designed to help the victim, the criminal system is not
(3) DOUBLE JEOPARDY does not protect a defendant from being charged of both criminal and tortuous battery
Torts:
(1) Compensate for bodily harm including:
a. Physical harm
b. Emotional harm
c. Mental harm
d. Economic harm (lost wages, medical expenses)
e. Dignity harm (intentional torts)
Three types of torts:
(1) Intentional Torts
(2) Negligence Action
(3) Strict Liability
1. Intentional Torts
a. Fault based system
b. Can sometimes overlap with criminal system
c. Bankruptcy does NOT get rid of debts caused by intentional torts (it does get rid of debts caused by negligent torts); Davis v. White
i. It matters whether you law your case as an intentional tort or a negligent tort (an intentional tort is more useful than a negligent tort – intent based claims have a better claim for punitive damages, as well as they can’t be discharged due to bankruptcy; they (intentional torts) usually have a longer statute of limitations and go outside of insurance coverage)
d. Intent:
i. Requires
1. Desire or Purpose OR
2. Substantial Certainty that a result is definitely going to occur. Not enough that D merely recognizes a risk.
ii. Substantial certainty – very high threshold
iii. Example (“I made my fist go out against Bob’s face because he stole my woman friend”)
1. “I made my fist go out” – voluntary act (not intent)
2. “against Bob’s face” – intent (that it have some consequence)
3. “because he stole my woman friend” – motive (doesn’t have to be proved, but is useful
iv. Doctrine of Transferred Intent
1. Applies to all of the intentional torts
2. You missed who you intended to shoot, and you shot someone else instead; that intent transfers to the person who you actually hit
a. Can transfer intent from victim to victim
b. Can transfer intent to commit one tort to another tort
c. Battery intention for A can be transferred to an assault intention for B
3. When you transfer the intent, you also must transfer the privileges, or defenses that would be available to the defendant
e. You must name the tort based on the damage!
f. Plaintiff must prove ALL elements by a preponderance of the evidence (more than 50%)
g. Children
i. Can commit torts (including intentional torts)
a. different than criminal law
ii. Some states say below a certain age (3 or 4), there is a tort presumption that children can’t commit a tort
h. Insanity
i. Not a defense to torts (including intentional torts) (Polmatier v. Russ)
1. In many cases it might be a defense on the criminal side, but tort law is all about compensating the victim; insanity might be at the level that the purpose can’t be formed
2. Plaintiff must still prove that the defendant intended bodily contact
3. Reasons for “no insanity” defense of intentional torts:
a. Responsibility of relatives
b. Fear that insanity defense will be abused
c. compensation
i. Doctrine of Extended Liability (parasitic damages)
i. Apply to all intentional torts
ii. Responsible for all the damages that occur (foreseeable or not)
iii. Once you have intent in place for ONE tort, liability extends to ALL harm that was committed, whether or not the actual harm that resulted was part of the intended harm.
iii. (whether foreseeable or not); no proximate cause limitation (an intentional tortfeasor is responsible for all damages caused in fact by the tort even if unforeseeable – no proximate cause limitation in intentional torts)
iv. The actor had to understand that his contact would be harmful or offensive; the actor need not have intended, however, the harm that actually resulted from his action (if you commit an intentional tort, they you are liable for ALL the damages that you caused)
v. Once we have battery, the fact that the harm is more than could be foreseeable doesn’t matter – the defendant is liable for everything!
j. All trespassory torts result in technical damage (plaintiff can maintain lawsuit whether there is harm or not)
k. Liability:
i. Parental Liability – “Parents are not generally vicariously liable for acts of the child, unless, of course, the parent is an employer using the child as a servant, as where the parent operates a store and the child is making deliveries as part of the enterprise” (Walker v. Kelly)
ii. Primary Liability – you are liable for your own fault
iii. Vicarious Liability – makes someone legally liable for something that is someone else’s fault
l. Consent: a DEFENSE – D must prove that P consented
i. If there is consent, the intent is justified
ii. Because the affirmative defenses transfer also, consent transfers-but negligence for the
party injured might be available
iii. Have to have actual desire or manifest consent (sometimes silence also)
iv. The fact that it may have been unforeseeable to both of them is irrelevant
v. Plaintiff’s burden to show absence of consent, however, in some jurisdictions it is an
affirmative defense
vi. Can give consent except to death or great bodily harm
1. You can consent to people NOT doing things which will kill you if not done
vii. Prostitute case is not battery even if check bounces
viii. Belief doesn’t have to meet an objective test
ix. Once you show that it is fraud in the essence, then consent does not really count
x. Consent is not effective if person is unable to consent
m. Miscellaneous
i. Employers are not responsible for intentional torts of employees
ii. A person who is present and encourages/incites the commission of a battery is equally
liable as the principle tortfeasor
iii. Intentional torts can’t be discharged from bankruptcy. More likely to receive punitive
damages and more $$
iv. SOL for intentional torts is loner
v. No proximate cause requirement – just cause in fact.
l. Types of Intentional Torts:
i. Battery – requires fault
1. A trespassory tort (there are 5: battery, assault, false imprisonment, trespass to land,
trespass to chattels)
2. Bodily touching of person (direct or indirect; something closely related – car plaintiff is in; horse plaintiff is on); intentional, unconsented to contact with another, and causes either harm or offense (objective standard)
3. awareness of touching is not a necessity of battery
4. Elements:
a. Intent
i. Intent – a state of mind about the consequences of an act (that state of mind either has the purpose of bringing about that consequence {harmful or offensive contact} or knows that it is substantially certain to bring it about)
1. Davis v. White – dual intent (must have the intent to make bodily contact and that the contact will be harmful or offensive; Restatement and majority view)
a. Minority view – only need intent to make contact
2. White v. Muniz
a. you can find that someone acted intentionally if she intended to do
what she did, even though her reasons and motives were entirely
irrational, but she must have appreciated the offensiveness of her
conduct
b. To engage in harmful or offensive conduct
n; not a keeping out
9. Damages: rarely gets punitive damages
10. Police will generally always win false imprisonment if they had probable cause
11. No confinement if reasonable escape of which plaintiff is aware
12. Plaintiff has to be aware of the confinement, otherwise, no tort
Outrage
1. “Intentional Infliction of Emotional Distress” (Restatement Second of Torts § 46)
2. Not a trespassory/common law tort
3. Outrage comes into play when other elements don’t work (battery, etc.)
4. No transferred intent unless members of the same family are present at the time (in some cases; family member has to be present and also upset and outraged – both individuals can sue defendant for outrage then); presence of claimant not recovered in
hostage situations
5. Recovery should be had against defendant
6. Defendant’s action is extreme and outrageous – objective standpoint
7. Elements:
i. Defendant intended (or recklessly risked) to produce severe, emotional harm
a. Tort does not exist unless severe and emotional harm actually results
b. Severe – question for jury (some states put flesh on it by saying medical attention must be sought; indicators; corroboration – evidentiary requirements)
c. Exception:
i. Common carriers (transportation) and innkeepers are liable for intentional gross insults which cause patrons to suffer mental distress (no requirement the defendant behave in an extreme or outrageous manner or that the victim suffer extreme distress)
ii. Action has to be:
a. Extreme and outrageous conduct
1. Can look to a pattern of behavior (a combination of all actions) to see if the behavior is extreme and outrageous (GTE Southwest, Inc. v. Bruce)
2. One time occurrence usually not enough (must be very extreme and dramatic)
3. Look for an out-of-balance power relationship (employer-employee)
iii. Actual severe emotional harm occurred
a. Stalking can form the basis for this
7. You always want to start with a trespassory tort – you don’t have to prove as much AND the Rule of Extended Liability exists
a. If you already have the touching, apprehension, or the false imprisonment, then use those torts instead – use § 46 when you don’t have the physicality of these torts!
8. You don’t need § 46 if you have battery, assault, etc.
9. Extended liability
a. Includes all damages (including emotional) from the tort
b. Parasitic damages
i. damages you can expect from an assault, but other damages that come
out of the physical touching are parasitic and recoverable by way of
assault
c. Emotional harm
i. begin with another trespassory tort and get liability from extended
liability
10. no physical result needed
iv. Trespass to Land
1. A trespassory tort to land
2. Elements:
Intentional entry upon land of another when un-privileged or un-consented to and refusing to
