TORTS
LATHAM
FALL 2011
v Intentional Torts (Act w/ the substantial certainty…)
A. Intent: is measured by a subjective standard i.e. the Δ’s state of mind. Often uses circumstantial evidence to prove. (A punch in the nose clearly satisfies the intent requirement) (p642)
Ø Alternative two part test: a) The person has the purpose of producing that consequence; OR b) The person knows to a substantial certainty that the consequences will ensue from the person's conduct (throwing paint in an office)
Ø “There is a distinction between an intentional act which causes an intentional injury and an intentional act which causes an unintentional injury. To constitute a battery only the act needs to be intended not the consequence.” (Villa v Derouen: welding torch to the crotch) (p. 652)
Ø Transferred Intent: Intent to do harm can transfer to another who was not the intended target. (Hall v. McBryde → shootout and hits passenger in car, but didn’t intend to hit him, just the car)
B. Assault: an offer to show violence to another w/out striking him. (battery would be the following through on that offer)
Ø Words + Acts + Conduct = Assault
Ø Elements of Assault (p.668) “Apprehension”
1. Affirmative Voluntary Act
a. Words alone are insufficient
2. Intent
a. Δ’s purpose or desire
b. Substantial certainty Rule
c. Transferred intent
3. Causation Volition → Desired consequences
4. Reasonable apprehension of harmful or offensive contact
a. Offensive = offends a reasonable sense of dignity
b. Battery or false imprisonment
c. Imminence of threat – no significant delay
d. Apparent ability to carry out threat
¡ Vetler v Morgan (woman being screamed at, crashes)
¡ The totality of the circumstances was enough to make anyone fear imminent harm.
e. Π must be aware of threat
f. Fear is not necessary
g. Exception: Δ knows of Π’s timidity
5. To a Person
6. Damages → No harm actually need just offensive or harmful touching (nominal damages)
a. Compensatory damages
¡ General →unidentified damages deemed to result from the touching (embarrassing, pain, suffering)
¡ Special → specific damages (medical bills, economic losses)
¡ Punitive → State gets to pick the amount, jury decides on whether the Π deserves it
Ø A mere threat, unaccompanied by an offer or attempt to show violence, is not an assault. (p646)
Ø “Words can constitute assault if together w/ other acts or circumstances they put the other person in reasonable apprehension of imminent harmful or offensive contact w/ his person” (Vetter v Morgan: Woman in the van)
Ø “The threat was not one of imminent or immediate harm. It was a threat for the future apparently intended to and which allegedly did inflict serious mental distress therefore it is actionable, if at all, as an IIED” (Dickens v Puryear: parents beat up the bad boyfriend)
C. Battery (“Contact”)
Ø Elements of Battery (p. 666)
1. Intent
a. Subjective State of Mind → Not what a reasonable would have thought but what he thought at the time
¡ Villa Devron (torch case)
¡ White v Muniz (mental patient)
b. Transferred intent
¡ Hall v McBride (oops shooting)
2. Causation
a. Direct or indirect → touching must be caused by the Δ’s acts whether it be directly or indirectly.
3. Harmful or offensive contact
a. Contact of something close to contact (grabbing someone’s coat)
b. Offensive = offends a reasonable sense of dignity
c. If the Π doesn’t take offense, then no harm. BUT, if the Δ knows of Π’s hypersensitivity then they may be liable
d. Leichtman v. WLW Jacor Communications → cigar smoke in face
4. To a person – w/ a person’s body or something attached or closely associated (stick or club to hit person w/)
5. Damages
a. No harm actually need just offensive or harmful touching (nominal damages)
b. Compensatory damages
¡ General →unidentified damages deemed to result from the touching (embarrassing, pain, suffering)
¡ Special → specific damages (medical bills, economic losses)
¡ Punitive → State gets to pick the amount, jury decides on whether the Π deserves it
D. Vicarious Liability
1. Ailiff v. Mar-Bal (hide the chloride)
a. Van Fossel test:
¡ Did the employer:
§ Know there was a dangerous process?
§ Know harm was going to result w/ substantial certainty?
§ Still under circumstances require employees to work?
v Intentional Infliction Emotional Distress (p.686)
v Must have intended to cause severe emotional distress to the Π. Reckless conduct will suffice in that the Δ knew his acts would cause severe emotional distress.
A. Such intent may be inferred it the Δ knows that the Π is susceptible to emotional distress and acts in complete disregard.
v NO transferred intent → IIED happens after failed battery attempt → NO IIED.
v 3 factors
A. Reckless Conduct
B. Outrageous & Extreme = exceeds all bounds of decency tolerated in a civilized society
Ø Power differential
Ø Susceptibility
Ø Repetitive
C. No reasonable person should endure it
D. Cases:
Ø Brandon v Co of Richardson (Boys don’t cry),
Ø Alcorn v Anbro Engineering (p.680) (hate crime of black guy),
Ø Swenson v Northern Crop Insurance(p. 682), (gender discrimination, she’s an alcoholic)
v Intentional Torts DEFENSES & Privileges
A. Consent (p. 711) → must have legal capacity (not crazy, drunk, mentally retarded, low IQ)
Ø Scope – what did Π and Δ consent to do? (Tyson biting off Hollifield’s ear in boxing match à not in scope)
Ø Specific (Expressed) Consent
1. Hogan v. Tavzel (p.702) → contracted STD
2. Reavis v. Slominski (p 705) → “ah what the hell”
Ø General (Implied) Consent
1. Going to the doctor for a physical
2. Playing sports (hockey)
3. Body language (why most romantic encounters don’t result in lawsuits)
4. Hellriegel v. Tholl (p. 703) → boy’s broken neck (custom, common practice)
a. Horseplay – general consent to contact
Ø When Consent is not a Defense → these erase consent, like you never did consent
1. Exceeding Consent → biting off of ear
2. Fraud, Mistake, Duress
a. Fraud → Contracted STD;
b. Duress → Dental assistant sexual assaulted, didn’t want to lose job
c. Mistake → mistaken luggage
3. Emergency
4. Reasonable consent (administering CPR)
5. Immediate decision is necessary
Ø Criminal Conduct
1. Two views
a. Majority – recovery is allowed
b. Minority – recovery is not allowed
B. Self defense
Ø Of others –
1. Bradley v Hunter (p. 712) → old lady shoots and kills possible attacker (thug in restaurant) to protect herself and her mother;
2. Juarez-Martinez v Deans (p. 714) → migrant worker getting attacked by landlord/employer
Ø Of property
1. Katko v Briney (p. 719) → spring loaded shotgun in house
a. You can never protect property with deadly force.
C. Necessity → applies only to property
Ø Private necessity is not an absolute defense. Bars technical liability, remain liable for any actual harm done. (busted dock, broken window in barn)
Ø Public necessity is an absolute bar to liability
Ø Rossi v Delduca (p. 7
Deviation (failed to follow custom → sword)
2. Compliance (followed the custom → shield)
B. Hagerman Construction, Inc v. Copeland (p. 115) → worker fell in hole on construction site. Customary to mark or cover hole.
C. Trimarco v Klein (p. 116) → glass shower door not up to code, shattered and injured Π
D. The TJ Hooper (p. 121) → ship didn’t have proper radio equipment (customary to have it on board)
E. Ferrell v Baxter (p. 130) → Truck driver and car wreck. Truck driver custom
Ø Determining Statutory Relevance (p. 135)
1. Wright v Brown (p. 136) → dog bite
v Excuses (chart on p. 141)
A. Incapacity (heart attack while driving)
B. Emergency (rushing friend to hospital)
v Statutory Standard of Care Approaches → Negligence Per Se procedural effects (p. 142)
A. 2 part test:
Ø Class of person: Π must show that he is a member of the class of citizens that the criminal statute is trying to protect.
Ø Class of risk: The accident must be in the class of risks the criminal statute was trying to prevent
1. Ex. walking in a crosswalk and driver runs red light. Π needs to show he was protected.
B. Strict = no excuses permitted
C. Δ may try to prove application of an acceptable excuse
D. Δ may try to show reasonable notwithstanding the statutory violation
E. Evidence of negligence → jury decides amount of breach
F. Exceptions:
Ø If obeying the statute would be more dangerous than not. (swerving out of your lane to avoid hitting a child)
Ø If obeying the statute was impossible under circumstances (having a heart attack while driving and runs a red light)
v Negligence Per Se v Child Standard of Care (p. 144)
A. Bauman v Crawford (p. 144)
Ø Rule: a minor’s violation of a statute does not constitute proof of negligence per se, but may be introduced as evidence of a minor’s negligence.
v Proof of Negligence → Π has burden of proof to prove breach of duty
v Circumstantial Proof
A. Clark v Kmart Corp (p. 148)
Ø Rule: duty of storekeeper to provide safe aisles and is liable for injury if aisles are kept unsafe due to negligence of himself or employees or if unsafe conditions caused by customer is known or has existed for a sufficient period of time.
v Res Ipsa Loquitur → common sense tells us barrels don’t fall out of the window by themselves (no expert test needed).
A. ELEMENTS of Res Ipsa (p. 158)
Ø Inference that someone was negligent
1. The accident was one of a kind (not ordinary) and doesn’t occur in the absence of someone’s negligence
a. PROOF:
¡ facts of the accident
¡ Common knowledge
¡ Common Sense
¡ Experts
Ø Inference that the Δ was negligent
1. PROOF:
a. Evidence the Δ had exclusive control
b. Negligence likely occurred when instrumentality was under Δ’s control
c. Disprove all possible 3rd parties
d. Π did not cause the harm to themselves
