Torts, Brogan, Fall 2012
· These torts cannot be committed entirely by accident
· Liability for each requires that the actor being sued acted with intent to accomplish a certain kind of consequence, or with actual knowledge that such a consequence would come about.
o The intent required varies by tort
· In tort cases, the plaintiff must prove that the tort has been committed and persuade a jury that beyond a preponderance of the evidence that her account of what happened is more likely than not, true.
· Infliction of a harmful or offensive contact by an actor upon another with the intent to cause such contact (Restatement 2nd)
To establish the Prima Facie Case the following elements must be proved; pg. 594
1) A acts
2) Intending to cause a contact with Π;
3) The contact with Π that A intends is of a harmful or offensive nature; and
4) A’s act causes Π to suffer a contact that is harmful or offensive
· The action is usually not the problem
· Non-act: Δ grabs C’s hand and uses it to slap Π in the faces. C is not liable because C did not act.
· 2nd Restatement- “The word “intent” is used through the Restatement of [Battery] to denote that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially (“virtually”) certain to result from it.
· Intent-to-Cause-Contact Standard: Whether the Δ intended to cause harm, or that he understood that his attack could inflict injury or offense is not relevant to the analysis of whether a battery occurred. So long as the Δ intended to make contact and so long as the contact was one to which the Π did not consent (either expressly or implied) he committed a battery.
· “It is the intentional nature of the contact with the Π that controls the definition, not the intent to cause actual harm or injury.” “Only the intent to make contact is necessary.”
· If the intended act is unlawful, the intention to commit it must necessarily be unlawful.
o “Eggshell Skull” Rule: The Δ takes his Π as he finds him. Once the Π has proved that the Δ committed a tort upon the Π then the Δ is liable to compensate the Π in a manner that approximates making the Π “whole.” Doesn’t matter if the Π suffered from a hidden vulnerability or that Δ didn’t mean to cause damage. Vosburg v. Putney
· Circumstantial evidence – Often used to prove the intent element, since it is not directly observable. Examples:
o “From the horse’s mouth”
o Usually you will have to rely on interpretations of the defendant’s outward behavior.
Knowledge to a Substantial Certainty
· Modern courts also recognizes liability based on the defendant’s knowledge that at the time of acting, that her conduct would cause a certain type of contact
· 3rd Restatement – “A person acts with the intent to produce a consequence if: (a) the person acts with the purpose of producing that consequence; or (b) the person acts knowing that the consequence is substantially certain to result.”
o The knowledge standard for intentional torts establishes a subjective standard.
· 2nd Restatement – “a mere showing that harm is substantially certain to result from the actor’s conduct is not sufficient to prove intent; it must also be shown that that actor is aware of this.”
· Indirect Contact- need not be flesh-on-flesh, it is sufficient that actor sets in motion a force that brings about harmful or offensive contact.
o Ex- Shootings, a dog attack ordered by its owner, poisoning
· Doctrine of Extended Personality: Battery can be established by contact with “anything so connected with the body as to be customarily regarded as part of the other’s person and therefore as partaking of its inviolability. “Intimately related” Fisher v. Carrousel Motor Hotel, Inc.
· P may recover for battery even if he is not conscious or aware of the harmful or offensive contact when it occurs. Ex- unauthorized surgery on anesthetized patient
· Straightforward – it involves contact that causes bodily harm such as bruising or broken bones.
· Objective Test: what would be offensive to a reasonable person not unduly sensitive to personal dignity? *(2nd Restatement)
o Subjective factors only come in to play if the Δ is aware of a person’s unique preferences or proclivities to sensitivity.
§ Ex- Matt Lauer or religious women who cannot be touched by males
· Court considers objective factors when weighing the offensiveness of the contact:
o Time and place
o Circumstances under which the act is done
o Relationship between the parties
o Past experiences
1. A acts,
2. Intending to cause in Π the apprehension of an imminent harmful or offensive contact with P; and
3. A’s act causes Π reasonably to apprehend such a contact.
· “apparent ability” A person may be placed in reasonable apprehension of immediate harmful or offensive contact even though the Δ is not actually capable of causing injury to the Π’s person.
· It is enough that the Π be aware of the harm, Π need not be fearful
· The plaintiff must be aware of the Δ’s threat (it can’t happen while they’re unconscious.)
· 2nd Restatement – “It is not necessary that the victim be placed in apprehension of instantaneous harm. It is sufficient if it appears there will be no significant delay.”
· Barbri – Threats of future contact are insufficient. Similarly there is no assault if the defendant is too far away to do any harm or is merely preparing for a future harm.
· Evidence of Δ’s “present ability” to act on threat
Words + Overt Act required.
· 2nd Restatement – Words can constitute an assault if “together with other acts of circumstances they put the other in reasonable apprehension of imminent harmful or offensive contact with his person.”
§ Ordinarily words alone cannot be an assault.
o Vetter v. Morgan – “ability to prevent the threatened harm by flight or self-defense does not preclude the assault. It is enough that Π believed Δ was capable of immediately inflicting the contact unless prevented by self-defense, fight, or intervention by others.”
§ Words and act combine to form a conditional threat is sufficient for assault.
· Social norms play an important role in determining the circumstances under which an individual is justified in apprehending imminent harmful contact
· Words can be changed by:
o Tone of voice
o Accompanying gestures
o Physical circumstances in which the statement is uttered
o Relationship or lack thereof between Δ and Π
o Difference b/w physical size and gender
· Conditional threat is sufficient for assault if combined with overt actions
· General Rule: Intent to commit a tort against one person is transferred to the other tort or to the injured person when:
o Δ intends to commit a tort against one person but instead:
§ Commits a different tort against that person
§ Commits the same tort as intended but against a different person; or
§ Commits a different tort against a different person
§ From things or property to people? = Grey Area
· Only applies to:
o False Imprisonment
o Trespass to land
o Trespass to chattels
· Defenses to assault and battery typically assert that the alleged tortfeasor was privileged to act as she did, even though her conduct was prima facie tortious.
o Justification – one was entitled to engage in the conduct, notwithstanding its apparent wrongfulness.
· The burden of pleading and proving affirmative defenses usually rests on the alleged tortfeasor – if he fails to raise them by the appropriate procedures, or to prove them, they will be lost.
** Comparative Fault is only for negligence
· Δ is not liable for an otherwise tortious act if the Π consented to the Δ’s act.
Express (Actual) Consent
· Exists where the Π has expressly shown a willingness to submit to the Δ’s consent.
o Written or oral agreements, Ex- forms a patient must sign for non-emergency surgery
· Consent is NOT a defense if:
o The Π lacks the ability or judgment to necessary to give meaningful consent and a reasonable person in the position of the tortfeasor would perceive this lack of capacity.
§ Mental incapacity
§ Other circumstances – drunkenness
· Scope of Consent – If the Δ goes beyond that act consented to and does something substantially different, he is liable.
o Ex- consent to remove tonsils and the Dr. takes out your appendix (unnecessarily)
· Consent to Illegal Activities –
o Majority View – a person cannot consent to a criminal act
o Minority + 2nd Restatement – consent to a criminal act is a valid defense.
§ Exception – Unless the conduct in question was rendered criminal in part to protect the consenting person (from a limited class) from his own choices.
· Ex – unlicensed boxing matches, minors and statutory rape.
Consent by Mistake
· D. can still claim consent only if on the basis of P’s conduct if Δ actually and reasonably believed that Π had consented to the contact.
o O’Brien – Π was an immigrant who was vaccinated on Δ’s ship to America.
§ Exception – A reasonable but mistaken inference of consent from a source other than the conduct of the Π will not suffice to offer a consent defense.
Consent Induce by Fraud
· If the expressly given consent has been induced by fraud, the consent generally is NOT a DEFENSE. The fraud must, however, go to an essential matter;
o Ex – If Δ induces V to drink a poisonous beverage by representing that it is wine, Δ cannot invoke consent as a defense.
Consent by Duress
· Consent obtained by duress or coercion – through physical violence or threats of physical violence – will not count as a defense.
o However, threats of future action or of some future economic deprivation do not constitute legal duress sufficient to invalidate the express consent.
· Can be inferred from custom, common practice, body language – Ex – Doctor’s exams
· Apparent Consent – Voluntary participation in contact sports
o A history of dealings between the parties may support an implied consent to contacts beyond ordinary, everyday contacts.
· Exception: Position of Power or Authority – Apparent consent will sometimes be deemed ineffective if the Δ was in a special position of power (i.e., Therapist v. Patient)
· Consent Implied by Law – consent will be implied in emergency situations where the Π is incapable of consenting and a reasonable person would conclude that some contact is necessary to prevent death or serious bodily harm.
· When a person has reasonable grounds to believe that he is being, or is about to be, attacked, he may use such force as is reasonably necessary for protection against the potential injury.
o Typically applies when injury threatened consists of physical harm, inappropriate touching, or confinement.
o Does NOT apply if: the only result would be defamation, distress, taunting or teasing
o SD is Barred – If you start the fight
§ Exception – SD is allowed if you start the fight, then disengage, such that that the initial injurer’s provocation ceases to provide the main stimulus for the confrontation
spect’s right to be free from unreasonable seizure.
· Limited privilege to detain customers to investigate possible thefts
o Even if the suspect turns out to be innocent.
o Must have probable cause or reasonable grounds
o May only detain for a reasonable period of time and in a reasonable manner
Intentional Infliction of Emotional Distress
· Court awards of damages for emotional upset with no identifiable cause of action specified by the litigants or the court.
· 2nd Restatement- “An actor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional disturbance to another is subject to liability for that emotional disturbance and, if the emotional disturbance causes bodily harm, also for the bodily harm.
1. An act by Δ amounting to extreme and outrageous conduct;
2. Intent on part of Δ to cause Π to suffer severe emotional distress; or recklessness as to the effect of the Δ’s conduct
3. Causation; and
4. Damages – severe emotional distress
Extreme & Outrageous Conduct
· Outrageous Conduct = Conduct that go beyond all possible bounds of decency; abominable
· Known Sensitivity = may lower the standard for outrageous if D knew of P’s sensitivity.
· Outrageous: Law or Fact: Judge à jury
· Reckless IIED could be found. Columbia University Professor sent letter to restaurant saying that his wife had contracted food poisoning there (untrue). Δ should have known this would be a stressful incident for a restaurateur in the highly competitive NYC market. 164 Mulberry St.
· Transferred Intent – IIED can be sought by a family member or bystander who witnesses extreme and outrageous conduct “directed at” a 3rd party.
Proof of Severe Emotional Distress
· 2nd Restatement – so severe that no reasonable man could be expected to endure it.
o Examples: Jones v. Clinton – No proof of severe emotional distress.
§ Missing work
§ Quitting job
§ Complaint (formal or informal)
§ Seeking medical or mental help
· Actual Damages required. Though most courts do NOT require proof of physical injuries.
· 1st Amendment Limits: Public Figures – people have a constitutional right to lampoon public figures even if outrageous and for the purpose of causing severe emotional distress
· 1st Amendment Limit: Private Figures- gov’t may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
· Courts are hesitant to award IIED in the work place since business is a cut-throat world and often feelings are hurt in the advancement of the business.
· Wilson v. Monarch Paper Co. – Court found IIED through a “push to total humiliation”
Negligent Infliction of Emotional Distress
· Defendant carelessly violated a duty to be vigilant of the plaintiff’s mental well-being.
o Emotional Distress à Physical bodily harms = compensation
· It is not assault because there is no intent
1. Π must be in the “Zone of Danger”
a. In order to recover, Π must sustain a physical impact or be in a position of immediate risk of physical harm, as a result of a Δ’s negligent conduct
b. Robb v. Pennsylvania R.R. Co. – “Where negligence proximately caused fright, in one within the immediate area of physical danger from that negligence, which in turn produced physical consequences (such as would be elements of damage if a bodily injury had been suffered) the injured party is entitled to recover under an application of the prevailing principles of law as to negligence and proximate cause.” Pg. 743
c. U.S. limits FELA liability to “zone of danger” Concerns:
i. Unlimited and unpredictable liability
ii. Flood of trivial suits
iii. Possibility of fraudulent claims that are difficult for judges and juries to detect (This is not a new issue for the court)
iv. Emotional injury may be far removed in time and space (Medical Science has made it easier to determine the validity of mental distress).
v. Incidence and severity of emotional injuries are also more difficult to predict
1. Depends on psychological factors that ordinarily are not apparent to potential tortfeasors.