Professor Wertheimer – Fall 2013
Tort – a civil action other than contract
Only relevant question is who pays – the plaintiff or the defendant? Evaluate based on:
· Tort doctrine
· Social policy
Purposes of tort law:
· Compensate the injured party
· Prevent self-help (violence)
· Deter future conduct
Relevant types of liability:
· Joint – parties are each liable up to the full amount of the relevant obligation
· Several – parties are liable for only their respective obligations
· Joint and several – plaintiff may recover all the damages from any of the defendants regardless of their individual share of the liability
· Market share – apportions liability to the amount of risk each defendant posed to society. The ultimate goal is the percent of risk created by the defendant is recovered by the plaintiff.
I. Intentional Torts
· Plaintiff must prove:
o Act by defendant;
§ Volitional movement on defendant’s part
§ Desired, substantially certain, or transferred (see below)
§ Conduct of defendant must be a substantial factor in bringing about the injury
· Intentional torts covered:
o False Imprisonment
o Intentional Infliction of Emotional Distress
o Trespass to Land
o Trespass to Chattels
A. Intent in General
o Defendant desires the result or knows with a substantial certainty that it will occur:
· Intent satisfied if defendant desired the consequence of acts or desired to perform the action
§ Substantial certainty:
· Intent satisfied when defendant is substantially certain that the act will cause a particular effect, even if undesired:
o Garratt v. Dailey: D, a child, pulled a chair out from under P, an older woman, and broke her hip. Holding: an actor must know to a substantial certainty that contact will result to meet intent requirement (here, P hitting the ground), even if the contact is not desired.
o If defendant intends to do an act that would constitute a tort, mistake is not a defense
o Intent for injury not required:
o Relevant intent is intent to bring about the consequences that are the basis for the tort
o Person may be liable for an unintended injury (e.g. A pushes B and B breaks his arm. The conduct that gave rise to the injury, the pushing, was intended by A so A is liable for B’s injury).
· Transferred Intent:
o Intent to commit one tort satisfies the intent requirement for another tort
o Intent to commit a tort against one victim transfers to any other victim
o Applies to five intentional torts:
§ False Imprisonment
§ Trespass to Land
§ Trespass to Chattels
o An act intended to cause and causing unconsented to contact:
§ Dignitary tort: offends someone’s autonomous personhood by unwanted, physical contact
§ Harmful or offensive because the harm is the touch:
§ Harmful – causes injury, pain, or disfigurement
§ Offensive – must be considered offensive by a reasonable person in the circumstances
· Intent Requirement:
o Only intent to cause unconsented to contact is required – not intent to cause injury:
§ Lambertson v. United States: When jumping on P’s back unexpectedly for a piggyback ride, D had no intent to injure P. But because D’s act (jumping) was intentional, D caused a battery.
· Plaintiff can recover if unconscious when battery occurs (e.g. asleep, operation)
· “Thin Skull” Rule:
o Even if an injury is not foreseeable or intended, the defendant is still liable for the injury
o “Defendant takes his victim how he finds him”:
§ Vosburg v. Putney: D kicked P in leg during class and P suffered unforeseeable severe injury. Despite unforeseeability of the severity that ensued, D’s kicking was a battery, and D liable for the extent of P’s injuries.
· Battery extends to more than a person’s body:
o Fisher v. Carrousel Motor Hotel, Inc.: P recovered for aggressive grabbing of a plate he was holding. “There can be a battery as long as there is contact with clothing or an object closely identified with the person’s body.” Touch infringes upon person’s autonomy.
· If defendant exceeds limited consent given (even with good intentions), he commits a battery:
o Mink v. University of Chicago: Without P’s knowledge, D administered a drug harmful to P’s unborn children. P consented to medical treatment, but not to taking DES. Administration of a drug without the patient’s knowledge is an unconsented to offensive contact.
o Mohr v. Williams: D operated on P’s left ear when consent only given for right ear. Battery even though D intended to cure more diseased ear.
· “Crowded World” Theory:
o A certain amount of personal contact is inevitable and must be accepted
o Participating in society implies consent to “ordinary/reasonable touch”:
§ Public transportation
§ Wallace v. Rosen: D touched P’s back while she was standing stationary on staircase during a fire drill. D’s actions not a battery because contact was an “ordinary touch” that P implied consent to.
o An act intended to cause and causing apprehension of unconsented to, imminent contact:
§ No contact or injury has to occur for plaintiff to recover – as opposed to battery where contact is required
§ Dignitary tort: offends a person’s autonomy because “seeing it coming” causes the harm (apprehension of imminent contact)
· Apprehension must be reasonable:
o Bouton v. Allstate Insurance Co.: When children dressed as soldiers came to P’s door on Halloween, P retrieved a gun and shot. Standard is to place a reasonable person in the situation, and in this case a reasonable person would not have been apprehensive of imminent contact because children in costumes are expected on Halloween.
· Contact must be imminent:
o Threats of future contact are insufficient
o Defendant must be close enough in proximity to cause reasonable apprehension
· Defendant’s apparent ability to act is sufficient:
o Even if D was physically unable to bring about the contact (e.g. D points unloaded gun at P), P can recover if she felt reasonable apprehension that D could shoot.
· Words alone are insufficient to constitute assault:
o Conley v. Doe: P finds a blank list by D of “People I Want to K
f stressful result
· Defendant’s conduct must be “extreme and outrageous”:
o Yates v. John Marshall Law School: P kept applying and getting rejected from D law school. Not allowing someone into law school is not extreme or outrageous conduct.
o Hypo: P, an amputee applicant, applies to D law school dean. D rejects P because he is terrified of amputees. D’s conduct may be considered “extreme and outrageous.”
· If defendant knows of plaintiff’s sensitivity and causes plaintiff severe distress, defendant may be liable:
o Harris v. Jones: P’s boss, D, constantly made fun of him for a stutter and knew he was sensitive about it. Good IIED case, but court found distress P suffered was not severe enough.
· It is difficult for public figures to recover:
o Hustler Magazine v. Falwell: D magazine ran a parody for a liquor advertisement insinuating crude references about P’s “first time.” Statements in this case were never asserted to be true, and could not be reasonably interpreted as true by readers, so the public figure could not recover.
a. In General
· Dougherty v. Stepp: “Every unauthorized, and therefore unlawful, entry into the close of another, is a trespass.”
b. Trespass to Land and Nuisance
· Trespass to Land:
o An act of unlawful entry onto the land of another, interfering with the owner’s exclusive possession:
§ Defendant must have had intention to go on land, not intention to trespass (mistake is no defense)
§ “Dignitary” tort: harm is experiencing a trespasser on property, physical damages not required
· Invisible trespass:
o Must prove physical damage with invisible trespass cases – how else would the court be able to determine if there actually was a trespass?
i. Invasion affects interest in exclusive possession of property
ii. Intentional doing of the act
iii. Reasonable foreseeability that the act could result in an invasion of P’s possessory interest
iv. Substantial damages to the res
o J.H. Borland, Sr. v. Sanders Lead Co. – D emitted foreign polluting matter onto P’s property. D argued value of P’s farm increased because of action so no damage, but court found trespass occurred because the act interfered with P’s exclusive possessory interest.