Torts Outline
Fall 2007
I. Intentional Torts
a. Battery
i. Prima Facie Case of Battery
1. Actor A is subject to other person P for battery if:
a. A acts
b. Intending to cause
i. Harmful Contact with P, or
ii. Contact with P that is offensive, and
c. A’s act causes such contact
ii. Vosburg v. Putney (Eggshell Skull Rule)
1. Plaintiff was fourteen years old and defendant was a little less than twelve years old. The plaintiff kicked the defendant on the leg, a little below the knee. The incident occurred in a schoolroom in Waukesha, during school hours, both parties being pupils at the school. The defendant had a pre-existing leg wound.
2. No intent to touch, plus unlawfulness of the touch, is all that’s required for battery
3. Intent to battery means intent to do the act, intention to hurt is irrelevant
a. Wrongdoer is liable for all injuries directly resulting from the wrongful act
iii. Leichtman v. WLW Jacor Communications (Offensive Contact)
1. Leichtman claims to be a nationally known anti-smoking advocate. On the date of the Great American Smokeout, he appeared on the WLW Bill Cunningham radio show to discuss harmful effects of secondary smoke. While in the studio, Furman blew smoke in his face to humiliate and cause physical discomfort
2. No matter how trivial a battery complaint, it is actionable. A person can commit a battery by intentionally directing smoke at another. Cunningham is equally as liable as one who commissions the action
iv. Newland v. Azan (Professional Negligence)
1. Newland alleged that, while in the dentist chair, he sexually assaulted her after giving her several painkilling shots. The events happened while the dental services were being performed.
2. Newland must show that Azan’s acts fell below standard of care for dentist
a. “Professional services” did not include sexual assault
b. The scope of professional services does not include all forms of a medical professional’s conduct simply because he/she was a dentist
c. Just because Azan is a dentist and it happened in his office does not make him liable
3. Newland Notes
a. Distinction between intent and motive
i. U believes every child should endure bodily harm for their own good. Punches N. N sues for battery. Intent to hurt the child, but acted out of benevolent motives. Still battery, but may decrease damages
ii. Justified battery when performing a Heimlich maneuver. R reasonably believed that touching C in that way was necessary to prevent serious injury
b. Intent and Knowledge
i. Garratt v. Dailey: Pulling chair out under grammy. Dailey was certain that his aunt would fall as a result of the moved chair. Battery upheld.
ii. If the actor knows the consequences of his action and still does it, he is treated as if he desired the result
c. Knowledge Sufficient, not necessary
i. T throwing dart at B’s leg hoping to hit it, but he is a bad aimer…Probably won’t hit the leg. T hits B, battery ensues
d. Knowledge is a subjective standard
i. Serving a person food with nuts in it. Knowing it contained nuts and knowing of the allergies is battery, but knowing neither is not battery. (Didn’t set out to poison and didn’t know of allergy)
e. Knowledge and On-going activities
i. Deli owner sold 10,000 cups of coffee, two customers got burned in the past. Statistic knowledge sufficient to establish intent? No purpose for causing harm
f. Knowledge versus foresight
i. Y threw a homemade bomb over shoulder away from friends. Knowledge that it may cause injury but it wasn’t intentional (Recklessness)
g. Intent and Mental Incompetence
i. Mental illness does not defeat intent, but if person cannot maintain the intent necessary to establish liability
v. Herr v. Booten (Battery) (Negligence)
1. Bottle of Jack Daniels received by Eric as a gift and which he drank in two sustained gulps. The first gulp occurred before midnight. The next morning, his roommates discovered that he had past away during the night.
2. Defendant’s win: here was no harmful or offensive contact with Herr’s body to incite battery. Supplying an alcoholic beverage is not intended to cause offensive or harmful bodily contact. Supplying alcohol is not an act that infringes physical dignity or inviolability. (2nd Restatement of Torts)
3. Klein, the host is not liable to 3rd parties for injuries by an intoxicated adult. (If Eric was indeed 21, he would be solely liable for his own death)
4. A lot also turns on the particular kind of harm. What if Herr had gone out and caused an accident. Would the victim of the accident be able to sue the friends for battery? Yes.
5. Herr Notes
a. What Must be Touched?
i. If P shoots at D, but only puts a hole in his shirt, P is liable for battery
ii. Doctrine of extended personality: Battery for someone taking plate out of another’s hands (Plate is extension)
b. Offensive Contact
i. Offends against prevailing standards of acceptable touching
ii. Tap on the shoulder isn’t offensive. Rubbing up against a co-worker is offensive
b. Assault
i. Prima Facie Case
1. Actor A is subject to liability to person P for assault if:
a. A Acts
b. Intending to cause apprehension of:
i. An imminent harmful contact with P, or
team tackling, and told Andy to stand motionless. Without warning, Garnett picked Andy up and slammed him on the ground to show proper tackling, breaking Andy’s humorous. Never before had the coach tackled a player. Yes to gross negligence and battery, no on assault
2. Ferguson: Gross negligence is that degree of negligence, which shows indifference to others amounting to the complete neglect of the safety of another. A degree that would shock fair-minded people
3. Disparity in size, not warned before tackle. No apprehension, no assault. Need to look at context of the fight. No coach has ever tackled a student before
iii. Notes
1. Express consent – Patients sign statements that they were informed of all the potential risks and of the harmful contact. Surgery patients sign an express consent that they will be subject to bodily touchings.
2. Implied consent – People who enter crowded trains consent to involuntary jostling and touching. Also, prior history of the people is important, especially if they rough-housed before
3. If you actually and reasonably believe that another has consented, then you won’t be found liable.
4. Actual consent vs. Objective Indicia of Consent – Can someone be sued for battery if they believed the other had given consent? Bar of liability if the person had actually and reasonably believe the other consented to the contact. Ex. Vaccinations on immigrant ship…sickness…sue…not liable.
5. Fraud and Coercion – A tortfeasor cannot benefit from consent if he secured it in a fraudulent manner. Failure to disclose information relevant to victim’s decent constitutes fraud.
a. A person who makes another drink poisoned wine cannot invoke consent as a defense.
6. Consent is not a defense if: Victim lacks ability to give meaningful consent and a reasonable person would perceive his lack of capacity
7. Subtler forms of coercion and incapacity – Consent is deemed ineffective if the defendant had reason to know that consent was not freely given.
a. A patient can sue a therapist for battery after consensual sex if the therapist knew the patient was not in the position to make a free choice about sex.
8. Scope of consent – Even if the court determines that the act was consented to, the questions remains as to whether the actual contact was consented to. (Expressed and implied consent)
9. Surgery on an ear. Doc found that the other ear was diseased and operated on that one. Battery here because the action was out of the scope of consent.
10. Consent to Illegal Activities – Valid consents can be void against public policy. If A and B engage in an unlicensed boxing match where B is severely injured, he can sue A for battery because the licensing scheme would have provided fairer grounds
iv. Self-Defense and Defense of Others
1. Haeussler v. De Loretto
Plaintiff went to the home of the defendant search for his missing dog that frequented the defendants home. Upon answering the door, the dog ran out of the defendant’s home. The plaintiff started talking in a loud voice,
