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Torts
Villanova University School of Law
Wertheimer, Ellen

TORTS OUTLINE
 
BASIC CONCEPTS
Fundamental question: WHO PAYS THE COSTS!?!?!?!?!?
 
INTENTIONAL TORTS
I.        Prima Facie Case: ∆’s act + intent + causation
II.     General Terminology
a.       Intentional act intending to cause the elements of an intentional tort
                                                               i.      INTENT IS CORE ELEMENT OF INTENTIONAL TORTS
                                                             ii.      Distiniguishes intentional torts from negligence
                                                            iii.      Everyone can have intent, can commit intentional torts
1.       Children, retards, etc. included
b.       Respondeat superior: employer liable for negligence of employees within the scope of their employment
                                                               i.      Generally not recognized in intentional torts except for a few cases (bouncers/security guards)
c.       Doctrine of Transferred Intent: intent need not be directed at π. Operates in 2 ways:
                                                               i.      From person to person (A throws baseball at B intending to hit B and hits C, A is liable for battery to C)
                                                             ii.      From tort to tort [A throws baseball at B intending to scare (assault) and hits C (battery)] d.       Dignity tort – harm is steeped in the personal indignity felt: battery, assault, false imp
e.       Eggshell π – we do not take super-sensitive π into account, we deal with π as an average person. Only exception is when ∆ knows of the sensitivity
III.   Battery
a.       Rule: (1) Intent (2) Harmful or Offensive Contact (3) With Plaintiff’s Person (or objects connected to it)
                                                               i.      Doctrine of Transferred Intent applies here, as long as P received contact. Transferred intent also applies if you miss (no battery) but freak P out (assault)
                                                             ii.      Intent = intent to cause contact, NOT NECESSARILY TO CAUSE INJURY!
1.       Intent to cause the tortuous contact OR
2.       Substantial certainty that such contact will result
                                                            iii.      Harmful or offensive contact = that which would offend a reasonable sense of personal dignity
1.       “Unpermitted contact”
2.       Super-sensitive π – it won’t be a battery if the average person would not consider the touching harmful/offensive (tap on the shoulder)
                                                            iv.      With Plaintiff’s person
1.       Anything at all connected with π’s person
2.       Don’t have to actually touch P, just pulling a chair out from under them when they’re about to sit down is enough
b.       Cases:
                                                               i.      Garrat v Dailey – kid pulls chair out from under lady
1.       Does not have to be intent to produce medical harm, as long as intent to cause the result (her falling) was present
2.       Dubious intent+2+3=new trial
                                                             ii.      Wallace – teacher accused of pushing woman down stairs
1.       “Crowded world” – in croweded places (subway, fire drill), some contact is inevitable
2.       Lacking intent+2+3=No recovery
                                                            iii.      Vosburg – kid kicks other kid with horrible medical condition
1.       The totally unforeseeable circumstance is not an element, you are responsible for whatever consequence comes of your battery
2.       P can’t consent to unlawful activity, which kicking in a classroom is
3.       1+2+3 = Recovery!
                                                            iv.      Fisher – racist bouncer in hotel takes black dudes tray
1.       Respondeat superior – liability shifts to hotel
2.       As long as there is contact w/ something connected to your body (clothing), it’s contact toward you.
3.       1+2+3=Recovery!
                                                             v.      Lambertson – meat inspector jumps on guy’s back, guy falls on meat hook
1.       Stupidity is not a defense for intentional torts
2.       1+2+3=Recovery!
IV.    Assault
a.       Rule: (1) Intent (2) π in Reasonable Apprehension (3) Of Immediate Battery (4) that ∆ is capable of causing
                                                               i.      Doctrine of Transferred Intent applies here, as long as P was reasonably apprehensive of contact
                                                             ii.      If I try to assault you and accidentally hit you, battery
                                                            iii.      Apprehension – has to be reasonable
1.       If I reach in my pocket and you think I’m gonna pull a gun, probably unreasonable
2.       Super-sensitive π rule applies here
3.       Apprehension is not the same as fear or intimidation
a.       Baby starts punching Mike Tyson, misses every time, Tyson sues
b.       Tyson wins because there was apprehension of unpermitted contact, and lack of fear doesn’t mean he loses
4.       Immediate battery
a.       Guy throwing punches 20 feet across the room isn’t immediate
b.      Words alone are not enough, need words + conduct
c.       What if words undo the conduct?
                                                                                                                                       i.      A shakes fist in B’s face saying “if I wasn’t your friend I’d hit you”
                                                                                                                                     ii.      No liability if words undo the reasonable apprehension
5.       Apparent ability – ∆ is capable of doing the harm, but doesn’t preclude π’s mistake about ∆’s capability
a.       I pull gun, you sue, at court I say it’s unloaded
b.       You win because it’s a reasonable apprehension
b.       Cases:
                                                               i.      Conley – kid writes “People I want to Kill” paper w/ teachers name
1.       1+2+3+Dubious 4=No Recovery!
2.       Words alone wont constitute an assault
                                                             ii.      Bouton – guy shoots trick or treaters
1.       1+3+4= No Recovery!
2.       Can’t have assault w/o reasonable apprehension, apprehension was unreasonable because they’re little kids
V.       False Imprisonment
a.       Rule: (1) Intent (2) Act of Restraint (3) π’s confinement in bounded area (4) P’s knowledge of confinement
                                                               i.      If confined, you are not required to endanger yourself for freedom
                                                             ii.      If there is reasonable means of escape, FI is not present
                                                            iii.      Threats are enough – do not need application of force, “I’ll kill you if you leave the room”
                                                            iv.      An act of restrain can consist of inaction – ∆ must have obligation to act and when ∆ doesn’t do it you can hold ∆ liable
                                                             v.      One has to know of the confinement
1.       A and B hang out for some time in a room locked by A, B doesn’t know its locked til end
2.       B can’t sue for false imprisonment because he didn’t know
b.       Cases:
                                                               i.      Whittaker – woman confined on cult boat
1.       1+2+3+4=Recovery
2.       Act of Restraint=Withholding the boat, ∆ has obligation to act (give her boat to go ashore) and didn’t do it
3.       Confinement=Ocean
                                                             ii.      Dupler – woman told to quit job, confined in office til she signs
1.       1+2+3+4=Recovery
2.       Hinges on #4, P’s perception of physical threat
VI.    Intentional Infliction of Emotional Distress
a.       Rule: (1) Intent (2) Extreme or Outrageous Conduct (3) Causal Connection to (4) Severe Emotional Distress
                                                               i.      Extreme/Outrageous Conduct: has to be significantly outside societal norms
1.       Courts expect you to endure a lot to not open floodgates of litigation, so it has to be pretty fucked up
2.       Can’t just be an insult, invites floodgates
3.       Gangster comes in with cronies and harasses store owner, that is outrageous enough
4.       I insult a 4 year old kid, only type of π changes, makes conduc

doctor doesn’t provide consent either
c.       Harm results = hearing loss
2.       Ashcraft – patient wants family-donor blood, gets other blood
a.       P had a condition (family donated blood), which was violated by D, therefore it’s a battery.
b.       Harm results = HIV
c.       Sports
                                                               i.      Rule: Contact in a game is only a battery if:
1.       Unreasonably outside the scope of the rules
2.       Contact is intentional or reckless
3.       Otherwise, π consents to harmful/offensive conduct
                                                             ii.      Cases
1.       Marchetti – girl gets slammed into during game
a.       Conduct was not under #1 bc its reasonable that kids might run into eachother
b.       P herself says conduct was negligent, therefore not #2
2.       Hackbart – football player hits other player, causes neck injury
a.       Court rejects “anything goes in football defense,” says this is unreasonably outside scope of rules
b.       Intent is unquestionably there
d.       Other – Defenses that do not work in battery
                                                               i.      “It happened during a fight, therefore he consented” (Teolis) – battery occurring in the course of illegal activity doesn’t automatically establish consent
                                                             ii.      “Punishment of the student was reasonable” (Thomas) – not if you leave and return
II.     Defenses to False Imprisonment
a.       Rule: Conduct stops being False imprisonment when:
                                                               i.      You consent/willingly stayed imprisoned OR
                                                             ii.      Imprisonment is reasonable
                                                            iii.      Security guard has to act reasonably (counts in battery too)
b.       Cases:
                                                               i.      Noguchi – girl wants to break up with boy, agrees to accompany him to store and go home, he keeps driving.
1.       No consent = recovery
                                                             ii.      Peterson – parents take daughter home to be deprogrammed
1.       Could leave at any time
2.       Parents – acting reasonably for daughter’s sake
                                                            iii.      Bonkowski – cop stops shoppers after leaving store
1.       Store owner can detain suspected shoplifters in store.
2.       Can they do so outside store? If belief is reasonable (cop’s was here)
III.   Priveleges for Trespass Land/Chattels – You can’t set up spring gun that could kill someone in order to prevent trespass (Katko)
IV.    Necessity
a.       Private Necessity
                                                               i.      Rule: Risk to human life > Damage to Property
1.       Limited number of people benefit from it
2.       ∆ is not a tortfeasor in these cases because we don’t expect ∆ to stay in the dangerous situation
3.       Limited defense – you will liable for actual damage caused
                                                             ii.      Cases:
1.       Ploof – D unmoors P’s boat as he tries to dock during bad storm
a.       Damage to dock is far less than risk to human life
2.       Vincent – P sues D for damage to dock while ship was moored there
a.       No element of risk to human life