Bond
Torts
Fall 2011
I. Introduction
a. Torts defined.
i. A tort is a civil wrong, other than a breach of contract, for which the law provides a remedy
ii. Torts impose a duty to not injure others
iii. When this duty is breached, a tort is committed and the offending party may be liable.
iv. Primarily part of the common law, but the number of statutes governing tort law is increasing.
b. Major purposes of tort law
i. Peaceful means for adjusting right of parties w/o them taking the law into their own hands.
ii. Deters injurious/wrongful conduct
iii. Encourages socially responsible behavior
iv. Return injured parties to their original condition (as much as possible)
v. Vindicate individual rights of redress.
Fault
History: writ of trespass and writ of action on case.
Is rehashing Brown v. Kemball necessary? Dogs fighting, not intentional; fault?
Cohen v. Petty; has seizure while driving, crashes, not liable for negligence; no prior knowledge of the condition.
burden of proof
in civil cases burden is on P; preponderance of the evidence, in civil cases
above 50% of the evidence goes to P
“more likely than not”
affirmative defenses
D has burden to prove those
II. INTENTIONAL TORTS
a. Intent
b. •BOND PPT: Restatement 2d defines a battery as having occurred where “[an actor] acts intending to cause a harmful or offensive contact.” (Rstmt § 13)
c. •§ 8A reads: “The word ‘intent’ is used throughout the Restatement of this Subject to denote that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it.”
d. •Substantial certainty
e. –Subjective test (ex. “what did Brian Dailey know, understand, etc.?”)
f. –but look to objective indicators (like age, experience, etc.)
g. •“Eggshell skull” rule: if liable, liable for all harm – no matter how unpredictable (ex. Of Vosburg v. Putney – playground kick)
h.
i. Defined
1. Different definition of intent for each individual intentional tort
2. D must intend to bring about some sort of physical or mental effect upon another person.
a. Spivey v. Battaglia: Hug to kiss; she had conniption. Isn’t assault and battery because D isn’t substantially certain that effect would occur (no INTENT)
3. D generally need not intend to harm P. If D knows with substantial certainty that a particular effect will occur as a result of her action, she is deemed to have intended the result. Recklessness is not enough.
a. Garrett v. Dailey: 5-year old moves chair out from under elderly woman and sits in it. Liable because he knew with substantial certainty (subjective test) that act would cause harmful or offensive contact w/ P (ie, hitting ground). His act was volitional
4. ACT must be volitional, CONSEQUENCES need not be; but know with practical certainty that a result may occur.
ii. Even good faith mistakes don’t always negate intent.
1. Ranson v. Kitner: Man thinks dog = wolf and shoots it. Still liable; because intent to shoot and kill existed.
iii. Insane people can generally still be liable (in this case battery) for intentional torts if they CAN be capable of intent. McGuire v. Almy.
iv. Transferred Intent
1. If D had necessary intent for person A, but any other person is injured, D is still liable for intentional tort against that person.
2. Talmage v. Smith: D throws stick at boys on his sheds, hits and injures one he didn’t see and didn’t intend to hit. Still liable.
3. Intent can be transferred to different people or to different torts (assault à battery)
4. Applies to 5 original trespass torts: assault, battery, false imprisonment, trespass to land, trespass to chattels
a. Excludes IIED
i. Battery
i. Definition: Intentional infliction (knowing or intentional touching of one person by another) of a harmful or offensive bodily contact.
1. Wallace v. Rosen: School fire alarm case. “Crowded world” certain hardening required scenario. D must intentionally touch P in a rude, insolent or angry manner. Hallway.
2. Offensiveness of contact judged by RPP standard UNLESS D knows P is particularly sensitive. CONTEXT MATTERS.
ii. Not necessary that D desires to physically harm P. D has necessary intent for battery if D:
1. Intended to cause a harmful or offensive bodily contact
2. Intended to cause an imminent apprehension on P’s part
3. D knows that a harmful or offense conduct is substantially certain to occur.
iii. Battery covers both physically harmful contacts and contacts that are merely offensive (damaging to D’s “reasonable sense of dignity”)
1. Fisher v. Carrousel Motor Hotel: Employee of hotel grabs plate from man and yells racial epithet at him. Unpermitted and intentional snatching of an object from someone’s hand = offensive invasion of his person.
iv. P need not have actual awareness of the contact at the time it occurs.
v. Battery can occur when D goes beyond level of contact consented to.
1. Defendant needs to only intend the touching…
2. DAMAGES FOR BATTERY
a. COMPENSATORY
b. Nominal ok.
j. Assault
i. Definition: Intentional act by D that cause P to have a reasonable apprehension of harmful or offensive contact (battery).
ii. 2 different categories of intent:
1. Intent to create apprehension: D intends to put P in imminent apprehension even if they don’t intend to follow through. (D i
ves open a reasonable means of escape, no liability. Further P generally can’t recover for injuries suffered trying to escape if they could’ve avoided injury by remaining imprisoned.
Hardy v. Labelles’s: Employee suspected of shoplifting, no confinement, no held against he will; had reasonable means of escape. No threat of force. (also perhaps shopkeeper’s privilege element.
vii. DEFENSE: Shopkeeper’s Privilege: Most courts allow merchants to temporarily detain people reasonably suspected of stealing for a reasonable amount of time. Reasonable amount of time is generally pretty short.
1. Non-physical forms of confinment
a. “if you don’t stay here, I’ll hurt you.”
l. Intentional Infliction of Emotional Distress (IIED)
i. Definition: Intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional or mental distress, even in the absence of physical harm. State Rubbish Collectors v. Siliziznzinzifnoff.
ii. Intent:
1. Three possible types of culpability by D:
a. D desires to cause P emotional distress.
b. D knows with substantial certainty P will suffer emotional distress
c. D recklessly disregards high probability of emotional distress.
2. 3rd party: Transferred intent: DOES NOT APPLY!
a. If D commits tort against X, no liability generally for IIED against P.
b. Exception: (pretty sure conjunctive test)
i. Conduct directed towards member of P’s family
ii. P is present
iii. P’s presence is known to D.
Taylor v. Vallelunga: son watched father being beaten up; no IIED because D did not know son was present.
iii. P must show that D’s conduct was extreme and outrageous. Conduct must exceed all possible bounds of decency.
1. Slocum: Insulting comment by shopkeeper was not enough to satisfy this requirement (“you stink”)…wasn’t extreme enough.
iv. D must actually suffer severe emotional distress. Usually this means P sought medical aid. Most cases don’t require that distress resulted in physical harm.
