Select Page

Torts
Wayne State University Law School
Gable, Lance

GABLE, LANCE – TORTS FALL 2011 – CONDENSED EXAM OUTLINE
 
INTENTIONAL TORTS
INTENT
Single intent: Intent to do the action
Dual intent: Intent to do the action + harm or substantial certainty of resulting harm. (MAJORITY)
·     Substantial certainty: Doesn’t replace intent, can establish liability if it’s shown. Garrett v. Daily – kid moves chair, P falls. Did D know with substantial certainty that the invasive result will follow? Did D intend to cause harm?
·     Transferred intent: Attempted contact with X but instead with P still constitutes a battery. Stoshak v. East Baton Rouge School
o    Can transfer intent between intentional torts
o    Extended liability if more harmed than planned
·     Mental illness: Must appreciate actions were offensive/harmful. White v. Muniz (dual intent)
o    Voluntary incapacity is no excuse
·     Limited consent: YES if P can show D was aware of the consent and violated a specific request. Cohen v. Smith
o    Requests must be reasonable
o    If unaware of consent, not liable for battery. Mullins v. Parkview Hospital (Doc unaware of P’s request for no students during procedure)
 
IMPACT – must be some kind of impact; physical or mental.
 
HARM – Doesn’t need to be physical harm, can be reasonable harm to dignity, property, etc. Snyder v. Turk (Doc grabbed shoulder)
 
Intentional infliction of emotional distress (IIED)
1.       Intent or extreme & outrageous recklessness
a.       Transferred intent does not apply
b.       Reckless = knowing a substantial risk and acting anyway
c.        A pattern is extreme and outrageous. GTE Southwest Inc. v. Bruce. (boss has pattern of yelling at employees)
                                                               i.      Over a period of time; abuse of power; abuse of person known to be sensitive
2.       Emotional harm/distress (must be severe)
3.       Harm/offense (physical or mental)
 
·     Third party claims: Liability if P is immediate family present at the time or any person faces bodily harm and D is aware of their presence. Homer v. Long (Doc takes advantage of P’s wife; P claims IIED and fails b/c he wasn’t there)
 
Battery
1.       Intent (single/dual, transferred, substantial certainty)
2.       Contact (extension of actor’s person)
a.       Blowing cigar smoke constitutes contact
3.       Harm/offense (objective standard
a.       Would a reasonable person find offense under these circumstances?
 
Assault
1.       Intent (single/dual, transferred, substantial certainty)
2.       Apprehension of imminent harm
a.       Apprehension  = awareness, not fear
b.       “Imminent” is not fear of tomorrow, month, etc.
c.        Words alone don’t constitute assault, need action
d.       If unreasonable to believe D will strike, not assault
3.       Harm/offense (mental harm)
a.       Would a reasonable person’s mind be harmed in these circumstances? Cullison v. Medley (girl’s dad with gun)
 
False Imprisonment
1.       Intent to confine w/o lawful privilege, against consent
2.       Confinement (P must be aware or at least harmed by the confinement)
a.       Unless easy to reasonably escape w/o injury
b.       No risk escape expected
c.        NO to large area (state, country)
d.       NO when excluded from an area (bar, store, etc.)
e.        Lawful imprisonment has limit then becomes un-lawful. McCann v. Wal-mart Stores Inc. (Mom w/ kids, no cops)
3.       Harm/offense (objective standard)
a.       Can recover damages without harm
b.       Improper arrest = false arrest, no false imprisonment
c.        FI if someone takes property/something of value
d.       Threat or duress is an objective standard
Trespass to land
1.       Intent (transferred intent, substantial certainty apply)
a.       Only need intent to enter, not to trespass
b.       Mistaken belief of authorized entry irrelevant
c.        No strict liability (only liable if choice is made)
d.       Unintentional fall = negligence, not trespass
2.       Entry onto land (person or object)
3.       Harm or offense
a.       Extended liability even if harm unforeseeable unless D believed land to be their own
 
Air space: P has a right to air space above their land
Involuntary/Invited Entry: Trespassing if they refuse to leave the property
 
Conversion of Chattels
1.       Intent to exercise dominion over object
a.       Doesn’t require awareness
b.       Includes intangibles
2.       Exercise dominion over object
a.       Extent & duration of control, degree of harm, inconvenience/expense caused to P
b.       Includes aiding and abetting conversion
3.       Harm
 
Serial conversions: All people who establish #2 are liable
Damages: Value of item at time of conversion
 
Trespass to Chattels
1.       Intent
a.       Mistaken belief of right/title irrelevant
b.       Accidental contact not TC
2.       Interference with Object
a.       School of Visual Arts v. Kuprewicz (porn on PCs)
b.       Temporary interference is sufficient
3.       Dispossession or actual damage
a.       Nominal damages are insufficient
 
Damages: Paid for the interference and resulting harm caused by the trespass.
 
Civil Rights Violations (§1983 Claims)
1.       14th Amendment: Shock the conscience
a.       Deliberate indifference
b.       Someone under color of law
2.       4th Amendment: Unreasonable search and seizure
a.       Test: “Unreasonable”
3.       8th Amendment: Cruel and unusual punishment
a.       Test: “Cruel and unusual”
 
 
DEFENSES TO INTENTIONAL TORTS
Self-defense: Reasonable but not excessive as far as to prevent person from injury. Can threaten more than reasonable.
·     Against imminent threats of assault, batter, FI
·     Threat must be real – apply RP standard
·     Deadly force allowed to prevent death, serious harm, sex
·     Test: Will it cause death/serious bodily injury?
 
Some jurisdictions: Require retreat when safely is possible
·     Others don’t require it if you’re on your own property (Michigan)
·     NOT self-defense if done during the commission of a crime
 
Arrest and Detention: Merchants are immune from liability if reasonable cause to suspect a theft; can pursue perps off premises. Peters v. Menard Inc. (dude steals, gets chased out of store and into a river, drowns)
 
Defense/repossession of property: Owner can’

Sudden incapacitation: D must show it wasn’t foreseeable; no liability
·     Mental disability: Duty imposed on mentally disable person is same as duty imposed on non-mentally disabled person.
Creasy v. Rusk (D had Alzheimer’s, kicks P. D not liable b/c P has a duty that is a one-way street)
·     Emergencies: RP standard still used for what one wouldn’t do during an emergency. Bjorndal v. Weitman (D requests an emergency instruction, courts denies it but says to take emergency into account when assessing RP standard)
·     Contributory negligence: When it’s raised, standard is the same
·     Child & adult behavior: Child going inherently dangerous/adult activity held to adult standard. Robinson v. Lindsay (thumb)
 
Exceptions to reasonable care standard
·     Children: Held to standard of reasonable child of the same age and experience
·     Alternate dangerous instrumentalities: Some courts hold a higher standard of care with greater risk of danger.
·     Emergency instruction: Deviation from above standard.
·     Physical disability: Person with a physical disability is not required to use higher care. It’s what a prudent person w/ like infirmity would have done under the same circumstances. Shepard v. Gardner Wholesale Inc. (woman with cataracts)
·     Greater skill: D’s expertise, experience, knowledge should be considered in standard of care. Hill v. Sparks (earth mover kill)
 
Negligence per se: Statute establishes standard, violation is breach
·     Applies to conduct declared unlawful If no other liability is specified
·     If a civil action is prescribed, courts must apply that and not negligence per se
·     Applicability of NPS (duty + breach). O’Guin v. Bingham County (kids killed while playing in landfill, statute requires fence)
o    Statute must clearly define the required standard of conduct
o    Regulation must have been intended to prevent the type of harm D’s act or omission caused
o    P must belong to the class of peoples intended to be protected
o    Violation must have been a proximate cause of the injury
 
Exceptions to negligence per se
·     D’s incapacity, infancy, physical disability
·     Doesn’t know occasion for compliances
·     Unable to comply
·     Compliance involves greater risk of harm to D or others
·     Statute’s confusing language or presentation
o    In absence of excuse, court has no duty to submit the issue of negligence to the jury.
Impson v. Structural Metals, Inc. (truck driver claims didn’t know type of driving prohibited by statute. Court: no excuse)