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Torts
Wayne State University Law School
Calkins, Stephen

INTENTIONAL TORTS!!!!
 
INTENT—Restatement definition:
The person has the purpose of producing the consequence
The person knows to a substantial certainty that the consequence will ensue from their conduct
 
RECKLESSNESS:–Restatement definition:
The person knows facts that would make the risk obvious to anyone in that situation
The precaution that would eliminate the risk involves a very slight burden relative to the magnitude of the risk as to render the person’s failure to adopt precaution a demonstration of the person’s indifference to the risk
 
JACKSON V. BRANTLEY (recklessly is intentionally)
Ø      The defendants willingly and knowingly put an animal on the highway, the defendant had worked with horses for a long time, and so he knew that horses were likely to be frightened by automobiles
Ø      If a defendant knows that the consequences of his act are certain or substantially certain to result from his intentional conduct, and he still proceeds, it is considered that he in fact intended to produce the consequences which in fact occurred. Restatement (second) of Torts
 
BEAUCHAMP V. DOW CHEMICAL
Ø      Man sues employer for exposing him to agent orange
Ø      Substantial certainty v. True intentional torts standard?
Ø      Intentional torts are not limited to the consequences that are desired, if the actor knows that the consequences are certain or substantially certain to happen, the law treats it as of the person had intended that result
 
BATTERY AND ASSAULT
3 Elements:
voluntary act
intent- to cause contact or apprehension
result-contact with the person that is harmful or offensive or apprehension
 
MASTERS V. BECKER
Ø      Girl pushed another off the back of a truck and she sustained injuries
Ø      In order to recover damages, it only has to be proven that there was bodily contact, that it was offensive, and that the defendant intended to make the contact. If we were to require plaintiffs to establish that the defendant intended the exact injury that ensued, this would put an unfair burden on the plaintiffs
Ø      Intent is established “If an act is done with the intention of inflicting upon another an offensive but not a harmful bodily contact or of putting another in apprehension of either a harmful or offensive bodily contact to the other although the action was not done with the intention of bringing about the resulting bodily harm.” American Law Institutes Restatement of the Law
 
BRZOSKA V. OLSON
Ø      HIV positive dentist is being sued by ex-patients
Ø      Was there offensive bodily touching when the doctor continued to perform on his patients even after he knew he was HIV+
Ø      For bodily contact to be considered offensive, it must offend a reasonable sense of personal dignity
 
DICKENS V. PURYEAR
Ø      Defendant beat the plaintiff and told him to leave the state or he would kill him
Ø      He sued for intentional infliction of emotional distress
Ø      To be an assault it has to be an imminent fear of immediate harm—the threat here was not imminent: it was a threat for the future. The action here is intentional infliction of emotional distress
 
SINGER V. MARX
Ø      Defendant was playing outside with two girls, and threw a rock at one of the girls, and it hit the other girl
Ø      If a defendant unlawfully aims at one person and hits another he is guilty of assault and battery on the party he hit, the injury being the direct, natural, and probable consequence of the wrongful act
 
TRESPASS
 
Trespass to land: (56)
Ø      If you enter upon another person’s thinking it is your own, it is still trespass
Ø      Elements:             
o        Voluntary act
o        Intent to go on the land
o        Entry onto the land
Ø      Any entry onto plaintiffs land is offensive, and action lies if even if not damage is done. If one is invited onto the land, but then asked to leave and does not, it is trespass. 
Ø      Trespass takes away a person’s feeling of security
Ø      Privileged entries (57) entering land with the permission of the possessor—mailman, door to door salesman, public authorities in emergency situations
 
Trespass to chattels:
Ø      Elements
o        Act
o        Intent
o        Result: damage or interference with the owner’s use of the chattel—this can be physical damage to the chattel itself or loss of the use of the chattel for a substantial period of time
Ø      Conversion: defendant is required to buy the chattel from the plaintiff
 
DEFENSES TO INTENTIONAL TORTS
 
INSANITY
 
WHITE V. MUNIZ (minority rule)
Ø      Woman who lived in a nursing home, had dementia, and struck the plaintiff nurse when she was changing her diaper
Ø      Restatement—dual intent– An actor is subject to liability to another for battery if
o        He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
o        An offensive or harmful contact with the person of the other directly or indirectly results
o        THIS IS A MINORITY RULE!!!
Ø      The jury was correctly instructed at the trial court, as it needed to find that Everly appreciated the offensiveness of her contact; and considering her mind and mental state it is highly unlikely that she possessed the necessary intent.
Ø      Insanity is not a defense to intentional tort, however, it may make it more difficult to prove the 2nd element of battery
Ø      “Where one of two innocent persons must suffer a loss, it should be borne by the one who occasioned it.”
 
CONSENT
 
HELLRIEGEL V. THOLL
Ø      Defendant tried to throw plaintiff into the lake after he said “I bet you can’t throw me in” In throwing him in the lake, his friend accidentally fell on his and broke his neck (an involuntary act)
Ø      Consent is a defense to battery except when consent cannot be given (example: a criminal act, public policy), and consent can be inferred from the circumstances
Ø      Restatement: To constitute a consent, the assent must be to the invasion itself and not merely to the act which causes it
Ø      He consented to the touching (being thrown into the lake), and the act that broke his neck was involuntary
 
MULLOY V. HOP SANG—Trespass to person
Ø      Plaintiff doctor sues for doctor’s fees—defendant asked plaintiff not to cut his hand off twice, but doctor decided it was necessary and did it anyway
Ø      Doctor competently performed the operation, but the doctor did not do what he was hired to do, therefore the court ruled for the patient
Ø      Patient’s consent will be presumed in emergency situations, in absence of express instructions from the patient to the contrary
 
Withheld, substituted consent in medical situations: 77-79
 
SELF DEFENSE
 
LANE V. HOLLOWAY—not reasonable force in self-defense
Ø      Young man punches old man in face after old man starts a fight with him by hitting him in the shoulder
Ø      Mr. Holloway’s blow to Mr. Lane was out of proportion for the occasion, and although provocation by the plaintiff can remove the element of aggravation (punitive damages), the real damages should not be reduced, as the blow was so out of proportion.
Ø      Provocation can only effect punitive, not compensatory damages
 
SILAS V. BOWEN—circumstances determine what reasonable force in self-defense is
Ø      Plaintiff, a professional basketball player, had been drinking, entered defendants parking lot, defendant asked him to leave
Ø      Plaintiff approached the defendant angrily and took him by the shoulder with one hand, and defendant fired his gun at the ground to scare the plaintiff and inadvertently shot plaintiff in the foot
Ø      the defendant had reason to fear harm; he was in his own place of business and was not required to retreat in the face of the assault. Also, the abusive words of the plaintiff coupled with physical violence gave defendant reason to fear bodily harm. Furthermore, the defendant was not at fault in provoking the difficulty—he acted within his legal rights by asking the plaintiff to leave the parking lot.
Ø      A property may shoot with impunity where the intrusion onto the property is also attended by a threat of personal harm to himself or others
 
Restatement p.88-a person has the right to use reasonable fo

nt was driving a vehicle
Ø      the “fundamental rule of reasonable conduct remains constant, but the circumstances of the age and stage of development of the individual in the process of his growth during his minority are important considerations in applying the rule”
 
GOSS V. ALLEN (125)
Ø      The 17 year old defendant while skiing ran into the plaintiff at the bottom of the hill. He was an inexperienced skier who had never attempted a downhill run
Ø      What is the standard of reasonableness when applied to a minor
Ø      Standard of care for minors: The required standard is that of a reasonable person of like age, intelligence, and experience under the circumstances—2nd restatement of torts §283 (there is no absolute line, but this usually doesn’t apply to children under 16) 126
Ø      Certain activities engaged in by minors are so potentially hazardous as to require that the minor be held to an adult standard of care—i.e. driving a motor vehicle—these are all activities which require a license –126
Ø      The court found for the defendant, since skiing does not fit into the realm of dangerous activities requiring a license and since he acted reasonable under the circumstances
Ø      Mentally deficient adults/emergency situations: p.131 mentally deficient adult are held to a reasonable person standard in primary negligence, but not always in contributory negligence. A person in an emergency situation will not be held to the same standard as a person who has had ample time to reflect about what he should do.
 
HALEY V. LONDON ELECTRICITY BOARD
Ø      The defendant was doing excavating in the street and failed to put up appropriate barriers. The plaintiff tripped over the barrier, fell into the hole, and became deaf
Ø      Were the respondents obliged to have in mind only able-bodied people when taking measures of care? Or are they also obliged to have in mind those who are blind or who have other disabilities? Was it foreseeable that a blind person may have walked upon the pavement?
Ø      P.135: corporation v. Taylor: “a measure of care appropriate to the inability or disability of those who are immature or feeble in mind or body is due from others, who know or ought to anticipate the presence of such persons within the scope of their own operations”
Ø      A part of the defendant’s standard of care was to foresee what may happen—“in deciding what is reasonably foreseeable one must have regard to common knowledge. We are all accustomed to meeting blind people walking alone with their white sticks on city pavement.”
 
The calculus of risk
 
BARKER V. CITY OF PHILADELPHIA:
Ø      Two boys were playing under a piece of cardboard and one was crushed when a garbage truck driver ran over the cardboard
Ø      A defendant who has failed to exercise reasonable care under the circumstances cannot escape liability for damage upon the ground that he could not have foreseen the particular results of his negligent act
Ø      Negligence has long been defined generally as the omission to do something which a reasonable person, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do—here, a reasonably cautious man should have foreseen that his act would cause some injury