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Wayne State University Law School
Browne, Kingsley R.

FALL 2012
What is a tort?
·         A manner in which the courts can right legal wrongs
·         The system allocates losses in the following ways:
·         Traditional View:
o   the study of corrective justice, an effort to develop principles on whether plaintiffs were entitled to compensation
·         Renewed Insistence:
o   the compensation of injured parties is in itself an end of the tort law; the defendant must show why actions are not liable
·         Economic Theory:
o   The purpose of tort law is to law down workable liability rules that create incentives for both individuals and firms to minimize cost
Intentional Torts:  Physical Harms
·         §13:  An actor is subject to liability to another for battery if:
o   (a) he acts intending to cause a harmful or offensive contact with the person AND
o   (b) a harmful contact directly or indirectly results
·         What is intent?
·         §1:  A person acts with the intent to produce a consequence if:
o   (a) the person acts with the purpose of producing that consequence, or
o   (b) the person acts knowing that the consequence is substantially certain to result
·         Transferred Intent:  the defendant intended to hurt someone; just because he actually hurts someone else does not sever his liability
·         It is irrelevant that the plaintiff's harm is foreseeable/unforeseeable: as long as the actor intends to do harm, they will be liable for the intentional tort
·         Vosburg v. Putney:
o   Schoolhouse kick to knee results in loss of leg
o   Court incorrectly held that intent to produce the consequence was not needed, simply an intent to act
·         Garratt v. Dailey:
o   Five year old pulls chair out from adult woman
o   Intent (b): if he knew with substantial certainty, he would be liable
o   If not (which is what the court ruled) it is simply negligence (he should have known)
·         Talmage v. Smith:
o   Defendant throws stick and plaintiff's friends, hits plaintiff in eye; defendant alleges not to have intended to hurt plaintiff
o   Transferred intent rule :  defendant still liable
·         Shaw v. Brown:
o   Generalized knowledge (such as the knowledge that second-hand smoke would reach some non-smokers) is insufficient to satisfy the intent requirement for battery
o   If intended on purpose, then he would have been liable
Intent for Trespass to Property
·         The amount of damages may depend on the acts done on the land, and the extent of injury to it therefrom, but any unauthorized entry onto the property of another is trespass
·         Stringent standard of liability for actual harm caused
·         Intent = intent to complete the act, not the intent to cause the damage (different from battery)
·         For intangible trespasses, the aggrieved party must prove physical damage to the property caused by such intangible intrusion
·         Dougherty v. Stepp:
o   Any unauthorized entry is trespass
·         Brown v. Dellinger:
o   Strict standard (children lit fire in burner)
·         Cleveland Park Club v. Perry: 
o   Kid put ball in pool drain
o   Intent to complete act
·         Public Service Co. of Colorado v. Van Wyk:
o   Intangible trespass
Defenses to Intentional Torts:
·         If no consent, it is wrongful and unlawful; battery liability
·         However, in cases of doctors, the surgeon may extend an operation to remedy any abnormal or diseased condition in the area of the original incision whenever he, in the exercise of his sound professional judgment, determines that correct surgical procedures dictates and requires such an extension of the operation originally contemplated
·         This rule applies when the patient is at the time incapable of giving consent, and no one with authority to consent for him is immediately available
·         Overt actions and the manifestations of feelings constitute consent implied in fact
·         Also, implied consent can be rationalized as:  the patient would have consented if she had been asked (dealing in emergency situations)
·         Majority rule:  you cannot consent to an illegal act
o   Deters people from fighting because you can still be sued and held liable
o   Even the promoters (aider and abettor) of illegal acts will be held liable
o   Minority says that you can consent; if you can, you have no action if you are injured
§  Minority rule is the Restatement rule
§  Because of the fact that the law allows you to consent, there are some exceptions, such as when the legislature enacts a statute protecting a certain class from not being capable of understanding the consequences of their acts
§  For example:  age of consent
·         In sport situations, if it is not part of regular play, no consent has been given and liability follows
·         Mohr v. Williams:
o   Doctor operating on left ear when consent was for right ear
o   Still liable because there was no consent regardless of intent
·         O'Brien v. Cunard Steamship Co.:
o   Woman held out arm for vaccination
o   Consent implied in fact
·         Hudson v. Craft:
o   Illegal boxing match
o   You cannot consent to an illegal act
·         Hackbart v. Cincinnati Bengals:
o   If outside the scope of competitive sport, it is a battery
·         No special treatment for minors or insane people; if you can form intent, you can be liable
·         Requisite intent:  have to intend a harmful contract with another person (it does not matter who they think they are hitting or why)
·         McGuire v. Almy:
o   Insane person attacks caretaker
o   Liable because she formed the intent
·         While subjective test (intent) is used for prima facie case of battery, objective test (reasonableness) is used for the defense
o    If a reasonable person thinks they are under attack, they can intentionally use self-defense
o    You are allowed to make a reasonable mistake
·         Some states have the duty to retreat, Michigan does not
·         You cannot use deadly for if regular force would suffice (even if deadly force is being used against you)
·         Defense of

the facts
·         Alcorn v. Mitchell:
o   Spitting in face is an offensive battery
o   Damage calculation
False Imprisonment:
·         Definition:  Defendant unlawfully acts to intentionally cause or restrain the victim within a bounded area
·         Usually the defendant must intend to confine the plaintiff
·         Plaintiff must be aware of the confinement unless they are injured during the imprisonment
·         Confinement must be established in order to prove imprisonment
o   Physical confinement
o   Duress of goods
o   Embarrassment
·         Privilege is a defense for false imprisonment, but you must prove
o   Reasonable grounds:  “objective good faith”
o   Reasonable manner: “identify person, purpose for imprisonment”
o   Reasonable length of time
·         A party who falsely imprisons another is liable for damages if someone tries to escape them (as long as it is a reasonable escape)
·         Bird v. Jones:
o   No confinement = no false imprisonment
o   “Three walls do not a prison make”
·         Whittaker v. Sandford:
o   False imprisonment proven
·         Coblyn v. Kennedy:
o   Old man is suspected of shoplifting
·         Sindle v. New York City Transit Authority:
o   Escape was not reasonable, no liability for the damages
Intentional Infliction of Emotional Distress:
·         Restatement § 46: Outrageous Conduct Causing Severe Emotional Distress
o   1) Extreme and outrageous conduct
o   2) Intentionally or recklessly (some subjective aspect) – conscious disregard of substantial risk – worse than negligence – know of risk, does it anyway
o   3) Severe Emotional Distress
o   4) Bodily harm – though not necessary
§  Ability to recover was limited in earlier times to cases of actual, physical harms – concern was of fraudulent claims
·         This tort intended to be relatively narrow, but allows recovery for things otherwise not actionable
·         Not enough it be wrongful – it must be extreme/outrages, regarded as atrocious
·         Wilkinson v. Downton:
o   “Joke” about husband in car accident
·         Bouillon v. Laclede
o   Angry knock on the door leads to miscarriage
·         State Rubbish Collectors Association v. Siliznoff
o   Threat of future harm
·         George v. Jordan Marsh Co.
o   Annoying bill collectors
·         Trentadue v. United States
o   Improperly dealing with body retrieval to family
·         Hustler Magazine v. Falwell
o   Parody advertisements