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Torts
Wayne State University Law School
Gable, Lance

Torts – Fall 2010
Gable
Negligence:
· Duty
· Breach
· Actual Cause
· Proximate Cause
· Harm

Intentional Torts:
· Intent
· Impact
· Harm

I. Introduction
A. Theories of Tort Liability [2-11; 17-24] 1. Corrective justice
a.Liability should only be imposed when it is correct/just to do so
2. Correct a wrong
a.Make the person who caused the harm answer to that harm
b.Plaintiff should not have to bear the loss
3. Social policy
a.Rules should work for the good of society
4. Justifications
a.Deterrence
b.Compensation
c.Fairness/justice
d.Stability (Allows wrongs to be righted without people taking matters into their own hands)
e.Efficiency

Coast theory

a. Doesn’t matter where the rights are, two parties will come to an agreement that is economically feasible and efficient
b. Only works when there is only two parties with limited particulars of the problem
f. Retribution

Punishment

5. Methods/Process
a.Litigation/Settlement

Only 3% of cases make it to trial

b.Arbitration
c.Negotiation
d.Worker’s compensation
e.Criminal Law
f. Regulation/Legislation
g.Contracts

II. Intentional Fault: Intentional Torts
A. The Prima Facie Case
1. Battery
a.Requiring Fault/Elements of Battery [27-35]

Intent

a. Single intent: intend to contact
i. Allows more plaintiff’s to recover
b. Dual intent: intend to contact and harm/offend
i. Most jurisdictions use dual
ii. A person’s mental state does not preclude them from having intent
1. Depends on the individual
c. Transferred intent: intends to harm/offend one person and ends up harming/offending a different person, still liable
d. Specific intent: An actor intends the consequences of his conduct if his goal is to bring about these consequences.
e. General intent: An actor intends the consequences of his conduct if he know with substantial certainty that these consequences will result.

Contact

a. Defendant could be liable for indirect conduct if he sets in motion a force that brings about harmful or offensive contact to the plaintiff.

Harm/Offense

a. Jurisdictional on whether there needs to be intent for the harm/offense element.
b. Doesn’t need to be a physical harm
c. It is legitimate if a person asks not to be touched by a person and can bring a case if they are touched without consent
d. Whether a reasonable person would be harmed/offended.
e. The plaintiff does not need to be conscious or aware of the contact when it occurs.

Van Camp v. McAfoos(27)- D, a 3-year-old boy, was riding his tricycle along public sidewalk. D ran into P causing her injury.
Rule: Intentionally wrongful or negligently wrongful use of the tricycle is neither pled nor can it be made out from the pleadings. D cannot be held liable for battery without fault or wrongful conduct.

Snyder v. Turk (30)- D was performing a surgical procedure that was not going well. D was frustrated with P (a nurse) who was assisting. D grabbed P’s shoulder and pulled her face to the surgical opening.
Rule: Given that offensive contact is contact that is offensive to a reasonable sense of dignity, reasonable minds could conclude that D intended such contact and, consequently, would be liable for injury.

Cohen v. Smith(30)- P was admitted to D’s hospital to deliver her baby. P advised her physician that her religious beliefs prohibited her from being seen unclothed by a male. P was assured her believes would be respected. During P’s surgery, D, a male nurse, observed and touched P.
Rule: General principle behind this law is that a person has a right to determine what shall be done with his own body. More recent trend is that the only intent that is needed is the intent to touch that results in a harmful or offensive touching. Immediate awareness of the contact is not essential.Reasonable person who made this condition would be offended.
· Doctors do not have to agree to conditions, but if they do agree and then don’t follow through, there could be a cause of action and the jury probably wouldn’t sympathize with the doctors.

Mullins v. Parkview Hospital, Inc.(32)- Mullins went to a hospital for a surgical procedure. Told her gynecologist that she wanted privacy during the surgery and crossed out the portion of the consent form that allowed “the presence of healthcare learners” during the surgery. Anesthesiologist assured Mullins that she would personally do the anesthesia, but as soon as Mullins was out, she allowed an EMT student to practice intubation on plaintiff. Lacerated P’s esophagus, required additional surgery. Suit for battery.
Rule: Battery if (a) 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 (b) a harmful [or offensive] contact with the person of the other directly or indirectly results.” [if it were single intent approach, this would have turned out differently] Dual Intent Approach: Intent to make contact and intent to harm/offend
Single Intent Approach: Intent to make contact

b. Intent [35-43]

Garratt v. Dailey(35)- P alleged that D, a 5-year-old boy, had deliberately pulled a chair out from under her as she was sitting down.
Rule: In an action for assault and battery a D may be held liable if he did not intend to cause the resultant harm, but knew with substantial certainty that his actions would likely cause the harm.

White v. Muniz(37)- D’s grandmother in nursing home. P (Muniz) went to change the grandmother’s diaper and was hit on the jaw.
Rule: An actor is subject to liability to another for battery if (a) 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 (b) an offensive [or harmful] contact with the person of the other directly or indirectly results . . . ”

ces will result.

b.Impact

Confinement

a. Doesn’t have to be a small place, but the larger the area, the harder it is to prove
b. Do not need physical restraints
c. Failure to provide a means of escape – when the plaintiff has lawfully come under the defendant’s control and it would be impossible to leave without the defendant’s assistance, the withholding of such assistance with the intent to detain the plaintiff will make the defendant liable.

Shopkeepers can detain in some states for suspicion of shoplifting when:

a. There is a reasonable belief of theft
b. The detention is conducted in a reasonable manner
c. The detention is only for a reasonable time and only for the purpose of making an investigation.
c.Harm/Offense

Just need to be aware of confinement

a. If you are not aware, then you cannot get damages unless you were harmed by the false imprisonment

There is no need for the plaintiff to resist confinement

The confinement must be in an area where no reasonable means of escape is found.
Confinement must have been caused by the defendant

McCann v. Wal-mart Stores, Inc.(48)- D believed that P’s children had been stealing from their store previously. Didn’t allow them to leave. Told them that police were coming, but they never came. P did not resist because she believed that she had to go with the employee and that the police were coming.
Rule: It is false imprisonment to confine another within boundaries fixed by the actor where the victim is conscious of the confinement. Confinement can occur even without physical constraint just with the threat of physical constraint. Confinement can also be based on a false assertion of legal authority to confine. This must pass the reasonable person standard. Duress can also be considered confinement. Open-ended concept. The threat is something wherein D has the legitimate authority to do the threat. Overcoming P’s will to leave, in a way that would overcome the ordinary person’s will to leave.

4. Intentional Infliction of Emotional Distress [405-412] a.Intent

Intent to inflict emotional distress

Intent of the defendant to cause the plaintiff to suffer