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Wayne State University Law School
Browne, Kingsley R.

Torts Outline – Kinsgley Browne – Fall 2012
1. What is a Tort?
·         It is a legal wrong, a breach of duty: contractual or non contractual
o    Usually breach of contract is not a tort but at times it can be
·         A lot of criminal cases are also torts.
·         Purpose of tort law: compensating victims [one of its many purposes]. Benefits:
o    Corrective justice -> what is fair compensation
o    Economic efficiencies -> avoid accidents cheaply and reduce cost of accidents
·         Deterrence in torts is done through: i) compulsory damages and ii) punitive damages.
·         Tort law is almost exclusively state law. It guards against physical harms to person or property
·         Rule of damages in torts:
o    Wrongdoer is liable for all injuries resulting directly from wrongful act, whether they could or couldn’t be foreseen.
2. Battery
a) Intent [subjective standard] Vosburg v. Putney:
·         What happened here was that P+D are classmate, and it is a custom in their class to kick the other kids. After class had been called into order the D kicked the P on his right shin, which was already injured from before. The kick caused the injury to expand and doctors found that P would never recover the use of his limb due to the operation performed. Doctors had found a black and blue spot {bruise} on P shin where he had been kicked; the prior injury was healing prior to the P being kicked.
·         Expert explained in case that the prior injury had the limb in a diseased condition when the kick hit him, it caused the microbes to be revived and the kick was the remote cause of the bone destruction.
·         Rule for case:
o    P must show either that the intention was unlawful or that the D is at fault.
§  If intended act is unlawful then the intention to commit it must necessarily be unlawful.
·         If the kicking of the P by the D was an unlawful act than the intention of D to kick him was also unlawful.
o    Court says what makes this case a battery is that the act was unlawful. What makes the act unlawful is that it violated the orders and rules of the school classroom.
§  Court gave example that if this occurred in the playground it would not have been a battery and the D would not have been liable.
RST §13 – Battery: Harmful Conduct
·         An actor is subject to liability to another for batter if:
o    (a) He acts intending to cause a harmful or offensive contact with person of the other or a third person or an imminent apprehension of such contact
§  What constitutes “offensive”? Objective standard; Offends a reasonable sense of personal dignity (RST § 19). E.g. spitting on someone
§  Exception: Prior course of conduct w/somebody, inferring a different standard (e.g. 2 buddies routinely engaging in horseplay with one another)
o    (b) A harmful contact with person of the other directly or indirectly results
Garrat v. Dailey
·         P suing D for her injuries when D pulled the chair out underneath P, which caused her to fall and fracture her hip. Court looked at this case in view of reasonable person [what should have been in the person’s mind] and used the subjective standard for this case.
·         Issue:
o    Was there a substantial certainty that P was going to sit?
·         How to prove intent here:
o    Intent has to go towards harmful conduct
o    Can also show intent that if you know for certain that an event would occur.
·         In this case D knew for certain that once he pulled the chair from underneath P that she would fall and hit the ground [intent] ·         Court examined if D acted with reasonable of other 5 year olds with his intelligence:
o    What was in his mind/what resulted from that:
§  If intentional intent then have to determine if it is objective or subjective
·         Subjective intent -> peers into mind to determine what is there
·         Objective intent -> same standard applied to everyone [reasonable person test] o    What should have been/is this reasonable? If do not satisfy this standard then act is negligent
RST §1 – Intent
·         A person acts with intent to produce a consequence if:
o    (a) Person acts with purpose of producing that consequence
o    (b) Person acts knowing that the consequence is substantially certain to result
·         Ex delicto -> something that arises out of fault or wrong; not out of contract
·         Ex contractu -> something that arises out of a contract
·         Sometimes courts reject the restatements
White v. University of Idaho
·         D is music professor and was social guest in P house, while P writing D walked up behind her and touched her back with both of his hands in a movement described as a pianist would make in striking and lifting fingers from keyboard. P claimed she suffered strong reaction – removal of rib + damage to nerve. D claimed touched P to show sensation of form but meant no harm. P said touching was non consensual.
·         Court held P had valid claim for battery. Court did not adopt restatement definition of battery.
Transferred Intent
·         Is an act of unwarranted injury on untended person. Intent follows the stick.
Talmage v. Smith -> transferred intent
·         P was struck in the eye by a stick that D threw at two of P companions while they were trespassing upon D property. D asserted he did not see P and he did not intend to hurt him.
·         Court held that the right of P to recover was made to depend upon intention on part of D to hit somebody and inflict unwarranted injury upon someone. Under these circumstances fact that injury resulted to another than was intended does not relieve D from responsibility.
·         An individual who intends an act or consequence against one part and instead injures a third party is liable to the third party for the injuries suffered
o    Prof gave hypothetical of knife attackers and D uses SMG and kills them and neighbors, neighbors can sue him.
o    When it is self defense it is no longer a battery
·         In assault, intention has to match contact. No harm = no foul. Nature of harm is a feeling of physical insecurity of imminent harm. Speeding is a risk of harm and not actual harm.
Shaw v. Brown & Williamson Tobacco Corp -> battery by smoke
·         P a non-smoker shared cab with heavy smoker and developed lung cancer as a result. His claim for battery for 2nd hand smoke inhalation against Tobacco Company was rejected for failing to allege sufficient intent. Court says D may have had knowledge that 2nd hand smoke would reach some non smokers but found that such generalized knowledge is insufficient to satisfy the intent requirement for battery.
b) Intent for Trespass to Property
·         Every unauthorized and unlawful entry into the property of another is trespass.
·         Don’t need intent for trespass
·         No harm has to incur from trespass – the harm is found in the act of the trespass
Dougherty v. Stepp -> trespass case
·         Proof introduced by P to establish an act of trespass was that D had entered on an unenclosed land of the P with surveyor and chain carriers and actually surveyed a part of it claiming it as his own but without marking tress or cutting bushes. This was held by courts to not constitute trespass. No harm to land = no trespass.
·         On appeal the court found that there was an error in the instructions given to the jury -> there is an elementary principle that every unauthorized and unlawful entry into the close of another is a trespass. It is this entry that constitutes the trespass; there is no statute that will make a willful entry into the land of another innocent. Judgment reversed and remanded [there was no mental state about ownership, trespass was aggravated by the pretend ownership of the property].
·         In order to maintain an action in trespass it is not necessary that there be actual physical injury to the land
·         Traditional forms of trespass to real property:
o    Trespass has long been granted to protect P interest in exclusive possession of land and its improvements. It has been settled that a trespass to real property takes place not only on the surface but also with respect to any intrusion above or below the surface of land as well.
§  Smoke and smell are tangible; have to show harm for that kind of intrusion.
·         Intention and damages in trespass to real property
o    Owing to the passive and immovable nature of real property, courts have generally adopted stringent standards of liability whenever the trespass results in actual harm.
Brown v. Dellinger:
·         2 children held liable for burning down P home. D’s brought matches onto P premise and ignited fire in charcoal burner in P garage -> acts were voluntary and purposeful. Fire escaped the grill and burned and damaged the garage -> this was not the intent of the D’s. Acts of igniting + lighting an unauthorized fire on P’s premises made the trespassers and they must be held liable for their consequences.
Cleveland Park Club v. Perry
·         P operated social club, D (9 year old boy) used pool, dove down & thought there was no suction, removed drain cover + inserted rubber ball. Ball got caught in narrow portion of pipe where it caused extensive damage -> pool closed for repairs. Court here found that in a trespass case, the intent controlling the trespass is the intent to complete the physical act and not the intent to cause injurious consequences, hence new trial was ordered.
3. Defenses
a) Consent
Mohr v. Williams
·         D is physician whose specialty is ear disorders. P is consulted by D who complained of trouble with right ear, at her request made an examination of right ear and left ear -> was not fully able to diagnose left ear at time. Right ear showed diseased small bones. D informed P to get operation + P consulted family dr who agreed. P understood operation was for right ear only. Once under anesthetics, D found more serious condition in left ear + brought attention to family dr who was present. D found right ear less damaged and decided to operate on left, operation was successful.
·         P claimed operation impaired hearing,

f rights between contestants and that consent of combatants does not relieve him of that liability.
o    Promoter held liable for aiding and abetting, court could have pursued criminal offenses to punish him rather than torts.
·         Majority rule in case:
o    Cant give effective consent to an illegal act because it breaks King’s peace [don’t have right to consent in the first place] §  Policy: two scenarios
·         Encourages fights if you think you can et something out of the fight
·         Discourages fights because if fighter wins (which many people would assume so), he will have to pay the guy he beats
·         Minority rule:
o    You can consent to an illegal act and the fighters are protected from suing each other
§  This is why in Hudson, the P is going after promoter and not the other fighter b/c the rule says he cant sue the other fighter.
·         Policy -> discourages fights because one cant get damaged under minority rule
·         Exception to minority rule:
o    NO consent to illegal act where the law is to protect the interest to a class of people
o    This is what court applies here -> it holds that recovery is barred against other party but not against the promoter of fight – because he is not in the class of people the legislature trying to protect.
Private Rights of action for statutory rape
Barton v. Bee Line Inc.
·         P was under age of legal consent and brought action against D for damages even though she fully consented to sexual intercourse with D for statutory rape. Court refused to allow P to sue because she was willing to participate in an act that the law sought to protect her in.
Athletic Injuries [formal setting]:
Hackbart v. Cincinnati Bengals
·         P was struck with blow from D who acted out of anger and frustration but without specific intent to injure. D stepped forward and struck blow with right forearm to back of kneeling P head and neck with sufficient force to cause both players to fall. P suffered no immediate effects but shortly after experienced severe pains that forced him to retire. TC dismissed action but COA reversed on grounds that there are rules that prohibit intentional striking of blows and the conduct at hand is prohibited by the rules.
·         An individual is liable for the intentional striking of another during a violent game, where the rules of the sport prohibit such intentional acts.
RST §2 – Recklessness:
·         A person acts recklessly in engaging conduct if:
o    (a) Person knows of risk or harm created by conduct or knows facts that make risk obvious to another in person’s situation
o    (b) Precaution that would eliminate or reduce risk involves burdens that are so slight relative to magnitude of risk as to render person failure to adopt precaution a demonstration of person’s indifference to risk.
Athletic Injuries [informal setting]:
Marchetti v. Kalish
·         P and D were playing kick the can, P placed foot on ball [substituted the can] and announced D was it. D continued to run straight at her and collided with P as he was kicking the ball out from under her foot. P broke her leg in two places and conceded that her injuries were neither intentionally nor recklessly inflicted. SC entered summary judgment for D by relying on another case, P argued that this case is different because we are dealing with children rather than organized sports and court held that distinction is immaterial as long as children were engaging in some type of recreational sport or activity.
b) Insanity
·         Has limited scope, if D is insane his control over his own actions is in doubt as his capacity to be deterred by the threat of liability is lacking. Rational in civil cases is that D’s who are insane should not be able to keep their wealth when they harm another. This can be deterrence to those who have custody of D to taking measures to restrain D.
·         As long as D is capable of forming the kind of intention necessary to support civil liability in a normal person, the insanity gives no excuse regardless of its origins or severity.