Browne
Torts
Fall 2014
Torts
I. “A civil damage, other than breach of contract, for which a remedy may be obtained, usually in the form of damages.”
II. Can meet these purposes
a. Corrective justice
b. Preventative purposes/prevention of damages
Intentional torts (3-37, 40-75)
I. Intent is a subjective standard for which the intentional state of mind must be proved
II. Physical harms: Trespass
a. Battery—trespass to person
i. Plaintiff must establish that the defendant acted with the intention to harm and that harm resulted from defendant’s act.
ii. An actor is liable for battery if (a) he acts intending to cause a harmful/offensive contact w/ a person or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact w/ the person of the other directly or indirectly results. RST § 13.
1. Intention—A person acts w/ the intent to produce a consequence if: (a) the person acts w/ the purpose of producing that consequence; OR (b) the person acts knowing that the consequence is substantially certain to result. RTT § 1.
2. Imminent apprehension—subject of the actor’s action “must believe that the act may result in imminent contact unless prevented from so resulting by the other’s self-defensive action or by his flight or by the intervention of some outside force.” RST § 24.
iii. Knowledge that an action will lead to a contact can suffice for intent, even if one does not desire or know that the conflict will be harmful.
1. Cf. RTT §1(b), where knowledge that a consequence is substantial certain to occur.
2. Cf. Garratt v. Dailey, in which it was determined that the child had knowledge that the plaintiff would fall, though his desire may not have been to cause harm.
3. Cf. White v. University of Idaho, in which the music professor’s intent “went to the contact”—i.e., his intent to make contact (though lack of intent or desire to cause harm) was sufficient intent for battery.
a. Note that this case rejected the Restatement provisions.
iv. Can mental instability keep one from having the requisite intent?
1. In Wagner v. Utah (2005), a mentally impaired person was liable simply because he intended to cause contact.
2. But in White v. Muniz (CO 2000), an Alzheimer’s patient was not liable for attacking her caregiver because she did not intend BOTH contact AND harmful/offensive contact.
v. What if the extent of the damages resulting from the battery was unforeseeable?
1. The defendant is liable for any damages for which his battery was the cause. Vosburg v. Putney.
2. Eggshell skull defense—if you tap a guy on the head lightly, but he has an eggshell for a skull, you’re liable for the full extent of the injuries.
vi. Can intent be transferred?
1. Intent follows the bullet.
2. Yes, based on the RST §1(a)
3. Also, see Talmage v. Smith (p. 10), in which the defendant was held liable when the stick he threw with the intent to harm person A ended up harming person B, whose presence of which he was unaware.
vii. Battery by smoke
1. A plaintiff sued defendant tobacco company for battery, but the court held that the company did not “know with a substantial degree of certainty that second-hand smoke would touch any particular non-smoker.” Shaw v. Brown & Williamson Tobacco Corp (p. 10).
2. In another case though, smoke intentionally blown in someone’s face was held to be a harmful contact, not because smoke contacted a nonsmoker, but because the smoke blower intended harmful contact.” Leichtman v. WLW Jacor Communications, Inc (p. 11).
b. Trespass to land
i. Trespass is the intent to be on another’s property without consent or other legal privilege from the owner.
ii. Trespass quare clausum fregit is trespass onto land that is visibly enclosed (Black’s). In Dougherty v. Stepp (p. 11), close was quite liberally defined—holding title to the land made it a close.
iii. Intent does not need to be wrongful or harmful
c. Defenses to intentional harms
i. Consent
1. RST § 10(a) defines consent as “willingness in fact that an act or an invasion of an interest shall take place.”
2. What is the scope of consent?
a. Express consent is required for contact to be non-tortious, unless it is done “in the spirit of pleasantry.” Otherwise, it is at minimum a technical assault and battery. Cf. Mohr v. Williams (p. 14).
i. In medical contexts, some courts have taken broader views by allowing consent to extend to the general area of operation in which a surgeon is working (e.g., if he notices an unexpected problem near the ovary when operating on the appendix), provided the patient is already anesthetized.
ii. Of course, consent forms have helped make this a lot better.
b. Consent implied in fact is consent “inferred from conduct,” such as in the case where an immigrant held out her arm to be vaccinated despite having said that she had already been vaccinated. O’Brien v. Cunard Steamship (p. 17).
c. In emergency situations, a doctor generally has the right to operate even if consent cannot be obtained prior.
3. Subjective v. objective standard for consent
4. Does lack of disclosure vitiate consent?
5. Can effective consent be given to illegal activities? RST § 60-61
a. In illegal fights, the majority has held that consent is no defense to the assault and battery one sustains, as no one can consent to an illegal activity.
b. The minority position, taken by RST § 60, holds that consent
er) realizes/should realize that his act creates an unreasonable risk of causing harm. Courvoisier v. Raymond, RST § 75.
b. One need not actually have been under attack to use the self-defense defense.
c. Why does the risk of an innocent mistake fall on the defendant here, when in most other intentional harms it falls on the plaintiff?
d. Are you entitled to self-defense when the other party’s action(s) should be recognized as innocent?
2. Self-defense is permitted in proportion to the threat
a. Attacked by force that can cause bodily harm? Self-defender can use reasonable force shy of serious bodily or deadly harm,
b. Attacked by deadly/serious force? Self-defender can use deadly/serious force in defense. RST § 63.
i. So long as the attacking deadly/serious force is imminent and the self-defender can only protect himself through immediate use of force.
ii. The self-defender using force likely to cause death or serious bodily harm (RST § 65)
1. Does not have to retreat if within his home (and the home is not the attacker’s home)
2. Is permitted to use the force to keep the attacker off his property/out of his home
3. Is justified if using it while effecting a lawful arrest.
iii. If the self-defender correctly or reasonably believes that a retreat will save him, and he is NOT in his home and the home is not shared with the attacker, then he is not permitted to use deadly/serious force.
iv. The self-defender also does not have the right to deadly/serious force if he can avoid the deadly/serious harm threatened to him by relinquishing any right OTHER THAN those found in 2(b)(ii)(1)-(3) (within one’s own home, keeping attacker off property, making a lawful arrest).
3. One is permitted to defend a third party under the same conditions that one is permitted to defend his or herself, provided one believes that intervention is required for the third party to be protected. RST § 75.
4. A claim for negligence can be brought against someone acting in “self-defense” if his or her use of force exceeds what is reasonable.
