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Torts
Wayne State University Law School
Dillof, Anthony M.

OUTLINE
TORTS
 
PART I: INTRODUCTION
 
A.         Introduction to course
 
            1.         Tort Goals
                        Corrective Justice
                        Fairness Between parties and undoing wrong to victim
                        Social Utility (Policy)
Prevents losses through deterrence, encourages activity through belief in deterrence and in compensation and transfers funds to the needy.
 
                        Justice v. Social Utility
                        Fairness, equity and justness                   Increasing wealth, productivity and freedom
                        Immediate parties                                  Society as a whole
                        In light of past interaction                       In light of future consequences
 
Concerned with the allocation of losses resulting from the activities of people; it is an attempt to balance the utility of a particular type of conduct against he harm that it may cause, judged by the prevailing social and economic attitudes of the time.
 
            2.         Objectives of the Tort System
There are many possible compensation systems. Whatever system is employed, it should fulfill the following objectives:
(i)                  Be equitable (between those who receive benefits and those who bear the burden; among beneficiaries; among the cost-bearers).
(ii)                Contribute to the wise allocation of human and economic resources.
(iii)               Compensate properly.
(iv)              Be reliable.
(v)                Distribute losses rather than leave them on single individuals.
(vi)              Be efficient.
(vii)             Deter risky conduct.
(viii)           Minimize fraud.
 
3.         Historical Strict Liability
·         Trespass
o        Direct harms
o        No fault required for prima facie case
 
·         (Trespass on the) Case
o        Indirect harms
o        Fault required for the prima facie case
 
PART II: INTENTIONAL TORTS
 
A.         Battery
An intentional, unprivileged harmful or offensive contact by D with the person of another.
 
            1.         Elements of a Prima Facie Case
 
(a)        Act. There must be a volitional act by D that causes the contact with P. D’s act must be an external manifestation of his will. It must be a volitional movement. 
(b)        Intent. D must be intending the touching. Intent is the actor’s desire to cause the result of his actions (a harmful or offensive touching) or his belief that these consequences are substantially certain to result from his actions. There is no requirement that there be a hostile or malicious intent. Objective facts may be introduced to prove a D’s subjective state of mind. Offends a reasonable sense of personal dignity = offensive. 
            In analyzing, always distinguish between the intent to act and the intent to cause a harmful or offensive contact.
            Liable for all harms resulting from the battery – not just foreseeable harms as in negligence. 
 
            2.         Fault Requirement
                        Van Camp v. McAfoos (pg. 35)
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.
 
            3.         Elements of Battery
                        No Need to Intend Injury
Snyder v. Turk (pg. 38)
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.
 
            4.         Harmful or Offensive Touching
Offensive Defined by P
                        Cohen v. Smith (pg. 39)
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. 
 
Smoke as Contact
Leichtman v. WLW Jacor Communications, Inc. (pg. 42)
P who claims to be a nationally known anti-smoking advocate was invited to appear on P’s talk show. One of the talk show hosts lit a cigar and repeatedly blew smoke in P’s face. 
Rule: Because tobacco smoke is a “particulate matter” and has properties capable of making contact, it can be considered offensive to a reasonable sense of dignity. This is not a secondary smoke case but intentional conduct.
 
There need not be contact with the body. You need to have an invasion of personal space. Fisher (pg. 41)
 
            5.         Intent
                        Mental Element
Dual Intent
Intent to
(a)    Touch and (b) thereby harm, or
(a)    Touch and (b) thereby offend
Majority/Restatement approach
Single Intent
Intent to touch
Recent minority approach
 
Nature of Intent
Acting with the intent to cause X = acting with:
Desire to cause X by act, or
Knowledge (substantial certainty) that act will cause X, or
Desire or Knowledge to cause X to another person
 
(a)        Substantial Likelihood that Offensive Contact will occur
Garratt v. Dailey (pg. 43)
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.
 
(b)        Transferred Intent
If D acts intending to cause one of these (battery, assault, etc.) harms to X, D will be liable on an intentional tort theory if any of the five harms occurs to X, or even to Y. This is true even though Y is unexpected and the harm is unexpected. The rationale is that the tortfeasor’s act is just as culpable. 
Davis v. White (pg. 47)
D shot at one person, missed, but hit P. 
 
(c)        Capacity to Form the Requisite Intent – Willfulness
            Walker v. Kelly (pg. 48)
P brought action against parents of Ds for injuries sustained by P’s son when five-year-old Sharon (D’s daughter) threw a rock that struck P’s son. 
Rule: If a tort requires a particular state of mind, and an infant, because of her age or mental capacity, is incapable of forming such state of mind, she cannot be found guilty of her tort. When statutory willful and malicious intent is required then it has to be proven that the actor possessed that state of mind.
 
                        (d)        Insanity
Polmatier v. Russ (pg. 51)
D visited his father-in-law. During the evening, Polmatier’s son saw D hit Polmatier with beer bottle. Son ran for help. D went to bedroom, came back and shot him twice killing him. D charged with murder but found insane. Mrs. P filed suit against D.
Rule: An insane person may be found civilly liable for an intentional tort. 
Reasoning: (1) Where one of two innocent person must suffer a loss, it should be borne by the one who occasioned it, (2) Public policy requires the enforcement of such liability in order that relatives of the insane person shall be led to restrain him, (3) that tortfeasors shall not simulate or pretend insanity to defend their wrongful acts causing damage to others, and (4) Anomaly of an insane person having abundant wealth depriving another of his rights without compensation. Majority view.
 
Fault
Legal Fault – intentionally wrongful or negligently wrongful action
Moral Fault – blameworthy, open to criticism
There is legal fault in the insane case because Russ acted intentionally. In this case there is probably no moral fault – he was insane. Majority will hold the insane liable for their torts. Who has the better view here? Likely jurisdictions that fall somewhere in the middle – good attorney might have the opportunity to get the minority view. 
 
B.         Assault
 
            1.         Prima Facie Case
An assault is an act, other than the mere speaking of words, that directly is a legal cause of placing P in fear or apprehension of immediate harmful or offensive contact without consent or privilege. The elements of assault that make up a P’s prima facie case are:
(i)                  Act by D;
(ii)                Intent of D (purpose or substantial certainty);
(iii)               Fear or apprehension of P; and
(iv)              Causal relationship.
 
Apprehension has to be reasonable. D’s knowledge of P’s special sensitivity – have the requisite intent – although unreasonable – might be liable for assault. 
 
Victim need not be placed in fear of a touching from the actor in order to constitute assault.
 
Words together with circumstances can create reasonable apprehension of unwanted contact. 
 
2.         Requirements that Fear of Contact Must be Imminent
            Dickens v. Puryear (pg. 57)
P had a sexual relationship with Puryear’s 17-year-old daughter. D and four other D’s lured P onto a form, beat him into semi-consciousness with night sticks, handcuffed him to a tractor, and continued to beat him. Between beatings – Ds discussed killing. Ds told him to leave the state. P brought claim for IIMD more than one year but less than 3 years after the beatings. D – raised statute of limitations.
Rule: Threats of future harm are not actionable assaults. Fear of harm must be imminent to be actionable as assault. Threats of future harm – IIMD. No significant delay – not necessarily instantaneous. Mere words do not work. Verbal threats by D immediately followed by D reaching into pocket might work.
 
            3.         Transferred Intent
                        Alteiri v. Colasso (pg. 61)
D, intending to frighten another person, allegedly threw an object into the backyard of a home where P was visiting and struck him in the eye. P incurred severe and permanent injuries. 
Rule: An actor who intends to strike one person, but who strikes another, can be held liable for battery. It is not essential that the precise injury done be the one intended.
 
                        Two Versions
Intra-Tort
Original version
e.g. White v. Davis
Identity of victim irrelevant
Universally accepted
Inter-Tort
New Version
e.g. Alteiri
Nature of trespassory intent irrelevant (intent to bring about any of the results that could be the basis for any of the five torts – intent to bring about any of the results coupled with any of the torts) – this disagrees with the Restatement (Second) of Torts.
Prosser recommends
 
Under Dual Intent Theory – Restatement (battery and assault interchangeable) under Prosser’s view all trespassory torts are interchangeable).
 
C.         False Imprisonment
 
            1.         Prima Facie Case
Total obstruction and detention of P, of which she is aware, within boundaries, for any length of time, within intent by D to obstruct or detain P or another, and without privilege or consent. Confinement must be unlawful. Includes following elements:
(i)                  An act by D;
(ii)                Obstruction or detention of P;
(iii)               Intent; and
(iv)              Causal Relationship.
 
2.         Obstruction or Detention. Element may be satisfied even if the person is not totally imprisoned.
(a)        No Reasonable Exit. If P is in a place where there is no reasonable avenue of exit. An exit is not reasonable if: (i) is unknown to P, or (ii) requires P to take risks to escape, if dangerous, or is simply uncomfortable.
(b)        Restriction. Generally, it is not sufficient that P is not allowed to go where she wishes if she can go somewhere else (exception might be one’s own home). It is also sufficient that P, even though allowed to move about several rooms in a building, is restrained from leaving the building.
            (c)        Scope of Confinement.
                                    McCann v. Wal-Mart Stores, Inc. (pg. 63)
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. 
 
3.         Knowledge of the Obstruction or Detention
Must be against the will of the one restrained. Majority holds that if there is no knowledge on the part of P at the time of her detention, there can be no submission of her will. If P is unconscious, then no confinement. 
 
            4.         Means of Obstruction or Detention
Conduct, words, force or threats as long as the act is against P’s will. Words can restrain a person who fears disregarding them, even if there is no physical restraint. 
 
            5.         Escape
                        P may recover for any injuries sustained in an escape attempt.
 
            6.         Intent
The desire or knowledge to a substantial degree of certainty that P will be confined as a result of D’s act. Omission to carry out one’s duty thereby causing confinement will give rise to false imprisonment. Hostile or malicious intent is not required. Transferred intent applies as well.
 
            7.         Causal Relationship
Must be causal relationship between the act or the omission of D and the obstruction or detention of P.
 
            8.         Consent or Privilege
D’s act that was the legal cause of the false imprisonment of P must have been without consent or privilege for liability to attach.
 
            9.         Damages
                        P may recover damages from D even though no special damages are proved. 
 
D.        Torts to Property
 
            1.         Trespass to Land
                        (a)        Prima Facie Case
Every unauthorized entry of a person or thing on land in the possession of another is a trespass. The basis of the tort is the right of another to the exclusive possession of land. The invasion has to be unauthorized. P’s prima facie case consists of the following elements:
(i)                  An act by D;
(ii)                Invasion of land in possession of P (anything tangible enters onto/touches P’s land);

iven to P’s rights because of her request. 
In these situations, there is a stricter standard if the treatment involves destruction of a major bodily function.
 
Silence may or may not be consent, based on reasonable person standard.
 
Kennedy v. Parrott (pg. 89)
P consented to an appendectomy by D. Up to D to decide what needs to be done during surgery. No specific direction. General consent unless there was absence of proof to the contrary. Reasonably we have to make sure that surgeries go well and the law should encourage self-reliant surgeons to whom patients may safely entrust their bodies…court is looking forward to see how its ruling will affect others in society. 
 
1.         Mistake of Fact. P’s mistake as to the nature of D’s conduct will vitiate P’s apparent consent. If D does not know of a fact, D will not be held liable.
2.         Mistake of Law. Consent is ineffective if given under a mistake of law. Submitting to arrest under the belief that an arrest warrant is valid when in fact it is not.
3.         Fraud. Consent procured by fraud is ineffective. Fraud as to collateral matter does not vitiate consent. 
 
C.         Necessity
            1.         Public Necessity – Complete Privilege
One is privileged to enter land or interfere with chattels of another if it is reasonably necessary or it if reasonably appears necessary to avert a public disaster.
Requirements: (i) an immediate and imperative necessity and not just one that is expedient or utilitarian and (ii) an act that is in good faith, for the public good. 
                        (a)        Extent of Privilege
This is a complete privilege. D is not liable for damage or destruction to the land or chattels involved, as long as this was done in the proper exercise of the privilege. 
(i)                  Damage to improvements. D is also completely privileged to break and enter fences and any buildings, including dwellings.
(ii)                Force to the person. If the property owner resists D’s attempt to enter to land or deal with the chattels, D may use whatever force is reasonably necessary to effect the privilege, including deadly force if necessary. 
(iii)               Who may claim privilege? There is no distinction between public officials and private citizens in the exercise of this privilege.
 
(b)        Containment of Fire is Public Necessity
                                    Surocco v. Geary (pg. 94)
In order to stop a fire, D had to blow up P’s house. This is an action for conversion. D is claiming public necessity. We call this public necessary because the action being done is for the better of the public.
Rule: Privilege to convert to avoid serious and immediate harm to the public an apparent threat is enough and the burden is on D to prove this.
 
                        (c)        Allocation of Loss
                                    Wegner v. Milwaukee Mutual Ins. Co. (pg. 96)
Suspect hides in the closet of a house wherein the owners of the house have no control to get him out and the police destroy the house in order to get this guy out of the house. Recovery under the state constitution is allowed. This case was a case where the police “took” P’s property. This case was in MN.
In California – as in Surocco – CA interprets its constitution differently. 
Differences in interpretation arise from – whether it is a “taking” – CA says not a taking and MN says it is a taking. Taking – private property shall not be taken, destroyed or damage for public use without just compensation. 
 
The issue is whether or not the property has been taken for public use. Argument by D would be the word “use” – they did not use the property they destroyed the property. 
 
CA takes the social utility view and MN takes the corrective justice view. 
 
            2.         Private Necessity – Limited Defense
When there is no public interest involved and D acts to protect her own interest, she is not liable for the technical tort and the landowner has no privilege to expel her. The private necessity privilege is narrower than the public one; the landowner may recover any damages caused by the exercise of the privilege.
 
                        (a)        Entry to Protect Property and Life
                                    Ploof v. Putnam (pg. 99)
P was sailing on a lake with his wife and children when a storm arose, which threatened to destroy the boat and passengers. To escape the storm, P moored his boat to D’s dock. D’s servant unmoored the boat, which was then driven upon the shore and destroyed. P and his family were injured. P sued alleging that it was D’s duty to permit P to moor his boat to the dock and that D negligently unmoored the boat. P made a prima facie case of battery. D claimed that P did not have the right to moor his boat and he is not liable because P was trespassing and he has the privilege to remove the boat. 
 
            3.         Liable for Property Damage
                        Vincent v. Lake Erie Transportation Co. (pg. 100)
This case is very similar to Ploof. The facts are contemporaneous. Even though the boat owner had a privilege to be there, he still has to compensate for the damages. This is the most important distinction. Restatement follows this view. Public necessity – complete defense – would not have to pay (not for constitutional but for common law). Private necessity – incomplete defense – the right to do something but you would still have to pay. 
 
PART IV: THE TORT OF NEGLIGENCE
 
A.         Fault Basis of Liability
Restatement (Second) of Torts (Section 282) – Any conduct, except conduct recklessly disregardful of an interest of others, which falls below the standard established by law for the protection of others against unreasonable risk of harm.
 
B.         Institutions and Elements of Negligence
            The elements of P’s prima facie case based on the negligence of D are the following:
            1.    &