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Wayne State University Law School
Ackerman, Bob

Torts Outline

· Hommontree v. Jenner
· 1.) Should Maxine Hammontree be allowed to recover against Thomas Jenner for her injuries?
o Liability insurance—insures you against an injury you may cause a 3rd party
o Contract of indemnification comes into play only if Jenner liable;
o when Jenner left house, knew that there was a 25% chance he’d have an epiletic seizure—so under a reasonable person standard, reasonable for him to drive car?
o Jenner exercised reasonable care, not intentionally crashing his car through her shop’s window; case of non-reciprocal risk—with Jenner holding all risk
o Hammontree’s lawyer: wants to hold Jenner responsible without fault, but engaged in an activity that resulted in harm (STRICT LIABILITY)
o 3 possible rules:
§ 1.) Rule of reasonable care (whether Jenner exercised reasonable care under the circumstances, and thus Jenner is not liable)
· however, Hammontree might still be able to recover through worker’s compensation, property insurance company, 1st party health coverage, disability coverage
§ 2.) Jenner should be strictly liable for causing harm (he generated risk and risk came to fruition
§ 3.) Jenner shouldn’t be allowed to drive at all, and if he drives illegally, should be held reasonable
o Court: Rule of fault or reasonable care—realizing intent doesn’t come into this case at all
· 2.) What (if anything) should Ms. Hammontree receive compensation for?
o Repairing shop, physical injuries, lost income/profits, reasonably foreseeable expenses in the future, key employees, Mr. Hammontree for loss of consortion (services: sexual or otherwise), her pain and suffering, punitive damages, medical damages
o Damages:
§ nominal damages,
§ compensatory (actual_ damages)—to make her whole—for the most part, whether or not an injured person is allowed to recover, is dependant on how we characterize tort-feasor’s conduct and whether tortfeasor is at fault—how much tortfeasor has to pay once found liable is largely a function of the amount of damage caused, amount of income deprived—thus, everything dependant on characterization of D’s conduct
· Economic (special, pecuniary): property loss, medical expenses (past and future), lost earnings (past and future), medical monitoring
· Non-economic (general): pain and suffering, disfigurement, humiliation, embarrassment, loss of consortium
§ Punitive damages
· 3.) If Ms. Hammontree is denied compensation in tort, might she receive compensation in any other manner?
· 4.) Should compensation be based on Jenner’s fault or Hammontree’s need? (do we want a rule of corrective justice—correcting errors to put people back in position they would have been in—OR a system of distributive justice—giving Maxine enough to get by?
· Statistics:
· Most liability arises from medical accidents
· In the federal courts, civil trials have decreased by 32%; criminal trial in federal courts also decreased by 32%; the number of trials in most state courts also decreased significantly.
· Summary:
· Characterization of D’s conduct is basis of tort liability
· Tort Law—based off of everyday occurrences (involve far less money)
· Mostly tort system is system of corrective justice
· Extent of injury doesn’t matter—must go to fault; determinative facts must be clear (color of bike? Expression on someone’s face?)
· Tort law is a rule of fault, though in modern society we accept a certain amount of background risk—where it is only through faulty behavior we impose people to more than to just the background risk, and the loss will be shifted to us (requirement of establishing fault
· Fault:
o 1.) Intent
o 2.) Negligence
o 3.) Strict liability (rarely applied)
· Holden v. Wal-Mart Stores, Inc.
· Negligence trial (negligence: conduct that inflicts an unreasonable risk of harm upon others)
· P recovers $3600 (lawyer gets about a third of this)—Appellate Court upholds this because can’t say that the jury committed an error, esp. since P already had knee problems
· Jury determines damages because somebody asked for a jury trial
· Estevez v. United States
· Court determines the damages because no one asked for a jury trial
· Facts: collision where 2 year old Joseph injured; underwent several surgeries and sustained injuries; $138,000 in hospital expenses; expert testimony of after-effects; Joseph gets damage for future pain and suffering

Res judicata: Damages are won and done—a one- time ordeal

· Procedural setting: Court must lay out reasons for coming up with certain figures (if court just reviewing jury verdict, just must determine whether verdict supported by evidence)
· Van Camp v. McAfoos

Facts: 3 year old D hits P with his tricycle; P sustained injury, requiring surgery
Procedural History: Trial Court sustained D’s motion to dismiss; then P appealed and got into Iowa’s Supreme Court
Trial Court: No willful/wrongful action or negligence
Appellate Court: Affirm
Holding: Appellate Court states that P’s case doesn’t state a cause of action for any intentional tort—P is only arguing for strict liability (simply by virtue of fact that peaceful enjoyment of sidewalk was interfered with, P should be able to recover)—Court doesn’t buy this because of non-reciprocal risks; Court refuses to impose strict liability, declines to impose liability on D, but rather on P (who is strictly liable for her injury)
Analysis: If P had facts supporting negligence or recklessness, she would have used them; as opposed to trying to establish strict liability

What would it take to show fault here? Suppose Mark said he ran into P on purpose because he wanted to hear her get mad—then there would be fault in this case.
As a general proposition, courts not going to impose liability without some kind of fault, negligence, recklessness
Question: If it is unreasonable to let 3 year old out on a bicycle, and if its unreasonable because of the risk that the 3 year old will be injured, does that risk carry over to the stranger on the sidewalk, that you’d be liable for her injuries?

— 5 trespass torts: (1) battery, (2) assault, (3) false imprisonment, (4) trespass to land, and (5) trespass to chattel.
a. The prima facie case
· Battery: intent that contact that is harmful or offensive; result must be contact is harmful (restatement 13) or offensive (restatement 18); to establish prima facie case for battery, D must intend offensive contact, that a reasonable person would consider offensive; just words would not constitute a battery: MUST have contact!
· Snyder v. Turk
· Facts: D (surgeon) working with P (nurse) working on gallbladder operation together; D frustrated w/ nurse’s incompetence; D pulled her shoulder forcibly towards surgical opening. P sues for battery.
· Procedural History: A motion for directed verdict assumes truth of the evidence supporting the facts essential to the claim. Trial Court found for D, after D moved for a directed verdict (trial never went to a jury). App. Court states that Trial Court in error for directing verdict for D.
· Issue: Is there liability for a battery absent proof of an intent to inflict personal injury?
· Rule:Person liable for battery when he acts intending to cause harmful/offensive contact, and when harmful contact results. Offensive contact is offensive to a reasonable sense of personal dignity.
o Restatement:Offensive contact, if actor intends acting offensively, and harm results
· Holding: Acc. to a reasonable-person test, D could have intended to commit an offensive contact (i.e. batte

a result, then very likely have requisite intent)
· Hall v. McBryde
· Facts: Marcus (youth) shooting to protect home from the youths driving by in a car. Marcus accidentally shoots his neighbor, who sustains injuries.
· Procedural History: Trial Court entered judgment in favor of D, and P appealed. Appellate Court reverses and remands.
· Trial Court:No evidence indicating D intended to shoot at P. P failed to prove D intended to make contact w/ any person o/ than P—thus, “transferred intent” could not apply.
· Rule: Person liable for battery if s/he acts intending to cause a harmful or offensive contact w/ another, or an imminent apprehension of such a contact, and a harmful or offensive contact w/ the person of the o/ directly or indirectly results. (Restatement definition)
· Holding: According to the Restatement’s definition, Marcus’s intent to place o/ persons in apprehension of a harmful or offensive contact was suff. to satisfy the intent requirement for battery against P.
· Transferred intent
–Transferred intent can take 2 forms: (1) the tortfeasor intends a tort on 1 person, but commits a tort on another; and (2) a tortfeasor intends 1 tort, but accomplishes another.
–Applies to both victim to victim transferred intent (i.e. gang shootings), as well as battery to assault transferred intent
–Extended liability principle: the D who commits an intentional tort, at least if it involves conscious wrongdoing, is liable for all damages caused, not merely those intended or foreseeable.
–In most cases, a child cannot escape tort liability simply because of young age—while in o/ states, young children are presumed to be incapable of harmful intent.
–Common law rule is that parents are not vicariously liable for the torts of their children; on the other hand, employers are generally vicariously liable for the torts of their employees as long as the acts are done within the scope of employment.
–Statutes imposing liability on parents for their children’s torts are limited: (1) child’s tort must have been committed willfully or wantonly; (2) damages that may be obtained are capped at a very low amount.
· Polmatier v. Russ
· Facts: D was beating P with a beer bottle; then, he shot P twice, causing his death. D was charged with murder, but found not guilty by reason of insanity. A psychiatrist testified that D was legally insane and could not form a rational choice, but could make a schizophrenic/crazy choice.
· Procedural History: Was criminally insane, thus not criminally liable—but civilly liable: Trial Court gave judgment for P. D appeals. Appellate Court sustains conviction.
· Rule: Restatement holds insane people liable for their intentional torts, though they cannot form rational choices. “A muscular reaction is always an act unless it is a purely reflexive reaction in which the mind and will have no share.”
· D’s arg.: if D’s activities were the external manifestations of irrational and uncontrollable thought disorders, these activities cannot be acts to establish liability for assault and battery.