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Wayne State University Law School
Lund, Christopher C.

Torts Outline
Big things to remember:
– Court would rather put an excessive burden on a D than allow an innocent P to go without recovering
-If P establishes 5 elements of negligence, he will recover unless D can establish an affirmative defense.
Main purposes of tort law:
–          to enhance efficiency
–          Corrective Justice
·                     Intentional Torts: Plaintiff can recover only if the defendant intentionally invaded the specific interest that is protected by the tort. P must prove the elements of the tort (set up a prima facie case) in order to recover. (*Note: No need to show damages for any of Intentional torts but IIED and also can have transferred intent for all intentional torts but IIED).
o   1st Intentional Tort: Battery – a prima facie case includes: AN UNWANTED TOUCHING:
1. Intended Contact
2. Actual Contact
3. Contact was harmful or offensive (HARM DOESN’T HAVE TO BE INTENDED, JUST THE CONTACT).
– an act by D (without consent of person touched)
– intent by D to inflict harmful or offensive touching (intent can be either               desire to cause result or knowledge that the result is substantially certain to occur) 
– a harmful or offensive touching (determined by what a reasonable                person would consider harmful or offensive) OBJECTIVE!
– causation
– damages are not necessary. 
(Note: if there is certain knowledge that tortfeasor knows victim has idiosyncracies and still touches, than could be found offensive even if most peeps wouldn’t).
§ Intent – D must act with intent
– Gassemieh v. Schafer: teacher hurt when student pulled out chair from underneath her. P loses on technicality, but it was a battery even though D intended contact but not the harm.
-Modern Exp.: Markley v. Whitman: Weird game of shoving leap frog and boys push eachother, 1 injured, and 1st time American court rules saying harm doesn’t have to be intended, just the contact.
   – Garratt v. Dailey – 5 year old pulls chair out from under older woman who gets injured and court finds that Rest. Def is correct that says “intended contact or knowledge on part of actor that such contact is substantially certain to be produced.” –Soknowledge of possible harm or offense is enough to constitute intent.
-Modern Exp.: Helf v. Chevron: worker injured and sues for battery (reason b/c workers comp bars from suing employer unless tort is intentional) and. Ct. finds like Daily that didn’t have to intend contact or harm but knowledge that result is sub. certain is enough.
*Note: Majority- just need intent to touch VS. Minority- some want intent to injure too.
§ Harmful or offensive touching
– Fisher v. Carrousel Motor Hotel, Inc. –Hotel manager was racist and pulls plate from African American man’s hand. P wasn’t touched byt ct finds it was battery saying it was contact. Doctrine of Physical Autonomy- body of P does not have to be touched, it can be something closely associated with the body.
§ Transferred intent – Intent can be transferred from one individual        to another or one tort to another. (covered in Fisher andVetter)
   –  Ex: Actor meant to strike A, but accidentally struck B. It doesn’t         matter, it’s still a battery. OR intends to commit battery, but only         commits assault (shoots, but misses), just committed assault,         intent to commit battery doesn’t matter.  (Transferred Intent for all Intentional Torts but IIED).
o   2nd Intentional Tort: Assault – “an intentional threat to do bodily harm to another resulting in reasonable apprehension of bodily harm. No bodily contact is necessary.” From Vetter v. Morgan.
– if one know w/ substantial certainty that your actions.. will reasonably cause… even if no intent or motive… it is ASSUALT.
§ Act by D – words alone do not usually constitute an assault, unless the surrounding circumstances coupled with the words could lead P to believe he was in danger.  
– Morgan v. Vetter – guy was shouting at P from a car, his extreme behavior, coupled with his ability to carry out the threats, made P’s apprehension reasonable and D him guilty of assault. It is enough that P believed that D was capable…
                                    – Assault very narrow,only applies to people who have the                                      apparent ability to carry out the harm and only when it is                                      immediate. 
o   3rd Intentional Tort: False Imprisonment – When a D intentionally and unlawfully confines or restrains a P w/in a binded area. A prima facie case includes an act by D, with intent to confine P to a specific area, a confinement, and causation. 
1.      Idea of Intent (Again intent can be replaced w/ sub. certainty)
2.      Actual Confinement or restrain
3.      Idea of bounded area.
§ Confinement – P must be restricted to a limited area (not kept out of an area) without knowledge of reasonable means of escape and must be aware of the confinement at the time thereof or else be harmed by the confinement.
§ Methods of confinement:
a.       Physical barriers – by actual or apparent physical barriers
b.      Physical force – by overpowering physical force, or by submission to physical force
c.       Threats of force – “by submission to a threat to apply physical force to the other’s person immediately upon the other’s going or attempting to go beyond the area in which the actor intends to confine him”
d.      Submission to duress – “by submission to duress other than threats of physical force, where such duress is sufficient to make the consent given ineffective to bar the action”
e.       Asserted legal authority – “by taking a person into custody under an asserted legal authority”
–          From Restatement (Second) of Torts, cited in Herbst v. Wuennenberg: 3 P’s were going around trying to do voter purge and woman (omsbudsman) got angry and told her hubby to call the cops and blocks doorway. And ct. says remaining w/in such limits is not submission unless “prisoner” believed actor had ability to carry out threat. ?Would a reasonable person in P’s shoes have found threat plausible? Ct. says no, but 1 woman against 3 men.
–          Modern Exp: Malko v. Holy Spirit Assn.: Pretty much a cult that kids initially wanted to leave but church tells them they wont be saved if they do and parents have to kidnap their children away from church and deprogram. Ct. does not allow for False Imprisonment!
§ A reasonable and reasonably discoverable means of escape negates a confinement.
o   4th Intentional Tort: Intentional Infliction of Emotional Distress (IIED): Extreme and outrageous conduct that intentionall or recklessly causes severe emotional distress.
§ Four elements:
1. extreme or outrageous conduct
2. D did it w/ intent or reckless disregard or probability of causing ED
3. Actual emotional distress
4. And actual emotional distress was severe emotional distress
o   b/c assault is so narrow due to immediacy and immanency requirements, IIED tort created.
– Factors to consider:    
*First element: extreme or outrageous conduct Rest def: Behavior that is beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. 
* Age (Child vs. adult);
* Level of Authority over one (Ct.s more likely to find when one peep is Higher as opposed to same level)
* Premeditation
*If D has reason to know of P’s hyper-sensitivity
-Eckenrode v. Life of America: P sues ins. Comp b/c they won’t pay $ after hubby’s death. Ct. finds for P b/c Ins. Comp. knew or was on notice to know what their behavior could do.
-Chuy v. Philadelphia Eagles Football Club: P injured and has a non-fatal disease. Team doctor appears to deliberately confuse and tell reporter that it is a fatal one which causes P mush stress. D argues mistake and ct. says no action was recklessness

consent can negate the offensiveness of a touching and negate confinement.
§ Epress Consent: Permission given, either verbally or in writing
§ Implied Consent: Situatins where there si no express consent but you do something or engage in such behaviour that one could reasonably assume that you consented ←Objective standard.
(Doesn’t matter what P felt, just matters if a reasonable person would      have thought he was consenting)
§ 3 common exceptions to negate consent:
(1) incapacity (exp. children)
(2) duress (Exp. something given to thief)
(3) conditional consent (If consent comes w/ conditions, then one has to respect those conditions, and if one goes beyond those conditions, that negates consent.
 – O’Brien v. Cunard S.S. Co. – woman told doctor on ship that she had already been immunized but all of her other actions seemed as if she was consenting to another immunization. Court doesn’t care what she felt deep down, they care how it looked to the surgeon (whether someone would have reasonably surmised that she consented to the immunization). Ct. finds implied consent
§ Note: There is a general rule that if you consent to a sport you are agreeing to possibly get hurt. But In a sporting event, an intentional tort causing injury that violates a rule of the game designed to protect the player’s safety will generally be beyond the consent initially given for the play itself. Just because you consent to a game, doesn’t mean you consent to being injured by something that happens outside of the rules of the game.
– Overall v. Kadella – fight broke out among players at hockey game, D argued that P was voluntarily participating in the hockey game and cannot sue for any injury that occurred during the game. Court said no  because the defendant’s act went beyond what is permissible on the field and some rules of safety must be followed during games.
§ Was it the actual act or something collateral to the act that caused the harm? Must be actual act to recover.
– Hogan v. Tavzel (54) –wife wins damages for being infected with an STD by her husband, consent is negated by husband’s failure to disclose that he was infected with an STD because if she had known, would not have had sex. REST.: Battery to know you have an STD an infect another.
– Neal v. Neal(55) – Court rejects woman’s claim of battery based on the fact that the thing she was unaware of (husband was sleeping with someone else) was not directly related to the act of intercourse. B/C mistake must extend to the essential character of the act itself, rather than to some collateral matter which merely operates as inducement.
2.      Self-Defense and Defense of Others
Self Defense: A person is privileged to use a reasonable force against another person when he/she reasonable believes that the other person is going to cause him/her imminent harm.
§ 3 elements:Objective and subjective standard
(1) Have to reasonably believe that cause harm
(2) Threat has to be imminent
(3) Privilege only to use reasonable force (Can’t use deadly force unless deadly force is what you are faced w/– Must be Proportional— Also, retaliation is prohibited. Basic legal principles:
Basic Principles: