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Wayne State University Law School
Lund, Christopher C.

Torts – Winter 2010 – Lund

· Tort: A private, civil wrong, excluding contract cases, for which the court provides a remedy.
o Torts allocate/apportion liability, and determine who is at fault.

I. Intentional Torts
1. Battery: Intentionally making contact with someone that is harmful or offensive.
(The intent only goes to the contact, not to whether there was intent to cause harm).
· Elements:
Intended Contact*
· The intent goes to the contact, not to the injury.
· Intent = purpose or knowledge.
Actual Contact
· Doctrine of Personal Autonomy
Contact was harmful or offensive.
(Objective standard- what a reasonable person finds harmful/offensive)

· Ghassemiah v. Schafer (1982)
o Intent to cause injury is not essential to battery.
o Facts: student pulled chair out from under teacher. Student intended for teacher to fall to the floor, but did not intend to cause injury.

· Garratt v. Dailey (1955)
o Intent = purpose or knowledge that the contact is substantially certain. Rest. § 13
o Facts: 5 year old (Δ), pulled a chair out from under π. He said he moved it to sit in, but tried to move it back when he saw that she was about to sit down.
o Trial court: Δ did not have purpose. However, intent = purpose or knowledge. The case is remanded to determine whether Δ had knowledge.

· Helf v. Chevron (2009)
o Facts: Chevron sent π out to perform the same experiment in the afternoon that resulted in purple smoke cloud in the morning. Π sues for battery.
· Because of workers’ comp, employees cannot sue for injuries, unless injuries are intentional.
o Holding: Δ is liable because they had substantial certainty that the cloud was coming again.
o Some states require an intent to injure (see White v. Muniz).
o Tender years doctrine: no intentional tort liability for children under 7 (most states).
o Transferred Intent doctrine: Intent follows the bullet.
· Δ liable for tort accomplished rather than intended (i.e. assault when battery was intended).

· Fisher v. Carrousel Motor Hotel, Inc. (1967)
o Doctrine of Personal Autonomy: contact with anything reasonably associated with the person satisfies contact for battery.
o Facts: Employee at Hotel restaurant snatched π’s plate and yelled that he was not to be served since he was black. Π was embarrassed and (emotionally) hurt.
o Holding: this was sufficient contact for battery. Trial court erred in issuing s.j. for Δ.
· Damages for mental distress are recoverable without any physical injury.
o Leictman v. WLW Jacor Communications- The court held that blowing smoke on a person is sufficient contact with that person to constitute a battery.

· Assault: An intentional threat to do bodily harm with actual apprehension of bodily harm which is reasonable.
· Elements:
Intentional threat to do bodily harm.
· Words constitute assault if together w/other acts they put the π in reas. Apprehension
· Conditional threats (i.e. your $ or your life) are sufficient.
Actually results in an apprehension of harm.
· Not necessarily apprehension of instantaneous harm. Just no significant delay.
3. This apprehension is reasonable.
· Unless Δ knows of the Δ’s unreasonable fear and uses it to put π in apprehension.
· It doesn’t matter if Δ is not actually capable of causing injury, so long as π believes that the Δ has the apparent ability to bring about such contact.

· Vetter v. Morgan (1995)
o Facts: π was driving car, stopped at light. Δ in car next to her, screamed threatening obscenities at π. When light turned green and she drove forward, she though Δ’s car swerved into her lane, causing her to veer right, strike the curb and hit her head, collapse on floor. Δ stated that he didn’t care how π felt because his only intent was to make his friends laugh.
o Δ had the apparent ability to harm π; Δ’s behavior was so extreme that it was reasonable to believe that he would carry out his threats.
o Threats/obscenities + spat on car, revved engine, obscene gestures

· False Imprisonment: Intentionally and unlawfully restraining a victim within a bounded area.
· Elements:
Intent to falsely imprison
Actual imprisonment.
· Includes: confinement by physical barrier, confinement by physical force, confinement by submission (plausible threat), taken into custody by law official impersonator, threats other than physical violence (last is not recognized by law, but advocated by scholars). See Rest. §§ 38, 39, 40 (threat of physical force), 40A, and 41.
§ While keeping someone in a bounded area is false imprisonment, keeping them out of a particular area is not.
· It is immaterial how short the period of confinement is.

· Molko v. Holy Spirit Association (1988)
o Facts: πs were forced to join a rural commune; they want to leave, but the church pressures them to stay by saying if they left, their family would be damned and they would never meet the messiah. Their parents kidnapped them back.
o Holding: the court did not allow the πs to recover for IIED. Most courts don’t allow recovery for non-physical threats. Furthermore, the π must be aware that he is being falsely imprisoned.

· Herbst v. Wuennenberg (1978)
o Plausible Threat Standard: would a reasonable person in π’s situation have found the threat plausible?
· See Dupler v. Seubert- in the context, the threat seemed plausible.
o Facts: πs work for Republican Party, trying to get democratic voters off registration list. Go to apartment building where Δ lives, looking at mailboxes in the vestibule of the building. Δ blocked the door, but πs did not attempt to leave- they assumed they would have to push Δ to do so. Δ testified that she would not have been physically capable of stopping πs if they tried to leave.
o Holding: the Δ’s threat was not plausible. It is not sufficient that πs remained on the premises although they would have preferred to leave.
o KKK Journalist case: during interview, KKK member realized interviewer was biased, demands tapes, but journalist doesn’t hand them over, so he gets a gun but doesn’t say anything. There was a threat to apply physical force, even though he didn’t say anything.

Intentional Infliction of Emotional Distress: extreme and outrageous conduct that intentionally or recklessly causes emotional distress.
· Elements:
Extreme and/or outrageous conduct.
· Rest. § 45 comment d: so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and the be regarded as atrocious and utterly intolerable in a civilized community. Factors to determine outrageousness:
§ Susceptibility of π (i.e. a child)
§ Whether π has authority over Δ.
§ Frequency
§ Premeditation
§ Δ has reason to know of π’s hypersensitivity
· Exception: common carriers and innkeepers owe their patrons a higher standard of conduct so that they will be held liable even if the behavior is less than outrageous.
Intentionally or recklessly causing emotional distress.
The π suffered emotional distress.
· The proximate cause of which was the Δ’s outrageous/extreme conduct.
· Rest. § 46 comment j: π must have suffered distress that is not unreasonable, exaggerated or unjustified. It may encompass mental anguish, fright, horror, grief, worry and other emotional disturbances.
· Subjective component: π must feel severe emotional distress
· Objective component: reasonable man in π’s position would have felt severe e.d.
4. The emotional distress was severe.
· It became a new cause of action in the 1930s- Prosser wrote an article criticizing the narrow scope of assault and suggesting a new tort: IIED. Some states (i.e. TX and OK) require some physical contact.

· Eckenrode v. Life of America (1972)
o Facts: π had a life insurance policy on her husband, who died in a homicide. Π had to borrow money and live with relatives; the ins. co. knew or had reason to know of π’s financial situation. Δ applied economic coercion to get π to settle for less $. They lied about knowing that her husband’s death was not an accident.
o Reasons why this court (and others) are reluctant to adopt IIED as a tort:
1. It is hard to quantify mental injuries
2. Mental consequences are too evanescent (they disappear)
3. Frivolous claims will be brought
4. Mental consequences vary greatly
o Holding: Δ’s bad faith refusal to make payment coupled with deliberate use of economic coercion to force a settlement rises to the level of “outrageous conduct” to a person of ordinary sensibilities.

· Chuy v. Philadelphia Eagles (1979)
o Severe emotional distress: Rest. § 46 comment j.
o Facts: π signed K with Δ for 69, 70 and 71 seasons, with clause that he would still be paid if injured while playing. He was injured, doctor said it was polycythemia. GM told reporter about injury, reporter contacted team doctor, then wrote an article that π had polycythemia vera (very serious). Π read the article and broke down, refused tests to prove that he did not have this disease. Eventually, he consented to tests which showed that he did not have p.v.
o Holding: court allowed π to recover for IIED. At the trial court, the doctor (who gave reporter inf

rious was the harm that was inflicted. Total/significant damage = conversion.
Did the Δ act in bad faith? If it was an honest mistake, more like T to C.
How long was the property taken for? Hours = T to C. Months = Conversion.
o In determining whether an action is Trespass to Chattels or Conversion, most courts will determine which remedy is more equitable and move backwards.
o Conversion and trespass to chattels are almost always brought together.

Pearson v. Dodd (1969)
o Facts: πs went into Δ’s office without permission, make copies of documents, and gave copies to Anderson, who published them.
o Holding: actual damage is an element of trespass to chattels, and this did not occur, so the π cannot recover. He was interested in the information, not the paper it was on. He should have brought a libel or defamation suit instead.
o There is no good reason for separating conversion and trespass to chattels- conversion could easily encompass trespass to chattels, but they are kept separate because of history and custom.

o Consent- if a π gives permission for the Δ to do something, the Δ cannot be held liable.
1. Express consent- permission given either verbally or in writing.
2. Implied consent- no express consent, but the π does something, engages in some behavior that indicates consent. There is an objective standard- someone can reasonably assume from the π’s behavior that he has assented to the action.
3. Exceptions to Consent:
1. Incapacity to consent (i.e. children)
2. Duress- threat (i.e. give me your tort book or I will beat you up. Owner hasn’t consented).
3. Conditional consent- if consent comes with conditions, the Δ must respect the conditions. If the person goes beyond the conditional consent, it is considered a tort.

· O’Brien v. Cunard (1891)
o Facts: π was vaccinated on ship immigrating from Ireland to Boston. She sued for battery. She claims that she did not consent.
· Consent is determined from overt acts. Manifestation of consent: signs all over the ship about vaccinations, she stood in line with other women, watched the others get vaccinated.
· Scope of consent: did she consent to the needle in her arm or the vaccination? She knew it was a small pox vaccination because she told the doctor on the ship that she was already vaccinated.
Problem with objectivity of implied consent: jurors see it from the point of view of the doctor, not the π. She is coming into a foreign world, doesn’t speak English.

Overall v. Kadella (1984)
Facts: Hockey players get into a fight after the game. Π might have been poking Δ with stick. Δ went over to the bench where π was sitting and punched π. Δ says that π consented by playing in game.
Holding: consent only goes to the permissible contact that is likely to happen during a game, and there are rules which prohibit fighting. Violation of some safety rule could mean liability for battery. If a touch is illegal, then the Δ cannot talk about consent as manifested by participation in the game.
From a policy standpoint the rules of the game should have the effect of law.

Knight v. Jewit (1987)
Facts: informal football game during halftime at Superbowl party. Knight is running, hits Jewit at full speed, she gets a concussion and he steps on her hand, breaks hand and finger. Finger must be amputated after three unsuccessful surgeries.
Holding: the contact was within the rules of the game (problem: there were no rules).
Ultimately it is an objective question whether or not a reasonable person would believe that she consented to this type of physical contact when she agreed to play.

Hogan v. Tavzel (1995)