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West Virginia University School of Law
Cady, Thomas C.

Torts I                                                                                                                                                Fall 2004
Professor Cady

1. Four Purposes of Tort Law
King’s Peace – provide a peaceful means to disputes
Encourage responsible behavior

2. Trespass v. Trespass on the case

3. Brown v. Kendall
All liability is based on fault.

4. Spano v. Perini
Rule of Spano: a small historical pocket of ultrahazardous activity, demonstrated in this case by the use of highly hazardous explosive. Strict liability or no liability. Other than that, our system requires that the plaintiff prove fault.

5. Additional Tom Cady articles re: United States tort system
o        Baker article on Blood Money
§         In tort law in action, liability insurance has become a prerequisite for tort liability.
§         Sue the bastard, but sue only the fat bastard.
o        Haves v. Have-nots article
§         Haves = repeat players, Coca Cola truck in Preston Co.
§         Have-Nots = “one-shotters” It is a miracle that they ever make it through the system.
o        Georgetown Law Journal Article re: explanation of tort system
·         Traditional theory
·         Compensation deterrence theory
·         Enterprise Liability theory
·         Economic deterrence theory
·         Social justice theory
·         Aristotilian corrective justice theory
–          Levels of conduct:
o       Intentional misconduct (with malice)
o       Reckless conduct
o       Negligence
–          Gross negligence
–          Ordinary negligence
–          Slight negligence

II. Intentional Interference With Person or Property
R.S.T. §8A Intent – conduct where an actor desires to harm someone OR action where he believes that the consequences are substantially certain to result from it.
·         R.T.T. conduct where an actor has the purpose of harm; actor knows with a substantial certainty…

Garratt v. Dailey
·         Issue: Child pulls chair away as adult sits down; was it intentional?
·         Holding: Yes, we want to sue that little bastard
o       Respondeat superior – A parent is not liable for the actions of his/her child unless there is negligence on the part of the parent to supervise the child

Spivey v. Battaglia
·         Issue: Can someone be held liable for behavior (a playful hug) that results in a tragic injury?
·         Holding: No. The knowledge and appreciation of a risk, short of substantial certainty, is not the equivalent of intent.

Ranson v. Kitner
·         Issue: Hunting dude shoots someone’s dog instead of a wolf. Liable?
·         Holding: Yes, we want to punish the mistaken bastard.
o       Consequences – it is in terms of consequences that actions are assessed. Mistake is no defense because consequences are the same.

McGuire v. Almy
·         Issue: Insane patient injures nurse. Was there intent?
·         Holding: Yes, we want to punish the insane bastard. Insanity is not a defense in civil cases because he or she has desired to inflict harm upon another person.

Talmage v. Smith
·         Issue: Man throws stick at boy on his shed; hits another kid instead. 
·         Holding: Transferred intent (the fiction) – legally, the intent that P Smith had to harm kid Smith was transferred to Talmage. This is contrary to absolute fact, but at least he still gets compensated.

W.Va. case: Lambert v. Brewster
·         Issue: Pregnant woman standing on a balcony watches her father in a fight; miscarriage results.
·         Holding: Yes, this is transferred intent. Fashion a rule by adopting a typical judicial, legal, lawyer type statement of a rule. The rule may be stated as a factoring test or an element test rule doing the same thing.
o       Elements in Lambert
§         Physical harm, ∏ was present, Direct sensory impression, Family
§         Intent will be transferred when all of these elements are satisfied. 
o       Factoring test: Investigate the strength or weakness of each element.

R.S.T. §18-20 – Actor is subject to liability for battery if a.) he acts intending to cause a harmful or offensive contact…or an imminent apprehension of such a contact.

Cole v. Turner (1704)
·         Issue: States ancient rules of battery
·         Holding: Battery is harmful contact. This is contact which is invasive and invades the integrity of the human body. Wounds, bullets, knives, sticks   OR   is disruptive to the physical integrity of the body (bruises, etc).

Fisher v. Carrousel Motor Hotel, Inc. (1967)
·         Issue: Plate knocked out of a black man’s hand, racial slurs. Battery?
·         Holding: Yes. A bodily contact is offensive if it offends a reasonable sense of personal dignity.

W.Va. Criss v. Criss
·         Issue: Wife sued estranged husband for recovery of damages for rape; no medical evidence; ∏ said she was frightened and emotionally distressed.
·         Holding: Yes. Her personal dignity was subjected to harmful and offensive contact by an intention wrong that inflicted upon her emotional distress. Therefore, she is entitled to recover damages.

W.Va. Johnson v. WVU Hospitals
·         Issue: ∏ sued because he was called to help restrain a patient and was bitten. Patient had AIDS. ∏ experienced emotional distress, family hated him, etc.
·         Holding: Yes. WVU negligently failed to inform him that the patient that he was trying to subdue was an AIDS patient

R.S.T. §21-31 – Actor is subject to liability to another for assault if a.) he acts intending to cause a harmful or offensive contact…or an imminent apprehension of such a contact AND; b.) other is thereby put in such imminent apprehension
·         Action which is not done with intention stated does not make the actor liable to the other for an apprehension caused thereby, although the act involves an unreasonable risk of causing it.
·         Other must be aware of the attempt for it to be an assault
·         Actor subject to liability for an assault if he puts another in apprehension of an imminent and harmful or offensive contact.
·         Words alone do not make the actor liable for assault.
* Assault is designed to protect the person’s mental integrity or peace of mind.

I de S et ux. v. W de S (1348)
·         Issue: Wife was frightened when r swung an ax at her; he did not strike her.
·         Holding:

Western Union Telegraph v. Hill (1933)
·         Issue: r said that he would fix the clock if ∏ would come over to him and allow him to sexually harass her. Was ∏ placed in imminent physical contact? The counter was too high for r to reach ∏; he could not have made physical contact. Second issue is whether or not employer can be liable for r’s conduct.
·         Holding:

W.Va. Funeral Services by Gregory v. Bluefield Hospital
·         Issue: ∏, an embalmer, sued r for damages seeking recovery for severe distress through battery, as body he received had AIDS
·         Holding: No, r had no intention for ∏ to be harmfully or offensively touched by the corpse.

Courtney v. Courtney
·         Issue: Mother sued ex-husband on behalf of her son. Son suff

iii.      Engulfing the legal system with minor trivialities
de minimus non curat lex – Of little things the law does not cure

State Rubbish Collectors Association v. Siliznoff
·         Issue: ∏ sued r; r counterclaimed for emotional distress b/c ∏ threatened him with physical harm if r did not give up garbage clients; caused emotional distress.
·         Holding: Does not fit assault (no imminent apprehension; these were future threats), does not fit battery (no harmful contact); Court makes a new tort.

Slocum v. Food Fair Stores of Fla.
·         Issue: Employee of r told ∏, “You stink to me.”
·         Holding: A place of public accommodation, i.e. a supermarket, is under no special obligation to refrain from abusive, exploitive language to customers.
·         Three states have insult statutes: Va., W.Va., Miss.
–          W.Va. insult statute: words must be insulting and must be fighting words. Fighting words are not protected in by the First Amendment.
–          In W.Va. case, the ruling was reversed because jury instructions error.
–          Supreme Court says that the contemporary application of the insult statute is: (we don’t often have people challenging each other to duels, but people do insult) 

Harris v. Jones
∏ stuttered and other workers made fun of him. As a result of their conduct, he suffered emotional distress. This tort requires that ∏ suffer a severely disabling emotional response to r’s conduct.

Taylor v. Vallelunga
∏ cannot recover from watching her father getting pounded because r did not know that appellant was present and there was no intent to cause her to suffer distress.

*There is no cause of action for employees insulting customers. EXCEPT for common carriers. When the customer does not have the option to move with his or her feet, the employees cannot insult customers.

Job protection under the Human Rights Act “Terrible Ten”
W.Va. has a human rights act that provides for ten basis of liability for a person to sue for unlawful discrimination based upon ten categories of familiar discriminatory charges: race, religion, color, national origin, ancestry, sex, age (40+), blindness, disability [these naughty nine are concerning with employment, accommodation, housing/real estate] 
– 10th basis is only in housing = familial status – you cannot have swinging singles only apartments.

­West Virginia cases that deal with IIED:
Breeden (cashier suffered emotional distress from boss playing grabass and calling her bitch, dumbass, stupid; r liable)
Mauck whistle blower; Michaelson (jury should know the insulting words)
Covey v. Fields – r and his guests told ∏ he was of canine lineage, had a yellow streak up his back, and had oedipal dalliances, and ∏ sued under W.Va. insult statute. Insult statute valid because they were fighting words.