v TORTS I OUTLINE:
v Chapter One:
v Rationale:
Ø Tort- meaning a compensable harm or wrong.
Ø Tort law is purposeful, it compensates (restitution) for loss while deterring (deterrence) its occurrence.
Ø In economic terms, tort law attempts to place the burden of liability on the least-cost risk avoider – on the one who is most able to change an unreasonably dangerous practice or, if they choose not to, then to pay for the harm it causes.
Ø It internalizes costs to those that are producing them. In that respect, tort law is a law of responsible liberty, imposing no particular constraints on our choices but holding us responsible for the untoward (adverse, unfavorable, resulting) consequences.
v The Practice Context:
Ø Tort practice is primarily state law and local influences rather than federal law (although there are federal statutory tort causes of action).
Ø Competent tort practitioners will know and be able to project the intricate workings of tort principles in many circumstances, have an intimate familiarity w/circuit and probate court rules and practices, know the workings of the peculiar tort-reform statutes and sense the trends and learning’s of appellate and trial courts on tort liability issues.
v Class Notes:
Ø Policies that justify tort law:
§ Deterrence – by the threat of liability.
§ Compensation – for those suffering loss.
Ø Where is tort law found?
§ Common Law – state court cases
§ Statutes – from legislatures.
Ø Sources of law:
§ Present – Code (Statutes, ordinances etc)
§ Past – Cases (precedents, traditions, common customs, etc)
§ Eternal – Core (morality, fitness, fairness etc)
§ Future – Concrete (pragmatism, prediction)
v Chapter Two:
Ø Intentional Torts – harms that a person in some sense desires to bring about.
Ø Torts of negligence – harms that are the result of a person’s carelessness or are otherwise not intended.
Ø Tort law is divided into:
§ 7 intentional torts: (FITTCAB)
· Assault
· Battery
· False Imprisonment
· Intentional Infliction of Emotional Distress (IIED)
· Trespass to Land
· Trespass to Chattels
· Conversion
§ 4 involve injury to persons:
· Assault
· Battery
· False Imprisonment
· IIED
§ 3 involve damage to or deprivation of property:
· Trespass to land
· Trespass to Chattels
· Conversion
§ Torts of Negligence
§ Strict Liability Torts
v Intent – is an element in each of the intentional torts (A, B, Fi, IIED, Tl, Tc, C). The intent element of the intentional torts is commonly satisfied by showing that the D desired to bring about the P’s harm. Proof (direct or circumstantial) of the D’s desire to harm is enough to establish intent. It is the intent to bring about the contact (or harm), not the intent to act.
Ø Categories of intent (Four forms of intent)
§ (1) Purposeful/Desire/willful
§ (2) Knowledge of a substantial certainty – instances where a person acts w/knowledge of a substantial certainty of another’s harm, without necessarily desiring the harm.
§ (3) Transferred Intent
· Intent will transfer among the 5 traditional torts (A, B, Fi, Tl, Tc).
· Intent to commit one of the 5 intentional torts is intent to commit all.
· Intent transfers from one tort to another and from intended victim to another.
§ (4) IIED’s “recklessness” form of intent – the element is satisfied on a high probability of harm.
Ø Knowledge that you would do actual harm is irrelevant.
Ø Damages are not required to prove intentional torts.
Ø Mistake, Insanity, or Infancy is NO DEFENSE
Ø Garratt v. Dailey (Substantial Certainty)
§ 5 year old boy moved chair from underneath P. P sued.
§ If P was in the act of sitting down when D moved the chair, D had a substantial certainty that harm would occur.
Ø Doe v. Johnson (1993) (Substantial Certainty)
§ P had consensual sex w/ D, D refused to wear a condom, P got HIV from D.
§ Sexual activity between 2 individuals satisfies the contact element for battery.
§ Intent includes acting w/substantial certainty of harm.
Ø Williams v. Kearbey (1989) (Insanity is not a defense)
§ 14 year old boy shoots teacher and student.
§ Issue: Can an insane person be held civilly liable for their torts?
§ Intent to contact is sufficient without regard to insanity. (Insanity is not a defense)
Ø Talmage v. Smith (1894) (Transferred Intent)
§ Boys on roof of shed, D throws stick at them, P is blinded in one eye as result.
§ Intent transfers from intended victim to actual victim. Intent also transfers among 5 traditional intentional torts.
v Battery: (IHOC)
Ø Definition: Intentional infliction of harmful or offensive bodily contact.
Ø Elements:
§ (1) Intent (Acts intending to)
§ (2) Harmful or Offensive
· Whether contact is harmful or offensive is judged by reasonable person standard.
· Contact is offensive if P has not consented to it or it is not otherwise privileged.
· Normally inoffensive contact is actionable when actor knows it will be offensive.
§ (3) Contact (Direct or Indirect contact)
· Anything connected to Plaintiff’s person (clothes, purse, cane, hat, plate, book)
· Anything set in motion that brings about harm to P.
Ø NOTE: Apprehension not necessary: Person may recover for battery even though he is not conscious of the harmful or offensive contact. (Unauthorized surgery)
Ø NOTE: Actual damages not required
Ø NOTE: Transferred Intent
Ø Leichtman v. WLW Jacor Communications (1994)
§ Radio host blows smoke in antismoking guest’s face.
§ Intent satisfied b/c host intentionally blew smoke in his face repeatedly.
§ Offensive because he was a well known antismoking activist.
§ Contact element was satisfied b/c smoke as a particulate matter can make contact.
Ø Borhmann v. Maine Atomic Power Co. (1996)
§ Students exposed to radiation at power plant.
§ Intent satisfied b/c guide led students into “hot” area.
§ Exposure to alarming levels of radiation satisfies the offensive element of a battery claim, but you have to be able to prove damages.
§ Contact element was broadened to avoid liability.
Ø Fisher v. Carrousel (1967)
§ Waiter snatches plate from rocket scientist’s hand b/c of race.
§ Intent satisfied b/c waiter intentionally stole the plate from his hand, stated why he was taking it (b/c they don’t serve blacks), in an angry and confrontational demeanor.
§ Offensive gestures satisfies offensive element.
§ Contact w/items closely associated w/the body satisfies battery’s contact element.
Ø Eggshell-Skull Rule – D is liable for unforeseen injuries due to intended offensive touching.
Ø Vosburg v. Putney (1891
§ In school D kicks P, injuries result.
§ Intent satisfied b/c D intended to kick P
§ Offensiveness satisfied b/c D’s conduct interrupted class, and harmful b/c P got an infection from kick.
§ Contact was satisfied w/kick
§ Eggshell-skull rule: D liable for unforeseen injuries due to intended offensive touching.
v Assault (AI IHOC APA)
Ø Definition: A reasonable apprehension of immediate intentional harmful or offensive contact, with the apparent present ability to carry it out.
Ø Elements of Assault:
§ (1) Intent
§ (2) Reasonable Imminent apprehension of
§ (3) Battery
§ (4) with apparent ability to carry it out
Ø The sense of the tort of assault is that the one who is about to suffer a battery can see it coming, and then thus suffers that additional harm of the anticipation.
Ø Construction of “Apprehension”
§ Requirement of Reasonableness – reasonable person test.
· Fear, Intimidation, etc Distinguished
¨ Apprehension is not the same as fear or intimidation. Apprehension here is used in the sense of expectation.
· Knowledge of act is required. (P must be aware of D’s act)
· Effect of Words
¨ Overt act is necessary. Words alone, however violent, generally do not cosntitute an assault because they cannot create a reasonable apprehension of immediate harmful or offensive contact. A different result might occur when such words are accompanied by some overt act, example a clinching fist.
¨ Words may negate and assault, even though the defendant commits an hostile act.
Ø Example: James shakes his fist while talking to Myron, and says, “If I weren’t such a good guy, I’d hit you.” There is no reasonable apprehension of harmful or offensive contact.
· Conditional Threat is Sufficient
¨ Note that if the words and act combine to form a conditional threat, and assault will result.
Ø Example: Robber points a gun at P and says, “Your money or your life.” Robber is liable for an assault.
Ø Requirement of Immediacy – must be immediate harmful or offensive contact. Threats of future contact are insufficient, or if the defendant is too far away to do any harm or is merely preparing for a future
threatened by dad and friends of 17 year old girl.
o Statute of limitations had run on assault and battery.
o Threat for future harm.
Ø Limitations periods – IIED supplements traditional torts, relief for which must be pursued within applicable time periods. IIED claims have been permitted notwithstanding that all conduct could be covered by another time barred tort (assault, battery).
v Chapter 3
Ø Trespass to Land: (IIEP)
o Definition: intentional, unauthorized, entry on to the land of another, interfering with his/her exclusive possession.
Ø Elements:
o (1) Intentional, unauthorized entry onto the land of another,
o (2) Interference, w/his or her
o (3) Exclusive possession (refers not to damage or annoyance a trespass might cause, but to violating the right of the owner to exclude others).
Ø Any entry will not do, it must be intentional. (intent to enter on the land).
Ø Negligent entries onto land may be actionable in negligence claims but are not enough to establish trespass claim.
Ø The “entry” need not be of a person, although it must be of something tangible. (shooting a gun through someone’s land, throwing rocks onto it, or chasing a third person onto it).
Ø Trespass to land may also exist where defendant remains on P’s land after an authorized right of entry has lapsed.
Ø One can be held liable for trespass even if acting in good faith, reasonable mistake as to ownership and the authority for entry. Mistake does not negate intent.
Ø Damage is not an element of trespass to land. (Damages are presumed and nominal damages are rewarded)
Ø In the case of intangible entries, such as microscopic particles, that the courts will either require proof of trespass damages or, if the condition interferes w/ the “use of enjoyment” but cannot be characterized as an entry, claim goes to tort of Nusiance.
Ø Nuisance interferes w/ use and enjoyment, not possession.
Ø Trespass to land can occur w/in the immediate reaches of airspace. Trespass can also occur under the land, by mining for instance (western states may allow following the vein).
Ø If the trespass benefits the owner, it’s still a trespass.
Ø Hannabalson v. Sessions (1902)
o Fence dispute between neighbors.
o Don’t have to step on land to trespass, reaching over the fence is enough.
Ø Herrin v. Sutherland (1925)
o D fishing and hunting on P’s land and P’s stream, and Missouri River running through it.
o Trespass occurs only within “immediate reaches in the sky” and when it “interferes substantially”
o Non-navigable streams on someone else’s property, not open to public. Missouri River, open to public, but river bed private land.
Ø Kopka v. Bell Telephone (1952)
o D dug hole for telephone w/o P’s consent. P fell in hole and was injured.
o Tort law places risk on person entering b/c they have the ability to change the practice.
o Mistake does not negate intent.
Ø Bradley v. American Smelting (1985)
o Can microscopic particles be said to “enter” land? Yes
o Nuisance interferes w/use and enjoyment, proof of damages necessary. Trespass interferes w/exclusive possession, no proof of damages necessary. Environmental trespass interferes w/exclusive possession, no proof of damages necessary.
v Trespass to Chattels: (IIEPD)
Ø Definition: Intentional Interference with another’s exclusive possession of personal property, causing some damage or loss.
Ø Elements:
o Intentional
o Interference/impairment OR
o Deprivation/damage
o With exclusive possession of personal property
