Torts Outline

Torts Outline

INTENTIONAL TORTS

Damages available: Nominal, Compensatory and Punitive

Battery – Intent, Harmful or Offensive touching, Causation

Intent to Inflict Harmful or Offensive Touching:

(1) Desire to cause result OR

(2) belief that result was substantially certain to occur.

Vosburg

Intent satisfied if act is unlawful given time, place and effect.

Responsible for unanticipated and unforeseeable consequences

(Thin Skull Plaintiff)

Garratt

Intent if belief that contact was substantially certain to result

from the act (moving the chair)

Constructive Intent – We’ll presume actual intent when act is

reasonably expected to produce the result to a substantial

certainty; (Did D “reasonably expect” the consequence of his

act to a substantial certainty?

Transferred Intent – A tries to punch B, but hits C instead .. if

A would have been liable for battery if he hit B, he is liable for

hitting C

Harmful OR Offensive Touching:

(1) Harmful = loss, detriment, injury (not just changes)

§15 “any physical impairment of the condition of another’s body, or

physical pain or illness”

(2) Offensive = offends reasonable person’s sense of dignity.

§19: “if it offends a reasonable sense of personal dignity”

Not supersensitive (can’t erect glass cage around one’s self)

Fisher

Offensive Touching if contact with something closely

associated to P is coupled with an offensive statement.

Leichtman

Offensive Touching if one deliberately and purposefully

smokes in a sensitive person’s fact. (D must have knowledge

of P’s sensitivity)

Assault – Intent, Apprehension, Causation

Intent to cause apprehension or immediate harmful/offensive touching

Same as Battery

Suffering of Apprehension

1. Present Ability to Carry Out Threat

2. Must be Imminent

3. Usually not Conditional

Read v. Coker (break neck)

Threat of violence + present ability to carry it out

Apprehension must be objectively reasonable (and it is!)

Beach v. Hancock (fired unloaded gun at plaintiff)

Apparent ability to inflict touching suffices

Assault if P had reason to believe the gun was loaded

IIED – Intent, Extreme and Outrageous Conduct, Causation, Severe ED

Siliznoff (trash truck)

Not assault b/c threat was not imminent.

IIED b/c D intentionally subjected P to severe mental

suffering by making extreme and outrageous threats.

False Imprisonment – Intent, Confinement, Knowledge of Confinement or Harm,

Causation

Intent

Same as Battery

Confinement

Unlawful restraint with or without physical touching

Whittaker v. Sanford (woman on boat)

Satisfied if control means of egress and refuse to let person

use those means

Firestone Tire

Not confined if you do not request to leave

Must show an actual desire to leave

Coblyn

Only way to avoid physical harm is submitting

Knowledge of Confinement or Harm

Must be aware at the time you’re confined or be harmed by it

When it is Okay to Confine Another without Consent

Protection of property or people under one’s care (i.e. teacher/students)

Sindle (Bus Driver refused to let kids off bus)

Lawful to restrain kids to protect them and his bus

Statute allows it (shopkeeper’s privilege)

Coblyn (old man in store accused of shoplifting)

Okay if done in reasonable time, reasonable manner and

with reasonable grounds.

False imprisonment if executed outside bounds of statute

Escape

To collect damages for injuries sustained, escape attempt must be reasonable

Sindle

Kid can’t collect for injuries sustained while jumping out of

moving bus.

AFFIRMATIVE DEFENSES

Consent (Actual or Implied)

Contract rules apply: can’t consent by fraud or duress

 Crime

Barton v. Bee Line (statutory rape)

Even if act is criminal, P can’t recover in tort when she consents.

This is the minority view.

Doctors and Patients

O’Brien (vaccination on immigrant ship)

Because patient could have walked away when she saw doctor vaccinating

others, her behavior indicated consent.

Silence and inaction within the context of the surrounding

circumstances may constitute privilege; Court looks at plaintiff’s

conduct, not her subjective beliefs.

Kennedy v. Parrott (extension of operation)

Consent will be construed as general unless explicitly stated otherwise.

Must have informed consent.

Doctor has implied consent to extend operation in pt’s best interest.

Can still be held liable for negligence.

Bang (spermatic cord)

Doctor must obtain informed consent from plaintiff.

In emergencies, we assume implied consent.

Athletes

Hackbart

Typically, athletes assume the risk.

But, athlete does not necessarily consent to all manners of violent

contact outside of the rules/scope of the game.

Self-Defense (objective standard applied)

Nondeadly Force

Can be used if reasonably believe somebody is about to inflict imminent bodily

harm. Force must be reasonable necessary to prevent the harm. No duty to

retreat.

Deadly Force

Can be used if reasonably believe somebody is about to inflict death or serious

bodily harm. Majority View: No duty to retreat. Minority View: Duty to

retreat if safe.

Courvoisier

Shooting of third party justified if (a) acted honestly in using force,

(b) fears were objectively reasonable given the circumstances, and

(c) means made use of were objectively reasonable.

Defense of Others

Can use deadly force to repel an attack on a complete stranger. Limited to the

level of force the stranger could legally use.

Defense of Property

Generally, can use nondeadly force if intrusion is unprivileged, reasonably

believe force is necessary to prevent or stop intrusion, and make demand

prior to use of force.

 Mechanical Devices

Katko (spring gun shot dumb burglar; nobody home)

Can’t set up spring gun when trespasser is not endangering human

life or committing a felony.

Court emphasizes “indiscriminate nature of a spring gun.”

Defense of Necessity

Ploof (trespass by docking boat in storm)

Can commit what would otherwise be a tort to preserve human

life or, in some cases, property.

Vincent v. Lake Erie (boat damaged commercial dock during storm)

Can trespass or use somebody’s property to protect your own when

the circumstances require it (e.g. storm), but you will be held

accountable for any damage you cause.

DAMAGES FOR INTENTIONAL TORTS

Nominal

Compensatory

Punitive

NEGLIGENCE

1) Duty

2) Breach of Duty

3) Causation

4) Injury

Duty: Matter of law

Normal Standard: Duty to behave as a reasonable person would under the same or

similar circumstances. (Brown v. Kendall dog case applies “prudent and cautious”

standard)

Industry Standard

Carroll Towing (bargee leaves boat during day)

Situation peculiar to industry .. court may use industry custom as

standard of care.

Hand Formula: B < PL

Negligent because burden of precautions (ensuring bargee is on board) is

less than the probability barge would break away times the injury it

caused.

Louisiana Power Co. (Man electrocuted; he and power company aware of risk)

No duty when burden of precautions (insulating all power lines) is greater

than the probability of loss.

Weirum (Real Don Steele)

Foreseeability of risk can (but not always) indicate negligence

Negligent because failed to foresee its actions would create atmosphere in

which teenage drivers chasing prize may do so recklessly.

Standards of Duty to Land Entrants

(Highest to Lowest)

Invitee: someone who comes onto land held open to public; business visitor

Negligent if (a) you know or, by reasonable care, should know about danger,

(b) should know that they won’t discover or realize it, and (c) fail to exercise

reasonable care to protect them from it.

Licensee: someone privileged to be on land with owner’s consent.

Negligent if (a) know or have reason to know of the danger, (b) fail to

exercise reasonable care to make the condition safe or to warn of condition

and risks, and (c) licensees do not know or have reason to know of the

condition and the risk.

Trespasser: someone on the land without privilege.

If adult, duty to refrain from wanton and willful conduct.

If constant trespasser or known trespasser, duty to fix and/or warn.

If child, must eliminate danger if cost is low compared to the risk.

Rowland (bathroom faucet/social guest)

Court says stadard of care should be same for all three.

Negligent because failure to warn or repair

The Impact of Special Relationships on Creating Standards of Duty

Erie RR (RR track/lack of watchman – “a trap”)

When a party imposes a higher standard of care on itself and fails to

meet it, may be held liable if practice is known to P and he relies on it.

Tubbs (D crashes and abandons car in which P is a passenger)

Generally, there is no duty to rescue.

However, may be negligent if D controlled instrumentality that caused P’s

injuries—“constituting a sufficient relationship to impose a duty to render

reasonable aid and assistance.”

Tarasoff

Therapist who determines (or should determine) a patient is planning to

kill or harm someone has a duty to exercise reasonable care to protect the

foreseeable (identifiable) victim by warning the victim.

Calling the police is not enough because that does not satisfy the duty to

exercise reasonable care to the victim.

When Do You Owe a Duty

No duty when reasonable person would not have foreseen injury to anyone from the

conduct.

•

Duty when plaintiff is foreseeable: when plaintiff is located in a “zone of

danger.” (Palsgraf)

OR

•

Duty when plaintiff is unforeseeable as long as he suffered injury as a

proximate result of defendant’s breach of duty (Palsgraf dissent)

Breach of Duty

Must prove:

(1) What actually happened (factually)

(2) D acted unreasonably under the circumstances

Violation of a Statute

Remember—violation of statute can be evidence of negligence even when it is not

negligence as a matter of law.

Martin (Amish buggy)

Early Rule: Violation of safety statute is negligence as a matter of law.

Tedla (Pedestrians struck while walking on “wrong” side of highway)

New Rule: Violation of safety statute is not negligence as a matter of

law if by doing so, one is likely to prevent rather than cause the harm

which the statute was written precisely to avoid.

Brown v. Shyne (Chiropractor violated statute by practicing medicine without

license)

The act of failing to obtain a license does not necessarily prove his actions

were inconsistent with the standard of care.

Violation of statute means duty breached only if there is a logical

connection between the proven neglect of statutory duty and the

alleged negligence.

Gorris (Sheeps lost at sea)

Violation of statute was the cause, but injury was not what the statute was

enacted to prevent.

Violation of statute is not negligence as a matter of law when it results

in a completely unrelated harm to the plaintiff.

Action Inconsistent with Industry Standards

Trimarco (shattered shower door)

If a certain precaution is taken as a matter of custom, a defendant’s

failure to adhere to the custom provides evidence of breach of duty.

For the jury to decide if cost + availability of safety glass + growing

custom turned what used to be reasonable into something unsafe and

unreasonable.

The T.J. Hooper (tug negligently unseaworthy b/c not equipped with radio)

Negligent because failure to take simple, feasible precaution—despite

industry custom being not to do so.

Helling (Opthamologist’s failure to diagnose glaucoma; test not custom)

What ought to be done is fixed by a standard of reasonable prudence,

whether it is complied with or not by others in the industry.

Remember—this is an unusual decision; typically, the “standard of care”

in med-mal cases is the custom of the industry.

Proving Breach by Res Ipsa Loquitur

To assert, P must prove:

1) Exclusive control of the instrumentality by Defendant

2) The incident does not ordinarily happen in the absence of negligence

3) Burden shifts to Defendant to prove something else caused the injury (i.e. to

prove there was no breach of duty)

Boyer (Bleachers)

Court says jury could find (note: inferrence, not presumption) that D’s failure to

inspect (breach of duty to exercise due care) was the cause of the plaintiff’s

injury.

Shutt (shoe store)

No res ipsa allowed because if D were negligent, P could have demonstrated that

in a number of ways.

Can’t use res ipsa when P can demonstrate D’s breach if there was a breach.

City of Louisville (subdural hematoma in jail)

Can’t use res ipsa when P has failed to demonstrate that D had exclusive

control or that the occurrence wouldn’t have happened with reasonable care

exercised.

Escola (Coke bottle cracking)

If plaintiff shows the bottle was not damaged or defective at any other time, and if

defendant fails to show that the product was not defective while in its control, a

jury could find the defendant liable under res ipsa.

Remember—it’s just an inference that shifts the burden