[On exams: write party’s names, not P and D] [Put in weak arguments, but state they are weak]
TORTS AIMS:
(1) Deterrence of Anti-Social Conduct &
- specific AND general
(2) Compensation for Injured Persons
- put person in position they would have been if not injured
DAMAGES: BOTH Past AND Present:
- Medical Expenses
- Lost wages/earning capacity
- Pain and Suffering (“non-economic damages”)
Limits: When US is party, NO jury, Fed Court, NO punitive damages
FAULT = Generally, there is no liability without fault.
Fault encompasses negligence AND intent [as battery elements]
SO, P has to allege “fault” to have a prima facie case, otherwise it’s just an accident, and every
accident is not a cause of action (Mcafoos.)
INTENTIONAL TORTS
Remember – if requisite elements not shown, “failure to state a prima facie case” = file a demurrer
Can’t tap into insurance for intentional torts (so may want to look for negligence to get more $)
BATTERY
(1) Volitional Act by D
(2) Intent [to cause a harmful OR offensive touching]
Intent = Acting w purpose to achieve the invasive result, OR acting w knowledge that the invasive result is substantially certain to occur
- Garatt v. Daily: if he knew she was going to sit down, then he would know to
substantial certainty that she would fall
Dual intent jurisdiction: Must have intent to touch AND intent to offend OR harm
- White v. Muniz: Alzheimer’s patient kicking nurse, didn’t have intent to harm/offend
- NOTE this is a bigger hurdle to meet for cases w children/mentally infirm
Single intent jurisdiction: Must intend ONLY the contact
- Cohen v. Smith: patient wanting no men around, male nurse not intending to offend
• Personal autonomy is a basis for battery claim, unwanted touching (Cohen v. Smith)
• Contact
Transferred Intent: [works for ALL intentional torts]
When D acts intending to commit tort but
(1) intends to commit against A, but commits against B instead, liable to B
(2) intends to commit tort A, but commits tort B instead, liable for tort B
-- deters misconduct and compensates injured person
IF D is a child:
Children/Intent: General cut-off rule for intentional torts is 7. Younger considered not able to
have requisite harmful intent. Others considered case-by-case. Remember that even kids have homeowner’s insurance.
Parental liability: Generally not automatically liable for torts of children. BUT, can try
to show fault on part of parents (negligence or intent by teaching them to do the act). Most states have liability by statute for willful/wanton conduct of children, but damages are capped low.
IF D is mentally infirm:
NO Insanity Defense in Torts! – but will look case-by-case to determine if person could form
the requisite intent. No blanket immunity. (Polmatier – guy killed father-in-law w beer bottle. Criminally got off for insanity, but still civilly liable for tort)
(3) Contact
• Must involve contact w P’s person or something closely associated w P
• Offensive if it would offend a “reasonable” person’s sense of dignity, hypersensitive reactions
not sufficient
• P does not need knowledge of the touching at the time thereof
- Touching can be blowing smoke (Leichtman), ozone gas (Swope)
- Contact w the ground is sufficient, where D never actually touched P (Garatt v. Dailey)
Expanded definition of contact
(4) Damages [P must be either harmed OR offended]
• Don’t need to show physical damages! Can be emotional anguish, etc.
• Nominal always, punitive rarely
ASSAULT
(1) Act
Words alone are not sufficient – unless together w other acts or circumstances
Cullison v. Medley – threatening words, but while holding a gun
(2) Intent to place P in reasonable apprehension of imminent contact that would be battery
if completed
Apprehension = “awareness” NOT “fear”
Imminency – need not be immediate, just not too far in the future. “No significant delay.”
- calling and saying they’re coming over to beat up is not enough
(3) P is actually placed in such a state of awareness [no contact necessary]
Have to be aware before it occurs (Koffman – kid tackled by coach, “had no idea until he hit
him”)
Interest protected is mental state (free from fear)
DAMAGES: amt that will compensate them for invasion of mental state. Jury decision.
FALSE IMPRISONMENT
(1) Intent to confine
(2) Confinement
Measured by reasonable belief of confinement: actual confinement not required
“Reasonable belief in confinement trumps the reality every time”
(McCann v. Wal-Mart: boundaries not necessary, just told they couldn’t leave)
- no confinement when a reasonable means of escape exists
- taking someone’s wallet and refusing to return it can be confinement
(3) P aware of confinement, OR physically harmed by confinement
[+ Act, always for intentional torts]
DAMAGES: awarded even when there is no physical harm
Protects interest in freedom from sense of confinement (mental anguish caused by confinement)
CHILDREN AND INTENTIONAL TORTS: General Rule = if they can form requisite level of intent and did in fact form it then they are liable for the intentional tort. (Garatt and Hall v. McBryde)
TORTS TO PROPERTY
a. Trespass to Land:
(1) D intentionally went onto, or sent something onto, the P’s property, and it interfered with right
to exclusive use of the land.
- intent: either purpose to enter OR substantial certainty that entry will take place
(2) Intent doesn’t have to be wrongful
- catches even “good faith” trespassers
(3) Damages can be awarded without physical damages
- Punis only if deliberate or malicious BUT, punis can be awarded without compensatory
damages (controversial)
b. Conversion of Chattels:
(1) Taking someone’s property
(2) With the intent to exercise substantial dominion over it
- no wrongful intent required! Even if you mistakenly think something is your own
Rationale: person missing the book shouldn’t be compensated
(3) and you exercise that dominion
- destroying property can be conversion (treating it like own)
REMEDIES: either return the chattel in same condition OR fair market value at the time of conversion
c. Trespass to Chattels:
(1) Meddling with someone else’s property, but not quite taking it
-- look for interference with possessor’s use of a legally protected right in a piece of
personal property (NOT real property)
-- difference to conversion: level of dominion exercised
-- comes up in spam e-mail cases, internet
-- classic example is stealing a car just for the joyride, or petting someone’s dog
REMEDIES: usually compensatory damages for actual damage done, based on loss of possession, right of use (actual damages or dispossession only)
PRIVILEGES = Defenses to Intentional Torts
Burden of proof on D. Easier to attack the prima facie case (no burden).
Claiming a defense means the prima facie case is established – make sure the prima facie case holds, first.
• Remember that each blow is a separate battery. If you’re hit 20 times, have to analyze to see if any of
the 20 was privileged.
DOCTRINE OF ROUGH EQUIVALENCE:
Amt of force used in defense ≤ Amt of apparent force used by P
Protecting Against P’s Apparent Misconduct (5) – “It’s P’s fault”
(1) SELF-DEFENSE
(1) Reasonable belief that self-defense was necessary AND
- must be reasonable belief in apparent danger
(2) Amount of force used was reasonable AND
- weighs the act, NOT the result (look at the punch, not the fact it broke a nose)
- sexual attacks can be responded to w deadly force
Minority Rule = duty to attempt retreat before using deadly force, UNLESS in own dwelling.
Never a duty to retreat from your own home.
[Reasonable belief + Reasonable force]
(2) DEFENSE OF THIRD PERSONS
You may defend a 3rd person on the same basis as you defend yourself:
(1) Reasonable belief that person being attacked needed help AND
(2) Reasonable amount of force used
Minority Rule = if you’re mistaken about need for defense you lose the privilege.
Majority Rule = reasonable mistake is OK
(3) ARREST AND DETENTION: Shopkeeper’s Privilege to Detain
Defense to false-imprisonment charge from shoplifters (applies to owners, security, employees, etc)
(1) D reasonably believed that P had taken goods or services w/o paying AND
- A&P: no privilege, P hadn’t tried to leave the store yet. No reasonable belief b/c no one
saw him do anything
(2) Manner and duration of detention must be reasonable (necessary to conduct a reasonable
investigation)
Minority Rule = Requires actual need for defense (reasonable belief isn’t enough)
(4) DEFENSE AND REPOSSESSION OF PROPERTY: Non-shopkeeper’s Privilege
(1) D may use reasonable force to defend property IF
- reasonable force generally lower than for defending self. Property is not as valuable as
life. NO deadly force for harm only to property! (Brown v. Martinez farmer shoots boy)
- deadly (spring-traps) only if intrusion threatens death or serious bodily harm to the
occupiers or users off the premises
(2) Reasonable belief that such force is needed
HOT PURSUIT RULE: If you’re in hot pursuit, you’re privileged to use reasonable force where you believe reasonable force is necessary to recapture the chattels. (knock someone down, etc.)
(5) DISCIPLINE
Some people are given right to discipline others: (parents/kids, bus drivers, teachers)
(1) Must reasonably believe discipline is necessary AND
(2) Manner of discipline must be reasonable
No limitation to children suing their parents
Special Case – “I thought P wanted me too.”
(6) CONSENT
In part a defense, in part negates element of prima facie case (wrongful intent)
(1) Consent to the act (not the result)
BUT: “Not consent if D does substantially different act”
Doe v. Johnson: STDs. If person knew result was possible and wouldn’t have
consented to the act if they had known, then no consent.
-- could also include fights, not knowing it’s a fight w a heavyweight champ
-- Consequence are evidence of this
(2) Consent manifested by conduct is consent in the eyes of the law
-- could be D reasonably believed someone consented, apparent consent (D’s reasonable
mistake protected)
(3) Reasonable belief of consent necessary (Packwood – senator touching women, thought they
liked it)
(4) Scope of consent
- Ashcraft: consent to transfusion w only family blood
- Kennedy v. Parrot: doctors have implied consent to go outside scope of original
operation to deal w other problems the doctors find in area of original incision
(5) Lack of capacity negates consent when:
(a) It causes adult P to be unable to understand and weigh harm and risks against benefits
of proposed conduct AND
(b) D must have knowledge of the incapacity
-- Can include voluntary intoxication (esp. when age differences, authority, etc.)
-- If D in position of authority of P, then assertion of consent subject to great scrutiny (Reavis:
minister having “consented” sex with parishioner)
-- Consent of minors – can consent to touching appropriate to their age
Dual intent jurisdiction = have to have consent to both the touching AND the harm or offense
- use the same facts as P’s evidence to prove intent to harm or offend to show that D
didn’t intend to harm or offend because it was consented to.
Single intent jurisdiction = then consent is truly an affirmative defense. D has burden of proving
that it appeared to the D that the P was agreeing to being touched, and that would take away the offensive battery notion. Takes away tortious character of act completely.
In dual intent jurisdictions – using consent is like attacking the prima facie case. Showing consent to the touching implicitly attacks the intent to harm or offend element as well.
-- some jurisdiction weave lack of consent into the prima facie case. P must prove it.
Privileges NOT Based on P’s Conduct – “I really thought I had to do it”
(7) PUBLIC NECESSITY
One is privileged to enter land in the possession of another
(1) it IS OR actor reasonably believes it to be
(2) necessary for the purpose of averting an imminent public disaster
- imminent not expressly defined, argue both ways
-- Includes blowing up house to stop fire from spreading (Surocco v. Geary)
-- person who created the necessity can’t use it as a defense
Wegner: Cops destroy house w tear bombs to apprehend hiding criminal. Liable b/c of Constitutional Takings Clause argument.
BUT – CA disagrees. Applies Necessity b/c “takings” clause is NOT for destruction of property. It’s not a taking.
(8) PRIVATE NECESSITY
“The privilege ends where damage begins” – Can protect your own interests by committing trespass IF NO physical damage is done.
- Ploof v. Putnam: Private Necessity trumps privilege to use reasonable force to expel trespassers
- Vincent: similar, had to pay for damage to dock, but not liable for the taking of the ship
NEGLIGENCE LIABILITY
“Accident must lie where it falls. Shift the burden only if there is fault.” Oliver Wendell Holmes
-- cause not enough to shift, would serve over-deterrence
-- most cases settle, insurance can pay, work on contingency
(1) Duty of Due Care
• Default: duty to exercise the care of a RPP/SSC as the actor was at the time of incident.
Takes into account:
• Circumstances external to the actor (emergencies)
• Physical disabilities (Shepard)
-- held to standard of RPP w the same disability
• NOT mental infirmities (Creasy – Alzheimer’s)
• Superior training and knowledge (Hill v. Sparks – trained earth-mover driver)
-- NOT a higher standard, just relevant to “amount” of care
-- Rationale: RPP uses all the knowledge and training he has. No special instruct.
-- Does NOT include adults of higher intelligence
-- standard of care never changes, just what it reasonable under the circumstances
- Stewart v. Motts: no higher level for inherently dangerous circumstances. RPP
encompasses it.
- Wilson v. Sibert: No separate instruction for emergencies. Encompasses by SSC (no
emergency if you create it yourself, if reasonably foreseeable, it’s not an emergency)
“Special Standard” for children = the RPP child of the same age, intelligence, and experience as the accused, EXCEPT if child engages in “adult” OR “inherently dangerous” activity
“inherently dangerous” – look to speed, power. (Robinson v. Lindsay snowmobile)
“adult activity” – (1) adults usually do it (2) adult skills were required (Putney NOT golf
cart)
- many states immunize children under 3 or 7, some even 14
- vague line where “child” ends, between 14 and 18
- Rationale: want children to behave like children
-- judge does not determine what RPP conduct is. Jury decision (Chaffin)???
Negligence per se: Unexcused violation of statute is negligence in and of itself.
Evidence of statute admitted as standard of care IF:
(1) P belongs to class of persons the statute was designed to protect AND
- Haver v. Hinson: parking on the wrong side of the street
(2) P’s injury was A type of harm the statute was designed to prevent? AND
- Wright v. Brown: dog released early from quarantine
(3) Unexcused violation of the statute
Excuses: (1) Incapacity [too young, heart attack, blind, can’t comply w statute b/c of it.
Not not negligence, just no negligence per se];
(2) Factual ignorance [NOT ignorance of the law. Like driving and taillight goes
out]
(3) Impossibility [unable after reasonable diligence or care to comply
(4) Emergency not of own making [unexpected failure in steering, braking etc.
illegal to park on sidewalk, but got pushed there and can’t move]
(5) Greater risk of harm to comply w statute
IF any of the above not met, then default back to RPP/SCC
EXCEPT: Evidence of negligence states: violation is only evidence of negligence WA
Rebuttable presumption states: CA. IF in evidence, presumed violation is negligence, D can rebut the presumption. JUST KNOW: “this is functionally identical to the majority rule” State that exactly.
Rationale: respect for congressional intent, comity
-- many jurisdictions require that the violation of the statute must be a significant cause of P’s
harm (proximate cause)
-- “special standard” for children usually trumps negligence per se. or use incapacity.
(2) Breach of Duty (Negligence conduct)
“Conduct that is unreasonable risky, such that a RPP/SCC would not engage in it b/c of foreseeable risks of harm.”
(1) Whether alternative conduct would have avoided the harm
- could be engaging in no conduct at all
- look at EACH act separately (spilling gas, starting mower, failing to push), argue RPP
and alternative conduct for each act
(2) Balance the foreseeable risks of engaging in the conduct versus the cost of avoiding it
(doing the alternative conduct)
- Stinnett v. Buchelle: P is in better position to avoid the harm than D. not foreseeable to
Dr that roofer would go up w no equipment.
• Carroll Towing: B < P x L [Burden of avoiding the harm < Probability of the harm x
foreseeable extent of Liability] Theory: a reasonable person is economically efficient.
• Best used in business planning situations where there are numbers
• If you don’t quantify the numbers, then applicable almost anywhere
(3) Balance foreseeable risks w the social benefits of the activity engaged in
- Indiana Consolidated Insurance: steel buildings more dangerous than concrete, but
better anyway
- Lee v. GNLV: low risk of choking, high cost of training all restaurant employees in med
- Fintzi: expense of avoiding wet grass higher than benefits of having summer camp
- Bernier v. Boston Edison Co.: bad design of poles, fall when hit by car. Not cheaper.
Proving Breach of Duty:
• Must have evidence of negligent conduct actually was (Santiago: no evidence who responsible)
- “the mere happening of an accident is not proof of negligence”
• Credibility of witnesses is a jury issue
- unreviewable, so coach your witnesses
• Expert witnesses only when lay jury wouldn’t be able to understand without. Only they can
give opinions
- NOT for standard of care.
- Hammons: wall material breaking is within common knowledge
- can only testify w/in ffield of their expertise
• Jury can draw inference of negligence from the facts
- Thoma v. Crackerbarrel: no witness of negligence, but still allowable. Must have been.
• Have to show reasonable alternative conduct exists
• Custom as evidence of RPP
- can be for P (like sword), or for D (like shield)
- Wal-Mart v. Wright: handbook is not custom.
- usually can include safety manual written by industry groups
- TJ Hooper: just b/c something is customarily done does NOT mean it is the RPP
standard. Could be negligence across the whole industry.
“What is usually done is evidence of what should be done . . . although not determinative” – Oliver Wendell Holmes
Res Ipsa Loquitur – “the thing speaks for itself” – (use when you can’t find evidence, hint is there will be very few facts on the exam)
-- weak position, always better to have actual evidence
• allows inference of negligence (Byrne v. Boadle)