Civil Procedure of Tort Cases

  1. Complaint
  2. ∆'s motion to dismiss
  3. ∆'s answer - deny π allegations and/or assert an affirmative defense.
  4. Pre-Trial
  5. Discovery
  6. Motion for Summary Judgment (by the defense)
  1. Trial
  2. π and ∆ plead their case.
  3. ∆'s motion for directed verdict (mo
  4. Jury instructions
  5. Jury verdict
  1. Post-Verdict Motions
  2. Motion for judgmfent notwithstanding the verdict
  3. Motion for new trial

Intentional Torts

Transferred Intent: when defendant wants to commit an intentional tort against a particular individual, but ends up hurting the plaintiff, the intent is transferred from the original intended victim to the plaintiff. The ∆’s egregious state of mind in the original and intended situation transfers to the actual harm of the unintended victim.

  • Intent may be transferred in assault, battery, false imprisonment, trespass to land, and trespass to chattels.
  • Single transfer of intent: the defendant aims a single tort to person A, but ends up committing the same tort against person B.
  • Double transfer of intent: the defendant aims to commit a single tort against person A, but ends up committing a different tort against person B.
  • Punitive Damages:
  • Minority – No
  • Majority – Yes

Damages:

  • Nominal Damages - to vindicate the plaintiff's rights. The basis for further damages (punitive and compensatory).
  • Punitive Damages - to punish the ∆ and to deter future occurrence.
  • Compensatory Damages - to put the plaintiff back into the same position before the tort occurred.
  • ∆’s financial status does not matter
  • the act by the ∆ must be the direct cause of the π’s harm in order to recover compensatory damages.

Battery

ROL:A volitional act by the defendant which is the cause of harmful or offensive contact, done with the intent to cause harmful or offensive contact.

  1. Act by ∆
  2. Cause
  3. Harmful or offensive contact to π
  4. Intent
  5. Knowledge test
  6. Purpose test
  7. Cause
  8. Harm to π
  9. Physical harm
  10. Nonphysical harm

1-4 = nominal and punitive damages

5-6 = compensatory damages

  1. Act by ∆
  2. Cause
  3. Harmful or offensive contact to π
  4. Harmful contact:
  5. Frey v. Kouf: friends at a bar.
  6. Vosburg v. Putney
  7. Offensive contact: offensive contact is said to occur when the contact offends a reasonable sense of personal dignity.
  8. Cohen v. Smith: Orthodox Jews who said the wife could not be seen unclothed by another male.
  9. Fisher v. Carrousel Motor Hotel: African American had plate smacked out of his hand during reception.
  10. Actual physical contact is not necessary to constitute battery, so long as there is contact with clothing or an object closely identified with the body.
  11. Paul v. Holbrook
  1. Intent
  2. Purpose test: did the ∆ act for the purpose of causing harmful or offensive contact?
  3. Paul v. Holbrook: the co-worker purposefully touched Paul to cause harm because she had told him that she did not want him touching her.
  4. Knowledge test: did the ∆ know that the harmful or offensive contact was substantially certain to result?
  5. Frey v Kouf: ∆ had knowledge that throwing a glass in the direction of another person would substantially result in harmful contact.
  6. Cohen v. Smith
  1. Cause
  2. Harm to π
  3. Physical harm
  4. Nonphysical harm

Assault

ROL:A volitional act by the ∆ that causes the plaintiff reasonable apprehension of imminent harmful or offensive contact, done with the intent to cause the apprehension of imminent harmful or offensive contact.

1. Volitional Act by ∆

2. Cause

3. Reasonable apprehension of harmful or offensive contact

4. Intent to cause apprehension of harmful or offensive contact

a. knowledge test

b. porpose test

5. Cause

6. Harm to π

a. Physical

b. Nonphysical

1-4 = nominal and punitive damages

5-6 = compensatory damages

  1. Act by ∆
  2. Cause
  3. Reasonable apprehension of harmful or offensive contact
  4. This apprehension must be the type of fear normally aroused in the mind of a REASONABLE person. (Picard v. Barry Buick)
  5. McCraney v. Flanagan: Crown and coke. Π must be aware in order to be put in apprehension of a harmful or offensive contact.
  6. Castiglione v. Galpin: Galpin held shotgun on knee while yelling at Castiglione. There cannot be a successful claim for assault based on words alone, but there can be a successful claim if the words are coupled with the present ability to carry out the threats.
  7. Words alone cannot cause apprehension
  1. Intent to cause apprehension of harmful or offensive contact
  2. ∆ acted for the purpose of causing apprehension of harmful or offensive conduct
  3. ∆knew that apprehension of harmful or offensive contact was substantially certain to occur
  1. Cause
  2. Harm to π
  3. Physical
  4. Picard v. Barry Pontiac: in order to recover compensatory damages, the physical injury must directly or indirectly result from the assault (or battery)
  5. Nonphysical
  • Future threats of harm: NOT an assault, but can bring about an IIED claim
  • Conditional threat: NOT an assault because the π has a choice, BUT it becomes actionable (turns into an assault) when the ∆ threatens excessive/more force than is reasonable under the affirmative self-help defense.

False Imprisonment

ROL: An intentional act that causes the victim to be confined or restrained to a bounded area against the plaintiff’s will, and the plaintiff knows of the confinement or is injured thereby.

  1. Act by ∆
  2. Cause
  3. Confinement
  4. Intent to cause confinement (purpose test or knowledge test)
  5. ∆ must intend to confine the π, or
  6. ∆ must know with substantial certainty that π would be confined by ∆’s actions.
  1. Cause
  2. Harm to π (physical or non-physical)

1-4 = nominal and punitive damages

5-6 = compensatory

  1. Act by ∆
  2. Cause – was the ∆’s action the direct cause of the false imprisonment?
  3. Confinement
  4. Physical barriers
  5. Physical force
  6. Threat to apply physical force
  7. Duress
  8. Legal custody
  9. Intent to cause confinement (purpose test or knowledge test)
  10. ∆ must intend to confine the π, or
  11. ∆ must know with substantial certainty that π would be confined by ∆’s actions.
  12. Cause
  13. Harm to π (physical or non-physical)
  • An assumption is not sufficient to support a claim for false imprisonment.
  • Herbst v. Wuennenberg – The πs never asked to leave, they just assumed that they were unable to leave. They were never yelled at and they were not fearful that she would harm them. They also never said that they didn’t want to be there. Not a successful claim for false imprisonment.
  • Victim must be aware of the false imprisonment.

Trespass to Land

ROL:The intentional interference of another’s possessory interest in real estate.

  1. Act by ∆
  2. Cause
  3. Interfere with π possessory interest in real estate
  4. ∆ enters the land in possession of another or causes another person or thing to do so,
  5. remains on the land without consent, or
  6. fails to remove from the land a thing which he is under a duty to remove.
  7. Intent to enter land (purpose or knowledge test) (proof that the ∆ intended to enter the land)
  8. The intention required is an intention to enter upon the particular piece of land in question, irrespective of whether he knows or should know that he is not allowed to enter.
  9. Jacque v. Steenberg Homes, Inc. – they knew that the land belonged to Jacques and deliberately drove on the land anyway. Nominal and punitive damages given because of the malice on the part of Steenberg Homes.
  10. Cause
  11. Harm to land (or Emotional Distress?) (prove the diminution or fair value of the property OR cost to repair land)
  12. The nominal damage award represents the recognition that actual harm has occurred.
  • Mistake of fact is not a defense.
  • Punitive damages usually not given for mistaken trespass to land because you cannot show malice on the part of the defendant.
  • Typical jury instruction:
  • The π had ownership/law possession of the property
  • ∆ interfered with their exclusive right to possession of the property, by entering/causing an object to enter the π’s land
  • ∆ intended to perform the act that amounted to the unlawful invasion of π’s property
  • ∆ had no authority or right to do the act that amounted to the unlawful invasion of π’s property
  • You cannot get punitive unless you are awarded compensatory damages.
  • Rational for compensatory requirement: if the individual cannot show actual harm, he or she has only a nominal interest, and society has little interest in having the unlawful, but otherwise harmless, conduct, deterred, therefore punitive damages are unnecessary.

Trespass to Chattels

ROL: Intentional interference with the π’s right of possession to the chattel.

  1. Act by ∆
  2. Cause
  3. Interference with π's possessory interest in personal property
  4. Intent to interfere with π's possessory interest in personal property
  5. Purpose test
  6. Knowledge test
  1. Cause
  2. Harm to π's personal property (physical harm; nonphysical harm in some jurisdiction)
  • The measure of damages is the actual diminution in its value caused by the interference.

Conversion – Forced Sale

ROL: An intentional act by a defendant that causes the destruction of or a serious and substantial interference with the plaintiff’s chattel.

  1. Act by ∆
  2. Cause
  3. Appropriation of π's personal property
  4. Intent to "appropriate"
  5. Purpose test:
  6. Knowledge test:
  1. Cause
  2. Appropriation of the π's personal property
  3. Physical harm, nonphysical harm
  • The value of the goods is converted.

Intentional Infliction of Emotional Distress (I.I.E.D)

ROL:An intentional or reckless act amounting to extreme and outrageous conduct that causes the plaintiff severe emotional distress.

Act by ∆

  • Extreme and outrageous conduct. Conduct is so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency.

Intent

  • Purpose Test
  • Knowledge Test

Cause in Fact

Proximate Cause

  • Direct victim π
  • Severe emotional distress
  • Indirect Victim π
  • Severe E.D. + C.R. + “present”
  • Resulting physical manifestations + not CR + “present”

Resulting Severe Emotional Distress

YOU CAN ONLY RECOVER COMPENSATORY AND PUNITIVE DAMAGES

  • Extreme and outrageous conduct: the conduct should be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.
  • Defendant’s conduct should be judged in the light of the effect such conduct would ordinarily have on a person of ordinary sensibilities.
  • Π’s particular susceptibility to emotional distress is not relevant, unless the ∆ has knowledge of the particular susceptibility.
  • Defendant’s conduct should be judged in the light of the effect such conduct would ordinarily have on a person of ordinary sensibilities.
  • Π’s particular susceptibility to emotional distress is not relevant, unless the ∆ has knowledge of the particular susceptibility.
  • Different ways to determine if there is emotional distress:
  • If the π suffers a resulting physical injury, much more likely.
  • If the ∆ continues behavior that the π has asked the ∆ to stop.
  • Look around to see how people around the π react to the situation.
  • Expert testimony:
  • Minority – requires expert medical or scientific proof of serious mental injury.
  • Majority – Miller, Ca - expert testimony is not essential because other reliable forms of evidence, including physical manifestations of distress and subjective testimony, are available.

Affirmative Defense for Intentional Torts

Consent

ROL: One who effectively consents to conduct of another intended to invade his interests cannot recover in an action of tort for the conduct or for harm resulting from it.

Types of Consent?

Express - verbally or in writing

  • Conditional Consent: Ashcraft v. King: Daisy's mom gave conditional consent for the surgery, so long as they only used family blood.

Implied by Fact

  • The ∆ believes, under the surrounding circumstances, the π gave them consent, even though it was not verbal.

Implied by Law - emergency doctrine in Shine v. Vega

  • Shine v. Vega: Catherine had asthma and the doctor said he had consent to treat her because it was a medical emergency. Doctor lost.
  • A patient's refusal of treatment can never be overridden by "consent in law"
  • If, and only if, the patient is unconscious or otherwise incapable of giving consent, and either time or circumstances do not permit the physician to obtain the consent of a family member, may the physician presume that the patient, if competent, would consent to life-saving medical treatment.

Terms of Consent?

Did ∆ comply with the term of consent? Yes or No

Was Consent Void?

  1. πs consent was obtained by fraud or duress?
  2. Consent by a mentally incompetent π?
  3. Consent by aimmature minor?
  4. Rule of 7’s
  5. 1-6: incompetent
  6. 7-13: presumed incompetent
  7. 14-18 [21]: presumed competent
  8. Capacity exists when the minor has the ability of the average person to understand and weigh the risks and benefits.
  1. Consent to an illegal act
  2. Majority rule: consent is void (∆ cannot successfully claim an affirmative defense because you cannot consent to an illegal act)
  3. Policy reason: you don’t want people to be allowed to make contracts between private parties to break or ignore the law.
  4. Minority rule: consent is valid
  5. Restatement: consent is valid unless criminal law protects π’s class
  • The assumption of the risk doctrine is the equivalent of consent.

Self-Help Defenses for Intentional Torts

Defense of Property

ROL: A defendant is permitted to use reasonable force to prevent a plaintiff from committing a tort against the defendant’s property.

1. Necessity?

Trespass by π?

∆ demanded that they leave? (unless demand would be futile)

AND ∆ reasonably believed force was necessary?

2. Reasonable Force?

Comparable force, but NOT death or serious bodily harm.

Can depend on age, size, etc. of π and ∆.

Maddran v. Mullendore – old lady who refuses to let meat workers pass through easement.

  • As long as ∆ does not act maliciously, they can use reasonable force to protect their possessory interest in their property.

Vancherie – restaurant owner beats up a sailor with a club.

  • The amount of force used by the restaurant owner was not a reasonable amount of force.

Self-Defense

ROL:An actor may use reasonable force to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him.

Necessity?

Assault, Battery, False Imprisonment by π?

[Duty to retreat?]

∆ reasonably believed force was necessary?

(Fear must be subjective AND objective)

Reasonable Force?

Comparable, including death or serious bodily harm.

Depends on age, gender, size, etc. of π and ∆

Detailed Self-Defense

Necessity?

Assault, Battery, False Imprisonment by π?

[Duty to retreat?]

  • A ∆, in their own dwelling place or place of business, where he has a right to be, is not required to retreat in the face of a threatened assault in order to be able to plead self-defense

∆ reasonably believed force was necessary?

(Subjective and objective standard)

Reasonable Force?

Comparable, including death or serious bodily harm.

Depends on age, gender, size, etc. of π and ∆

  • Use of a deadly weapon is authorized if the conduct of the trespasser under all the circumstances is such as to produce in the mind of a person of reasonable prudence and courage an apprehension of assault involving serious bodily harm.
  • Words alone do not justify the use of deadly force, but such words, if accompanied by an actual offer of physical violence reasonably warranting fear of serious bodily harm, may be an integral part of a plea of self-defense.
  • ∆ cannot have a successful self-defense claim if they are at fault in provoking the difficulty.

Defense of Others

ROL: An actor may use reasonable force to protect another from harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon a third party.

Prima Facie:

Necessity?

A, B, FI, by π to “other”?

[duty to retreat?]

∆ reasonably believed force was necessary?

  1. From “others” perspective; or
  2. From ∆’s perspective *

Reasonable Force?

Comparable, including death or serious bodily harm.

Depends on age, size, etc. of

1. π and “other”; or

2. π and ∆ *

Detailed

Necessity?

A, B, FI, by π to “other”?

[duty to retreat?]

∆ reasonably believed force was necessary?

  1. From “others” perspective (traditional rule); or
  2. From ∆’s perspective (modern rule) *
  • The ∆ must have a well grounded belief that the assault is about to be committed on another family member.
  • The necessity of the defense must be immediate...attacks made in the past, or threats for the future, will not justify defense-of-others.

Reasonable Force?

Comparable, including death or serious bodily harm.

Depends on age, size, etc. of

1. π and “other”; or

2. π and ∆ (modern rule)*

Felony Arrest

ROL:

Necessity?

Felony by π (A, B, FI, Trespass to L or C, or Conversion)

Did the ∆ have reasonable cause to believe it was a felony? (Was the ∆ present at the time of the felony?)

Did the ∆ reasonably believe that force was necessary?

Reasonable Force?

Comparable

Felony of minor violence  not death or serious bodily harm

Felony of major violence  including death or serious bodily harm

Intentional Torts and Strategic Considerations

Intent and Bankruptcy

  • A judgment for wilful and malicious injury is non-dischargeable in bankruptcy.
  • Specific intent: π must prove that ∆ intended the precise injury that occurred. (vs. purpose, where π must prove that ∆ intended the act that caused the injury)

Intent and Children

  • Punitive damages are generally not recoverable against an immature minor unless you can show that they are mature.
  • Common Law:
  • 1-6: No liability
  • 7-13: Presumed not liable
  • 14-17 (21): Presumed liable

Parental Vicarious Liability

  • A parent can be held vicariously liable for their child’s intentional tort of which their insurance policy could pay out.
  • Public Policy: to encourage parents to deter their children from such conduct in the future.

Workers Compensation

  • A π can bring a cause of action for injuries sustained on the job and workers’ compensation will cover the injuries as long as the π was acting within the scope of employment.
  • If the injury is covered by workers’ compensation, you cannot bring a tort claim against the employer.

Employer Vicarious Liability

  • An employer may be held vicariously liable for both the intentional and negligent acts of an employee that is committed within the scope of employment ( § 219). The defendant servant has to be doing the job that he is hired to do and must do it within those time and space limits (§ 228). If the servant commits an intentional tort, the master is liable if they could foresee it (§ 228 (d)).

§ 228. General Statement

(1) Conduct of a servant is within the scope of employment if, but only if: