Office Hours: Friday 2-4 PM, Hauser 510
Course Reading Assignments:
January 26th: pp. 1-10 (Vosburg & Notes 1-9); pp 12 (Notes 1 & 2), and pp 14-15 (Note 5)
January 27th: Form & Substance in Private Law Adjudication (website); Consent pp. 16-17 (Intro & Note 1); pp. 19-21 (Notes 4-5); pp. 22-24 (Notes 7-9); pp. 25 (Note 11); pp. 26-27 (Notes 13-14)
January 28th: Trespass pp. 28-36 (Dresnick opinion, Notes 1-5, 7&8), Conversion pp. 41-45 (Intro & Note 1), pp. 46-49 (Notes 3-7), pp. 50-51 (Note 9), pp. 54-55 (Note 12)
February 2nd: Start at Conversion, Supplemental Reading-Restatement, False Imprisonment pp. 56-63 (Rest provisons, Notes 1-6, skip Note 4)
February 3rd: Start with Conversion, Assault pp. 65-66, Rests, pp. 68-70(Notes 2, 4 & 5, start with Note 4), Singer supplemental reading
February 4th: IIED pp. 70-81; Hohfeld's "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning" and Prybyla v Przybyla, 87 Wis.2d 441 (1978)
February 9th: Start at Pemberton, pp. 85-88, pp. 88-94 (Notes 3-8), pp. 94-95 (Note 10)
February 10th:Private Necessity, pp 97-99 (Ploof & Notes 1-2) and pp 100-106 (Vincent & Notes 3-6)
February 11th: Public Necessity, pp 106-107 (Note 1) & pp 108-111 (Notes 3-5) and Discipline pp 111-113 (Notes 1 & 2) & pp 117-120 (Note 6)
February 16th: Reasonable person standard, pp 121-127 (Williams & Notes 1-3), pp 131-132 (Note 7), pp 133-137 (Notes 1-2, Purtle & Note 1), and pp 139-140 (Note 4)
February 17th: Risk and Precautions pp. 140-152 (case and notes 1-7); pp. 155-158 (n. 10-12)
February 18th: Custom and Medical malpractice, pp. 158-168 (case & notes 1-9),
February 23rd: Negligence per se (pp. 169-182, stop after note 12)
February 24th: Res Ipsa Loquitur pp. 190-194 (n. 1- 3), 195-198( n. 5-8)
February 25th: pp. 199–201 (case); pp. 202-206 (N. 3-6); pp. 206-214 (case & N. 1-7)
March 2nd: Strict Liabilitypp. 394-399 (Behrens & n. 2); pp. 404-408 (case & n. 1-2); pp. 410-413 (n. 7-9). Supplemental Reading by the end of week
March 3rd: Abnormally dangerous activities pp. 414-426 (Rest provisions, case Indiana, n 1-4), pp. 428-431 (n. 9-10)
March 4th: Respondeat superior pp. 431-439(case n. 1-5); pp. 440-446 (n. 7-13); addtl supp reading from Shavell
March 9th: Construction & Duty of care pp. 215-222 (case and notes 1-4); pp. 224-227 (n. 7); pp. 227-231 (case and notes 1-5)
March 10th: pp. 234-236 (n. 1-3); pp. 239-247 (rest, case, n. 1-6)
March 11th: Duties arising from occupation of land, p. 253-4 n. 1, 2. p. 256-262 n.5-7, 1-3, n. 1, p. 264 n. 3, p. 267-68 n. 6, p. 249-250 n. 1
March 16th: Privity and Pure Economic Loss pp. 270-275 (case & notes 1-4) pp. 277-279 (case and n. 1) pp. 281-282 (n. 5) pp. 283-285 (n. 9)
March 17th: pp. 288-295 (Case & notes 1-3) and pages 300-303 (notes 10-14)
March 18th: pp. 307-310 (Grimstad and n 1-2) pp. 312-313 (n. 4), pp. 317-324 (case and n 1); pp. 326-328 (n. 3)
March 30th: pp. 332-335 (summers & n. 1-3), pp. 336-343 (sindell & n. 1-5)
March 31st: Proximate Cause, p. 351-67
April 1st: p. 367-377; p. Palsgraf 377-385
April 6th: Defense p. 565-580
April 7th: pp. 580-590 Express Assumption of Risk.
April 8th: pp. 590-597 (Murphy and notes 1-4: Primary Assumption of Risk
April 13th: pp. 598-603 (n. 1-5)
April 14th: Products Liability-Historical Development of Doctrine pp. 447-463 (3 cases)
April 15th: No new reading
April 20th: Manufacturing Defects pp. 463-468 (Rest and Welge); pp. 471-477 (Notes 4-10)
April 21st: pp. 477-491 (rest, case dawson, notes 1-7)
April 22nd:Failure to Warn pp. 493-508 (probably only the beginning)
April 27th: No new reading
April 28th: Damages, pp. 515-523, online case
April 29th: Review
I. Intentional Torts:
Two Types of Torts:
1)Unintentional: harms generally regarded as accidental
2)Intentional: harms inflicted more or less deliberately
Most of tort law is state by and state and is mostly judge-made rule rather than statutory.
For each intentional tort there is a distinct prima facie case consisting of “elements” of the claim that a plaintiff must allege and prove in order to win a lawsuit.
A. Battery
1. Intent and Volition
Vosburg v. Putney (1891) [pp 1]
Facts: Defendant (12) kicked the Plaintiff (14) in the shin in a schoolroom, after the teacher called the class to order. It was a light kick, but it aggravated a prior injury and caused the Plaintiff’s leg to become lame.
Procedural History: The jury rendered a special verdict finding that the above did occur, but that the defendant did not intend to do the Plaintiff harm. They calculated damages at $2500. Trial court entered judgment for Plaintiff and Defendant appeals.
Ruling: Judgment affirmed.
Rule of Intent: Plaintiff must show that either the intention was unlawful, or that the defendant is in fault. If the intended act is unlawful, the intention to commit it must necessarily be unlawful.
- The defendant’s act of kicking the plaintiff, which was a violation of the rules of the school, was unlawful; therefore, the intention was unlawful.
Rule of Damages: the wrongdoer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him. (Brown v. Railway Co.) This is in contrast to contract law, which holds that one is liable only for damages that are reasonably foreseen.
- The Defendant was responsible for damages for causing the Plaintiff’s leg to become lame although he could not have anticipated such an outcome.
The Eggshell Skull Plaintiff Rule: You take your victim as you find him/her; even if there is no way to anticipate the harm that will befall someone, you are still liable for the damages.
- Derives from the idea of a person’s rights to his/her bodily security. By engaging in an infringement of those rights, the plaintiff becomes liable.
Elements of the Crime:
- Intent
- Some sort of harmful or offensive bodily contact
- Harm that arises from that contact
Torts liability is based on the idea that there shouldn’t be liability without fault. However, it may go against our judgment to punish a 12-yr old boy for kicking someone. At the other end of the spectrum is the idea of two innocents and punishing the less innocent (more guilty) party.
Knight v. Jewett (1990) [pp. 3]
Facts: Knight and Jewett played a game of touch football in which there was one explicit rule: to stop the player with the ball it was necessary to touch the player above the waist. During the game Knight warned Jewett that if he did not stop playing so roughly she was going to leave the game. Later Jewett knocked Knight down and stepped on her little finger. There are conflicting versions, but Knight admitted that Jewett did not intend to step on her hand and did not intend to hurt her. Knight had 3 surgeries and her finger was eventually amputated.
Ruling: In an action against Jewett to recover damages for battery, etc., the Ca S Ct affirmed summary judgment for Jewett stating, “without the requisite intent, Knight cannot state a cause of action for assault and battery.
Differentiation: The initial contact (the push) wasn’t harmful or offensive and he did not intend to step on her finger. Given the context, the contact was not unlawful.
Definition of Battery: intentional bodily contact, which is either harmful or offensive. The intent element is with respect to the contact, rather than a desire to bring about a specific result or injury. [pp. 4]
White v. University of Idaho (1989) [pp. 4]: The piano lesson. A piano teacher walked up behind his student and drummed his fingers on her back to demonstrate the motions of a piano teacher. This contact caused thoracic outlet syndrome, requiring the removal of a rib. The court held that, although he did not intend to cause the harm, White is still liable for the damages.
Subjective Test for “Harmful or Offensive”: Look to the mindset of the person who was touched. This is NOT the majority rule. There is likely a reasonable person standard.
- White said that she was surprised by the teacher’s action and that she would not have permitted it.
The Insanity Defense:
Polmatier v. Russ [pp. 5]: A man suffering from paranoid schizophrenia was convicted for wrongful death for shooting his father-in-law due to his belief that his father was a spy who planned to kill him. The insanity defense was rejected and the defense of involuntary act was rejected. See Restatement example on pp. 6.
The Traditional Rule is against making an allowance for insanity in measuring a defendant’s intent. This is based on public policy: the liability of lunatics for their torts tends to secure a more efficient custody and guardianship of their persons; there is more injustice in denying to the injured party the recovery of damages for the wrong suffered by him, than there is in making the estate pay (as between two innocents), and otherwise there will be an incentive to claim insanity to escape punishment.
Voluntary Acts: “Act” is used to denote an external manifestation of the actor’s will and does not include any of its results. Restatement Second of Torts §2
Laidlaw v. Sage (1896) [pp. 6]: A man threatened with dynamite in his office walks toward one of his unsuspecting employees and places the employee between himself and the carrier of the dynamite. The dynamite explodes; the employee is injured, but the man is not. The employee brings a claim for battery. The NY Ct of Appeals ruled that the trial court gave an improper instruction on involuntary acts.
Self-preservation is the first law of nature. The law presumes that an act or omission done or neglected under the influence of pressing danger was done or neglected involuntarily.
Distinction between Laidlaw and Polmatier: Laidlaw is based upon the idea that we will not punish people who are not at fault. Polmatier is based on the theory of punishing the lesser innocent. The court believes that acting under extreme duress should be treated differently; you cannot deter this type of behavior.
Keel v. Hainline(1958) [pp. 8]: Kids playing in a classroom were throwing blackboard erasers and chalk back and forth across the room. One of the erasers hit a girl sitting in the middle of the room and shattered her glasses causing her to lose an eye. The defendant was convicted although he did not intend to cause her harm. He intended to engage in the wrongful act, so the intent was wrongful. The other students engaging in the “horseplay” were also convicted because they were aiding and encouraging the assault and battery.
Transferred Intent: If A attempts to commit a battery against B but mistakenly hits C instead, C can sue A for battery. A’s intentions toward B are combined with the harmful contact with C to create a battery.
Although the defendant had a defense of consent against the original victim, there was still a prima facie case of battery against the original victim, which was sufficient for transferred intent.
Aiding and abetting: the actions of the group created the situation that caused the harm so the group should be punished.
Garrett v. Daly: A 5-yr old boy pulls a chair out while an elderly woman is about to sit down. The 5 yr-old did not intend for the woman to hit the floor, but she did and she injured her hip. The trial court found the boy not liable because he didn’t have the intent to cause the contact (between the woman and the floor). The appellate court reversed; even without the intent, there was substantial certainty (even for a 5-yr old) that the woman would hit the floor, and that was enough to satisfy the intent requirement.
Rule: It is not necessary to know or intend that the contact will occur. As long as there is a substantial certainty of contact, the intent element is satisfied.
There is no infancy defense.
Parental Liability: The common law does not hold parents liable for their childrens’ tortuous acts. Some state laws have modified this rule (see NC statute, pp. 10).
2. Minimum Requirements-Harmful or Offensive Contact:
Leichtman v. WLW Jacor Communications [pp. 12] held that intentionally blowing tobacco smoke repeatedly in someone’s eyes is sufficient to constitute battery. The contact occurred through the particulate matter. The real harm was the insult; damages would be nominal.
Madden v. DC Transit System [pp. 12] held that the fumes emitting from a bus, which made contact with the plaintiff while he was standing on a traffic island, were not sufficient to constitute battery. The court said that there was an absence of malice, willfulness, or specific wrongful intent.
Distinction: Reasonable expectations as a reason to infer consent. Intent. Offensiveness.
Restatement Second §18 [pp. 14]:
- Comment c. Meaning of contact: Intentional contact can be inflicted through clothing or anything held or attached to one’s body. If the actor directly or indirectly causes the person to come into contact with a foreign substance that is offensive (i.e. throwing water on him, setting a dog lose on him, or soaking a towel in filth that he knows the person will likely use).
- Comment d. Knowledge of contact: It is not necessary that the person know of the contact when it is made. Example: A kisses B while asleep but does not waken or harm her. A is subject to liability to B.
- Comment g. Necessity of Intention: An actor cannot be liable for only offensive contact, which is not harmful, if he did not intend the contact, although his actions may be reckless or negligent.
Restatement Second §19: Offensive Contact[pp. 14]: A contact is offensive if it offends a reasonable sense of personal dignity.
3. Consent and its Limits
Consent can be used as an affirmative defense to battery or render an otherwise offensive contact inoffensive.
Grabowski v. Quigley (1996) [pp. 16]
Facts: Grabowski went to Quigley for surgery. After experiencing complications after the surgery G requested his medical charts and discovered that another doctor performed most of the surgery as Quigley was dealing with another patient across the county. Grabowski brought charges of battery against Quigley and the other doctor.
Procedural History: Trial court gave summary judgment to the defendants.
Rule: Where a patient is physically and mentally able to consult about his condition, in the absence of an emergency . . .an operation without the patient’s consent is a technical assault. The consent goes to the specific person you consented to.
- Rest. §52 Comment b: In many cases a patient may be giving consent to the hospital and not one particular physician.
Ruling: Summary judgment reversed.
Werth v. Taylor (1991) [pp. 19]:
Facts: Cindy Werth was a Jehovah’s Witness and did not believe in blood transfusions. Werth deliverd twins. Her doctor talked with her about her unwillingness to have blood transfusions. She experienced complications and it was determined that she needed a transfusion or she woud die. Another doctor, Taylor, ordered the procedure although he was aware of her beliefs and she had filled out a refusal form.
Procedural History: Werth sued Parsons, Taylor, and the hospital for battery. The trial court gave summary judgment to the defendants.
Rule: Consent is implied where an emergency procedure is required and there is no opportunity to obtain actual consent (i.e. unconscious patient and procedure needed to save patient’s life). Consent is also implied where a patient seeks treatment or otherwise manifests a willingness to submit.
Holding: Court of Appeals affirmed summary judgment for defendants. Her prior refusals had not been made when her life was hanging in the balance or when it appeared that death would result if a transfusion was not given. Her refusals were not informed.
Rest. §892 Meaning of Consent [pp. 20]
Consent is willingness in fact for conduct to occur. It can be manifested through action or inaction.
Apparent consent: when words or conduct would be reasonably understood by another to be intended as consent.
If you wanted the contact, even though this was not communicated, battery did not occur.
Freedman v. Superior Court (1989) [pp. 22]
Facts: Plaintiff was in labor and called her doctor who instructed her to go to the hospital and ask for Pitocin, which would prevent infections. In fact, the drug was meant to induce hard labor contractions.
Procedural History: Plaintiff sued for battery. Trial court granted defendants’ motion to dismiss. Appellate court affirms.
Rule: To negate consent the mistake must extend to the essential character of the act itself (what makes it harmful or offensive) rather than to some collateral matter, which merely acts as an inducement.
- Example: The doctor who delivers your child is a former Nazi war criminal. He lies about this. You are injured in the sense that your baby was delivered by him, but there is no liability.
- Example: A dentist lies about having HIV; there is no liability.
Note: The court views the consent as consent to do what’s necessary to deliver the baby, not as consent to take a specific drug. The plaintiffs later alleged that the doctor gave the plaintiff the drug because he did not want to be in the hospital all day on a Saturday. The court implied that if this claim was alleged in their initial complaint, then the outcome would have been different because the intent would have been a selfish purpose and it would have gone to the “essential character” of the act.
Neal v. Neal [pp. 23]
Facts: Mary Neal’s husband was having an affair. She said that she would not have consented to having sex with him if she knew what he was doing and thus her consent was fraudulently induced and this was battery.
Ruling: She consented to having intimate relations with her faithful husband. Battery did occur according to the appellate court.
- According to the majority rule: Battery did not occur. The fraudulent behavior did not go to the essence of the act.
Causation and something that goes to the essence of the case are not necessarily the same thing.
Rest. §892B Consent under Mistake, Representation, or Duress [pp. 23]
A permits B to stain A’s face with walnut juice, for purposes of masquerade. A is ignorant of the fact that walnut juice leaves a permanent stain and B knows that A does not know it. B is subject to liability to A for battery.
Rest. §57 Fraud or Mistake as to Collateral Matter[pp. 24]
McNeil v. Mullin (1905) [pp. 25]:
Facts: Case of road rage. Two men exchange hostile words. They get out of their horse-drawn buggies and begin fighting.
Procedural History: Plaintiff sues defendant to recover for injuries. Defendant claims plaintiff consented to fight. Trial court finds for the defendant.
Minority Rule: Consent to an illegal act is void.
- The consent to a breach of the peace (a public fight) is void because the state is a party and the law will not listen to an excuse based on the breach of the law.
Majority Rule: Consent to an illegal act is valid consent (see Rest).
Ruling: Kansas S Ct reversed and remanded. Battery did occur.
Rest. §892C Consent to Crime [pp. 26]
Consent is effective to bar recovery even if the conduct consented to is a crime.