Harmful & Offensive Battery

HARMFUL & OFFENSIVE BATTERY

BATTERY: Act, Intent, Cause, Harm (no privilege)

Intent:

No intent to harm: As long as the act itself was intentional or substantially certain, the consequences themselves need not be (Vosburg).
Substantial Certainty: Intent may be shown if the person acted with substantial certainty that the harm would occur (Garratt v. Dailey)
Act distinguished from consequence: The act must be intentional, but the consequences need not be. (i.e. the “glass jaw” or the “eggshell skull”)

Vosburg v. Putney

 kicked in shins. Jury found no intent to harm. R: Person acts with the intent to produce consequences of their actions if person has the purpose of producing that consequence. Unlawful intent?

Garratt v. Dailey

Kid pulls out chair and woman falls to the floor. R: Substantial certainty enough to establish intent. Age matters only to knowledge.

*Children: Under CL, parents liable only in negligence for failure to supervise. Statutory liability for child in most states.

Transferred intent: D has requisite intent if they injure B but intended to injure A instead.

Contact: Harmful or offensive contact (RstII §§13,18)

Defined as offensive to a reasonable sense of dignity (RstII § 19).

Need not be direct contact (See Garratt).

Act: Only liable for volitional acts.

INTENTIONALINFLICTION OF MENTAL UPSET

a. Definition: The intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional or mental distress, even in the absence of physical harm. RstII§46.

Prosser describes as a "new tort" of mental suffering, anguish, disturbance, or emotional distress. Distinct from bad manners. Magruder concerned over unlimited liability and excessive litigation.

Siliznoff

Rubbish collector association threatens P. R: A cause of action is established when it is shown that one, n the absence of any privilege, intentionally subjects another to the mental suffering incident to serious threats to his physical well-being, whether or not the threats are made under such circumstances as to constitute a technical assault.

Samms

R: An action for severe emotional distress will lie, even without bodily impact or physical injury, where a D intentionally engages in some conduct toward a P for the purpose of inflicting emotional distress, or where any reasonable person would have known that such would result, and where such conduct is outrageous and intolerable.

b. Intent: "Intent" for this tort is a bit broader than for others. There are three possible types of culpability by D: (1) D desires to cause P emotional distress; (2) D knows with substantial certainty that P will suffer emotional distress; and (3) D recklessly disregards the high probability that emotional distress will occur. (Example:D commits suicide by slitting his throat in P’s kitchen. D, or his estate, is liable for intentional infliction of mental distress because although P did not desire to cause distress to P, or even know that distress was substantially certain, he recklessly disregarded the high risk that distress would occur.

1. Transferred intent: The doctrine of "transferred intent" is applied only in a very limited fashion for emotion distress torts. So if D attempts to cause emotional distress to X (or to commit some other tort on him), and P suffers emotional distress, P usually will not recover. [22]

a. Immediate family present: The main exception is that the transferred intent doctrine is applied if: (1) D directs his conduct to a member of P’s immediate family; (2) P is present; and (3) P’s presence is known to D. (Example:While P is present, and known to D to be present, D beats up P’s father. If P suffers severe emotional distress, a court will probably allow her to recover from D, even though D’s conduct was directed at the father, not P.)

c. "Extreme and outrageous": P must show that D’s conduct was extreme and outrageous. D’s conduct has to be "beyond all possible bounds of decency."

Example: D, as a practical joke, tells P that her husband has been badly injured in an accident, and is lying in the hospital with broken legs. This conduct is sufficiently outrageous to qualify.

d. Actual severe distress: P must suffer severe emotional distress. P must show at least that her distress was severe enough that she sought medical aid. Most cases do not require P to show that the distress resulted in bodily harm.

Ex: Emotional distress from telling woman that her husband's legs broken, dead.

Ex: Dissolving bathing suit. Liable.

Ex: Insults and threats over the phone. Not liable - extreme & insulting.

Ex: Hex on land. Liable.

Alcorn

R: A person may recover damages for emotional distress alone, w/out consequent physical injuries, in cases involving extreme and outrageous intentional invasion of one's mental and emotional tranquility.

Logan

The tort of outrage does not recognize recovery for mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.

Ford v. Revlon

R: An employer may be liable for emotional distress even if the acts of the agent in Q do not give rise to such damages.

Jones v. Clinton

R: To establish a claim of intentional infliction of emotional distress, a P must prove that the conduct was extreme and outrageous and utterly intolerable in a civilized society.

Daniels

R: the negligent act of an official causing injury does not constitute a Due Process violation.

Stachura

R: the value of a civil right allegedly infringed is not a proper measure of damages in a civil rights action.

PRIVLEGES

Consent

No bright line rule. Standard based on fairness, public policy, facts, severity of harm, alternative recourses. Reasonableness standard. Express/Implied.

Barton and O'Brien two diff poles on spectrum:

Don't need consent - (i.e. smallpox vaccination for military)
O'Brien - presumption for D. Burden of proof on P.
Barton - presumption for P.
Consent never valid (i.e. children under 10)

O’Brien

Irish immigrant vaccinated on steamship but claims no consent. R: Silence and inaction may imply consent under circumstances where a reasonable person would object.

Barton v. Bee Line

Alleged rape claim and consent defense. R: Criminal liability, but consent bars recovery in a civil action. Policy.

Instruct: “If daughter had the capacity to consent to the specific conduct and she provided consent then D cannot be charged with battery.”

Medical Operations: Typically require specific consent unless emergency.

Bang v. Hospital

Dr severed spermatic chords w/out clear consent. H: Consent a question for the jury. May not go beyond scope of consent.

*some want more reliance on contract, not torts.

Kennedy v. Parrott

Dr punctures a discovered cyst while operating. H: Cts allow reasonable extension of operation where called for by an emergency.

Self-Defense: A person may use reasonable force to prevent any threatened harmful or offensive contact. (RstII § 63).

Necessity: reasonably believes there’s a threat of harm. (Courvoisier)

Protection: Only to protect; no retaliation, must be imminent.

Degree of force: Only what’s necessary.

Retreat: Mixed.

Deadly force: Danger of death, serious bodily harm. Must retreat.

Courvoisier

Part blind man shot by police defending business. R: Reasonableness standard for necessity.

Problem 3: Booze clerk shoots black umbrella man. Tension w/ lawyer’s role; playing to prejudices.

* Comparative fault: alternative approach under RstIII.

Problem 4: Kid hits bully with bat.

Defense of Others: Same rules as self-defense. Early on, only family & household. Now extends to strangers.

Mistake: Courts split. Some hold that the interveners right is derived from the person aided. RstII allows a “reasonable mistake.” (RstII § 76)

Defense of Property: A person may use reasonable force to defend her property, both land and chattels. (RstII §77).

Warning required: Must demand that the intruder stop.

Mistake: “Reasonably mistake” w/ danger; No mistake defense if intruder actually privileged to be there.

Deadly force: Tied to risk of death, serious bodily injury.

Mechanical devices: Only if personally privileged to use deadly force. No privilege to use spring guns.

Katko

Spring guns: R: Reasonable force may be used to protect property, but not force that will take human life. Dissent. P of protection from felony; value of property, life. Risk v utility. Consider possibility of injury, severity of harm, duration of harm, alternative courses of conduct (cost, effectiveness, available, danger).

Necessity-based privilege: Favors an actors right to enter land to avoid harm but obliged to pay for damages (RstII § 197, Ploof).

Ploof

Family docks boat in storm. Cut loose. R: Necessity justifies trespass on another’s property.

Vincent

Boat docks in storm, but causes damage to dock. R: Compensation must be made despite defense of necessity. Dissent: K assump risk.

Problem 5: Freezing deer hunters in barn.

Others: Disciplinary: Trad CL teachers and parents. Largely abrogated by courts.

ACTUAL CAUSATION

Cause-in-fact a “but-for” cause of the accident. (i.e. tree falls on speeding train)

Issues: Unclear causation; allocation among Ds.

Q: Is there liability?

Q: Who is responsible (joint or several)?

Q: How much (proportionate or pro rata)?

Q: What happens when one party pays (can they recover more from others)?

SPECIFIC CAUSTATION

A jury may draw an inference of causation from circumstantial evidence but not statistical probability. See Hoyt, Smith.

Hoyt v. Jeffers

Spark from steam mill burns down hotel. Evidence included wind direction, testimony of sparks, history. R: Allow for a reasonable determination of cause. Q for jury w/ circumstantial evidence of causation, but allow presumption of fire.

Smith v. Rapid Transit

Car forced off by a bus. Evidence included . R: Limit role of statistics as evidence. No jury Q if causation can only be shown by mathematical probability. *but may be a useful part of case.

See also People v. Collins: Statistically narrow evidence of race, car, & personal characteristics insufficient.

GENERAL CAUSATION

Must be more probable than not that  caused the harm.

Q: Whether the D’s conduct is of the general sort that is capable of causing injury of the type suffered by the P (i.e. Benedictin morning sickness drug & birth defects).

Q: Proof by expert testimony:

Daubert, courts judge admissibility of testimony. Judge the “gatekeeper” of good science. Majority.
Frye, defer to recognized standards of scientific community. Cal.
Fed. R. Civ. P. favor admissibility of expert testimony.

ALTERNATIVE LIABILITY

Joint liability: Both parties may be joined in a single suit. (Summers).

Several liability: each party liable in full to the .

Joint & several liability: If more than one person is a proximate cause of P’s harm, and the harm is indivisible, each D is liable for the entire harm.

Alternative Liability: Ds jointly liable and shift burden. (Rst 433(b)(3), RstIII§28, Summers).
Market share liability: Join Ds and shift burden, dividing liability among Ds by their share of the market. (See Sindel and DES litigation)
Enterprise Liability: Industry standards set by industry associations, liable for joint control of the risk.
Concert of Action: Working together. 1) Tortious act in concert w/ others 2) knows others conduct is breach of duty and 3) gives substantial assistance. Rst 878.

Summers v. Tice

Hunters cross-fire and injure . H: Ds jointly liable. R: Burden shifts to ’s to prove sole cause once  has shown that together they were the sole cause. P: Shift to those situated to prove. Justice for .

Ybarra

Patient develops partial paralysis after an operation for an appendicitis. H: Apply res ipsa loquitur against all the doctors and medical employees.

Problem 7: Unknown dog attacks child.

Contribution: Old CL, no right to recover against others. Most states allow joint tortfeasors to recover for contribution.

Comparative fault scheme: proportionate or pro rata contribution? Reasonable cap on settlement & only seek contribution if settlement applies to other.

Doe v. Cutter Biological

Hemophiliac contracts HIV virus through clotting agent. H: Under Idaho statute, refuse to apply joint & several liability. R: Joint and several may be applied, absent a statute, against manufacturers of pharmaceutical. *blood shield statutes also limit.

Uniform Contribution Among Tortfeasors Act

(1955 from Uniform State Laws Commissions, representatives of each state)

- efficiency, right to contribution before judgment so can try together. but can't get money until paid more than pro rata share (here, pro rata not proportionate). If you settle, can't get contribution.

CL: you released one tortfeasor, you released all. states responded by allowing contractual release of liability.

pro tanto - settlement reduces the total dollar by dollar;

pro rata - reduces by percent of responsibility.

CONCURRENT & SUCCESSIVE

If not “but for” because of another cause that is sufficient and simultaneous, the actor is still liable. RstIII§27 (Dillon would be decided differently).

Dillon

Boy electrocuted while falling to his death. R: Only responsible for the harm you caused. “But-for” cause extended only the few seconds before death.

Kingston

Two fires join and burn ’s property. R: With concurrent acts, each is individually responsible for the entire damage. Burden on D to show no proximate cause.

VICARIOUS LIABILITY

Masters, Servants, Independent Contractors: Master liable as “respondeat superior.”

i. Servant/Ind contractor decided by factors under RstII § 220:

1)extent of control 2) distinct occupation or business 3) kind of occupation 4) skill 5) supplies provided 6) time 7) method of payment 8) regular business 9) understanding of parties 10) principal in business?

Conduct & Scope of employment: authorized? If no, then -

1)Common 2) purpose 3) prior rltn 4) extent of work 5) scope 6) expectations 7) similarity b/w acts 8) supplied instrument 9) depart from normal act 10) criminal

Increased willingness by courts to find vicarious liability.

Other
Joint Enterprise: both liable if there’s 1) a K 2) common purpose 3) community interest 4) equal control.
Family Purpose: liability on the owner of the family automobile for harm negligently caused by other family members.

NEGLIGENCE

Negligence is doing something that a reasonably prudent person would not do or the failure to do something that such person would do. D’s conduct imposes an unreasonable risk upon another, which results in injury to that other.

PRIMA FACIE CASE

Duty: D’s legal duty to conduct himself according to certain standards so as to avoid unreasonable risks to others.

Breach: Failure to conform to that standard.

Cause: A sufficient causal link between the negligence and the harm (proximate cause)

Harm: Actual damage suffered by .

History: Negligence a retreat from early CL S/L for any action. Originally came from trespass and S/L… “trespass on the case.” Incorporated in American law in Brown.

Brown v. Kendall

Man pokes  in the eye while trying to separate fighting dogs with a stick. H: Established the important of ordinary care negligence for recovery. Where the injury was unavoidable and the  was free from blame, no liability arises.

Theories:

1)negligence from an evolving standard of morality to protect people,

2)subsidy thesis - to protect and subsidize the industrial development in this country,

3)realities of mass modern production and need for regulation,

4)popular form of government by check through jury local control rationale.

REASONABLENESS STANDARD

The standard is that of a “reasonable man under like circumstances.” RstII § 283.
empowers jury to decide reasonable
objective standard under the circumstances

b. Modification: May account for age & experience (i.e. child), physical disabilities, but not mental disabilities, intoxication. Policy: Physical characteristics place people on notice.

Superior knowledge: If D has a higher degree of knowledge or experience, they are must use that higher level.

Carroll Towing

Boat drifts out and sinks while  ashore. R: Learned Hand’s PxL>B formula.

PxL>B involves a risk-utility analysis (cost-benefit backwards looking; risk-benefit forward looking). SeeCarroll Towing, RstII§§291-93.

Louisiana Power

Man electrocuted in back yard when antenna hit an uninsulated transmission line. H: Despite their knowledge and ability to move the line, the placement was not an unreasonable risk by the power company. By PxL>B, high degree of harm but small risk.

Weirum

Man killed while teenagers chasing radio announcer the Real Don Steele. H:  had a duty to exercise reasonable care. R: Where  creates a foreseeable risk that could cause injury by third parties, he will be liable for the negligent conduct of those parties.

Emergency Situations: the “sudden emergency doctrine” provides that one in an emergency is not required to exercise the judgment of one acting under normal conditions. An additional circumstance, not a reduced standard of care. (Young).

Young v. Clark

 rear ended  after car pulled into lane further up.

Critiques: Difficulty setting a forward looking standard for corporate behavior; assumes rational behavior and rational decision making.

Feminist critique: disagreement about standard of care of reasonable person. Say should be "conscious care and concern of a respectful neighbor or social acquaintance for another under similar circumstances."

Cost-benefit critique: Social costs, environmental costs.

PROOF

Statutes and negligence per se: When a safety statute has a sufficiently close application to the facts of the case at hand, an unexcused violation of that statute by  is negligence per se. (RstII§286, RstIII§14, Herzog). Shifts burden of decision to judge. *alternative approaches: evidence & Q for jury (Marin), rebuttable presumption.

Herzog

Car accident when  was w/out lights. R: The unexcused violation of statute that applies to the facts is negligence per se.

Excused: unaware, attempting to comply, emergency, or compliance involved a greater risk of harm (RstIII§15, Tedla).

Tedla

Pedestrians struck while walking along the wrong side of the road.  assert contributory negligence per se. H: Excuse by exercising ordinary prudence. Flexibility. R: If statute codifies public norms and violation is to prevent the addressed harm, it is not negligence per se.

Must apply to facts: Applies only when the statute was intended to guard against the very kind of injury in question. (Shyne). Purpose relevant.

Shyne

 paralyzed by bad chiropractic working w/out license. H: Violation of statute did not directly tie to injury. Dissent: Saw as negligence per se. NY followed case with a statute establishing as such.