INTENTIONAL TORTS

Elements of Intentional Torts

  1. Intent
  2. Voluntary Act
  3. Causation
  4. Damages

Affirmative Defenses

  1. Consent
  2. Necessity

Special meaning of “intent”

  1. Remember – you don’t need intent to harm
  2. Intent to harm OR intending to do something objectively inappropriate
  3. If you intend an contact, intent can be extended to any other contact you knew “with substantial certainty” would occur

Employers are not held liable for the intentional torts of their employees

  1. As a matter of fairness, we are less likely to think that employers should be held responsible for the intentional torts of the employees
  2. The intentional tort was probably not part of their job
  3. From a deterrence perspective, it’s much harder for employers to deter intentional torts than for them to reduce negligent behavior
  4. When you don’t bear the cost of the risk, you are more likely to engage in risky behavior (if people know their employers will have to pay for any damages, they may be more likely to commit harmful acts)

Battery

Elements of battery: Intended act + act is objectively inappropriate + contact was harmful

  1. Intent to harm NOT necessary

Easy elements to prove: Hard elements to prove:

  1. Intended contact 1. Conduct was wrong or inappropriate
  2. Voluntary act 2. There was really an imminent threat
  3. Contact was harmful 3. There was no consent for the contact

Intent: Contact must have been intended OR the person must have known with substantial certainty that contact would occur

  1. You can cause a battery without touching the plaintiff

Damages: A plaintiff is entitled for all damages from a harmful contact, whether foreseeable or not

Voluntariness

  1. The act must be voluntary
  2. Convulsions are NOT voluntary
  3. Acts done under extreme duress are NOT voluntary
  4. Acts toward self-preservation are involuntary and therefore could not be deterred
  5. Insanity does not void voluntariness
  6. Not a valid defense because we want to ensure effective guardianship

Transferred intent between contacts

  1. The intended contact doesn’t have to be the harmful contact that injured plaintiff
  2. If you intend a harmful contact, and harm results even indirectly, you’re liable
  3. See Knight v. Jewett

Transfer of intent between torts

  1. Intent for assault can satisfy the intent for battery if contact results
  2. Initial act must be tortious in order for the tortious intent to transfer
  3. See Keel v. Hainline; Bennight v. Western

Notion of “appropriateness” and goals of tort law

  1. Corrective justice perspective
  2. Moral injustice when one person harms another; the law rights the wrong
  3. The wrong should be righted even when there was no intent to harm
  4. Once you intend an act, the burden is on you not to harm
  5. Deterrence/economic analysis
  6. Law deters costly and undesirable conduct
  7. Appropriateness standard helps us balance between deterrence and chilling effect

Vosburg v. Putney: LIABILITY for kick in a classroom even though he didn’t intend to harm

White v. University of Idaho: LIABILITY for tapping on students’ shoulders (supposedly offensive)

Garret v. Daly: LIABILITY for young boy who pulled a chair out from under the woman

Polmatier v. Russ: LIABILITY for a shooting because insanity does not void voluntariness

Laidlaw: NO LIABILITY for man who used his secretary as a human shield due to extreme duress

Knight v. Jewett: NO LIABILITY in football case because the first contact (a push) wasn’t harmful

Keel v. Hainline: LIABILITY for students throwing erasers because conduct was dangerous

Assault

Elements of assault:

  1. Intent to cause harmful/offensive contact
  2. OR give rise to imminent apprehension of the same
  3. AND imminent apprehension subjectively but reasonably results

Assault can exist even in the absence of injury

  1. Fear is not a necessary element either
  2. Need not believe the contact will occur
  3. But, threat must actually be imminent

There does NOT have to be actual danger, as long as there is apprehension of harm

  1. Apprehension must be SUBJECTIVELY APPRECIATED and OBJECTIVELY REASONABLE

You can’t be the victim of an assault in your sleep or when unconscious.

  1. You must EXPERIENCE the apprehension

Brower v. Ackerly: NO LIABILITY for threatening phone calls; threat wasn’t sufficiently imminent

Bennight v. Western Auto: LIABILITY for manager who placed employee in fear of bat attack

Langford v. Shu: LIABILITY in jack-in-the-box case; no actual danger but reasonable apprehension

Tuberville v. Savage: NO LIABILITY for a threat because he said he wouldn’t actually do it

Consent

What counts as consent?

  1. Express consent in words
  2. Actions or other manifestations of intent
  3. Failure to state lack of consent (sometimes)
  4. Guardians can consent on behalf of minors
  5. Consent may be implied

Consent is determined by an OBJECTIVE standard

Implied consent in medicine:

  1. Emergency situations
  2. Immediately life-threatening condition is discovered during surgery

Intoxication

  1. Intoxication renders consent invalid
  2. Intoxication does NOT render intent invalid

Consent to an unlawful act

  1. Majority rule: Plaintiff’s consent is not a defense
  2. If the plaintiff consents to an unlawful act, defendant can still be held liable
  3. Rationale = Deterrence, we want to discourage unlawful acts
  4. Minority rule: No liability if defendant can show plaintiff’s consent
  5. Rationale = We shouldn’t reward π with damages for engaging in unlawful conduct

When does fraud vitiate consent?

  1. Having sex without disclosing an STD
  2. Misrepresenting sex as a medical procedure
  3. Posing as a doctor’s assistant to see a delivery

When does fraud NOT vitiate consent?

  1. Paying a prostitute with a counterfeit bill
  2. Rendering dental services without disclosing STD
  3. Misrepresenting sex as love
  4. Posing as a customer to review a restaurant

Factors to help determine if consent was invalidated:

  1. Bodily integrity v. dignitary harm
  2. Physical harm
  3. Inviolability of the body
  4. Level of invasion
  5. Social norms
  6. Unlawfulness of the act

Mohr v. Williams: LIABILITY because there was no implied consent for an alternative surgery

Grabowski: LIABILITY when a different doctor operated on a patient

Cohen: LIABILITY when the doctor was man after plaintiff requested woman for religious reasons

Brzoska: NO LIABILITY for dentist with AIDS because plaintiff’s fear was objectively unreasonable

Werth: NO LIABILITY when doctor gave blood transfusion despite refusal because life was at stake

Neal v. Neal: LIABILITY for battery following sex while husband was having affair (outlier case)

Trespass

Elements of trespass

  1. Intent to enter
  2. Not necessarily intent to trespass
  3. Entry
  4. Entering, remaining, or failing to remove from property
  5. Causation
  6. Social Value
  7. Was the trespass justified?

Mistakes are trespasses, but accidents are not (accidents are unintentional)

A trespass may occur if a defendant goes outside of the scope of consent

  1. For instance, if they had consent to be on the property, but not to leave anything behind (see Van Alstyne)

Desnick v. ABC: NO LIABILITY for reporters posing as patients to investigate doctor’s office

Pegg v. Gray: LIABILITY for letting dogs out, knowing they would go on neighbor’s property

Malouf v. Dallas Athletic Club: NO LIABILITY because defendant didn’t intend golf balls to hit car

Van Alstyne: LIABILITY for telephone company that left lead droppings behind in a home

Intentional Infliction of Emotional Distress

Elements

  1. Intentional/reckless conduct
  2. Extreme/outrageous conduct
  3. Causation
  4. Severe emotional distress resulted

Special sensitivities are taken into account only if defendant knew about them

Bystanders can recover only if they are (1) family members or (2) physically harmed

Evaluating liability

  1. Relationship between parties
  2. Social Value
  3. Context

Rationale for the “extreme and outrageous” standard

  1. Standard needs to be ambiguous because if we set strict standards people would come as close as possible to the line without crossing it
  2. We should accept a certain amount of incivility in society
  3. We want to make sure emotional harm is significant before getting the court involved

Roberts v. Saylor: NO LIABILITY for a doctor who hurt the feelings of someone not his patient

Greer v. Medders: LIABILITY for doc who severely insulted vulnerable plaintiff; physical symptoms

Muratore: LIABILITY for cruise ship employees who constantly harassed plaintiff, ruining vacation

Pemberton v. Bethlehem Steel: NO LIABILITY for reporting affair (info was true, π not vulnerable)

Murray v. Schlosser: LIABILITY for insulting bride; intent to injure + context + no social value

Feltmeier: LIABILITY for extreme spousal abuse; conduct extreme even within marriage

Private Necessity

Necessity for trespass

  1. Trespasser is entitled to be on the property in cases of necessity
  2. If the landowner ejects him, landowner is liable for harm
  3. Trespasser is responsible for damages caused during use of land

To minimize overall losses and maximize economic efficiency, we follow an “always pay” rule

  1. Person who causes harm due to private necessity always pays

Coase Theorem:

  1. When transaction costs are low, parties can bargain easily and will reach efficient outcome
  2. When transaction costs are high, law helps us reach the efficient outcome
  3. Necessity produces high transaction costs and unequal bargaining power
  4. Law tries to reach the outcome the parties would have agreed to if they could have bargained themselves

Ploof v. Putnam: NO LIABILITY for mooring a sloop in a storm; necessity is a defense to trespass

Vincent v. Lake Erie: LIABILITY for damage to plaintiff’s dock when used to save defendant’s ship

Borough of Southwark v. Williams: NO LIABILITY for denying necessity privilege to homeless man

Public Necessity

No liability in cases of public necessity

  1. Deterrence rationale:
  2. We don’t want to deter people from saving lives or property
  3. Collective justice
  4. Acting on behalf of the collective is justifiable

We use the “never pay” rule for public necessity, because we don’t want people to hesitate before taking action to save life or property

Private necessity: Sparing your own property at the expense of someone else’s

Public necessity: Sparing public property/many people’s property at the expense of someone elses

Mouse’s Case: NO LIABILITY when a casket was thrown out of a boat to prevent it from sinking

Surroco v. Geary: NO LIABILITY for mayor who ordered homes destroyed to stop spread of fire


Struve v. Droge: LIABILITY when defendant was mistaken in his belief that there was a fire

NEGLIGENCE

Negligence v. Strict Liability

Strict Liability = Person who caused harm is liable regardless of fault

Negligence = Fault-based liability

Strict liability depends on…

  1. Activity level/care level
  2. If due care won’t reduce accidents, we must change the activity level
  3. Recipocity
  4. We don’t impost strict liability for activities with broad social value
  5. Administrability
  6. Strict liability results in more lawsuits but those cases are easier to resolve

Elements of Negligence

  1. Duty of care
  2. Breach of standard of care
  3. Causation
  4. Damages

When do we alter the standard of care?

  1. Mental deficiencies
  2. Physical deficiencies
  3. Age

How do we determine if standard of care is met?

  1. Hand Formula
  2. Reasonableness
  3. Custom
  4. Negligence per se
  5. Criminal statutes

Brown v. Kendall: NO LIABILITY when the defendant exercised due care and was not at fault

Rylands v. Fletcher: LIABILITY for defendant who built reservoir that flooded neighbor’s property

The Reasonable Person

Standard for Negligence = Reasonable person standard

  1. To avoid negligence, you must act as a reasonable person would in the same circumstances

When mentally deficient people cause harm we are more likely to hold them liable than when they are harmed

Distinct Defect = A defect of a pronounced type that is manifestly debilitating

  1. Only defects that meet this standard excuse a defendant from liability

Mental deficiencies and idiosyncratic beliefs only defeat liability in exceptional cases

  1. Religious beliefs are generally respected

Standard for Professionals

  1. Professionals are held to the standard of others trained in your profession
  2. Specialists are held to a higher standard of care than general practitioners

A person with superior abilities have the responsibility to use them when necessary

Physical infirmities

  1. Standard = Reasonable person with the same disability
  2. Must take reasonable precautions to account for the infirmity

Why different standard for mental and physical deficiencies?

  1. Physical deficiencies more easily known to others
  2. Physical deficiencies easier to prove than mental ones
  3. Easier to correct mental deficiencies than physical ones (outdated?)

Standard of Care for Minors

  1. Minors are only held to an adult standard of care if the activity is…
  2. Dangerous to others
  3. Normally engaged in only by adults
  4. Includes operating vehicles (see Dellwo)

Standard of Care for the Elderly

  1. Elderly people have a duty to know and correct for their infirmities (see Roberts)

When are minors capable of negligence? (Minority rule)

  1. Under 7 = Incapable of negligence
  2. 7-14 = Rebuttable presumption that they’re incapable of negligence
  3. Over 14 = Presumed capable of negligence; burden on minor to prove incapacity

Majority rule = Minors must follow the standard of a reasonable child of the same age, with the same circumstances and experience

OVERALL:

  1. Mental deficiency = Liability
  2. Physical deficiency = Must act reasonably given disability
  3. Minors = Liability for adult activities, otherwise the burden is on the plaintiff

Williams v. Hays: NO LIABILITY for captain who went insane as a result of trying to save his ship

Vaughan v. Menlove: LIABILITY for accidental fire caused by Δ with less-than-average intelligence

Lynch v. Rosenthal: LIABILITY for not warning a mentally disabled person about danger

Weir v. Jones County: NO LIABILITY for injury to plaintiff who couldn’t read English warning sign

Friedman: NO LIABILITY for a girl who jumped off a ski lift to avoid spending the night with a man

Fredericks v. Castora: NO LIABILITY for truck driver; all drivers meet one basic standard of care

Kerr: LIABILITY for deaf man hit by train because he didn’t take reasonable precautions

Davis: NO LIABILITY for blind man who fell into an open cellar, because he was using a cane

Purtle v. Shelton: NO LIABILITY for 17 year old who shot his hunting companion, due to age

Roberts v. Ring: LIABILITY for old man who hit a young boy while driving

Dellwo v. Pearson: LIABILITY for boy driving a boat; operating vehicles = adult standard of care

Dunn v. Teti: NO LIABILITY for a six year old who hit another child with a stick

Central Michigan Railroad: Women are NOT held to a lower standard of care across the board

Briese v. Maechtle: NO LIABILITY for child who injured another while playing tag (lawful activity)

Risks and Precautions

Hand Formula: Burden < Probability x Loss