Intentional Torts and Privileges

  • General Definitions
  • Intent- the defendant intentionally committed the elements that define the tort , Restatement defines intent to mean either that the defendant desires the outcome or is substantially certain the elements of the tort can occur
  • Transferred Intent- Intent can be transferred between the five torts and to different victims
  • Battery
  • Definition: intentional and offensive touching of another without lawful justification
  • Elements:
  • Harmful or Offensive Contact

An act by the defendant which brings about harmful or offensive contact to the plaintiff’s person

  • Intent

Intent by the defendant to bring harmful or offensive contact to the plaintiff or

Defendant knew the contact was substantially certain to occur,

Transferred Intent

  • Causation/ Volition-

The act of the defendant was the CAUSE of the harmful or offensive contact

But for Defendant’s affirmative voluntary act Plaintiff would not have been harmed

  • To a Person

With a person’s body or something closely associated

  • Cases
  • “Kissing Incident” in Stanford
  • Villa v Derouen- Workplace Torch Burning of Crotch, Although he did not intend to harm he did intend offensive contact so it counts as a battery
  • White v. Muniz- Alzheimers old woman slapping her nurse, regardless of the characteristics (alzheimers) of the tort feasor a plaintiff must prove that the actor desired to cause offensive or harmful contact
  • Assault
  • Definition- Defendant’s acts intentionally cause the victim’s reasonable belief of immediate harm or offensive contact
  • Elements-
  • Affirmative Voluntary Act

Words alone are insufficient

Must be an accompanying motion to act

  • Intent

Defendant’s purpose or desire is to cause the apprehension

Defendant attempts battery or false imprisonment and fails

  • Causation/ Volition

But/For

  • Reasonable Apprehension of Battery

Imminence of threat

Apparent ability to carry out threat

Plaintiff must be aware of the threat

Fear is not necessary

  • To a Person
  • Cases-
  • Ailiff v. Mar-Bal, Inc.- Company exposing employees to dangerous plastic, Van Fossen test to decide whether employers knew, Plaintiffs win
  • Leictman v. WLW Jacor Communications- Cigars at the Radio Show, Cigar smoke blowing in the face constitutes as a battery (to a person?)
  • Intentional Infliction of Emotional Distress (IIED)
  • Definition: Someone deliberately causes emotional distress without inflicting or threatening physical harm, culpability element can be satisfied by proving either intent or recklessness (ex. hate speech)
  • Elements
  • Outrageous Conduct

Exceeds the bounds of decency/socially tolerable conduct (would make you say ‘That’s Outrageous!’

‘Special Relationship’- authority figures taking advantage of the relationship

  • Police Officer, Employer, Teacher, Doctor, Lawyer, Creditor

Words alone may be sufficient

  • Intent/Recklessness

Purpose or Desire is to cause harm

Substantial certainty

Recklessness

  • Causation/Volition

But/For

  • Severe Emotional Harm

Reasonable person

Evidence of significant emotional anguish

Intensity and duration

Directed at Plaintiff

Family members present and known to Defendant

  • Cases
  • Brandon v. County of Richardson- Boys Don’t Cry!, Police abuse of power while interviewing Brandon following the rape
  • Alcorn v. Anbro Engineering Inc.- African American driver fired for no reason, Supervisor acted with extreme and outrageous conduct, supervisor abuse of power
  • Swenson v. Northern Crop Insurance Co.- Verbal abuse to the woman in the workplace, Supervisor abuse of power and aware of Plaintiffs emotional condition as an alcoholic
  • Logan v. Sears, Roebucks and Co.- Sears Employee saying ‘Queer as a $3 bill’ while on the phone with customer, did not intend for customer to hear, trivial insult, no special relationship
  • False Imprisonment
  • Definition- A willful detention performed without consent and without authority of law
  • Elements
  • Confinement

Actual or Apparent Barriers- area must be bounded in all directions

No reasonable means of escape- physical barriers or force or threat of immediate force against the victim, the victim’s family, or the victim’s property

Only brief time required

Knowledge by plaintiff being confined is usually required

Words alone may be sufficient

  • Improper assertion of legal authority
  • Of a Person
  • Causation/Volition

But/For

  • Intent

Purpose or desire to cause confinement

Substantial certainty

Transferred Intent

  • Cases
  • Walmart Stores v. Cockrell- Security Guard forced kid to remove his surgical bandage- not reasonable and goes beyond shopkeepers privilege
  • Trespass to Chattel and Conversion
  • Definitions- both protect personal property from wrongful interference, sometimes there is overlap
  • Trespass to Chattel= Intentional interference with the right of possession of personal property. The defendant's acts must intentionally damage the chattel, deprive the possessor of its use for a substantial period of time, or totally dispossess the chattel from the victim.
  • Conversion= Intentional exercise of dominion and control over a chattel which so seriously interferes with the right of another to control the chattel that the actor may be required to pay the other full value of the chattel, very serious harm to the chattel (more serious than trespass)
  • Elements
  • Trespass

Intentionally dispossessing temporarily or using or intermeddling with the chattel of another

Chattel is deprived for a period of time OR is damaged

D liable for damages or harm done to the chattel

  • Conversion

Intentionally exercising dominion or control over a chattel that seriously interferes with owner’s rights

Chattel is deprived for a long period of time OR destroyed

D liable for full value of chattel

  • Balancing Test

Extent and Duration of:

  • Exercise of Dominion or Control
  • Resulting interference with other’s right to control

Actor’s

  • Intent : assert right in fact inconsistent with other’s right to control
  • Good faith

Harm done to Chattel

Inconvenience/ Expense caused

  • Cases

United States v. Aurora- Alpha 1-4 cells, Dr. Aurora killed the cells which were the property of the US so he is liable for conversion

“Spleenless in Seattle”- Doctor made money on cells he removed from a patient, does not count as conversion because patient cannot be expected to want to keep the cells once they are removed from his body

  • Privileges- Doctrines used for defenses after all of the elements of the tort claim are satisfied
  • Consent
  • Definition- if the asserted victim gives permission, the tortious act is privileged
  • Elements

Express- Consent through words

Implied/Apparent- when an individual reasonably conveys consent (reasonable person could infer)

Effective/Actual- victim subjectively consents

Consent by Law- Emergency as a substitute when victim is unconscious and unable to give consent

Vitiation of Defense

  • Incapacity- child or without sufficient mental capacity or under the influence of drugs or alcohol
  • Fraud- misrepresents an essential aspect of the interaction
  • Mistake
  • Duress- consent procured under physical threat
  • Criminal Conduct – a person cannot consent to a criminal act
  • Scope of Consent
  • Cases

Hogan v Tavzel- Separated husband reconciles with wife and gives her genital warts, Sex was consensual but she would not have consented had she known he had genital warts, consent through fraud

Hellriegel v. Tholl- Boy paralyzed when friends threw him in lake, Boy consented to roughhouse horseplay and challenged his friends to throw him in, consent granted

Reavis v. Slominski – Reavis consented in sexual relations with her boss because she was worried she would lose her job

  • Self Defense
  • Definition- Reasonable force can be used where one reasonably believes that such force is necessary to protect oneself from immediate harm
  • Defense of Others- Actual v. Apparent Necessity, Must be reasonable
  • Elements

Actual or Apparent Necessity

Defendant believes act is Necessary

Other concerns

  • Reasonable Force
  • Retreat Rules- self defense is not allowed if there is a chance for a person to retreat or relinquish right or privilege
  • No need to retreat if in own dwelling place that is not also dwelling of aggressor
  • No need to give up privilege to prevent intrusion into dwelling place or lawful arrest
  • Verbal Provocation
  • Excessive Force
  • Cases

Bradley v. Hunter- Old woman shoots approaching violent and aggressive man outside her store

Juarez-Martinez v. Deans- Farm Owner fighting with migrant worker

  • Defense of Property
  • Definition- Privilege to use reasonable force to prevent a tort against property- Objective

Restatement Section 77 (without Deadly Force)

  • 1. Unprivileged Intrusion
  • 2. Reasonable belief
  • 3. Intrusion can only be prevented/ terminated by force
  • 4. Reasonable response of force used to prevent/terminate intrusion

Restatement Section 79 (With Deadly Force)

  • Same as 77 but must have belief that intruder may cause death or serious bodily harm to person
  • Never allowed to use deadly force unless threat to human welfare is apparent
  • Elements
  • Cases

Katko v. Briney- Spring gun set up to hit intruders, the value of human life and limb outweighs the potential damage to the property

  • Necessity
  • Definition- allows for trespass of property in order to avoid a greater injury because the action minimizes the overall loss, “greater good” defense – cost/benefit analysis
  • Elements

Actual Reasonable Belief

Necessity to prevent serious harm to person or property

Private Necessity

  • May enter land if reasonably belief of necessity to prevent serious harm to actor land or chattel
  • Incomplete privilege- still liable for harm done

Public Necessity-

  • Reasonable belief of necessity to avert imminent public disaster
  • Not required to pay damages- greater good for society
  • Cases

Rossi v. Delduca– Little girl trying to escape a dog and runs on to Defendant’s property where 2 great danes attack the little girl, girl was justified to run on to defendants property

Vincent v. Lake Erie Transp. Co.– Defendant’s boat damaged Plaintiff’s dock in a storm- Person is still held liable for damages even if trespass is excused by necessity

Eilers v. Coy-

Crashing Bus Problem

  • “Shopkeeper’s”
  • Definition- a shopkeeper is allowed to detain a suspected shoplifter on store property for a reasonable period of time, so long as the shopkeeper has cause to believe that the person detained in fact committed, or attempted to commit, theft of store property
  • Restatement says shopkeeper’s privilege only applies to customers
  • Elements-

Reasonable belief/ probable cause of theft

Reasonable manner of detention

Reasonable time

Negligence : Conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm

  • (1) Duty owed by the defendant to the plaintiff
  • (2) Breach of that duty by the defendant’s failure to conform to the required standard of conduct
  • (3) Causal connection between the negligent conduct and the resulting harm
  • (4) Actual Loss or damage
  • Duty
  • Duty to Protect

Landowners:

  • Status of Trichotomy
  • Invitee- a Business visitor; Duty to use reasonable care to protect an invitee from conditions that create an unreasonable risk of harm of which the owner knows or by the exercise of reasonable care would discover
  • Licensee- Asocial guest; Duty not to injure the licensee willfully, wantonly, or through gross negligence, and in cases in which the owner or occupier has actual knowledge of a dangerous condition unknown to the licensee, to warn of or make safe the dangerous condition (Ruvalcaba)
  • Trespasser – Duty to not cause injury willfully, wantonly, or through gross negligence
  • Attractive Nuisances- deals with child trespassers
  • Conditions: possessor has reason to know children are likely to trespass, condition involves unreasonable risk of death or serious bodily injury to children, children do not realize the risk, utility of maintaining condition and burden of eliminating danger is slight compared to risk to children, possessor fails to exercise reasonable care in eliminating danger
  • Important exception to limited duty of landowners!
  • Duty to Rescue

Misfeasance: Duty to Act where the Defendant causes risk that ultimately results in harm

Nonfeasance: risk of harm did not arise from Defendant’s conduct

  • NO DUTY TO ACT UNLESS:

Special Relationship

Voluntary assumption of duty- beginning a rescue

Contract/Reliance on gratuitous promise

Causation of injury (Even if innocent)

Shielding/preventing aid by others

Statute

  • Breach
  • Reasonable Person Standard

Objective

  • Not Subjective,
  • Not Best Judgment,
  • Errors OK if reasonable

Variations-

  • Sudden Emergency
  • Unforeseen combination of circumstances, immediate action taken
  • Reasonable person under the circumstances
  • Physical Disability- changes the standard, reasonable person with the same disabilities under the circumstances
  • Mental Disability- Does NOT change the standard
  • Children
  • Typically child of same age, maturity, training, experience
  • Adult Standard: Used when the child is engaged in adult like activity OR inherently dangerous activity (DRIVING)
  • Special Skills- judged by reasonable person with equal skills, can be guilty of negligence even if reasonable by normal person
  • Professional Standard- Lawyers, doctors, etc. , not judged by reasonable person standard but by professional reasonable person
  • Doctors: Under similar conditions/like circumstances ordinarily employed by medical profession standard
  • Lawyers: possess knowledge of those plain/elementary principles of law commonly known by well-informed lawyers
  • Medical Malpractice- Professional Standard of Care
  • Smith v. Finch- wrong diagnosis, hindsight instruction- reasonable standards of medical care
  • Legal Malpractice

Smith v. Lewis- Lawyer failed to assert community interest in retirement benefits in a divorce case- negligent in not doing research about the case

  • Customs

Conduct of others in substantially similar conditions

Unreasonable custom NOT acceptable

Compliance NOT necessarily enough

Relevance andreliability comes from direct bearing on

  • Feasibility
  • Practicality of precaution in actual operation
  • Readiness with which it can be employed
  • Safety Statutes- Statutes adopted as standard of care

Negligence Per Se

  • Was the plaintiff a member of the class of persons intended to be protected?
  • Was harm suffered the type the statute was intended to protect against? (Type of injury, type of hazard, particular interest that is invaded)
  • Is an excuse applicable?
  • Incapacity
  • No knowledge of occasion for compliance
  • Inability after reasonable diligence to comply
  • Emergency
  • Compliance involves greater risk
  • Otherwise reasonable under the circumstance
  • Res Ipsa Loquitur

Jury may draw a permissible inference of negligence from the circumstances surrounding the accident

  • Facts of accident
  • Common knowledge, Common sense
  • Expert

3 conditions must be satisfied

  • The accident could not happen without negligence
  • Defendant must be in exclusive control
  • No contributory negligence by the plaintiff

Elements

  • Inference that Someone was negligent
  • Facts of accident
  • Common knowledge
  • Common sense
  • Experts
  • Inference that Defendant was negligent
  • Evidence of defendant’s exclusive control
  • Evidence that Instrumentality was under the control of the defendant
  • Disprove possible negligence of third parties
  • Remove plaintiff as possible contributor

Cases-

  • Byrne v. Boadle: falling barrel of flour out of warehouse window(common law origin of res ipsa loquitur)
  • Clark v. KMART- slipping on squished grapes, duty by storekeepers to keep the store conditions safe for customers
  • Eaton v Eaton- daughter driving off the road
  • Ybarra v. Spangard- back and neck injuries after appendectomy surgery
  • Balancing Risk and Untaken Precatuions

BPL TEST

  • B < P x L
  • Burden < Probability x Injury

Burden: $$ Defendant spends on taking precautions

Probability: Precaution prevents harm

Loss: $$ Plaintiff will lose if preventable accident does not happen

If burden is LESS, Defendant IS negligent

  • Causation
  • “But for” Analysis

Cause in fact but-for defendant’s action

Requires at least enough evidence that more likely than not plaintiff’s version of facts is correct

Concurrent Causes- several acts combine to cause the injury but neither alone is sufficient

  • Substantial Factor Test

Natural/reasonable: Defendant’s negligence was a substantial factor contributing to injury

Use when joint causes bring about injury and any one alone would have been sufficient to cause injury

  • Joint and Several Liability

Use where 2+ independent negligent parties cause single indivisible harm

True Joint Tort- concert of action: group/agent

Single Indivisibility Rule- where multiple actions occurring in rapid succession of each other producing end result AND no substantial proof what damage was caused by each, Each defendant responsible for ENTIRE harm

Respondent Superior- Supervisor or Employer responsible

  • Held liable for the actions of the employee- no partial liability, joint and several liability (indemnity)

Vicarious Liability

  • Principle/Agent
  • Alternative Liability – Divisible Harm with Limited Wrongdoers

Defendant’s actions make it impossible to determine with defendant caused the harm

  • Defendant must have better access to information than the plaintiff does
  • All possible tort-feasors must be before the court

Plaintiff must prove by a preponderance of the evidence:

  • Each defendant was negligent
  • Negligent acts of one defendant is cause of plaintiff’s injury
  • Must bring all potential defendant’s before the court so they can meet the burden
  • Burden shifts to the Defendants

If plaintiff cannot reasonably establish which defendant’s negligence was cause of injury then all defendant’s liable jointly and severally

  • If defendant can prove by preponderance of evidence that his negligence is not the proximate cause then he is NOT liable

Market Share

  • Product liability cases involving an injury caused by a product from an unidentifiable manufacturer
  • Plaintiff must join defendants representing a substantial share of the relevant market at the relevant time
  • Defendants will each be liable to the plaintiff for some fractional share of plaintiff’s total damages calculated in reference to the defendant’s market share
  • DES Case!
  • Scope of Liability
  • Proximate Cause

Foreseeability test – Defendant NOT liable for harm stemming from unforeseeable consequences of defendant’s negligence

  • Plaintiff must be within the general class of people one reasonably would anticipate might be threatened by the defendants conduct- “zone of danger”
  • Must be the kind of accident that was the foreseeable result of defendants conduct
  • Intervening Forces- Factors for Shifting Responsibility to 3rd Party (Jury Question)
  • Culpability of the intervenor (intentional, criminal, or negligent)
  • Competence and reliability of the person upon whom reliance is placed
  • Intervenor’s understanding of the facts and situation
  • Seriousness of the danger
  • Number of persons likely to be at risk
  • Length of time between the conduct of parties
  • Likelihood that proper care will be used
  • Ease with which each party can take precautions
  • Exceptions to Foreseeability (Defendant is Still Liable): Eggshell Plaintiff, Medical Malpractice, Rescuer Rule
  • Egg shell Plaintiff
  • Plaintiff has a preexisting mental or physical condition and defendant’s negligence physically injures the plaintiff and the mental or physical condition is aggravated, defendant is liable
  • Medical Malpractice
  • Plaintiff may sue the initial negligent party for all damages including those related to the subsequent malpractice
  • Plaintiff only needs to bring one lawsuit and not 2
  • Burden on defendant to prove medical malpractice (typically difficult to prove and expensive)
  • Defendant may file separate claim against the medical provider
  • Rescuer Rule
  • Even if the rescuer is negligent, this does not exculpate the original tortfeasor- either to the initial victim or the rescuer
  • Negligent Defendant liable for injuries sustained by rescuer attempting to help another person placed in danger by defendant’s conduct
  • Defendant liable for normal efforts of Rescuer to avert threatened harm

Direct Consequences Test