Intentional Torts - Prima Facie Elements

Intentional Torts - prima facie elements

1. BASIC CONCEPTS OF TORT THEORY

1. APPROACHES TO TORT LAW
2. There are two basic approaches to Tort Law in America

(1)Social Utility: This concept is more concerned with the apportionment of fault and the distribution of tort liability to the extent that there is social utility in it.

(2)Compensation: This concept is more straight-forward and looks simply to put the injured party back in the position he was in before the tort took place.

1. FAULT
2. The most fundamental building block of the Tort System. There can be no tort without FAULT. The system is a fault based system that seeks to compensate the injured party. However, it would be inherently unjust to require such compensation in the absence of proven fault.

(1)Van Camp v. McAfoos (1968) - Three year old child accidentally runs into neighbor’s foot, severely injuring her Achilles tendon. Court found that there was no allegation, nor could it be inferred from the complaint, that the child intended to do the harm nor was there evidence or inference of the child’s parents’ negligence. Absent such fault, there is no cognizable tort claim.

1. INTENTIONAL TORTS
2. INTENT
3. Subjective Standard

(a)With intentional torts, the standard for intent is subjective. We are looking to find out what was going on in the defendant’s mind at the time the tort took place. Cf. Negligence- looks only at the action/result.

1. General Rule

(1)Intent is where the actor either has the PURPOSE to cause the result, or has the KNOWLEDGE that the result is SUBSTANTIALLY CERTAIN to occur.

(a)Garratt v. Dailey (1955) - Five year old boy pulled out a law chair as an elderly woman was sitting down. Facts were disputed at trial, but WA Supreme Court remanded for clarification looking to see if the boy knew with substantial certainty that Ms. Garratt would fall as a result of his actions.

1. Insanity and Intent

(1)The general school of thought is that Insanity is not an excuse from liability. There are several reasons for this:

(a)We don’t want to invite insanity as a defense to intentional torts and allow for every defendant to invoke the insanity defense.

(b)We want to impose upon the family of the insane person some form of responsibility for that person’s actions.

(c)Similar to criminal law, the insane person may not necessarily lack the intent to do the harm which results. They may not appreciate their actions, but that doesn’t necessarily mean the element of intent isn’t met.

(d)Finally, when an insane person commits a tort, someone is injured and society feels that the plaintiff shouldn’t bear the costs of the insane person’s actions. Why should an insane person live in comfort and be allowed to commit wrongs against others. The imposition of liability puts the insane person’s guardians on notice.

[1]Polmatier v. Russ (1988) - D was visiting his father in law, the decedent, when he began beating him. D then got up, retrieved a rifle, and then shot him. He was declared NGRI at the criminal trial. In the wrongful death civil action, the court allows for intent to be present even where there is no appreciation of the wrongdoing or understanding of the consequence.

(2)Where the state follows a dual intent requirement, however, intent may be found to be lacking.

[1]White v. Muniz (2000) – An elderly patient suffering from Alzheimer’s disease punched a caretaker in the jaw. The caretaker sued on the theory of intentional battery. Trial court instructed jury that intent had to be dual, namely that D had to both have intended to harmful or offensive contact and had to appreciate that the contact was harmful or offensive. On this instruction, the jury returned for D. Supreme Court of CO affirmed.

(3)Where the tort is committed against a caretaker, there may be an assumption of risk (more later) that either excuses or mitigates the damages.

1. TRANSFERRED INTENT
2. BETWEEN PEOPLE:

(1)Where there is the intent to commit a tort against one person and the tort falls upon another, the intent transfers.

(a)Davis v. White (1982) - P was washing his car when D became involved in an argument with Tipton. D pulled out a gun and shot at Tipton, but missed and hit P in the stomach. Held, when D Shot at Tipton hisintent transfers to the actual injury to P even if D did not intend to shoot P.

(2)Cf. Mistake- NOT THE SAME as transferred intent because there is intent to do the harm to the person.

(a)Example: D thinks he is punching Paul, but in reality he is punching Peter, Paul’s twin brother. Though he has mistaken the identity of his victim, he has the same intent to do harm.

1. BETWEEN TORTS

(1)Intent may also transfer between different Torts.

(a)Altieri v. Colasso (1975) - Boy threw a rock at neighbor intending to scare him and hits him in the eye. Court held that the intent transferred and the SOL for assault was appropriate measure even though SOL for battery had run.

(2)There is no transferred intent for Intentional Infliction of Emotional Distress, nor is there T.I. for Conversion.

1. AGE

(1)Child’s age MAY play a factor

(a)Walker v Kelly (1973) - 5 year old girl throws a rock at 8 year old boy’s bike on command of 12 year old boy. She missed the bike, but struck the 8 year old boy in the eye. Court held that the girl was too young to appreciate her actions and did not have any intent to cause any harm (assault) and thus there was no intent to transfer for a case of battery.

(b)Cf. Garratt v. Dailey - if she had the purpose to cause an apprehension or knew with substantial certainty that harmful contact would occur, battery would have held (also under the theory of extension of self)

1. EXTENDED CONSEQUENCES

(1)This is an offshoot of the TI doctrine. Where P is guilty of committing a tort, he is also liable for any further harm that results from that tort.

1. INTENTIONAL TORTS TO THE PERSON
2. BATTERY

(1)The key objective of the Tort of battery is the preservation of personal physical autonomy.

(2)ELEMENTS

(a)D’s act must be VOLUNTARY with

(b)PURPOSE to cause a harmful or offensive contact or

(c)KNOWLEDGE that a harmful or offensive contact is SUBSTANTIALLY CERTAIN to occur, AND

(d)A harmful or offensive contact DOES OCCUR, OR

(e)D Intends to place P in IMMINENT APPREHENSIONof harmful or offensive contact,

(f)RESULTING in harmful or offensive contact with another

(g)Either DIRECTLY or INDIRECTLY

(3)INTENT

(a)Generally- follows Garratt v. Dailey (above)

(b)Some Jurisdictions apply Dual Intent

[1]defendant must have had the purpose to make the contact or known with substantial certainty that the contact would occur AND

[2]Have had the purpose that the contact be harmful or offensive or known with substantial certainty that the contact would be harmful or offensive.

1. This is distinguished from G v. D in that traditional intent requires only that there be intent to make contact, or knowledge with substantial certainty that contact will be made, but NOT that the contact will be harmful. See White v. Muniz.

(4)HARMFULorOFFENSIVE Contact

(a)Contact may be EITHER harmful OR offensive. It is not a conjunctive requirement.

(b)Harmful is any contact that produces injury or pain.

[1]A punch, slap, kick, stab, shot, etc…

1. Whitley v. Anderson – Note case. Teenage girl is punched in the jaw by one girl. This was clearly a battery. A second girl then shoved her into the locker, causing no physical injury. The court held that the shove was an un-welcomed and offensive contact and was thus a battery.

(c)Offensivecontact: would offend any reasonable person’s sense of dignity.

[1]Reasonable person standard. This is a factual determination made by the jury.

1. Snyder v. Turk (1993) – In the heat of a difficult operation, Doctor grabs nurse’s shoulder and pulls her close to the surgical opening to illustrate the need for long instruments. Court held that a jury of reasonable minds could conclude that the Dr. intended to commit an offensive act as defined by “contact which is offensive to a reasonable sense of personal dignity.”
2. The Pinching Italian Hypo - In Italy, it is perhaps socially acceptable for a man to pinch a woman on the ass. An Italian tourist comes to the United States and pinches P’s behind. Battery? If the jury believes that such an act would offend the reasonable person’s sense of dignity, the answer is yes.

(5)PRIOR NOTICE

(a)If prior notice that a contact would be considered offensive, even where it may not be offensive to the reasonable person, then the contact is offensive.

[1]Cohen v. Smith (1995) – P entered the hospital to deliver her child. She made it clear that it was against her religious belief to be viewed unclothed or touched by a male. During the cesarean section, a male nurse both observed and touched P’s naked body. The court found that the trial court erred in dismissing battery and intentional infliction counts.

(6)AWARENESS of contact

(a)P need not be aware of the contact for it to be harmful or offensive.

[1]Sleeping Beauty Hypo – P Charming kisses SB. She wakes up to find he is the ugliest man she’s ever seen. She finds the contact offensive and if a jury agrees, there is a battery though she was unaware of the contact when it occurred.

(7)ACTUAL CONTACT must occur

(a)Any physical contact, even smoke.

[1]Leichtman v. WLW Jacor Communications (1994) – Radio host blew cigar smoke in the face of anti-smoking activist who had been invited to speak on the air. Court held smoke was “particulate” matter that physically contacted Plaintiff.

[2]Contact may be with an object under P’s dominion

1. Fisher v. Carousel Motor Hotel (1967) – P, a black man, was attending a meeting at CMH. During a lunch break, D snatched P’s plate from his hand and told him he was not welcome in the club. Court held that the contact with the plate was the same as with P and found a battery.

[3]Other forms of “transferred contact” include a person kicking a car while P is inside, or kicking a door that P is trying to hold shut, etc…

(b)Sound not yet considered to be contact. There is no “Aural Battery.”

1. ASSAULT

(1)The key objective of the tort of Assault is the preservation of mental tranquility.

(2)ELEMENTS

(a)D’s act must be VOLUNTARY with

(b)INTENT to placeANOTHER

(c)In IMMEDIATE APPREHENSION of a

(d)HARMFUL or OFFENSIVE contact

(3)APPREHENSION v. FEAR

(a)Apprehension is not fear. Apprehension is merely the reasonable belief that the harm is going to befall you.

[1]Snow White – Suffered no apprehension even if when told of the kiss found it to be offensive. There is a battery, perhaps, but at not point was she in apprehension of the contact.

[2]The Toy Gun– Bank Robber enters with a squirt gun. The bank patrons believe it is real. Their apprehension is reasonable under the circumstances.

[3]The Toy Gun, pt. 2 – The customers can see it’s a squirt gun. They are under no apprehension of being shot. But they may nonetheless be under apprehension of other harm from a crazy nut who’s trying to rob a bank with a squirt gun.

(4)IMMEDIACY

(a)The apprehension must be of imminent harm, not of a harm that will occur at some unspecified time in the future.

[1]Dickens v. Puryear (1981) – P had been sexually involved with D’s underage daughter. D and his buddies handcuffed P to a piece of farm machinery and proceeded to beat him and threatened to castrate him. They then told P to go home, tear his phone off the wall and leave the state or he would be killed. The trial court viewed this last threat as an assault and concluded it was thus barred by the statute of limitations. The Appellate court, however, concluded that the threat of harm was in the future and concluded it to be intentional infliction of emotional distress, which was not barred by the SOL.

[2]Example: D pulls a gun and raises it. P feels an apprehension of imminent fear that he may be shot. This is a case of assault.

[3]Compare: D says to P, “If you come back here, I’ll kick your ass.” While P may fear D’s ass kicking, the harm would be in the future and thus is not imminent. This is not assault.

(5)WORDS ARE NOT ENOUGH

(a)Traditionally, words are not enough to create the apprehension of immediate physical harm.

[1]There must be an ACCOMPANYING ACTION that indicates that the physical harm is imminent.

1. Recently Released Prisoner Hypo – A criminal is recently releases from prison and threatens to kill you. Even though you may immediately suffer an apprehension of harm, the harm is not necessarily imminent (note: this would be a prime example of intentional infliction of emotional distress).

(6)WORDS NEGATING INTENT

(a)Where words negate the intent, there cannot be reasonable apprehension.

[1]Graying Professor Hypo – The aging professor, frustrated from years of students who just can’t tell the difference between a tort and a tart raises a fist at a particularly law challenged student and says, “if I weren’t your teacher, I’d clean your clock.” The words here negate the intent. There is no reasonable apprehension.

(b)IMPROPER CONDITION creates an exception to the rule.

[1]Where the negating language is accompanied by a condition that is unreasonable, there is no negation and there is assault.

1. Your money or your life Hypo– A guy holds a knife to your throat and says, "your money or your life." This is not an intent negating situation.

1. FALSE IMPRISONMENT

(1)ELEMENTS

(a)The actor must have INTENT

(b)There must be ACTUAL CONFINEMENT

(c)The person must have an AWARENESS of confinement

(d)And the confinement must be AGAINST THE WILL of that person.

(2)BOUNDARIES

(a)The measure of confinement is geographic. If a person is not allowed to leave a room, that is pretty obvious. But what is the outer limit? A house seems to be a reasonably confined area. Even a school. An office. A building…

(b)What of a city, or a state? Where the boundaries are broader, the question has to come down to whether than confinement is preventing the person from engaging in every day activities.

(3)AWARENESS

(a)P must have an awareness of the confinement. If D locks P’s house while P is asleep, but unlocks the house before P wakes up, there is no false imprisonment.

[1]Parvi v. City of Kingston – Police picked up P and a friend on New Years Eve. Both men were intoxicated. The police, rather than running them in followed a custom to take them beyond the city limits and let them sleep it off. Unfortunately, they dumped the men on a golf course near the N.J. throughway. The men were woken by the noise and stumbled onto the roadway, where one was killed and the other injured. The police argued there was no false imprisonment because he was too drunk to be aware of any confinement. The court reasoned that an intoxicated person, while he may not remember the events, is generally aware of the events as they are taking place.

1. This case articulates the importance of the concept of extended consequences. Since the police were found to have committed the one tort of False Imprisonment, they were therefore liable for the death and injury that resulted from their original action.

(4)ACTUAL CONFINEMENT

(a)There must be an actual confinement, not an imagined one.

[1]However, confinement need not be physical. If the plaintiff is put under a reasonable apprehension that their failure to comply will result in harm, the confinement is the same as if it were physical.

1. McCann v. Wal-Mart – Wal-Mart employees prevented the McCann family from leaving the store, alleging that the children had shoplifted before and were not allowed in the store. The employees asserted that the police had been called and would be present shortly (though they were not). There was a Wal-Mart employee with the family at all times. When one of the children asked to go to the bathroom, he was not allowed to. Finally, the store security officer arrived and alerted the employees to their mistaken identity. The jury awarded 20K.

[2]DURESS OF GOOD – The taking of someone’s property and for that person to retain that property they must follow you is false imprisonment.

1. The Research Paper Hypo – P has just finished his research paper and D snatches it and runs off. P has to get it in or face late points. He follows D around campus until D finally gives it back – just in the nick of time. Since P was forced to remain in D’s proximity in order to retrieve his property, this is effectively false imprisonment.

(5)REASONABLE MEANS OF ESCAPE

(a)Where there is a reasonable means of escape, there is no false imprisonment.

[1]Example: You are locked into a first floor apartment and there is a window through which you can easily escape. No false imprisonment.

(b)However, you are not expected to put yourself at risk to escape.

(6)LACK OF ACCESS

[1]The Faculty Meeting – Students being prevented from participating in a faculty discussion about the grading system would not be FI.

[2]Bird v. Jones – Classic case is an English case where a part of a park had been closed down for a boating event. P wanted to walk through, rather than around, and was prevented from proceeding. He was not prevented from leaving and circumnavigating the park. Court held there was no FI because he was free at all times to leave.