Torts 2 Outline

Intentional Torts

  1. Battery (children, handicapped, and insane can be held liable)

Knowing/intentional touching of one person by another in a rude insolent or angry manner

§13 Battery: Harmful Contact

-An actor is subject to liability to another for battery if

  1. He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
  2. A harmful contact with a person of the other directly or indirectly results

§18 Battery: Offensive Contact

  1. An Actor is subject to liability to another for battery if
  1. He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
  2. An offensive contact with the person of the other directly or indirectly results
  1. An act which is not done with the intention stated in Subsection (1,a) does not make an actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm

Test controlling battery is: what would be offensive to an ordinary person not unduly sensitive as to personal dignity

-any touching, however slight, may constitute an assault and battery

-may be recklessly committed where one acts in reckless disregard of the consequences, and the fact that the person does not intend that the act shall result in an injury is immaterial

Ex. Wallace v. Rosen (fire drill, broken leg, talking at top of stairs, turned by teacher and told to move it, slips and falls, is injured. Would this be offensive to an ordinary person?)

Big issue is what intent is necessary

-Prove specific intent (meant to hit someone)

-Prove intent that would cause contact to be harmful or offensive (did not mean to hit someone but knew with relative certain it would hit someone)

  • Allows for transferred intent (Talmage v. Smith: threw stick intending to hit one person but hit another. Still liable because meant to hit someone)
  • Is subjective because it examines this particular person

-Mistakes are irrelevant. If you possess the right intent and cause a tort, you are liable (Ranson v. Kitner: killed someone else’s dog that they thought was a wolf. Still intended to kill it)

What kind of contact is sufficient?

Ex. Fisher v. Carrousel Motor Hotel, Inc.

  • Did not touch him…does it still constitute battery?
  • It is not necessary to touch the plaintiff or anything connected with his person, knocking or snatching anything from his hand or anything connected to his person when done in an offensive manner
  • Contact between defendant or some extension of plaintiff’s body
  • Contact between an object and the plaintiff
  • Contact between a third person and the plaintiff
  1. Assault: Intent to cause contact that is harmful or offensive/apprehension of contact that is harmful or offensive to a reasonable person. Plaintiff must be aware. (Must be imminent)

Battery must be actual contact but don’t have to have awareness. Assault does not require actual contact but does require awareness.

Ex. Western Union Telegraph Co. v. Hill (Sapp’s job is to fix clocks. He offers some unprofessional quid pro quo and reaches for her)

-Words alone are typically not enough for assault. Needs some physical conduct

-Actual contact is not necessary, must show they had apparent present ability and intent to make contact

  1. False Imprisonment: Intent to physically restrict/confine someone within a boundary. Must actually confine them. Plaintiff must be aware of the confinement

Ex. Big Town Nursing Home, Inc. v. Newman (man sent to nursing home against will, tries to escape, locked in a chair, put in psyche ward, not visited by doctor, loses 31 pounds)

Ex. Hardy v. LaBelle’s Distributing Co. (accused of stealing a watch. Taken a “tour of the premises. Led to a back room and given an polygraph test. Said she would have stayed anyway but also stayed because she was afraid of losing her job.)

-If you would have stayed anyway for whatever reason, not false imprisonment

-Threat must be physical, not moral

  1. Intentional Infliction of Emotional Distress: §46One who, without a privilege to do so, intentionally causes severe emotional distress to another is liable (a) for such emotional distress, and (b) for bodily harm resulting from it

-Must prove conduct was severe and outrageous beyond the bounds of decent society

-thin skull rule applies in the event of pre-existing condition…allows for recovery

-No transferred intent. Must know someone is present and intend to cause THEM emotional distress. If you do not intend to cause them emotional distress, no grounds for liability

Requirements:

-Intended to cause or was substantially certain it would cause emotional distress

  • Must know of susceptibility if it involves a fear, etc.

-Was extreme and outrageous behavior (beyond the bounds of decency)

-Extreme and outrageous behavior caused the emotional distress

  • Proved with expert testimony if not obvious

-Must show emotional distress was severe

  1. Trespass to Land: Don’t have to show intent to trespass, don’t have to show harm, don’t have to show intent to harm. Must prove only that they had the intent to be present on the land.

-Can involve things passing in air over the land. Theory is that the land has an indefinite extent, upwards as well as downwards; whoever owns the land possesses all the space upwards to an indefinite extent; such is the maxim of the law. It also seems consensus of the holdings of the courts that the air space, at least near the ground, is almost as inviolable as the soil itself

  1. Trespass to Chattels: §217: a trespass to chattel may be committed by intention to dispossess or intention to intermeddle or use the chattel in possession of another.

-Unlike trespass to land in that you must prove some damage in cases of trespass to chattel or if you dispossess the owner of it for a substantial period of time. Do not have to be aware of the trespass to chattel.

  1. Doesn’t always have to reduce the value of the item.
  2. Can be trespass to chattel if some exceeds the scope of use someone has specified

-§218: one who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if,

  1. He possess the other of the chattel, or
  2. The chattel is impaired as to its condition, quality, or value, or
  3. The possessor is deprived of the use of the chattel for a substantial time, or
  4. Bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest
  1. Conversion (big brother to trespass to chattel): Must show that either the dispossession or the diminution in value is so severe that it is fair to make the defendant pay for the whole thing

§222A What Constitutes Conversion

  1. Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel
  2. In determining the seriousness of the interference and the justice of requiring the actor to pay the full value the following factors are important:
  3. Extent and duration of the exercise of dominion or control
  4. The actor’s intent to assert a right in fact inconsistent with the other’s right of control
  5. The actor’s good faith
  6. The extent and duration of the resulting interference with the other’s right of control
  7. The harm done to the chattel
  8. The inconvenience and expense caused to the other

Ways in which an actor may convert chattel

-Acquiring possession (stealing), Damaging or altering it, Using it, Receiving it, Disposing of it, Miss-delivering it, Refusing to surrender it

Privileges

Consent: Expressed or Implied

-Can be express consent: (informed consent, telling someone or asking someone to do something)

-Can be implied consent: “Only have to prove behavior and circumstances led the defendant to reasonably believe that she had impliedly consented.”

-By engaging in the event, have consented to some contact within the rule specifications (Cincinnati Bengals Case plus drag racing case)

-If consent is obtained by fraud, it is not valid

  1. Cannot consent to illegal activity in majority jurisdictions. Consent not valid so would be able to recover.

Consent in medical cases:

-Have limited privilege to exceed the scope but not always within that privilege. Best/safest alternative would be to get substitute consent

-Patient goes to emergency room unconscious, is implied consent/privilege because unable to consent because unconscious or incompetent.

  • If a reasonable person would consent or there is no reason to believe this patient would not consent and if delay in the treatment would involve serious risk of bodily harm, have the privilege to go ahead and operate on implied consent
  • If deemed psychologically competent, operating w/o expressed consent is battery

Self-Defense and Defense of others

-Someone threatening you with a battery. Are permitted to use force that is reasonable, deadly force if you reasonably fear serious bodily harm or deadly force.

-Does not extend to retaliation

-Verbal Provocation alone does not give rise to defense of self-defense

-If you reasonably believe and are mistaken about a threat, you can claim self-defense if the mistake is reasonable

-If you can safely retreat: minority jurisdictions and restatement say, if you can safely retreat instead of using deadly force you have a duty to

  • Transferred intent can apply in situations involving self-defense. “if you are threatened, respond, and instead hit someone else, there is no claim if the force used was reasonable

-Same rules apply to defending others if you believe they are at risk of bodily harm

-If you are wrong/in event of a mistake: some say you may only claim acting in defense of others if you were correct and the person you were defending was acting in self-defense. Others say you may assert it if defense was reasonable.

-Force to protect property: reasonable force to protect property, most of time must give a verbal warning unless it is futile. Can you use deadly force? Generally no under common law. Would if used to prevented burglary of a dwelling. Some give you privilege to use deadly force to prevent any felony. Some only if it is a violent felony.

  • Can never use deadly force to protect an unoccupied dwelling
  • Some say if you give notice of deadly force, then you can assert the defense even if it is to defend not a dwelling
  • Others say it is still not enough

-MS Castle Doctrine: there is a presumption that you used reasonable force if you are in the premises and an intruder comes onto your land, into your home, in your car, etc.

Recovery of Property

-Fresh Pursuit: attempt to recover must be immediate. Is limited to prompt discovery of the dispossession, and prompt and persistent efforts to recover the chattel. Any undue lapse of time during which the pursuit has not been commenced, or has come to a halt, will mean that the owner is no longer privileged to fight himself back into possession, but must resort to the law

-Shopkeeper’s privilege: is privilege to arrest or imprison someone (commit false arrest) allows you to reasonably investigate a person whom he reasonably believes to have taken a chattel unlawfully

  • If you reasonably suspect theft, your detention must be reasonable (length, circumstances, etc.)

Necessity

-Can destroy property based on public necessity but must show imminent danger and appear reasonably necessary to prevent great harm to the public

-Do you have to be a public official to invoke the defense of public necessity? No, must prove it appeared reasonably necessary to prevent great harm to public; do not have to be a public official to do so.

Authority of Law

-Mistake does not count.

-Issue is determining how far legal sanction extends

-Applies to officers, military, prison officials, regulatory inspectors and officials at mental health facilities. Conduct that otherwise might be tortious can be privileged for these individuals because of legal authority

-When felony is being or is about to be committed in their presence, can have a warrantless arrest. Any forced used must be reasonable

Discipline

-Parents or someone in parents’ place. But those in parents’ place do not have as much leeway as do parents, though.

-If punishing child it must be reasonable force

  • Claims might include battery, false imprisonment
  • Must look at immunity because a lot of jurisdiction have done away with immunity for intentional torts.

Justification

-Catch-all, I can’t fit my defense into other privileges

-Are simply arguing that your actions were justified

  • Look at circumstances to determine the reasonableness standard. Were acting reasonable

Strict Liability:

Trespassing Animals:

-Excluding cats and dogs. If the animal trespasses(private not public land), you are strictly liable for the damage. Damage is required.

-“Fencing in rule” If defendant fenced in and animals got out of no negligence on part of defendant, he is not strictly liable. If he abandoned reasonable care and it happened, he is liable

-“Fencing out rule” if plaintiff fences and animals come through, defendant is then strictly liable

-No strict liability, must show fault on part of owner

-Restatement third §21: owner or possessor of livestock or other animal except for dogs and cats that intrude on the land of another are strictly liable for any damage caused

Wild Animals:

-Is an instance of strict liability, do not consider reasonableness for personal injuries.

-Restatement third §22: owner or possessor of a wild animal subject to strict liability for physical harm caused by the wild animal. Wild animal is an animal that belongs to a category of animals that have not generally been domesticated and that are likely unless restrained to cause personal injury.

  • Must involve physical harm (to person or property)
  • Animal must be inherently dangerous by nature
  • Domesticated: trespass and physical harm
  • Wild: just physical harm
  • Damage must be that which is a product of the risks normally posed by the animal

-Restatement third §23: strict liability on owner or possessor if that person knows or has reason to know (objective reasonableness standard) that the animal has dangerous tendencies abnormal for the animals category subject to strict liability caused by the animal if the damage ensues from the dangerous tendency

-Otherwise, it is a negligence standard. Owner will be liable if, and only if, it can be proven that the owner failed to use reasonable care with respect to the animal. If the owner knew or had reason to know of the dangerous propensities, then strict liability applies.

Abnormally Dangerous Activities

-Can be subject to liability if The person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape (if you bring something onto your land and it is likely to cause mischief if it is escapes and causes damage, you are strictly liable)

-Strictly liable if you use it for something that it is not ordinary/ordinarily expected/not a common activity/actors engaged are posing the same risk to everyone (non-natural)

-§519: one who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity

-§520 (sets forth factors that are weighed for considering if an activity is abnormally dangerous):

  • Existence of a high degree of risk of some harm
  • Likelihood that the harm that results from it will be great
  • Inability to eliminate the risk by the exercise of reasonable care
  • If you can eliminate the risk by the use of reasonable care you do not need strict liability
  • Extent to which the activity is not a matter of common usage
  • Inappropriateness of the activity to the place where it is carried on
  • Extent to which its value to the community is outweighed by its dangerous attributes

-Restatement third elements test for dangerous activities (replacing factors test):

  • Creates foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and
  • Activity is not one of common usage (poses a reciprocal risk)

Limitations on Strict Liability

-proximate cause: is the injury that occurred the type that warranted the activity being classified as abnormally dangerous.

-§29 liability is limited to those harms that result from the risks that made the actor’s conduct tortious (applies to negligence and strict liability)

  • is it fair to say this is outside the realm of risk that made activity dangerous enough to be classified as strict liability
  • Act of God is a defense

-Where third party’s malicious activity causes damage…defendant is not strictly liable

Defenses:

-Comparative Responsibility: Modern trend and restatement third (modern trend) say: comparative responsibility is a defense to a strict liability claim

  • Restatement second say: no

§25: if contributory negligence, recovery in strict liability is reduced in accordance with share of responsibility assigned

-Another defense based on conduct could be assumption of risk: “ if you can show the plaintiff voluntarily put himself in position to be hurt knowing the probable consequences”

§24: if the person suffers physical or emotional harm as a result of making contact with or coming into proximity to the defendant's animal or abnormally dangerous activity for the purpose of securing some benefit from that contact or that proximity; or

-if the defendant maintains ownership or possession of the animal or carries on the abnormally dangerous activity in pursuance of an obligation imposed by law

Products Liability

-Very little strict product liability

-Kind of claims you can bring:

  • Negligence (some states have products liability statute but MS Supreme Court has determined it is not an absolute treatment)
  • If you can show defendant did something wrong, if you can point to fault, jurors are more comfortable imposing liability.
  • In products liability there is always a claim for negligence
  • Breach of Warranty
  • Breach of an express warranty (for a manufacturer or retail seller)
  • Breach of an implied warranty of merchantability (by putting product out, manufacturer is making implied warranty that product is reasonably safe for its intended purpose)
  • Breach of implied warranty of fitness for a particular purpose (if aware you will use it for a particular purpose and sells it to you, they make this warranty even if the use is different from the usual intended purpose)
  • Governed by UCC
  • Strict Liability
  • Manufacturing defect (for which there is still true strict liability)
  • Design defect
  • Warning defect (can include allegations that manufacturer didn’t warn about danger or didn’t instruct you how to properly use the product in the event of risk) (above ground swimming pool case)

Is Privity Required for Strict Liability?