Tort Outline
I. Battery
-The intentional, unprivileged, and either harmful or offensive contact with the person of another
-If any of the elements are eliminated (intent, harmful or offensive conduct, or absence of privilege), there is no battery.
-Restatement: an actor is subject to liability to another for battery if (a) 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 (b) a harmful/offensive contract with the person of the other directly or indirectly results.
1. The Prima Facie Case
a. Intent
(1) What consequences must the defendant intend?
-plaintiff must show either that the intention was unlawful or that the defendant is at fault.
-If the intended act is unlawful, the intention to commit it must necessarily be unlawful.
-Vosburg v. Putney, defendant is liable for injury to defendant even though he did not intend to hurt him because his act (kicking once class had started) was unlawful.
-The wrong-doer is liable for all injuries resulting directly from the wrongful act, whether they could or could not been foreseen by him.
-If it is an intentional act, and the act is unlawful, then the intent is unlawful.
-Thin skull rule: victim must be taken as is, will be liable for all damages.
Note: Liability of Minors
-Minors do not necessarily escape liability for their batteries.
-Some courts have held that very young children may not be capable of having the intent that liability requires.
-Young children are often held to be incapable of acting negligently even when they are deemed old enough to commit a battery.
-All states have statutes that impose some degree of liability on parents for the torts of their children.
(2) Which mental states constitute intent?
-Restatement: In order that an act may be done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to a particular person, the act must be done for the purpose of causing the contract or with knowledge on the part of the actor that such contact is substantially certain to be produced.
-Garratt v. Dailey, a 5-year old moved an old woman’s chair before she sat down. If he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been, he would be liable.
-Bench trial: means that appellate court can reviewto see if the conclusions of law follow the findings of fact AND review that the judgment follows the conclusion of law.
-If plaintiff had trespassed, would have been strictly liable for all actions.
-Constructive intent: had intention to do action because had knowledge of the normal consequences of the act.
-Transferred intent: the ill intent that the defendant bore toward a third party is applied to the conduct that harmed the plaintiff.
b. Contact
(1) What constitutes contact?
-The contact requirement does not mean that a part of the defendant’s body must come into direct contact with a part of the plaintiff’s body.
-It is sufficient if the defendant causes contact with something very closely associated with the plaintiff’s person.
(2) Which intended contacts are wrongful?
-Restatement: harm denotes the existence of loss or detriment in fact of any kind to a person resulting from any cause.
-Restatement: bodily harm is any physical impairment of the condition of another’s body, or physical pain or illness.
-Restatement: a bodily contact is offensive if it offends a reasonable sense of personal dignity (unwarranted by the social usages prevalent at the time and place).
-Personal indignity is the essence of an action for battery.
-The defendant is liable not only for contacts which do actual physical harm but also for those which are offensive and insulting.
-Fisher v. Carrousel Motor Hotel, defendant snatched the black plaintiff’s plate away and told him that he could not be served in the club. Defendant’s action was offensive and insulting, and plaintiff was entitled to actual damages for mental suffering due to the willful battery, even in the absence of physical injury.
-Damages for mental suffering do not require actual physical injury but just the unpermitted and intentional invasion of the plaintiff’s body.
-Leichtman v. WLW Jacor Communications, intentionally blowing smoke in another’s face is an offensive contact.
-Harm from secondary smoke if the smoking is not meant to cause harm is not offensive contact (no “smoker’s battery).
-To dismiss a case (motion for summary judgment, directed verdict), the court looks at the evidence in the light most favorable to the non-motioning party, and if the court believes that no jury could reasonable find for the non-motioning party, then it dismisses the case.
2. Privileges
-To say that an act is “privileged” connotes that the actor owes no legal duty to refrain from such contact.
-Consensual privileges: depend on the plaintiff agreeing to the defendant’s otherwise tortious act.
-Nonconsensual privileges: shield the defendant from liability for otherwise tortious conduct even if the plaintiff objects to the defendant’s conduct.
a. Consent
-Consent is willingness in fact for the conduct to occur. It need not be communicated to the defendant.
-In determining whether plaintiff consented, defendant must reasonably interpret her overt act and manifestations of her feelings.
-O’Brien v. Cunard Steamship, doctor inoculated plaintiff when she acted in a manner consistent with consent. The doctor’s act was lawful because she did not manifest any signs of not consenting.
-The defendant’s subjective state is based on the plaintiff’s objective actions.
-Plaintiff has burden of proof to show intent to commit the act, lack of consent, and harm.
-Privilege is a defense for battery. Defendant has burden to prove.
Minors
-For one to surrender the right to be free from intentional interference by others, one must have the mental capacity to consent.
-Defendant can be liable despite the fact that the plaintiff was subjectively willing and communicated that willingness to the defendant.
-Barton v. Bee Line, plaintiff can not recover damages if she consented to sex with an older man even though she is under the age of consent (minority view).
-Most courts have applied statutory rape statutes in civil cases regardless of proof that the plaintiff was able to understand the consequences of her act and consent.
-It is one thing to punish those who consort with females under the age of consent; it is another to reward such females for their actions.
Note: Minors as parties to litigation
-Minors usually may not be direct parties to litigation
-Minors can be represented by a guardian for the suit and the next friend.
-The consent of a minor, even a mature one, is not a prerequisite to the appointment of a representative.
Note: Effect of criminal statutes on consent
-Consent to a criminal act is totally irrelevant in civil cases. In such cases, consent does not constitute a privilege.
Doctor/Patient
-Bang v. CharlesT.MillerHospital, where a physician or surgeon can ascertain in advance of an operation alternative situations and no immediate emergency exists, a patient should be informed of the alternative possibilities and given a chance to decide before the doctor proceeds with the operation.
-Plaintiff consented to an operation but not the operation that doctor also performed.
-Not a reasonable person test but rather what that individual would reasonably do.
-“Merchant of Venice” rule: he promises a pound of flesh but not the blood as well.
-Kennedy v. Parrott, a surgeon may lawfully perform such operation as good surgery demands even when it means an extension of the operation further than was originally contemplated, and for so doing he is not to be held in damages as for an unauthorized operation.
-Rule applies to major internal operations where both the patient and the surgeon do not know the exact condition of the patient until the patient is anesthetized and the incision has been made.
-Case is not universally followed. In some states, consent is inferred only if there is an emergency that required treatment not expressly authorized.
-Restatement: Conduct that injures another does not make the actor liable to the other, even thought the other has not consented to it if (a) an emergency makes it necessary or apparently necessary to act before there is opportunity to obtain consent or one empowered to consent for him, and (b) the actor has no reason to believe that the other would decline.
Sports
-Hackbart v. Cincinnati Bengals, an injury incurred due to an illegal play during a football game is not necessarily consented to (should expect injury as course of game) because a player does not consent or submit to injuries caused by conduct not within the rules or general custom of the game.
-Factfinder must decide whether the action is within the reasonable boundaries (combination of rules and general custom) of the game.
-Acts that go outside the rules and customs are outside the realm of privilege.
-If within the reasonable boundaries, plaintiff gives implied consent.
-In backyard or amateur games, participants impliedly consent to violent contact, but not to conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.
Note: Consent procured by fraud or duress
-Consent will not shield the defendant from liability if it is procured by means of fraud or duress.
-Courts invalidate consent procured by duress when defendants threaten the plaintiff or plaintiff’s loved ones with physical harm.
b. Self-Defense
-Restatement: an actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful contract which he reasonably believes that another is about to inflict.
-Self-defense is privileged although the actor reasonably believes that he can avoid defending himself by retreating or by complying with a command.
-Restatement: an actor is privileged to defend himself against another by force likely to cause death or serious bodily harm when he reasonably believes that (a)the other is about to inflict upon him an intentional contact and (b) he is thereby put in peril of death or serious bodily harm which can safely be prevented only by immediate use of such force.
-The privilege exists even if the actor believes he can avoid defending himself by (a) retreating within his dwelling place, or (b) permitting the other to intrude upon his dwelling place, or (c) abandoning an attempt to effect a lawful arrest.
-The privilege does not exist if the actor believes that he can avoid defending himself by (a) retreating in any place other than his dwelling place or (b) relinquishing the exercise of any right other than his privilege to prevent intrusion onto his dwelling place.
-Restatement: The actor is not privileged to use any means of self-defense which is intended or likely to cause a bodily harm in excess of that which the actor correctly or reasonably believes to be necessary for his protection.
-Courvoisier v. Raymond, even though plaintiff was not a threat to defendant, he was permitted to use self-defense because the circumstances surrounding the defendant at the time of the shooting were such as to lead a reasonable man to believe that his life was in danger or that he was in danger of receiving great bodily harm at the hands of the plaintiff.
-Court requires objective and subjective belief (reasonable person could have seen the situation as dangerous and subject believed that he was in danger).
-A party claiming self-defense must prove not only that he acted honestly in using force, but that his fears were reasonable under the circumstances, and the means of self-defense were reasonable.
c. Defense of others
-The self-defense privilege extends to protecting total strangers as well.
-The force that may be used by an intervener to repel an attack on another is measured by the force that the other could lawfully use.
-If the intervener is mistaken, even reasonably mistaken, the privilege is unavailable if it would not be available to the person to be protected.
-Restatement adopts the view that the intervener’s mistake need only be reasonable; there is no need to show that the victim also had the privilege to defend himself.
d. Defense of property
-Restatement: an actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to prevent or terminate another’s intrusion upon the actor’s land if (a) the intrusion is not privileged, (b) the actor reasonably believes that the intrusion can be prevented only by the force used, and (c) the actor has first requested the other to desist or the actor believes such request will be useless or substantial harm will be done before it can be made.
-Restatement: The intentional infliction which is intended or likely to cause death or serious bodily harm, for the purpose of preventing or terminating the other’s intrusion upon the actor’s possession of land, is privileged only if the actor reasonably believes that the intruder is likely to cause death or serious bodily harm.
-Katko v. Briney, defendants were not privileged in setting up a loaded spring gun to catch trespassers when there was no notice of the danger even though it was set up not to seriously injure.
-The only time when setting a spring gun is justified would be when the trespasser was committing a felony of violence or a felony punishable by death, or where the trespasser was endangering human life by his act.
-Only rarely have defendants escaped liability in the case of spring guns, in part because the use of such devices is so suggestive of an indiscriminate and malicious intent.
-Trespassers and other inconsiderable violators of the law are not to be violated by barbarous punishments or prevented by inhuman inflictions of bodily injuries.
-The law has always placed a higher value upon human safety than upon mere rights in property.
c. Necessity
-One may sacrifice the personal property of another to save his life or the lives of his fellows.
-Ploof v. Putnam, one is privileged by necessity to trespass when there is a serious threat to life and no other lifesaving option is available.
-Also, the owner of property may not eject a trespasser if the trespasser requires entry to protest himself and his property from harm.
-Vincent v. Lake Erie Transportation Co., boat owner was not privileged to injure a dock in order to save his own property. The act was not negligence, but the boat owner is liable for damages.
-The necessity privilege to enter the land of another in order to avoid serious harm is coupled with an obligation on the part of the entrant to pay for whatever harm he caused.
f. Miscellaneous privileges
-To at least some extent, teachers and parents are exempt from battery claims brought on behalf of children they have physically disciplined.
-Under the doctrine of intrafamily tort immunity, the court bars tort claims by one spouse against the other.
-Common practice today is to allow minors to sue their parents for intentional torts (not arising from an effort to impose reasonable discipline) but bar claims if the injuries complained of are due to the negligence of the parent.
-Other privileges include those relating to the arrest of lawbreakers and the prevention of crime, the enforcement of military orders, and the recapture of land and possessions.
-The reasonableness of the actor’s perception of the need to use force, as well as the reasonableness of the harm actually inflicted, are typically the touchstones upon which the availability of the privilege turns.
II. Actual Causation
-Did the defendant cause the plaintiff’s harm?
-Ask the question, “But for the defendant having acted at all, would the plaintiff have suffered the harm?”
-If answer is “no,” the defendant’s conduct, being a necessary condition of plaintiff’s suffering harm, was an actual cause of that harm.
-The concept helps to sort out the worthy cases from the unworthy and to fix the size of the recoveries in the worthy cases.
A. Did the Defendant Cause the Plaintiff’s Harm?
-General causation: whether the activity allegedly engaged in by the defendant is inherently capable of causing the sort of harm suffered by the plaintiff
-If not, the defendant wins as a matter of law.
-Rarely an issue, almost always in cases where plaintiffs have been exposed to an allegedly toxic substance and claim to have been injured as a consequence (the birth defect drug case)
-Courts have begun to scrutinize technical expert testimony, much of which relates to general causation.
-Even when the plaintiff’s technical proof of general causation is solid and persuasive, specific causation (did exposure to the toxic substance cause this plaintiff’s injury) also must be established.
-Specific causation: the issue presented in most tort cases whether the defendant’s wrongful conduct specifically caused the plaintiff’s injuries
-Hoyt v. Jeffers, plaintiff hotel was nearby defendant sawmill that released sparks, causing things to set fire; the court found for the plaintiff even though no one saw sparks from the mill set the fire.