TORT OUTLINE Professor Suter Fall 2011

TORT OUTLINE – Professor Suter – Fall 2011

DEFINITION OF TORTS - To be wronged

FUDAMENTAL QUESTION TORT LAW ADDRESSES - WHO SHOULD BEAR COSTS?

FUNCTIONS OF TORT LAW -

·  FAIRNESS

·  EFFICEINCY

LIABILITY SPECTRUM-

·  ABSOLUTE LIABLITY- All that is necessary is causation of injury

·  UNIVERSAL INSURANCE – P can recover for D giving him dirty looks

·  STRICT LIABLITY

·  NEGLIGENCE

·  INTENTIONAL – generally criminal

·  NO LIABLITY

INTENTIONAL TORTS

v  Vicarious Lability for Intentional Torts if EE is motivated by E’s interest

o  This is very Rare but still possible

v  General Comments about Intentional Torts

o  Intent Based

o  Most morally culpable of Ds and therefore, Hardest to Prove

v  Difference b/w

v  Battery – intentionally infliction of harmful or offensive contact to P’s person

o  (1) Intent-

§  (1) Desire or purpose to cause (actual intent) or

§  (2) Belief that consequences are substantially certain to result (legal intent)

·  Subjective standard

·  D can be liable despite lack of ill-will

o  GARRATT- 5 yr old D can be liable for moving chair P was about to sit on even though his purpose wasn’t to injure P as long as D knew P’s injury was substantially certain to result.

§  Policy Reason- To confine intentional tort liability to cases with a higher level of culpability

§  Transferred intent doctrine-

·  From victim A to victim B- If D had intent to cause A harm and accidentally causes B harm instead

·  From requisite intent for battery to requisite intent for assault- If D intends to cause P offensive contact and fails but causes P apprehension of harmful contact, D liable for assault

·  Policy Reason- D is just as culpable when attempt succeeds or fails

o  (2) Infliction - To cause

o  (3) Harmful or offensive contact (disjunctive)

§  (1) Harmful contact or

·  Bodily harm – any physical impairment of the condition of another’s body or physical pain or illness

·  Contact doesn’t need to be b/w P & D as long as D caused P to suffer harmful contact with something.

o  Garratt- D caused P to have harmful contact w/ ground

·  Known Eggshell can recover

§  (2) Offensive contact –

·  Test- Contact is offensive if a reaonsonable person in the circumstances of the victim would find the particular contact offensive

·  Reasonable sense - Reasonable person standard

·  Policy Reason against subjective standard – D wouldn’t know her acts were tortious. Also avoids flood of litigation

·  Known Eggshell – might be able to recover

§  It is suffice if D intended the contacts and not the consequences of the contacts.

·  If D trips P and P falls down stairs, D committed battery b/c D intended to trip P.

o  Policy Reason-

§  Battery tort provides P an alternative to retaliating against D.

§  Protects P’s bodily integrity/space, privacy, security and autonomy

v  Assault

o  Transferred intent – Intent for assault can be transferred into both

o  No eggshell P when touching is incidental

o  Exception- Known Eggshell

§  Majority – Don’t allow recovery

§  Minority - allow

o  Rxable Apprehension

§  Both subjective and objective test

o  Imminent Harm

o  Conditional Threat – generally considered assault

v  False Imprisonment – Unlawful Confinement

o  Elements

§  Intent (legal or actual)

§  Unlawful Restraint of personal liberty or freedom of locomotion

·  Actual/Apparent barrier

o  Actual cage suffices – its impossible for P to leave OR

o  Threat of barriers- P gets shocked if he tries to move

·  Overpowering physical force

o  Being leaned on

·  Threat of physical force

o  Having someone lean over you

o  Threat of future action doesn’t count

·  Asserted fake legal authority

o  Prentend to be cops

·  Duress

o  Threat to do unlawful act

§  D cant threaten to steal P’s purse

§  P is aware or harmed by the confinement – P must be knowingly imprisoned

·  NOTE- P can still recover if P wasn’t aware of confinement if P was harmed

o  Defenses –

§  Voluntary consent negates false imprisonment

·  To recover, P couldn’t have chosen to be imprisoned.

·  There must actual threat that impeded P’s ablity to leave

·  LOPEZ- P was confined by her employers, when they accused her os stealing $$. Ds never threatened P w/ her job. P stayed for a while to protect her reputation but ultimately left when she decided. At no time did P fear for her own safety. Crt found there was no false imprisonment b/c she decided to stay not a fear of physical injury but b/c it would ruin her reputation. No threat or force in this situation

§  Threat of future action (doesn’t count for recovery)

v  Intentional Infliction of Emotional Distress

o  Policy Reason – People have right to be free from serious, intentional and unprivileged invasions of mental and emotional tranquility

o  (1) Intent or Recklessness

§  Reckless- D Knew or should have known that ED likely to result

§  Tests for Recklessnes

·  Abuse of power

·  Taking advantage of or intentionally harming P known to be vulnerable

·  Repeating or continuing acts that may be merely offensive if happen once or twice

o  Bill collectors harassing

o  Sexual or racial harassment usually doesn’t recover under IIED

§  Eggshell P

o  (2) Extreme and Outrageous Conduct-Offensive to ordinary persons standard of decency

§  Policy Reason- hardest element to satisfy- raises bar for what constitutes IIED

§  Trend- Crts are divided as to what constitutes extreme and outrageous conduct

§  General TEST- Conduct it outrageous if offends generally accepted standards of decency/ morality

·  Relation b/w D and P must be weighed. If D has power dynamic over P like a professor has over a student, its more likely to be extreme

·  Eggshell P-

o  In most STs, D’s knowledge of P’s sensitivity is immaterial

o  In some STs, one must not take advantage of P knowing that P is especially vulnerable.

·  WOMACK- D a lawyer posed as a journalist, took picture of P and used photo in trial asking the 2 boys if the person was the one who abused them. Crt ruled that Ds conduct was extreme and outrageougs b/c it offended generally accepted standards of decency and morailty

o  (3) D must have caused

o  (4) Severe Emotional Distress

§ 

v  Causation – Liable for More Broad scope of results than for N

v  Affirmative Defenses

o  Consent

§  Policy RX

·  Deterrence

·  Autonomy- State is violating

§  Majority RULE- When parties engage in mutual combat in anger, each liable to other for physical injury

·  Consent isn’t a defense

·  Policy RX – Deter Ds from fighting

§  Minority RULE – When parties engage in mutual combat in anger, act of each is unlawful & recovery is denied in civil claims, at least in absence of excessive force OR malicious intent to do serious injury

·  Consent is a defense

·  Deter Ps from fighting

§  Prize Fighting RULE – Parties engage in Mutual combat not in anger but b/c of prize of winning should not be able to recover due to death resulting from such behavrior

·  Rules above don’t apply b/c combat was not in anger

·  Policy RX- Should not reward person who lost (tough luck)

o  No man shall profit from his own wrongdoing

·  Consent is a defense and bars recovery

·  HART – Fought for prize and P died. P’s estate sued and D defended that P consented. Crt held consent is a defense here and bars Ps recovery

o  Self-defense

§  Policy Reasons – Self-preservation

§  (1) Belief – D’s belief in the necessity of force must be honest

§  (2) Reasonable belief – objective evaluation of Ds subjective knowledge

·  Context- Specific knowledge of D at time D acted

o  Doesn’t matter if belief was a mistake as long as it was reasonable

·  COURVOISIER- Ppl were rioting outside Ds building, throwing stones at D. D fired shot into air and P, a cop moved toward D announcing her was an officer. D didn’t hear and because of his bad vision, shot P. Crt held that it was reasonable under D’s circumstances to believe that using deadly force was necessary to preserve oneself.

·  Policy RX- Want to allow ppl to protect themselves and sometimes D don’t have time to assess whether there is an actual threat and must take action to preserve themselves

§  (2) In Imminent Threat

·  Cannot preempt potential future harm (go to police instead for protection)

§  (3) Reasonable Means

·  Policy RX- Minimizing the use of force as a means of self-protection

·  No retaliation

§  Duty to Retreat

·  General RULE- D has no duty to retreat when threatened by force

·  Exception – For Deadly Force, minority and REST say when threat is deadly force, D has a duty to retreat

·  Trend – Majority still hold no duty to retreat when using deadly force

§  Limits of self-defense defense – D may only use reasonable force

·  No retaliation

·  Imminence of harm

o  Cannot preempt potential future harm (go to police instead for protection)

·  Reasonable means: cannot use deadly force against non-deadly force

o  Proportional

o  Defense of 3rd Party – reasonably belief that force is necessary

§  Broad Privilege (Majoirty) – Ds not liable even reasonable belief was mistake

§  Limited Privilege- (Minority )– The reasonable belief must be correct

·  Shoe-stepping – D only privilege to defend if 3rd party V had privilege to defend for himself

·  If 3rd party V was initial aggressor, then D cant defend V b/c V had no self-defense privilege.

o  Necessity –

§  Necessity Defense is used by a Trespasser –

·  Excuses Tort of Trespass

o  Expelling D from Prop is not privileged when D is there out of necessity. If LL feels its unsafe, then LL has privilege to expel.

·  Probably Doesn’t excuse tort of destroying Landowner’s property

o  Trespassor still has debt to LL if Trespassor destroy LL’s prop

·  Intruder has duty to let LL know why his trespass is privileged.

o  Otherwise, it is presumed that inrusion isn’t privileged and LL has right to expel intruder from LL’s prop

§  VINCENT – D keeps boat at P’s dock and storm hits and D cant leave dock. This eventually ruins the dock. Thought D is not condemned for his act, D still should repay P for using P’s prop and destroying it. Crt compared D to starving man on ship who eats Ps food to save his life but after, must still pay P back

§  Private necessity- incomplete defense

§  Public necessity – complete defense

·  D’s protection of landowner’s property that D is trespassing on is a complete defense

·  When D’s act is protecting the ‘entire public’, D has complete defense

o  E.g.- Shooting a rabid dog, that poses a threat to public

§  Reasonable means – Risk averted must be greater than the risk imposed by D

·  E.g. – D cant take bomb that’s about to explode and throw it onto neighbors property b/c the risk imposed is equal to the risk averted

o  Defense of Prop – think force is necessary to stop the intrusion

§  Policy RX – Life is more important than land

§  Elements

·  Reasonable Belief

·  Reasonable Means of Force (Least force necessary)

o  KATKO- D had abandoned house where P would go to steal glass jars. D knows about trespassing and several ‘no trespass’ signs are put up but don’t stop P. D puts a spring gun aimed at P’s leg if P comes back to trespass. P is severely hurt by spring gun. Crt rules that owner may use reasonable force in protecting property but right does not extend to taking a human life or inflicting great bodily injury and thus D, homeowner is liable.

o  If peacable intruder, D must request they leave first

o  If non-peacable intruder, D can push them off land

STRICT LIABILITY

v  Definition – SL is liablit imposed w/o regard to D’s N or intent to cause harm.

Ø  No fault required but on policy choice to place accidents losses of the activity on the actor and not on the victim

v  Policy RX Arguments

Ø  Corrective Justice - Fairness

§  Reciprosity of Risk - Based on the unilateral nature of the risk D has created.

·  This is why SL isn’t imposed on NORMALLY dangerous activities drivers of cars

¨  See HAMER v. JENNINGS

Ø  Collective Justice - Economic Considerations

§  Loss Spreading – Spreading out the Costs of Accidents

·  Ds must bear costs and not individual Vs because Ds are in best position to pass over those costs to the general public consuming their products. Losses therefore will be distributed among many instead of a few Vs. And better for everybody to pay a little than for P to pay the full price.

·  Supports policy for Abnormally dangerous activities

§  Loss Reduction – Deterrence

·  Prevents cost of accidents by deterring companies from continuing such high risk activities and giving them greater incentive to adopting alternative ways of achieving the same goal.

·  Even if Ds continue these activities, they will take extra precaution to avoid these accidents.

§  Loss Allocation – Ds will internalize the costs of their activities.

·  Society will move closer to its economic ideal of optimally allocating its limited resources

¨  Ds will now start to base what is in their own private economic interest on what is the public’s economic interest. B/c now the public’s losses resulting from their activities become their own losses.

¨  Ds will feel the pain of accidents and readjust whether these activities should be conducted based on whether this is most economically efficient for the entire community, not just themselves

¨  P will feel the pain of increased cost of products to society