TORTS 1 OUTLINE. Bernabe
I. Introduction
A.Torts, the goals of tort law and the theories of liability
1. Introduction p1-4
2. Brown v. Kendall p6-10:
-Dogs fighting.
-Introduces concept of negligence, tort law no longer JUST intentional actions.
-Plaintiff has burden of proving that Defendant’s conduct negligent. Defendant’s conduct that which must be evaluated.
3. Spano v. Perini p13-15
-NYC Blasting; force causes damage to Plaintiff’s garage.
-Neither Intentional Tort, nor Negligence, but…
-STRICT LIABILITY: LIABILITY WITHOUT FAULT
4. Note 3, p.15
5. Abraham 1-20
B,The concept of damages
1. Introduction p519
2. Notes 1-4 p519-520
3. Notes 5-27 p531-539
4. Notes 1 & 3 p547-548
5. Damages to property p548-550
6. Punitive damages p550-551; Notes 3 & 7 p562-563
7. Chemerinsky online
II. Liability for damages caused by intentional conduct
A.The concept of intent
- Intent: underlying common element of all intentional torts. If plaintiff wants to claim an intentional tort, must prove that defendant’s act was volitional.
- Intent proven in 2 ways.
(1) Willful purpose: Defendant must have desired to cause some physical or mental effect on Plaintiff.
(2) Substantial Certainty: Defendant knew ‘with substantial certainty’ that tortious event would result from his conduct.
1. Substantial Certainty
-Garratt v. Dailey p17-20
- kid pulled chair out from babysitter, causing her injury. Jury found that kid did not mean harm.
-Issue: Can Plaintiff bring cause of action for an intentional tort when she cannot prove the intent to harm?
-Holding: YES. If Defendant acted with SUBSTANTIAL CERTAINTY that pulling the chair would result in Plaintiff falling, satisfies element of intent.
- DEF’s desire to harm different from DEF’s desire to cause prohibited contact. Both satisfy intent.
2. Transferred Intent
-Talmage v. Smith p28-29
-Defendant threw stick at direction of a boy who was on his roof, missed him, but hit another boy who was out of DEF’s sight, unaware he was there.
- Issue: Whether element of intent is satisfied when Defendant’s conduct was not against the Plaintiff but against someone else.
-Holding: YES. Doctrine of Transferred Intent; a Defendant acting with the intent required to establish liability for an intentional tort to one person will be liable to some other person with whom the DEF did not mean to be involved if the DEF’s actions affect that other person.
-can transfer intent between 5 intentional torts (Battery, assault, false imprisonment, trespass to land, trespass to chattels).
3. Understanding Torts 2-6 (recommended)
B.Some examples of causes of action based on intentional conduct
1. Battery: 4 ELEMENTS
1-Volitional Act,
2-INTENT: with intent to cause a contact with another person that is harmful or offensive,
3-CAUSATION:causes such a contact directly or indirectly,
4-INJURY: the contact is either harmful or offensive
-offensive contact=contrary to a reasonable sense of dignity.
Types of Touching that Constitute Battery
-Unconsented.
-Objective standard for offensiveness: brushing by someone on the El vs. grabbing someone’s ass on the El
-Touching something other than Plaintiff’s body: When Defendant touches Plaintiff with an object, when DEF causes PTF to come into contact with something (like the ground), or when DEF touches something intimately associated with PTF, ie what the PTF is touching.
- Fisher v Carrousel Motor Hotel p35-36: Black guy at a conference, employee grabs plate away from him and calls him an offensive racist term
-Issue: Whether Plaintiff can bring a cause of action for battery when DEF does not contact the person directly, but rather touches an object that Plaintiff is holding.
-Holding: YES. Indirect contact satisfies contact element so long as it is offensive or harmful.
d. Understanding Torts p6-9 (rec’d)
f. A note on “vicarious liability”
- Definition: in some circumstances, a non-negligent person must pay for consequences of others’s actions. Why? Most times when the one doing the act is employee.
1)Best Torts Roadmap
2) Abraham p190-192
2. Assault: Interest protected: emotional well-being, protect against fear.
-3 ELEMENTS of Assault.
1-VOLUNTARY Act: DEFwillfully and voluntarily acts;
2-INTENT: to cause Plaintiff to expect imminent apprehension ofharmful or offensive contact,
-Intent required for assault is to make PTF feel fear, expectation, or apprehension.
- Different from intending to touch PTF.
3-CAUSATION: Causes such apprehension either directly or indirectly.
-Threat must be immediate to satisfy intent for assault.
- DEF’s Capability: must seem capable of fulfilling the threat. PTF must have reasonable belief that DEF will carry out threat.
-Western Union Telegraph v. Hill p37-39: Clock repairman drinking, said wanted to ‘pet’ her, reached at woman customer across counter top, she recoiled.
-Issue: Whether it must be shown that DEF capable of committing battery to satisfy reasonable apprehension
-Holding: YES. For there to be reasonable apprehension, must prove that DEF. capable of fulfilling threat.
b. Notes 4 & 7 p39
c. Understanding Torts p9-14 (rec’d)
3. Intentional infliction of emotionaldistress: 4 Elements
1-Intentional or Reckless Act
-Intentional: PTF must prove that DEF intended to cause emotional distress by conduct.
-Reckless: Deliberate disregard of a high degree of probability that an injury will result.
2-Extreme and Outrageous Act
-Outrageous: Beyond what’s tolerable in society.
3-Causation between Act and…
4-Plaintiff to feel severe emotional or mental distress
- used to have to manifest self physically, not so much anymore
-so severe that no reasonable person can be expected to endure.
-. Harris v. Jones p57-60: DEF is boss, makes fun of PTF for having stuttering problem. PTF says aggravated stuttering problem.
Issue/Holding: DEF’s conduct did NOT satisfy elements of IIED; #3 and #4 not satisfied. All 4 Elements must be met to make prima facie case.
b. Notes 1 & 2 p56-57
c. Note 10 p63-64
-Note: NOT a tort that qualifies for transferred intent.
d. Taylor v. Vallelunga p64-65: daughter witnesses father get beaten, unbeknownst to the DEFs.
-Issue: Whether PTF can support cause of action for Intentional Infliction of Emotional Distress when cannot prove that DEF knew she was present during act of beating, nor could she prove that they knew of father-daughter relationship at time of beating.
-Holding: NO. PTF needs to prove INTENT; prove intent by proving that DEFs knew she was present and knew of familial relationship.
e. Understanding Torts p21-28 (rec’d)
4. False imprisonment: 4 ELEMENTS
1-VOLITIONAL Act
2-INTENT: to confine person within boundaries set by Defendant
3-CAUSATION: person is confined
4-AWARENESS: Plaintiff aware of own confinement.
a. Big Town Nursing Home v. Newman p40-41: Man kept in nursing home against his will for several days, kept with crazies.
-Holding: YES, Confinement against PTF’s will=False Imprisonment.
b. Parvi v. City of Kingston p42-44: Cops took a drunk to a city golf course, so he could walk it off. PTF does not recall all details, due to intoxication.
Issue: Whether lack of recollection is same as lack of awareness.
Holding: NO. PTF can bring cause of action for false imprisonment, because even if does not recall, he was aware AT THE TIME of confinement (However, with lack of recollection, difficult to prove)
c. Understanding Torts p14-18 (rec’d)
5. False Arrest: type of False Imprisonment;
-Enright v. Groves p46-48: Cop arrested woman for not producing her ID after saw her dog running without leash in the park.
-Issue/Holding: if placing under arrest, must be for an actual violation.
6. Causes of action based on the interference with property rights
a. Trespass to chattels and conversion
-Trespass to Chattels: 3 Elements:
1-Volitional Act
2-INTENT to cause an interference with Plaintiff’s chattel.
3-CAUSES or interference directly or indirectly.
1)Glidden v. Szybiak p75-76: Little girl played with DEF’s dog, dog bit her. DEF said she trespassed on chattel, preventing girl to sue for negligence.
Issue: whether Little Girl’s engaging dog can be called trespass on chattel, which would excuse the dog biting her.
Holding: NO. Dog not in danger. In order to show little girl was trespassing, she must’ve *impaired chattel’s condition, quality, value*. Otherwise, no Trespass to Chattel.
-CONVERSION: 3 Elements:
1-Volitional Act
2-INTENT to cause interference with PTF’s chattel,
3-CAUSES destruction or serious interference with chattel directly or indirectly.
3) Restatement Torts 222A p85-86: What Constitutes Conversion: 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. Important factorsextent and duration of dominion or control, actor’s intent to control inconsistent of other’s right to control, actor’s good faith, harm done to chattel, inconvenience and expense to other.
4) Restatement Torts 223 p86: Ways of committing Conversion
-acquiring possession, ie stealing chattel
-damaging or altering chattel, ie intentionally breaking
-using chattel, ie
-receiving chattel, ie purchasing a stolen chattel
-disposing of chattel
-misdelivering chattel, ie delivering it to wrong person
-refusing to surrender chattel
Pearson v. Dodd p81-84: Sen. Dodd’s ex-employees took files after hours, gave to journos to make copies, then returned. Journos then used info to write stories.
-Issue: Whether Sen. Dodd can bring a cause of action for Conversion when DEF/journos used info from the Xeroxed docs that were returned without Sen. Dodd knowing that they were even gone.
-Holding: NO. a) Sen. Dodd was NOT substantially deprived of his property (docs), since they were returned without his knowing they were gone, thus not inconvenienced by the docs absence. And b) the info from the docs that was used in the newspaper not for monetary gain, invention, commerce; thus info does not qualify as something that can be converted. No real monetary value to the info on docs, so there is no remedy Court can give to PTF.
**NOTE on Conversion and Trespass to Chattels. When figuring which cause of action, factors are 1-extent of contact, and 2-duration of contact. DIFFS:
*Trespass to chattelMinor interference with PTF’s property. Remedysmall.
*ConversionDEF inflicts significant harm to PTF’s interest in his property. RemedyFair market value of item that was converted, ie taken or used.
5) Problem #1 Supp. p1
6) Understanding Torts p18-21 (rec’d)
b. Trespass to land: 3 Elements
-Volitional Act
-INTENT to cause physical invasion of another’s land
-intent to cause harm not required.
-intent to trespass not required.
-CAUSES such invasion, directly or indirectly.
-NOTE: for Trespass to Land, injury or damage NOT a required element in order to bring a cause of action.
1) Dougherty v. Stepp p66-67:DEF surveyed PTF’s unenclosed land, thinking it was his. Did no damage to land.
*Issue: Whether PTF can bring a cause of action for trespass to land when DEF’s unauthorized entry was accidental and did no harm.
*Holding: YES. Any unauthorized entry is a trespass to land, so long as DEF’s conduct is voluntary. No damage needed to bring a trespass to land action. The trespass itself is the injury.
2) Bradley v. American Smelting p68-70: PTF, land owner, suing DEF, smelting co, for trespass bc of emitted residue that falls on his land.
*Issue: Whether PTF can bring a cause of action for trespass to land when DEF when that which enters PTF’s land is a molecular by-product emitted from DEF’s factory.
*Holding: YES, but ONLY if molecules accumulate on land. If molecules dissipate, then cannot bring action for trespass, only for nuisance.
-Policy: PTF must show actual and substantial damages to bring action in cases like these, weighed against the benefit of what factory produces.
3) Note 2 p70: Nuisance protects PTF’s use and enjoyment of land. Courts require actual damage, do NOT require physical invasion onto land.
- Privileges in cases of intentional conduct
-Argument by DEF for why their conduct should be excused from tortious liability, ie, privilege.
1.Consent:
a. EXPIRED CONSENT; Rogers v. Board of Road Com’ers p72-73: Municipality placed snow anchors on PTF’s land with their consent. When Spring, forgot one. PTF ran it over w lawnmower and died.
*Issue: Whether PTF can bring a cause of action for trespass of land when they had consented to that trespass in allowing municipality to place snow anchors on land.
*Holding: YES. The consent defense does not stand bc the consent was only good for period of time when snow was falling. That consent was revoked once snow-season was over.
b. CONSENT IN SPORT: Hackbart v. Cincinnati Bengals p92-94: NFL game, DEF intentionally struck PTF after play was dead, injuring PTF.
*Issue: whether PTF impliedly consented to DEF hitting him after play was dead bc sport is inherently violent.
*Holding: NO. Consent is determined by **Rules and Custom of game**. If tort was outside of custom of game and outside of rules, for a jury to decide if conduct was tortious, or to determine “where the line is.”
c. MEDICAL CONSENT: Mohr v. Williams p94-97: PTF consented for doctor/DEF to operate on right ear. While ‘under,’ doc did surgery on left ear.
*Issue: Whether doctor can use consent defense against battery when consent was for operating on different organ.
*Holding: NO. In medical treatment, patient has, with a couple exceptions, complete autonomy over own body.
-Exceptions: emergencies, patient unconscious and immediate doctor action required, discovery and extension of operation.
d. CONSENT UNDER FALSE PRETENSES: De May v. Roberts p99-100: Doctor and untrained asst. helped PTF give birth, she assumed asst was a doc.
*Issue: Whether PTF can revoke consent for battery after it occurs upon discovering that DEF actually was not who the PTF thought he was.
*Holding: YES. Consent is revoked when PTF discovers that DEF’s self-characterization was deceitful.
e. Understanding Torts p30-33 (rec’d)
- Self Defense
- Notes on Self Defense p103-107:Reasonable belief, reasonableness of conduct, equivalency of conduct, defense must be similar from initial act that is being defensed. Immediacy
- Understanding Torts p33-36 (rec’d)
- Defense and recovery of property
- Defense by use of mechanical means: In defending one’s property, cannot use deadly force unless that deadly force is being used proportionally.
1)Katke v. Briney p107-110: PTF invaded DEF’s house, tripped up mechanical gun, shot him, injured.
*Issue: whether DEF can defend property against uninvited invaders with weapon of deadly force.
*Holding: NO. PTF’s trespass is not grounds to defend with deadly force, only justified when deadly force is proportional to what one is defending against.
2)Notes 1-4 p110-111: Privilege to defend land limited to reasonable force.
3)Katko poems online
- Recovery of Property: Prop owner has a ‘fresh pursuit’ right to recover prop when taken by another, as long as it is with reasonable force. However, after time has elapsed, owner has lost ‘fresh pursuit’ right, must pursue remedy legally.
1)Hodgeden v. Hubbard p113-114:Merchant immediately realizes that item just sold on bad credit. Found ‘buyer’ and took item away.
*Issue: Whether DEF has a right to recover prop that was just sold on fraudulent terms.
*Holding: YES. DEF has right to re-possess stolen prop peacefully, or with reasonable and proportional force.
2)Notes 1-6 p114-115
- Shopkeeper’s privilege against claims of false imprisonment: Storekeeper has privilege to detain a person suspected of shoplifting. Detention must be brief, must have reasonable grounds for suspecting crime.
1)Bonkowske v. Arlan’s Dept Store: Woman claiming false imprisonment when security guard asks her to empty contents of her purse bc she was suspected of stealing.
*Issue: whether there a shopkeeper can defend against a false imprisonment action by detaining a suspected thief for a brief time.
Holding: YES. Policy; Shopkeeper’s privilege is allowed to defend against false imprisonment claims when searching suspected thieves but not finding contraband. Also, allows shop to better police own store from thieves.
2)Notes 1-2 p117-118
- Understanding Torts p36-39 (rec’d)
- Necessity: when one is given privilege to take or use another’s prop.
- Public necessity: When a public entity takes over private prop.
1)Surocco v. Geary p118-120:Mayor or San Fran ordered PTF’s house burned in order to stem spread of a raging fire.
*Issue: Whether public entity can defensibly sacrifice private prop in order to save or stem destruction of more prop
*Holding: YES. Burden is on DEF to prove necessity. Individual rights give way to right of impending necessity.
- Private necessity: Property owner has no right to use force to repel a person who seeks to use property in a situation where private necessity privilege applies.
1)INFLICT HARM TO AVOID GREATER HARM: Vincent v. Lake Erie Transportation Co p121-123: DEF’s boat on PTF’s dock, heavy storm prevented boat from leaving, waves knocked boat against dock, caused damage.
*Issue: Whether DEF liable to pay damage caused by using PTF’s property out of necessity.
*Holding: YES. DEF has privilege to use PTF’s prop to save self from danger, but takes on liability for cost of his staying, like in this case, the dock.
- Understanding Torts p39-41 (rec’d)
- Justification: A bullcrap defense, per Bernabe
- Sindle v. NYC Transit Authority p128-129
III.Liability for damages caused by negligent conduct
- The concept of negligence: Conduct less careful than applicable standard of care requires to protect people from unreasonable risk of harm. Standard of care (usually)=reasonably prudent person under same circumstances. In determining negligence, must determine the conduct of the Defendant. Plaintiff has burden of proving Defendant’s conduct, as well as… 5 Elements:
-Duty to use reasonable care
-Breach of Duty
-Cause in Fact
-Proximate Cause
-Injury
- look at individual elements of cause of action, Plaintiff must satisfy all elements to make a prima facie case
- Introduction
- Brown v. Kendall p6-10: Dogs fighting, DEF separates dogs w a stick, accidentally hits PTF in eye.
-Holding: NOT intentional, should instead evaluate whether DEF’s conduct was that of a reasonably prudent person. If not, then is at fault and liable.
- Injury itself does not prove negligence; Cohen v. Petty p10-12: DEF driving, PTF a passenger, DEF has a heart attack, loses consciousness, crash, PTF injured.
-Holding: Driver did not breach his duty. Driver’s illness was without warning, DEF had no preponderance to illness. PTF could not show that DEF breached duty by driving.