Torts Are Wrongs Recognized by Law Grounds for a Lawsuit

Torts

GW ID______

What is tort law?
Torts are wrongs recognized by law grounds for a lawsuit.
The  is in some sense at fault b/c he intends harm or takes unreasonable risk of harm.
The ’s wrong must result in harm to another person or entity that the law is willing to say constitutes a legal injury.
Tort claims can be broken down into:
the interests they protect
physical injury to person or property
dignitary & emotional harm
economic harm
and the level of culpability they require
serious wrongdoing (intent or malice)
negligence (the lack of reasonable care)
 is guilty of no fault (strict liability)
Fault = to cause, legally
fault is wrongful, inappropriate, blameworthy
fault can be purposely or negligently; deliberate or careless
Van Camp v. McAfoos held no liability w/o fault for a three-year-old engaging in childish activities.
Principles of Liability
central principle of torts is the shifting of cost from π to 
two theoretical reasons:
the person caused the injury (strict liability)
the person who caused the incident for a morally blameworthy reason (fault-based liability)
Battery Elements
Act by 
Intent (actor desires to cause consequences of act or is substantially certain that the consequences will result from his action—purposeful or knowledge, RS) to cause:
Harmful contact or
Offensive contact or
Imminent apprehension of such a contact (intend to assault)
Dual Intent: intent to contact π in order to harm or offend the π (White v. Muniz)
Single Intent: Intent to contact contact turns out to be harmful or offensive (Wagner v. State)
Substantial certainty test: Intent can be shown by demonstrating the actor had “substantial certainty” that his action would result in contact.
Recklessness: “when a person’s conduct creates a known risk that can be reduced by relatively modest precautions” (Restatement (Third) Torts §2)
Can be transferred from intended to unintended victim. (Stoshak)
Causing
Contact
Direct
Indirect
Object connected w/ π’s body counts as person (i.e. cane)
π’s Knowledge of contact not required (compare w/ assault)
Foreign Substance: §18C if actor causes π to come into contract with a foreign substance in a manner that will harm/offend that will be a battery
That is either
Harmful or
Offensive §19
Objective Test: If offends dignity of a reasonable person or
Would offend ordinary person
One not unduly sensitive
Via prior knowledge,  knows π will be offended by contact
If sensitive to offense unreasonably—must notify
Intent (to harm or to offend) +Touching + Consequence (physical harm (§13) or offensive contact (§18)) = Battery
 had a particular intent
a particular consequence resulted
Battery Notes
Child Liability: Children, in most states, may be liable for torts they commit as long as π can prove intent (cutoff is usually 7)
Parental liability
Parents can only be sued for minor’s tort action if a statute permits it or parent is themselves at fault
Common law proscribes no guaranteed liability just being parent
Statutes usually require
Child’s tort must have been committed willfully or wantonly
Damages are limited
Not easy to win on claim of parental negligent supervision
§16: Extended liability principle for an intentional tort: the conscious wrong-doer is liable for all damages caused, not merely those intended or foreseeable (unforeseeable damages apply)(intentional tort thin skull rule)
sometimes there is a benefit to pleading a negligent tort: statute of limitations, ’s insurance coverage.
Battery Cases
Synder v. Turk
“I’m working in a hole here!”
Expands harm for battery to include offensive contacts.
Cohen v. Smith
Offensiveness includes religious objections (Jehovah and blood transfers, religious woman and no male touching) and it will be battery if it is made known that the action will be offensive
Mullins v. Parkview Hospital
Intern performs procedure against the π’s wishes
π no knowledge of the lack of consent & was under no obligation to inquire as such in her position  no intent.
A.R.B. v. Elkin
Kids battered and sexually abused by Dad—judge only awards nominal
Battery s are entitled to compensation “for bodily pain, humiliation, mental anguish, & other injuries that occur as a necessary & natural consequence of the tortuous conduct.”
w/o having to prove, just what is fair and reasonable.
Garratt v. Dailey
Child pulls chair out from aunt, “tries” to get it back under her
The boy’s age was not a factor, except in judging his experience, capacity, & understanding.
Substantial certainty test: Intent for battery can be shown by demonstrating the actor had “substantial certainty” that his or her action would result in contact.
Recklessness: “when a person’s conduct creates a known risk that can be reduced by relatively modest precautions” (Restatement (Third) Torts §2)
White v. Muniz
Old woman hits caregiver in jaw during diaper change
One must appreciate the harmfulness of their contact in order to be liable for the intentional tort of battery.
Look into eyes of π, no special rule for elderly
Dual Intent: Intent to contact π in order to harm or offend the π (Col.)
Wagner v. State
Crazy man, w/o intent to harm or offend, only contact hits woman
Battery requires intent to contact only
Then determine if contact is harmful or offensive (regardless of the actor’s intent to do so).
Single Intent: Intent to contact contact turns out to be harmful or offensive (Utah)
Stoshak v. East Baton Rogue Parrish School
Teacher hit during breakup of a fight
Transfer of intent: intent of the π trying to hit original victim is transferred to the .
Bask v. Scherzer
Mother hit the face breaking up fight between two boys
Restatement (Second) of Torts §16
The transfer of intent applies to these two trying to hit one another and unintentionally hitting third party—even if they were not aware she was in the vicinity.
Polmiater v. Russ
When  intends to harm the π, but does so b/c of insanity, ordinary rules of battery apply. Insanity is not an excuse from tort liabilities. (RS agrees)
Public Policy Reasoning:
don’t want to encourage the immunity of insane people
went to encourage families to confine.
When two innocent people suffer a loss, it should fall on the one who caused the loss.
Assault Elements (§21)
Act by Δ
mere words not enough
Intending to cause:
imminent reasonable apprehension of such a bodily contact or
a harmful bodily contact or
offensive bodily contact
π is put in reasonable apprehension of imminent battery
Apprehension is knowledge: the π must know that assault is taking place
The imminence clause is included to provide an opportunity/motive for  to go to the authorities, hide, or seek help
does not mean immediate in the sense of instantaneous contact… It means no significant delay
Apprehension: normally aroused in mind of reasonable person
Assault Notes
Often, assault proceeds a battery
Yet, you can have an assault w/o a battery
& a battery w/o an assault (think about it),
or both together
An assault consists of touching the mind, not the body, and therefore the recoverable damages are for mental trauma and distress
π must reasonably apprehend an imminent touching
Imminent apprehension: “the apprehension created must be one of imminent contact, as distinguished from any contact in the future.
‘Imminent’ does not mean immediate in the sense of instantaneous contact… It means no significant delay.” RS
Transfer of intent: the  can intend to commit assault, but commit battery—the intent is still transferred
Assault Cases
Collison v. Medley
Crazy family shows up in trailer for talking w/ daughter
The apprehension must be one that would normally be aroused in the mind of a reasonable person, & the tort is complete w/ invasion of the π’s mental peace.
False Imprisonment Elements (§§35-41)
Act by Δ
Intent to confine
π is confined/restricted to a limited/bounded area (w/ no knowledge of a reasonable means of escape) by:
Physical Force (against π/π’s family) or
Threats of Immediate Harm (to π/π’s family/property) or
Actual or Apparent Physical Barriers (includes refusing the release π when duty to do so) or
Assertion of Legal Authority (McCann v. Wal*Mart) or
Other Duress
π must want to leave (Hardy v. LaBelle’s Distributing Co.)
π must have either known of the confinement or been harmed (physically)
π is conscious of the confinement or
π is harmed by it (physically)
False Imprisonment Notes
If intent to confine is not present, but confines π and causes bodily harm, Δ is negligent.
Δ not liable if he intentionally prevents π from going in a particular direction in which π has a right to go.
No physical threat or physical confinement necessary
highlighted notes in Dobbs, p. 63-64
False Imprisonment Cases
McCann v. Wal*Mart Stores, Inc.
Wal*Mart employees thought little McCann was a shoplifter
The  induced reasonable people to believe either that they would be restrained physically if they sought to leave, or that the  was claiming lawful authority to confine them until the police arrived, or both.
Hardy v. LaBelle’s Distributing Co.
The individual may be restrained by acts or merely by words, which he fears to disregard. Here there is ample evidence to support Hardy was not unlawfully held against her will:
You must try to leave or make clear you want to leave to qualify for false imprisonment.
Intention Affliction of Emotional Distress Elements
Restatement (Third) of Torts §45:
“An actor who by extreme & outrageous conduct intentionally or recklessly causes severe emotional disturbance to another is subject to liability for that emotional disturbance & if that emotional distress causes bodily harm, also for the bodily harm.
Direct Victim of Emotional Distress
 acted intentionally/reckless
intentionally: acts w/ the purpose of causing severe emotional distress or acts knowing that severe emotional distress is substantially certain to result
reckless: actor knows of the risk of severe emotional distress (or knows facts that make risk obvious) and fails to take precaution that would eliminate or reduce the risk
burden is slight relative to the magnitude of risk, thereby demonstrating actor’s indifference
Act is extreme and outrageous.
Factors to consider:
Exceeds all bounds of decency accepted in a civilized society (GTE Southwest v. Bruce)
Regular, repeated, or continued after protest
Abuse of Power
Against a vulnerable or sensitive  (known to π)
’s Acts Caused the Emotional Distress
must show causation from ’s conduct to π’s distress
The Resulting Emotional Distress was Severe
Severe: so bad that no reasonable person should be expected to endure it (Cf Jones v. Clinton)
High Standard of Proof (e.g. more than π’s claim that she is distressed is needed—a palatable effect is require) To weed out fakers courts look for π to show:
Loss of work
Medical attention/medicine
Psychological treatment
Physical, bodily harm
Expert testimony
Third-Party Victim of Emotional Distress
Δ acted intentionally/recklessly towards X3
π is Present
Δ is aware that π is present or is reckless about π’s presence
Act is extreme and outrageous
π must either:
Be a family member of X3 or
If not a family member, experience distress that results in bodily harm
Intentional Infliction of Emotional Distress Notes
Vicarious liability: Your employee is generally your liability though not usually for intentional torts except when they are operating in some attempt to achieve employer’s goals.
A person can not be held liable for exercising a legal right even when they know it will cause emotional distress
First Amendment Considerations
Free speech claims can protect tortfeasors
Can divine punishment threatened by a priest/rabbi—or the threat thereof be a tort for intent to cause emotional distress?
Intentional Infliction of Emotional Distress Cases
GTE Southwest v. Bruce
The severity and regularity of ’s abusive and threatening conduct brings his behavior into the realm of extreme and outrageous.
beyond all possible bounds of decency, & to be regarded as atrocious, & utterly intolerable in a civilized community
Conduct such as being regularly insulted, intimidated, & threatened is not typically encountered, nor expected, in one’s employment, nor should it be accepted in a civilized society.
Jones v. Clinton
Additional element: “the π’s emotional distress was so severe in nature that no reasonable person could be expected to endure it.”
The court sees Clinton’s conduct as a mere sexual proposition, relatively brief in duration, did not involve any coercion, or threats of reprisal & abandoned as soon as π made it clear it was unwelcome.
Homer v. Long
Dr. Long used confidential trust to seduce Homer’s wife
There is a presence requirement for a 3rd party to claim intentional infliction of emotional distress aimed at another.
Third Party Rule: When A acts on B. C must be present & needs a plus factor: (1) family member or (2) bodily harm, to sue for intentional infliction of emotional distress.
Rare exceptions:
Relationship of target to π
Relationship between person committing action and the π
The egregiousness of the conduct
Defenses to Intentional Torts
Self-Defense
Non-deadly Force (§63) is allowed when:
Reasonable apprehension
Imminent
Reasonable belief of circumstances and strict time element (Thomas v. Bedford)—no verbal enticement §70
Battery
Defender has no duty to retreat
But excessive force is not acceptable, must only use force reasonable to repel
Deadly force (§65) is allowed when:
Reasonable belief
Imminent
Reasonable belief of circumstances and strict time element—no verbal enticement §70
Force is likely to cause death or serious bodily harm
Harm can only be prevented by the immediate use of such force
Actor has no duty to retreat if
Actor cannot safely retreat or
Actor is present at his dwelling or
Actor is carrying out a lawful arrest
Or else a duty to retreat before using deadly-force
Defense of a Third Person (§76)
Actor is privileged to defend a third person when
third person has privilege for self-defense and
intervention is necessary to protect third person
Notes on Self Defense
Rule: One is privileged to use reasonable force to defend against harmful or offensive bodily contact and against confinement
Restatement §70: available if the actor correctly or reasonably believes to be necessary for his protection
Reasonable deadly force: ’s privilege extends only so far as reasonably necessary to prevent death or serious harm
Retreat: if attacked, not required to retreat, yet some states do have a reasonable retreat requirement
Excessive force: The privilege covers only reasonable force, any excessive force is unprivileged & the  is liable.
A  who continues the “defense” after the fight is over is likewise liable (Touchet v. Hampton)
Verbal Provocation: generally not sufficient to raise self-defense
Assault & imprisonment in self-defense: the RS specifically recognizes that one may be privileged, given appropriate facts, to commit what might otherwise be an assault or false imprisonment in self-defense, §67.
§70 also includes a caveat of a harmful or offensive contact that itself would not be privileged.
Defense of the Third Persons: May defend others on the same basis of self-defense as long as the belief that the attack on the third party is reasonable it is privileged under §76.
Self Defense Cases
Touchet v. Hampton
Angry, threatening former employee walks into old boss’s office and gets pummeled by him for 20 secs.
’s act can be justified as self defense if there was an actual or reasonably apparent threat to his safety & the force employed was not excessive
mere words, even those designed to excite or irritate, “cannot excuse a battery” in the name of self defense,
plus he used excessive retaliating force
Thomas v. Bedford
Teacher hit student 3 or 4 times in “project” room
Corporal punishment, if allowed by state law, cannot be unreasonable or excessive—must be reasonable
Aggressor doctrine will not apply when the retaliation is 10-15 minutes later
Defense of Property
Shopkeepers
RS: Can detain, with immunity, if: (§120A not in red book)
There is a reasonable cause to believe the person stole (§120A)
The manner of the detention and the actions taken in an attempt to detain must be reasonable
The length of time of the detention and the actions taken in an attempt to detain must be reasonable
Common Law: Can detain if on your premises:
π is committing a felony in your presence or
π is committing a misdemeanor that is a breach of peace or
π stealing
“detain at your peril”—false imprisonment liability
Defense of Property
Non-Deadly Force
Personal use of force allowed if: §77
Belief that Intrusion is not privileged: and
Intrusion is not privileged or
Intruder negligently causes actor to believe its not privileged
Reasonable belief that intrusion can only be prevented or terminated by force and
Request to stop
Actor made a request to stop or
Actor reasonably believes request will be useless or
Actor reasonably believes substantial harm will be done before a request can be made
Mechanical Device allowed if: §84
Use is Reasonably necessary and
The particular device is reasonable and
Device is known by probable intruders because:
It is customarily used for such a purpose or
Reasonable care is taken to make its use known
Deadly Force via a Mechanical Device §85 (Katko)
Reasonable belief of imminent force is likely to cause death or serious bodily harm.
Deadly force is not a reasonable amount of force for defending property, as a matter of law (human life = ∞)
And harm can only be prevented by the immediate use of such force
Defense of Property Notes
TX. and AZ. shield a  from liability when he uses deadly force to prevent burglary among other crimes.
Defense of Property Cases
Peters v. Menard Inc.
Chased possible thief around and then off property into river
Court allowed immunity from liability as long as reasonableness categories were met and allowed it carry over to a chase off the premises in attempt to detain (includes a continuing pursuit)
Katko v. Briney
Owner of disrepair home sets up spring gun
No immunity for spring guns even when the π was committing an illegal act. Deadly force is not an allowable protective measure. There must be imminent threat of great bodily harm (can only do what you’d be able to do in person).
Consent Elements
Consent, of π, is a defense unless/if:
Duress or coercion
By virtue of inequality of power (prisoner, employee)
Credible physical threat
Incapacity ( must be aware of it)
mental disability (Saucier ex rel Mallory v. McDonalds), intoxication, underage
where capacity is crucial, standard is either:  acts at his peril or  is protected if reasonably thought π had capacity
Fraud- w/ regard to a material element (e.g. $ or timing doesn’t usually negate)
Procure consent by lying or concealing material info.
Illegality of act
Act in excess of consent given
Obtaining Consent
Express/Explicit
Verbally or in writing give someone consent to commit a tort they are exempt from liability
Implied
Objective theory: implied from observable manifestations (treat silences as no)
From π’s behavior as reasonably interpreted by  (O’Brien)
Consent implied by law in medical emergencies
Consent Notes
Consent has scope: can sue an invited guest for going uninvited to attic
Therapists are statutorily banned from relations w/ their patients in some states
Employers face scrutiny when an inferior is reliant on a job
Age-based consent for minors is dependent on their age
A mentally disabled adult may not be able to consent to sexual affairs
Exceeding the Scope of the Conditional Consent:
Medical battery involves doctors exceeding scope of patient’s consent and the ordinary rule is that it is battery when a Dr. treats a patient w/o the patient’s consent, or in excess of the scope of a patient’s consent—specific consent control general consent
may not apply in emergency situations when consent is unavailable
or when patient is too intoxicated to understand situation
when a third party is designated to give consent for an incompetent, should they choose?
what is in best interest of the person
what the person would do if competent
Mistake: to avoid the effect of manifested consent, the π’s mistake must be “about the nature and quality of the invasion of conduct”
Collateral mistakes about time or price do not nullify
Courts are unsure if consent to illegal acts is possible
RS rejects any view that consent is ineffective and provides that consent is generally effective and that a statute may be made criminal b/c it often induces consent by pressures from which the legislature is trying to protect
Consent Cases
Robins v.