1-Best Torts Outline PDF

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CHAPTER TWO – INTENTIONAL TORTS

A. Case Procedure a. Complaint i. Facts must establish elements of the tort. ii. If facts do not establish elements, there will be a motion to dismiss for failure to state a claim upon which relief can be granted. 1. Even if we accept all of the allegations as fact, it doesn’t meet the elements of the tort. iii. Motion to dismiss can be for other reasons as well. b. Answer i. Affirmative defense 1. Statute of limitations has expired, etc. ii. Motions for summary judgment 1. More facts are understood 2. Issues are resolved in the favor of the non-movant c. Discovery i. Process of evidence gathering. ii. Parties are required to share some things, and not required to share others. d. Trial i. Facts are proven. e. Verdict i. The judge can take the case away from the jury because it’s so obvious and a jury isn’t needed. ii. JNOV – judgment notwithstanding the verdict 1. Judge can overrule jury. iii. Tort law is state law, so after the state court of appeals, you’re done – unless there is diversity or a constitutional question. 1. If you make it to the federal system, the federal court will apply state law. B. Intent a. Definition: Purpose or knowledge to a substantial certainty of offensive contact. i. Applies to ALL intentional torts. b. Can have substantial certainty but not have a purpose. Both are not required. c. Garratt v. Dailey (example of indirect contact) pg.16 i. Garratt (woman) is suing Brian Dailey (5 year old) ii. Battery case - act is done with the intention of bringing about a harmful or offensive contact or with the knowledge of that offensive contact is likely to be produced. iii. No question in this case of consent or privilege, thus question of intent iv. Why focus on intent and not negligence? 1. If negligence -- Reasonable person of like age and development (5 years) is tricky here 2. If intent -- Better for plaintiff to focus on Brian as an individual v. Need to determine whether Brian had substantial certainty of contact vi. Tender years doctrine states that children under a certain age cannot have negligence (general terms). Intent is person specific (specific terms) vii. Court remands case and decides Brian had intent. viii. Vicarious Liability – responsibility of the superior for acts of the subordinate 1. LA 23:18 – parents are responsible for the torts of their children under certain circumstances – NOT ALWAYS

d. Caudle v. Betts (e.g. of how harm does not need to be intended to constitute battery) pg. 20 i. At an employee Christmas party, Betts chased Caudle around with an electric condenser to shock him. This resulted in Caudle locking himself in an office to hide. Caudle then sustained long-term injury and nerve damage from the electric shocks. Trial court and appellate court found no tort committed because no injury was intended, but the Supreme Court court reverses. 1. Is there intent? – same standard of intent as Garratt v. Daily a. Damage – compensatory in Louisiana. 2. Do not need to intend to do harm. Intent instead to contact in a harmful or offensive manner 3. Do need to intend to contact (that normally is harmful or offensive by some third party standard) a. Consent is presumed in some cases (e.g. tapping someone on the shoulder) and not considered harmful or offensive ii. Workers Compensation 1. Because Caudle is an employee, his exclusive remedy for negligence is workers comp. 2. Exclusive remedy for workers on the job except for when it is an intentional act – allows worker out of the exclusivity provision of workers compensation 3. If intentional – can sue both company (vicarious) and individual, but company can only be held liable if the action was done during the scope of employment relationship (however, no double damages will be awarded) iii. Scope of liability extends further for intentional torts as opposed to negligence. However limit is gray area defendant on how much money the employer or liable party is worth. Vicarious liability says the employer is liable. iv. Vicarious liability doesn’t involve fault on the part of the employer. Was there an employee/employer relationship? Was there a tort? Yes – then vicarious liability. v. Court reverses and remands to court of appeal. e. Davis v. White pg.23 i. White argues with Tipton, who mounts his motorcycle and speeds away. White tries to shoot Tipton, but misses and hits Davis, who is washing is car. Davis brings suit against White for battery. 1. Doctrine of Transferred Intent a. One who intends a battery is liable for the battery when he unexpectedly hits a stranger instead of the intended victim b. Transfer from one tort to another and/or from one person to another c. Extends liability of intentional torts for unintended consequences. d. Transferred intent is NOT a rule – just a guideline. e. Person to person transfer – Davis v. White f. Tort to Tort transfer – meant to frighten him, but actually shot him.

i. It is important to keep this an intentional tort, because it’s not dischargeable through bankruptcy. Thus, using negligence instead of battery is a bad idea. ii. He attempted to assault, but battered. The intent to assault transfers to the intent to batter. The attempt to batter Tipton transfers to the intent to batter Davis. ii. Case shows the significance of claiming an intentional tort – the judgment debt cannot be discharged through bankruptcy. C. Battery a. An intentional tort that protects a person’s interest in being free from physical contact with his or her person b. Plaintiff must prove a voluntary act (that causes a harmful or offensive contact with the plaintiff) and intent on part of defendant c. Not necessary to prove actual harm d. Elements of a battery i. Intent to contact in a defined way ii. Contact iii. Lack of consent 1. Consent can be an affirmative defense. iv. Harm or offense – you don’t have to intend the harm that occurs – just the contact. 1. Doesn’t have to be harmful or offensive, just one or the other. e. Need intent to contact in some offensive/harmful way when measured by some objective measure (reasonable person’s standard). i. Need intent in addition to actual contact and actual harm or offense f. Bad breath – could go around in circles with no answer. It’s a gas, so could be a tort, but at the same time there are many gases we are reasonably expected to breathe in on a daily basis. g. Leichtman v. WLW Jacor Communications, Inc. i. Antismoking advocate goes in for radio interview, and one of the hosts (upon encouragement by the other) repeatedly blows smoke in the advocate’s face. Leichtman files suit for battery. ii. No such thing as a “smokers’ battery tort. It’s been discussed, but doesn’t exist. It’s either a battery or it isn’t. 1. Contact does not have to be person to person e.g. shooting, throwing something a. State Supreme court ruled that particulate matter is sufficient to form contact for a battery b. Water does not have particulates and works. What about stench? Sound? 2. It is up to the courts to make the physical impact argument, biological argument, case precedent. 3. Action was within the scope of employment. Thus vicarious liability. h. Funeral Services by Gregory, Inc., d/b/a The Kimball Funeral Home v. Bluefield Community Hospital i. Funeral company sends workers to pick up a body. Hospital suggests they wear extra protective gear, but doesn’t explain why. They didn’t discover until later that the patient had AIDS, so the embalmer is suing the hospital for battery because he was unaware that the body was HIV positive. Trial

court said there was no battery because there was no harmful or offensive touching. Appellate court rules that exposure is critical to this case. 1. Battery: have to have had contact with contaminated bodily fluids 2. Statute of limitations – time limit that forces you to bring a lawsuit within a reasonable time after an actionable action has taken place. a. Embalmer can’t push for negligence because the statute of limitations had run, and thus, he had to push for intentional tort. 3. Negligence: if he would have known that the body had AIDS, he would have handled the body / procedures differently 4. The embalmer consents to touching dead bodies, so this cannot be used for offensive contact. In this case, the contact is more offensive than otherwise because the body was contaminated. 5. It’s hard to say that the hospital intended not to tell him. This draws the line between negligent behavior and intentional behavior. 6. What is the theory you would use to argue that he should have taken precautions? Consent to contact 7. Case should fall under negligence – no intent (however negligence has to have actual harm, not just the fear of) ii. The appellate court rules that he cannot recover because there is no battery. D. Assault a. Definition: protects a person’s interest in being free from apprehension of harmful or offensive contacts with his or her person b. Words alone do not constitute an assault (must be combined with other circumstances or acts) c. Battery and assault: Elements are same except for the result d. Intent to batter will transfer to the intent to assault and vice versa. i. Intent will transfer among the five trespatory torts (battery, assault, false imprisonment, trespass to land, and trespass to chattel – you cannot transfer to or from intentional infliction of emotional distress e. Assault must be imminent (cannot be for a future event) f. Dickens v. Puryear (case dealing with IIED) i. Plaintiff was soliciting sex from defendant’s daughter, and giving her drugs and alcohol. Dad and friends organized and tied plaintiff to a farm implement, beat him to a pulp, and threatened to castrate him. They told him if he didn’t leave the state, they would kill him. 1. Statute of limitations has expired for assault and battery. The issue here is intentional infliction of emotional distress. (IIED) ii. Assault (imminent – no significant delay) and IIED (future threat) are mutually exclusive (one or the other) iii. IIED = at the end of the encounter, they threatened to kill him if he didn’t do as they ordered when he got home 1. Not imminent enough to make an assault 2. We would prefer assault, because it’s much easier to prove. IIED is new, and thus has lots of limitations as to proving it. iv. Assault elements: 1. Intent to batter (intent to cause a harmful or offensive contact with person of the other or third party) or intent to assault (imminent apprehension of such a contact and 2. Person put in imminent apprehension of attempt to batter or assault (reasonable on part of plaintiff) a. Words alone cannot constitute assault (have to think battery is coming)

3. You must have the reasonably apparent means to complete the battery. E. False Imprisonment a. Protects a person’s interest in having one’s body free from restraint or confinement b. Many times authority related c. Privilege is a factor in these cases d. Elements of False Imprisonment – mentioned in class: i. Intent to confine or transfer from assault and/or battery intent ii. Conscious awareness 1. Not all courts require this. iii. Actual confinement 1. some courts require that conscious awareness and lack of consent be present as well. e. Some courts say that physical force is not always needed – can be threats, duress of goods f. It may not be actual confinement if there is a reasonable means for escape. i. If there is a reasonable means of escape, there is no actual confinement. g. Parvi v. City of Kingston 1. Focus on intention of police officers. a. Should have done something to secure reasonable safety otherwise privilege could collapse 2. Releasing the two actually could’ve begun the false imprisonment, because the police were placing the two where they didn’t want to be. ii. What about if Janitor locks one door (w/ intent) and leaves the other open. You don’t realize that the one door is open and have a panic attack. Is this false imprisonment? Probably not because you have a separate door that you can see – reasonable avenue of escape iii. Privilege protects the actor from liability only if the acts are done for the purpose of protecting or advancing the interest in question iv. Court ruled that plaintiff was aware of his confinement at the time of his confinement. Being drunk didn’t affect this. h. Note 6 on pg. 40 – not false imprisonment in all courts, but could be. i. Note 7 on pg. 40 – preemption – sometimes a federal regulation can prevent tort recovery if the airline does all that is required. F. Intentional Infliction of Emotional Distress a. “fill-in” tort: not a classic tort b. Elements are heightened i. Plaintiff can abuse IIED – “you hurt my feelings.” ii. Tort was expanded because we saw that real harm was being done, but people couldn’t cover. c. Differences between IIED and other torts i. One must show harm via severe emotional distress. ii. Statute of limitations may be different iii. Intent is more particularized 1. Must have purpose or substantial certainty of ACTUALLY INTENDING HARM d. Elements of IIED: i. Extreme or outrageous conduct (no reasonable person would be expected to tolerate it) 1. may arise from abuse of a position of authority (e.g. workplace – usually must be repeated behavior)

e.

f. g. h.

i.

ii. Extreme/severe emotional distress (harm needed here) iii. Intent to create distress (purpose or substantial certainty) iv. Causal relationship between the behavior and the distress Examples: Telling someone that somebody is dead when they are not, playing games with dead bodies, cases of repetition (sexual harassment), some public utilities incidents (expected to live up to a higher standard) Limit this area: view is that everyone is expected to put up with some tirades Extreme and Outrageous means to be out of the ordinary Nickerson v. Hodges i. Woman had been in insane asylum before (causal relationship between behavior and distress, they knew that she had this condition and thus had substantial certainty that distress would be caused) ii. Need to know information about the individual so that it can be understood just how likely it is for tort to occur iii. Just because someone is dead doesn’t mean that others can’t bring an action for damage done to them or the heir. White v. Monsanto Company i. Woman had panic attack after boss had reprimanded her and a few other employees for not following instructions – he used profane language ii. Question is whether this is IIED so that woman can collect outside of worker’s compensation iii. To satisfy element two, an expert testimony is very helpful. 1. i.e. – a doctor explaining that the plaintiff is mentally unstable and that is a direct result of the actions of the defendant. iv. Not considered extreme or outrageous conduct by the courts because it was addressed at a group and not just White also reason why probably no intent to inflict distress. v. Background is important vi. Just need intent to create distress vii. Knowledge of actor that other person would be particularly susceptible to emotional distress does matter – if there is no such knowledge than conduct is analyzed as to how it would effect a person of ordinary sensibilities 1. Note 4 on pg. 48 – If we open it up and make it too easy, people will claim IIED about everything. 2. Don’t mix up negligent infliction of emotional distress with emotional distress damages.

G. Property Torts: Trespass to Land, Conversion, and Trespass to Chattels a. For each of these three, the elements are i. Act ii. Intent to accomplish the result iii. Result (see below, as each is slightly different) b. Trespass to Land i. Protects possessory interest in real property ii. Result element = entry onto the land iii. Elements 1. Intent to enter 2. entrance iv. Ways trespass can occur: 1. Entering land in possession of another or causing third party or thing to enter the land 2. remaining on land after the possessor withdraws consent

v.

vi. vii. viii.

ix. x. xi.

xii.

3. failing to remove something from land possessed by another that one is under a duty to remove a. Lumber cases where entry to remove timber where there is no permission/consent Intent (purpose or substantial certainty) to enter property period…doesn’t matter if you accidentally stumble into the wrong apartment -- it is still trespass LA draws distinction between good faith and bad faith trespass – for good faith you are responsible only for damage done Need some sort of entrance – even if you don’t physically enter (e.g. bullet, water, etc.) Herrin v. Sutherland 1. Property extends above and below a. Doesn’t require damage or interference or anything else (unless it is air travel) Walking through the woods and crossed a property line unknowingly 1. You have trespassed. Get drunk, drive to the wrong house, walk inside, and someone else is there. 1. You have trespassed. Note 5 on pg. 51 1. This is an unforeseen consequence, so by that principle you are responsible for the heart attack. Tree cutting 1. Trees are expensive 2. This is trespass.

c. Conversion and Trespass to Chattels i. Protect the possessory interest in personal property (chattels) ii. Elements of both: 1. intent to interfere or to take (even in mistake) 2. interference with use or ownership iii. Conversion Result element= exercise of dominion and control over the personal property iv. Trespass to Chattels Result element= interference (intermeddling) with possession of the property v. Whether it is conversion or trespass to chattel is a measure of degree: how substantially did the defendant interfere with plaintiff’s possessory interest vi. Remedy for conversion: recovery of the full value of the property that has been destroyed or stolen vii. Unlike most intentional torts – in trespass to chattels, damages must be proven viii. Factors to determine whether substantial enough to be conversion: 1. Extent and duration of control 2. Defendant’s intent to claim a right to the property 3. defendant’s good faith 4. Harm done 5. Expense and inconvenience caused ix. Compuserve Inc. v. Cyber Promotions 1. Trespass to chattel 2. Chattel is Compuserve’s harddrive and its servers 3. Intent – purpose or substantial certainty that entrance will occur

4. Where is intermeddling? Definite cost to compuserve (slower harddrive) 5. There must be damage shown for trespass to chattels – impaired condition, quality, or value, deprivation of use, etc. x. Dual Drilling Company v. Mills Equipment Investments, Inc. 1. Mistake, yet still conversion 2. Conversion when any one of these is satisfied: a. Possession acquired in an authorized manner ?? b. Chattel is moved from one place to another with intent to exercise control over it c. Possession of chattel is transferred without authority d. Possession is withheld from the owner or possessor e. Chattel is altered or destroyed f. Chattel is used improperly g. Ownership is asserted over the chattel xi. He doesn’t really care which we categorize as...conversion and trespass to chattel are very close xii. Mistake people make: You throw a rock trying to hit my dog, but hit me…this is battery (transfer from trespass to chattel to battery). xiii. Solidarily bound – you as a plaintiff get full recovery. 1. Plaintiff can sue any party in the group. H. Defenses to Intentional Torts a. Consent i. Key is that consent is not a contract. ii. You consent to some amount of contact in certain situations 1. Ex: football, heavy contact sports. a. When this expected contact is exceeded, it becomes a battery. b. If a linebacker chokes a quarterback, expected contact is exceeded and battery exists. iii. Manifestation to consent to something that would otherwise be a tort. iv. Can withdrawn at any reasonable time. v. Can imply consent from surrounding facts and circumstances vi. Fricke v. Owens-Corning Fiberglass Corp. 1. Mustard 2. There was consent. 3. Will not vitiate unless there is unequal knowledge 4. Consent is usually used as a defense instead of as an element of tort (no consent) 5. Fricke wants an intentional tort, because if it’s intentional then it’s outside of worker’s compensation, and thus he could recover more money. a. Vicarious liability – holds a firm responsible for the torts of their employees when i. There is an employment relationship i...