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Torts- Ziegler Fall 2018 Intentional Torts 1. Battery elements- 1) intent, 2) harmful bodily contact, 3) cause in fact, 4) proximate cause, 5) injury a. Garratt v. Dailey- defendant (5 year old) pulled chair out from under plaintiff, question of the knowledge of the defendant about the potential hazard to the plaintiff, defendant won i. Intent- If D knows with substantial certainty that a particular result will occur (knowledge) ii. Eggshell Plaintiff- take your victim as you find him, responsible for additional injuries due to “state” of victim b. Wishnatsky v. Huey- plaintiff shoved out of employer’s office with door by defendant which caused him embarrassment and humiliation in front of his coworkers, defendant won i. What is offensive- act must be one that would offend an ordinary and not unduly sensitive person, measured against prevailing social usages and customs a. Picard v. Barry Pontiac- Defendant car dealer told plaintiff her breaks were not working so plaintiff took car to be checked by an outside auto shop, defendant came lunged at plaintiff and made contact with her phone, plaintiff won a. Contact must be with something closely attached to P’s body ii. Assault elements- plaintiff must show 1) intent; and 2) act of a threatening nature; and 3) that puts P in reasonable fear of imminent bodily harm; and 4) causation; and 5) injury (Picard) 1. Imminent- if it’s not a present danger you can go to the police 2. False Imprisonment a. Lopez v. Winchell’s Donut House- plaintiff was caught stealing from donut shop and called into a meeting where her employer took her to a back room and locked the door, plaintiff claimed she could not leave because she felt she had to protect her reputation, in actuality plaintiff could leave at any time, defendant won i. Elements- P must show 1) intent; 2) unlawful restraint on liberty; 3) causation; and 4) injury 1. What counts as adequate restraint? Not moral pressure or the threat of a future action a. Restatement 2d: Physical barriers, physical force, threats of physical force, asserted legal authority, “other duress”

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ii. Marcus v. Liebman- plaintiff was in psychiatric facility voluntarily but was threatened to be committed to a state hospital, plaintiff won 1. Considered more imminent= distinguishable 3. Intentional Affliction of Emotional Distress a. Womack v. Eldridge- private investigator dishonestly obtained photo of plaintiff and utilized it in a child molestation case, plaintiff was forced to testify in court and had his name linked to child molestation, plaintiff won i. Elements- 1) intent 2) extreme or outrageous act 3) causation 4) extreme emotional distress 1. Up to the jury to determine what is outrageous 4. Heart-balm Torts- In earlier eras, plaintiffs could sue, inter alia, for breach of promise to marry, seduction, alienation of affections. a. Bailey v. Faulkner- pastor slept with plaintiff’s wife while he was giving them marital counseling, defendant won i. Refused to recognize “any claim for damages against a third party, no matter how denominated, that is based on allegations of interference with the marriage relationship.” ii. A better complaint would have been loss of wages 5. Defenses a. Consent i. Barbara A. v. John G- Plaintiff gave consent to sexual relations with the defendant as long as there was no chance she would become pregnant, she had a ectopic pregnancy which required life-saving surgery, plaintiff won 1. Consent is a defense to torts unless D goes beyond the scope of consent given by P or if consent was fraudulently obtained a. Best argument for her- she is in a position to trust him because he was her attorney b. Torts- battery, deceit, negligent misrepresentation b. Self-defense i. Courvoisier v. Raymond- men broke into defendant’s building and he chased them out with his gun and proceeded to sit on his porch as the men shouted and threw stuff at him, plaintiff an off duty officer approached from crowd and defendant shot him, defendant won 1. Self-defense is a defense to intentional torts if D can show a reasonable fear of imminent death or serious bodily harm a. Principle of escalation- don’t make the event more than it is b. Tort- battery c. Defense of Property i. Katko v. Briney- defendant put up spring gun trap in vacant farmhouse which blew off plaintiff’s leg when he trespassed to look for antiques, plaintiff won 2

1. defense of property is a defense to intentional torts unless D uses unreasonable force that would cause serious bodily injury or death a. If the owner is present then they can expected to defend themselves b. Unreasonable force is not disproved by lack of knowledge/intent c. Tort- battery d. Private Necessity- the defense of necessity gives the state or an individual a privilege to take or use the property of another i. Vincent v. Lake Erie Transportation Co- defendant deliberately kept his boat anchored to the plaintiff’s dock even though a violent storm was coming, dock ripped apart in the storm, plaintiff won 1. private necessity is a defense only if the damage to P’s person or property was caused exclusively by forces beyond D’s control a. Only works for situations beyond human control b. Tort- destruction of property? Defamation Elements- 1) requires proof of a false defamatory statement of fact, 2) of or concerning plaintiff, 3) publication, and 4) injury 1. Romaine v. Kallinger- Defendant book discussed plaintiff knowing a drug addict in prison and plaintiff was a drug counselor, defendant won a. linguistic meaning, court should focus on “the fair and natural meaning” given to particular language by a reader of ordinary intelligence i. Context matter to meaning ii. Court must consider how reasonably susceptible the statement is to multiple meanings iii. Can also be applied with Mitchell v. Globe International Publishingdefendant published an article using the plaintiff’s picture which claimed she was the oldest mail carrier until she got pregnant 1. Clearly parody/satirical writing 2. Matherson v. Marchello- Defendant band made fun of plaintiff husband and wife in radio interview stating they slept with the wife and the husband’s boyfriend, plaintiffs won a. sociological context, court should also evaluate the sociocultural meaning or stigma created by a statement i. Court should also evaluate the sociocultural meaning of the stigma created by the statement

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1. Implying the husband was gay was defamatory because the social stigma as shown by the law indicated being gay was seen as a negative thing Ward v. Zelikovsky- name calling is not defamatory a. 1) If the defendant is visibly emotional 2) D and P are in a confrontation Davis v. Boeheim- Plaintiffs accused Syracuse associate basketball coach of molestation which resurfaced after the Penn State allegations, defendant accused plaintiffs of lying based on his close relationship with the associate coach, defendant won a. To determine whether an opinion is actionable for the purpose of defamation, the court should consider: "(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal ... readers or listeners that what is being read or heard is likely to be opinion, not fact" (Statement of fact) i. Important to consider Boeheim’s status in the university and his insider knowledge of the circumstances Neiman-Marcus v. Lait- salesgirls case was dismissed (30) while salesman was not (15) because the language was more precise and inclusive to all the salesmen a. Statement must be understood to refer to the plaintiff i. Discussed the salesgirls far more generally Wilkow v. Forbes- defendant covered the grant of certiorari on plaintiff’s case in column (clearly an opinion piece), stated that the plaintiff was pleading poverty a. Whether a statement could reasonably be understood as a statement of fact b. Rule can also be applied for Mitchell v. Globe International Publishing Defenses a. Truth- D must prove that the sting of the statement is true i. Masson- If the statement would have the same effect on the audience, has to be so different from the truth that they would change their judgement ($25,000 vs. $12,000) 1. Focus is audience ii. Desnick- If the statement is closely related to the truth (embezzler vs. sexual deviant) 1. Focus is relation to truth b. Absolute Privilege i. These privileges completely bar tort liability ii. Apply to executive officials, judges, participants in judicial proceedings, and legislators during the course of their duties iii. For lower executive officials, like police officers, statements are absolutely privileged only if they are essential to an officer’s duties iv. Doesn’t matter if the privilege is abused 4

c. Qualified Privileges i. Common Interest Privilege1. Liberman v. Gelstein- Defendant was talking with colleague who was on Tenants’ Board of Directors with him, discussed plaintiff bribing the police for parking in the front of the building and not receive tickets, defendant won a. Must show that D made a statement to a third party on a subject on which both had a common interest i. D may waive the privilege if D acted with malice; either had ill will toward P or acted with knowledge or reckless indifference toward the falsity of the statement. ii. Employees of an organization, members of faculty tenor committee, physicians or health insurance, tenants of the same building ii. Fair Comment- If D discusses a literary, artistic, or musical subject, the D’s opinions are conditionally privileged if based on accurate fact 1. Hallam Rule- If D discusses politics the statement is privileged only if based on accurate facts and concerns a matter of public interest 2. Coleman Rule- a minority rule, a D discussing politics must show only that he honestly believed the statement to be true iii. Fair Report 1. Medico v. Times Inc- Defendant published article about congressman Daniel Flood’s suspected relationship with mafia and that he had given government work to plaintiff as based on an FBI report, defendant won a. D must show: 1) a report of an official action or official proceeding of a meeting open to the public; 2) addressing a matter of public concern; 3) that is an accurate and complete or a fair abridgement; unless 4) the privilege was abused, ie “overly embellished” or published for the sole purpose of harming P. b. Underlying policies: i. Agency Theory- one who reports acts as an agent for persons who had a right to attend, and informs them of what they might have seen for themselves ii. Theory of Public Supervision- those who administer justice should always act under the sense of public responsibility and public scrutiny fosters the sense of public responsibility 5

iii. Informational Rationale- public’s interest in learning of important matters iv. Constitutional Defenses to Defamation- There are constitutional defense to defamation if the individual is a public figure or public official 1. Geertz- someone may be a public figure for all purposes by achieving notoriety to be recognizable 2. Some may be a public figure for some purposes if they injected themselves in controversy, public figure in a narrower context 3. Someone may be an involuntary public figure under Wells if 1) a course that made it reasonably foreseeable that public interest would arise; 2) controversy; and 3) P was a public figure at time of statement Privacy 1. Public Disclosure of Private Facts- airing of things P doesn’t want to be known publicly a. Haynes v. Alfred- Defendant published book chronicling move of African Americans from rural areas to urban ghettos, described the alcoholism, adultery, and poverty of the plaintiff including a negative relationship with his wife, defendant won i. Court must balance the offensiveness of the content against its newsworthiness 1. Offensiveness- reasonable person would not want it revealed, refers to Haynes in a sexual context 2. Newsworthiness- related to poverty and public housing, story would have been less compelling without real names 2. Intrusion- how the information was obtained a. Nader v. General Motors- Plaintiff wrote and gave lecturers that sharply criticized the defendant, defendant responded by wiretapping his telephone, following him in public, hiring women to solicit him sexually, and making threatening phone calls, plaintiff won due to wiretapping etc. i. Court should weigh 1) the confidential nature of the information and 2) the intrusiveness of the method of inquiry, viz, whether it was acquired through ordinary inquiry or observation 1. Following in public and girls are not intrusion but wiretapping is intrusion due to the method 2. Injury: 1) snoop successfully 2) technique is intrusive 3. Consider the privacy expectation, if you are in public then there should be no expectation of privacy except potentially at the bank b. Shulman v. Group W- The plaintiff was involved in a motor accident and was seriously injured, she was transported to the hospital in a helicopter, defendant 6

broadcast plaintiff’s accident on the news and filmed at the scene and in the helicopter, defendant also attached a microphone to plaintiff’s nurse in helicopter and recorded audio, plaintiff won i. Action has two elements: 1) interference with a private place, conversation, or matter; 2) in a manner highly offensive to a reasonable person 1. also sued for public disclosure of private facts but story was too newsworthy 2. Would have lost under Nadar because the highway was publicexpectation of privacy changes from the road to the helicopter 3. Motive is relevant, here the motive is good 3. Appropriation- using imagery or likeness without consent, origin of the tort not for celebrities but for people used in advertising a. Zacchini v. Scripps- Plaintiff performed a human cannonball act which the defendant recorded without permission and broadcast in full on local television, plaintiff won i. P must show that D broadcast whole act, that act was one for which P usually received money, and that D acted without P’s consent 1. Harder to apply if the whole act isn’t shown or only the most significant part of the act 2. Feeling of plaintiff not helping themselves- should have made a contract b. Winter v. DC Comics- Plaintiffs were well known musicians, Defendant used plaintiffs’ likeness to create worm-human villains for their comic book, defendant won i. P must show: 1) D used P’s likeness/signature/photo; 2) without P’s consent; 3) for the purpose of selling or advertising; 4) causation; 5) injury; unless D can show a) the use of significant transformative elements or b) the primary value of the work does not derive from P’s likeness 1. Would P lose money from D’s gain? Strict liability for abnormally dangerous activities 1. Abnormally Dangerous Activity- owning a wild animal, dynamite a. Indiana Harbor v. American Cyanamid- Defendant leased a railroad car to ship acrylonitrile, handled by a separate railroad and arrived at plaintiff rail yard (which was in a metro area) leaking (approx.. ¼ of total 20K gallons), plaintiff sued for negligence with strict liability for an abnormally dangerous activity, defendant won i. Under Restatement 2d Sec. 520, court should consider: 1) existence of a high degree of risk; b) whether there is a high probability of harm; 3) D’s 7

inability to eliminate the risk by using reasonable care; 4) extent to which activity was not a matter of common usage; 5) inappropriateness of activity in a given area; 6) value to community 1. Indiana Harbor puts greatest emphasis on D’s inability to eliminate the risk 2. Third Restatement changed this test: P has to show a) a risk of serious harm that cannot be reduced through the exercise of reasonable care; and b) not in common usage ii. Strict liability is better for the plaintiff because once its established its easier to prove- cause in fact, proximate cause, and damages iii. Chemicals weren’t dangerous but the act of transporting them was dangerous iv. Court thought negligence was a better tort because strict liability encourages them to avoid the activity altogether whereas negligence encourages them to do it in a safer way 2. Strict Liability a. P generally does not have to prove breach of duty or even the existence of duty b. Strict liability encourages more litigation but makes cases easier to resolve c. Strict liability deters anyone from engaging in activity rather than encouraging particular precautions when an activity is undertaken d. Hammontree v. Jenner- Defendant was diagnosed with epilepsy but took precaution to be allowed to drive, during an epileptic seizure defendant crashed into plaintiff’s building and injured plaintiff, plaintiff sued for absolute liability, defendant won i. strict liability does not apply to car accidents and shouldn’t apply because it would cause confusion in the court system 1. Can’t compare a driver to a manufacturer, multiple parties vs single party Defective products claims (strict liability) 1. Defective Product a. Escola v. Coca Cola- Plaintiff was putting away coke bottles into the fridge where she worked when one exploded and injured her hand , plaintiff won i. Traynor concurrence: Manufacturer can better anticipate injuries and cheaply prevent them. Under a quasi-strict liability regime, the manufacturer will also have better incentives to make the safest possible products. Moreover, consumers are no longer in a position to protect themselves, given both the complexity of products and their blind faith in their quality

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1. Who is subject to strict liability in the context of products liability? 1) Manufacturers, sellers of new goods, professional sellers who give away samples, commercial suppliers, lessors, and franchisors 2. Consumers are not in the position to protect themselves 2. Design Defecta. Initial Questions: i. 1) Should a consumer expectation test or cost-benefit test apply? ii. 2) If a cost-benefit test applies, which version (Camacho or Barker/Soule)? 1. 3) How should a warning weigh in design defect analysis? iii. 4) Was there a misuse or modification defense? 1. Under Anderson, misuse or modification is a defense only if it was not reasonably foreseeable. b. Soule v. GMC- Plaintiff was driving her Camaro when she was in an accident, the wheel of the car bent underneath the frame and trapped the plaintiff’s legs permanently injuring her ankles, plaintiff won i. Barker v. Lull Engineering- plaintiff was hurt when a high lift loader he was operating overturned on a slope ii. A product has a defective design if 1) failed to perform as an ordinary consumer would expect when used in a foreseeable manner (consumer expectation) 2) if the costs of the design outweigh the benefits, considering inter alia, the gravity and probability of the injury, the feasibility, cost, and consequences of an alternative design (cost-benefit analysis) 1. Consumer-expectation test generally applies when everyday experience would indicate a defect. Generally, would not apply when a product is complex, whenever crashworthiness is an issue, or when causation is in dispute. 2. Generally, consider only the safety of “comparable” products 3. Under O’Brien, if a product is irreducibly dangerous, court should weigh the utility of the product’s existence against its cost. iii. Crashworthiness: a motor vehicle liable in negligence or strict liability for injuries sustained in a motor vehicle accident where a manufacturing or design defect, though not cause of accident, caused or enhanced the injury c. Camacho v. Honda Motor- Plaintiff suffered injuries to his leg in a motorcycle crash, claimed the product was defective because design did not include crash bars, plaintiff won i. Cost-benefit test- the factors for consideration include: 1) usefulness of product; 2) probability and gravity of injury; 3) availability of a reasonable 9

alternative; 4) manufacturer’s ability to eliminate the unsafe character of the product; 5) user’s ability to eliminate the unsafe character of the product by taking appropr...