Torts Outline-Blane 2018 PDF

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Michael Blane Fall 2018 Torts Outline To commit a tort is to act in a manner that the law deems wrongful toward and injurious to another, such that the other gains a right to bring a lawsuit to obtain relief from the wrongdoer.  Tort law articulates legal responsibilities or duties that persons owe to one another and provides victims of conduct breaching those duties with the power to obtain redress against those who have wronged them. §2. The Goals of Tort Law  Van Camp v. McAFoos Facts: 3-year-old MacAfoos was riding a tricycle on public sidewalk and drove into rear of plaintiff. Struck right leg of plaintiff Van Camp, causing injury to Achilles tendon of leg. Plaintiff sues McAfoos alleging as a direct of proximate cause of defendant’s action, tendon was injured and required surgery.  Trial court sustained motion to dismiss because was not alleged that defendant was negligent, willful or wrongful. Holding: Affirmed. Reasoning: Plaintiff insists on right to recovery by proof of accident caused by another, independent of fault or wrong doing. §3. Implementing Torts Law’s Goals with Damages Awards  Dillon v. Frazer Facts: Dillon was injured in a car accident caused by Frazer. Dillon suffered broken ribs, sternum, clavicle, thumb, and punctured lung. Dillon couldn’t work for ten weeks and when returned couldn’t work as much. Sued Frazier. Frazier admitted fault. Dillon sought over $500,000. Jury awarded $6,000. Dillon filed motion for new trial. Trial court increased damages to $21,000. Dillion appealed. Holding: Reversed, case remanded for new trial damages. Reasoning: Must grant new trial if amount of verdict is grossly inadequate or excessive as to shock the conscience. Determining amount of damages is jury’s job. Chapter 2. Reading Torts Cases and Understanding Trial Procedure §1. Looking for Facts, Rules, and Reasons §2. Procedures at Trial  Disputes are either about facts or the law.  Complaint: States facts as claimed by client.  Motion to Dismiss or Demurrer: Take all facts stated in complaint as if they were proved; even so, they do not show a valid claim.  Answer: Disputes some of factual claims of the plaintiff.  Discovery: Parties gather information about underlying claims.  Motion for Summary Judgment: After parties gathered facts if no real dispute about important facts and on undisputed facts laws compel judgment for defendant. CLASS 2 pp. 27-44 (top) Part 2. Intentional Torts 1 Chapter 3. Intentional Torts to Person or Property §1. Battery A. Elements CLASS 1 pp. 3-24 Part 1. A First Look at Torts Chapter 1. Tort Law: Aims, Approaches, and Processes §1. What Is Tort Law? §2. The Goals of Tort Law §3. Implementing Torts Law’s Goals with Damages Awards Chapter 2. Reading Torts Cases and Understanding Trial Procedure §1. Looking for Facts, Rules, and Reasons §2. Procedures at Trial

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Prima Facie Case: A case good “on the face of it.” Plaintiff must allege facts comprising these required elements.  Tort actions can protect against (1) physical injury to person or property; (2) dignitary and emotional harm; and (3) economic harm. §1. Battery  Definition: The intentional infliction of a harmful or offensive contact with the person of the plaintiff. o The act must (1) cause a contact with the victim, and (2) the intended contact must either be harmful or offense to the victim.  The Intent Requirement: The defendant must not only intend to act; she must act for the purpose of inflicting a harmful or offensive contact to the plaintiff or realize that such contact is substantially certain to result.  Transferred Intent: The intent standard may be met if the actor intents to commit a battery on one person and actually inflicts one on somebody else. o Rationale is that the tortfeasor's act is just as culpable when her aim is bad as when it is good; it would be unconscionable if she were exonerated just because she hit the wrong person. o Also allows recovery where the actor attempts one intentional tort but causes another.  Harmful or Offensive Contact: Courts require the defendant intend to cause either a harmful or offensive contact. o Section 15 of the Restatement (Second) of Torts defines bodily harm as "any physical impairment of the condition of another's body, or physical pain or illness." o Defines a contact as offensive if it "offends a reasonable sense of personal dignity." Id. At 19.  Test: A contact is offensive if a reasonable person would find the particular contact offensive.  The Difference Between Contacts and Consequences: o The language of 8A of the Restatement states that the actor must intend "the consequences" of the act.  However, the consequences it refers to is the harmful or offensive contact itself, not the injuries that result.  The Contact Requirement: o The defendant need not actually touch the plaintiff at all, or even be present at the time of the contact.  Liable whether she uses her fist, a nightstick, or a city bus to cause the contact, if it is intended to cause a harmful or offensive contact to the victim. o Also extended to include objects intimately associated with the victim's body. ea. Knock hat off.  Snyder v. Turk Facts: Turk (D) was a doctor performing operation assisted by Snyder (P), a nurse. D thought P was making mistakes. D pulled P’s face toward surgical site to show why needed longer instrument. P brought battery claim. D asserted didn’t intend to cause personal injury, and trial court granted directed verdict in favor of D. Holding: Reversed decision to grant directed verdict in favor of Turk. 

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Reasoning: He did cause offense. An affront to a reasonable sense of dignity. Person doesn’t have to be physically harmed for battery. Intention of actor doesn’t have to be physical harm. Illustrated elements of intent. Cannot be battery without intent.  Cohen v. Smith Facts: Cohen (P) was admitted to hospital for birth. Doctor informed her she would need cesarean section, she told him her religious beliefs prevented male from seeing her naked. He informed staff. During surgery viewed and touched her unclothed body. Cohen brought battery claim against Smith, and trial court dismissed complaint. Holding: Reversed. Reasoning: Offensive (lack of consent) contact offends a reasonable sense of dignity. Do not have to do physical harm. Illustrates offense. Key to offense is “without consent.”  Garratt v. Dailey Facts: Daily (5-year-old) was visiting Garratt went to sit down on lawn chair and Dailey moved it. Garratt sustained a broken hip. Garratt sued Dailey for battery. Dailey claimed moved chair to sit on it. Trial court concluded Dailey didn’t possess “any willful or unlawful purpose” or intent to harm. Judge dismissed. Court determined Garratt suffered $11,000 in damages and should be overruled on appeal. Garratt appealed, requesting entry of judgment in her favor or a new trial. Holding: Case is remanded for issue of whether Dailey knew with substantial certainty when moved chair if Garratt was going to try to sit on it. Reasoning: Illustrate intent. Intent does not have to cause injury but instead create an act. Illustrates substantial certainty test. Produce consequences as either a purpose to produce that consequence or knowledge that consequence is substantially certain to result. Children are liable. Parents are not vicariously liable for torts of children. Transferred intent.  White v. Muniz Facts: White (D) moved her grandmother into a nursing home. Muniz (P) was changing diaper when Everly struck her. Muniz brought battery claim against Everly and White. Trial judge instruct jury to find Everly liable for battery only if she had intent for offensive conduct. Jury found Everly and White not liable. Court of appeals reversed, finding trial court erred instruction. Holding: Reversed. Trial court correctly directed jury to evaluate Everly’s mental state. Reasoning: In a dual intent jurisdiction, a tortfeasor must both intentionally contact another person and intend that the contact be harmful or offensive to be liable for battery.  Wagner v. State Facts: Wagner (plaintiff) was standing in line at K-Mart when she was pulled to the ground from behind by Giese, resulting in injury to Wagner. Giese was mentally disabled and was under the supervision and control of the State of Utah (state) (defendant) at the time of the incident. Wagner brought suit against the state. Issue: Is more than intent to make contact necessary to meet the intent element in a battery claim? Holding: Lower courts’ dismissal of Wagner’s claim is affirmed. Reasoning: For contact to amount to battery, it must be intentional and must be harmful or offensive. To meet the intent element, the tortfeasor need not have intended that the contact be harmful or offensive. Rather, intent to make contact is all that is necessary to meet the intent element.  Baska V. Scherzer 3

Facts: Celeste Baska (mother of party) placed herself between fighting boys to stop fight, was punched in the face, and lost several teeth, neck and jaw injuries. Sued Madrigal and Scherzer for personal injuries. Holding: Motion for summary judgment. Statute of limitations. Transferred intent. Reasoning: Intent to cause a harmful or offensive contact of another—even if the harm comes upon a person that was not the original target. Battery may be committed even though the person CLASS 3 pp. 44-60 §2. Assault §3. False Imprisonment §4. Torts to Property A. Trespass to Land B. Conversion of Chattels-Tover C. Trespass to Chattels §5. Forcible Harms as Civil Rights Violations struck is not the intended person. §2. Assault  Definition: The defendant must (1) act with intent (2) to place the victim in apprehension of a harmful or offensive contact or to make such a contact, and (3) the victim must reasonably be placed in apprehension of such a contact. Restatement (Second) 21.  The Intent Requirement: The defendant must act with the purpose to cause apprehension of a contact or substantial certainty that the apprehension will result. o Also provides that one who attempts to batter the plaintiff, but misses is liable for assault if the plaintiff is place in apprehension of a blow. o The plaintiff must prove that she feared the type of contact that would support a battery claim if it actually occurred.  Apprehension: The perception or anticipation of a blow, rather than fright. o Requirement that the apprehended contact be imminent: The defendant's act must cause the victim to expect that he is about to be touched.  Fear of a future contact will not support liability for assault.  The "Mere Words" Problem: Mere words alone cannot constitute an assault, because they do not sufficiently show the defendant's purpose to immediately batter the victim. o Words do not make the actor liable for assault unless together with other acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person.  Conditional Threats: Some threats will constitute assault even though they are condition. Ea. "If you don't get off this track I'll…" o Other factors may also undermine the imminence element of assault.  Criminal Assault Distinguished: The crime of assault has not always been equated with the tort of assault. o Criminal definition does not specify that the victim must anticipate the blow; the mere attempt to batter suffices. o Most states now make either act--attempted battery or placing in fear of a battery--a criminal offense. 4

 Cullison v. Medley Facts: Cullison (P) met and invited Sandy Medley aged 16 in a grocery store parking lot and invited her over. Family confronted Cullision, motions near gun, had no way of knowing gun was not loaded. Cullison brought a claim of assault against the Medleys, and the trial court granted the Medleys’ motion for summary judgment. The court of appeals affirmed, reasoning that the Medleys did not indicate any present intent to hurt Cullison, and even if an assault occurred, Cullison could not recover because he only alleged emotional harm. Holding: Reversed in party and remanded. It was error for the trial court to enter summary judgment on the count two allegations of assault. Reasoning: To illustrate assault and specifically to illustrate apprehension. Assault only requires mental or emotional damages, caused when a person acts while intending a harmful or offensive contact or acts intending to produce a reasonable apprehension of an imminent battery. §3. False Imprisonment  The Elements of False Imprisonment: Second Restatement of Torts, Section 35. o (1) An actor is subject to liability to another for false imprisonment if (a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and (b) his acts directly or indirectly results in such a confinement of the other, and (c) the other is conscious of the confinement or is harmed by it.  The essence of the tort is restraint of the plaintiff's freedom of movement. o Confinement must be within some "bounded area." (usually four walls of a house, an office or a prison, or in a car or other vehicle).  Consent by Coercion: Confinement does not always entail physically locking the plaintiff up. o "The restraint may be by means of physical barriers, or by threats of force which intimidate the plaintiff into compliance with orders. It is sufficient that he submits to an apprehension of force reasonably to be understood from the conduct of the defendant, although no force is used or even expressly threatened."  Similarly, an actor can confine the plaintiff by confiscating significant items of personal property, or by other threats that would cause a reasonable person to submit to confinement. o A jury might find substantial damages if the plaintiff has suffered psychological injuries as a result of the confinement. At least nominal damages by proving false imprisonment.  Common Privilege Defenses to False Imprisonment: o The three most common privileges asserted in false imprisonment cases are consent, the privilege to detain a customer to investigate apparent shoplifting, and the privilege to arrest. o Privilege of Consent issues tend to be--as in other consent cases--whether there was true consent, as opposed to coercion and whether the defendant exceeded the scope of the consent freely given. o Privilege to detain a person to investigate theft ("shop-keeper's privilege") recognizes this privilege, though it has not been universally adopted by courts. o Privilege of arrest is too complex but is based upon a warrant or reasonable suspicion that a person committed a crime.  McCann v. Wal-Mart Stores, Inc.

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Facts: McCann’s stopped by two employees and told the police were being called. Were mistaken for other people and were let go 65 minutes later. Brought a claim of false imprisonment against Wal-Mart, and the jury ruled in favor of McCann. Holding: Affirmed. Reasoning: Conduct by the actor which is intended to, and does in fact, confine another within the boundaries fixed by the actor where, in addition, the victim is either conscious of the confinement or is harmed by it. Purpose is to demonstrate false imprisonment. A. Trespass to Land  Provides a legal remedy for intrusions upon one’s real property, that is, on land owned or occupied by the plaintiff. o Second Restatement of Torts:  One is subject to liability for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove. 

The Role of Consent: o One who effectively consents to conduct of another intended to invade his interests cannot recover in an action of tort for the conduct or for harm resulting from it. o Consent to entry on one occasion or for one purpose, does not constitute general consent to entry. o May be limited to entry on certain areas of the property. B. Conversion of Chattels  An 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.  Things to consider: (a) extent and duration of the actor’s exercise of dominion or control; (b) intent to assert a right in fact inconsistent with the others’ right of control; (c) the actor’s good faith; (d) extent and duration of the resulting interference with the other’s right of control; (e) the harm done to the chattel; (f) the inconvenience and expense caused to the other.  If conversion is found, the defendant is liable for the full value of the chattel at the time of conversion. C. Trespass to Chattels  If an actor intentionally damaged an owner’s personal property, or temporarily deprived the owner of possession, she was liable for trespass to chattels.  A trespass to chattel may be committed by intentionally: A. Dispossessing another of the chattel, or (b) using or intermeddling with a chattel in the possession of another.  One who commits a trespass to a chattel is subject to liability to the possessor of the chattel, if, but only if: B. (a) he disposes the other of the chattel, or (b) the chattel is impaired as to its condition, quality or value, or (c) the possessor is deprived of the use of the chattel for a substantial time, or (d) bodily harm is caused to the 6

possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest. • School of Visual Arts v. Kuprewicz Facts: Kuprewicz (Defendant) a former employee of the School of Visual Arts (Plaintiff) caused a large volume of pornographic emails and unsolicited job applications to be sent to plaintiff. Resulted in depletion of hard disk space, drained processing power, and other adverse effects on plaintiff's computer system. School brought suit against defendant for trespass to chattels. Issue: Was there a harm to the owner's materially valuable interest in the physical condition, quality, or value of the chattel? Holding: Yes, factual allegations of damage to its computer systems. Valid cause of action for trespass to chattels. Distinction Between Trespass and Conversion  The conversion provides a remedy for deprivation sufficiently serious that the tortfeasor is liable for the full value of the property.  It “requires very substantial exercise of control or dominion inconsistent with the plaintiff’s rights.”  If the property is merely damages, or possession is temporarily interfered with, the claim is usually trespass to chattels, not conversion. Chapter 4: Defenses to Intentional Torts-Privileges CLASS 4 §1. Protecting Against the Plaintiff’s Apparent Misconduct pp. 61-81  Defendant may defend by simply negating one or more of Chapter 4: Defenses to the prima facie elements of the tort. Intentional Torts Affirmative Defenses: Defendant can take a position that Privileges even if the prima facie elements of the tort are shown, she §1. Protecting Against the is not liable anyway, because of additional facts that allow Plaintiff’s Apparent her to avoid liability. Misconduct  An actor who causes intentional invasion of another's A. Self Defense and property interests may sometimes assert the defense of Defense of Others B. necessity, that it was privileged to prevent a greater harm. Defense and Repossession A. Self Defense and Defense of Others of Property C. Arrest and  An actor who is privileged to use force in self-defense Detention incurs no liability for doing so, in some cases even if she D. Discipline inflicts serious bodily injury or death upon her assailant. E. Observing Privileges  Authorizes the use of force to prevent an impending battery §2. The special Case of or to stop one which is in progress. Consent  Victim of an aggressor may only use reasonable force in self-defense.  Turns on the victim's reasonable belief that force is necessary, even if, in fact, it is not.  Deadly Force: An actor may use deadly force in self-defense on if she reasonably believes that she is threatened with deadly force "which can be prevented only by the immediate use of such [deadly] force.  Retreat: Most jurisdictions hold that the v...