Torts Outline - tort law case overview PDF

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1 Amy

INTENTIONAL TORTS BATTERY Elements of Battery I. II.

VOLUNTARY ACT (can dismiss) ● “Voluntary act” is a requirement for all torts, intentional and nonintentional (including negligence) "INTENT" ● Two-fold Definition: D has "intent" if he has either: i. Desire or purpose to bring about the result, or ii. Knowledge to a substantial certainty that his action will bring about the result, e.g., D knows that his action is very likely to cause the contact, or (under dual intent) also knows that the action is very likely to cause harm or offense. ● BUT Eggshell Skull: D does not need to know the full extent of the harm - D "takes P as he comes." ● "Should have known" is not enough. (RST 2d. §18) ● D has the requisite knowledge if his knowledge is individualized, but not if his knowledge is merely statistical. Madden v. D.C. Transit System, Inc.: While standing on the traffic island, P alleged he was contacted by fumes and offensive oily substances that D permitted to spew from two of its buses. P further alleged that D was aware that these regularly were discharged from its buses and that the emissions therefore were intentional. Knowledge in this case was insufficient for battery because court restricted L to individualized knowledge vs. statistical knowledge. b. Single Intent vs. Dual Intent i. Vosburg v. Putney: If intended act is "unlawful (here, violating decorum or classroom rules)," then the intent to commit the act is "unlawful" and is sufficient for battery. This "unlawful act" approach is confusing → ii. 2 most common approaches today: 1. Single Intent: D must have the intent to cause physical contact. White v. University of Idaho: D University L because its piano professor intentionally touched P's back even though his purpose was not to cause harm. ● The respondeat superior doctrine (strict liability), providing that employer is legally responsible for employee's torts, did not apply to this case because it was battery (intention tort) liability rather than negligence liability. 2. Dual Intent: D also must have the intent to harm or to offend in addition to intent to cause physical contact. Knight v. Jewett: D NL because did not have intent to injure P or step on P's hand. A mere intent to "act" is not enough under either approach. RST 3d. endorses single intent. c. Insanity Defense ● Sometimes, the D’s insanity reveals that D lacked the required intent. In such a case, most courts would not permit intentional tort liability. ● BUT often an insane D still possesses the relevant intent (e.g. to contact, or to harm or offend, in battery); if this is so, then insanity does not operate as an independent defense. (Contrast criminal law, where it typically is an independent defense.)

2 Amy

III.

IV.

II.

Polmatier v. Russ: Court stated that although the trial court found that D could not form a rational choice, it did find that he could make a schizophrenic or crazy choice. Moreover, a rational choice is not required since “[a]n insane person may have an intent to invade the interests of another, even though his reasons and motives for forming that intention may be entirely irrational.” “A muscular reaction is always an act unless it is a purely reflexive reaction in which the mind and will have no share.” PHYSICAL CONTACT For liability, all that is necessary is that the D intend to cause P, directly or indirectly, to come in contact with a foreign substance in a manner which P will reasonably regard as offensive (e.g. throwing water at another person). ( RST 2d. §18) ● Direct Contact o Can be contact with clothing or anything closely associated with P's body - it is not necessary to touch P's body or even his clothing. Morgan v. Loyacomo: The authorities are agreed that, to constitute an assault and battery, it is not necessary to touch P’s body or even his clothing; knocking or snatching anything from P’s hand or touching anything connected with his person, when done in a rude or insolent manner, is sufficient. ● Indirect Contact o Whether an indirect contact would be offensive to a reasonable sense of dignity is one factor in determining whether the contact, although indirect, satisfies the contact requirement. Leichtman: Tobacco smoke was “particulate matter” capable of making physical contact and of offending a reasonable sense of personal dignity, and thus that if D intentionally directed the smoke toward P he could be liable for committing battery. CONTACT IS "HARMFUL" OR "OFFENSIVE" a. P's Knowledge of Contact: It is not necessary that P know of the offensive contact which is inflicted upon him at the time when it is inflicted. ( RST 2d. §18) b. Harm: “Harm” means physical harm, such as physical injury, illness, disease, impairment of bodily function, or death. (RST 2d. §13) c. Offense: i. Objective requirement that the touching be “offensive to a reasonable sense of personal dignity” (RST 2d. §19). ii. BUT may be liable if D is aware of P’s unusual vulnerability or sensitivity. (E.g., D knows that P is abnormally terrified of spiders and, as a prank, puts a harmless spider on P’s body.) LACK OF "CONSENT" Note: In some states, P must prove lack of consent in order to recover; in others, burden is on D to prove consent in order to avoid liability. a. Different Categories i. Actual Consent: P's subjective willingness. Actual consent can be proved in either of two ways: 1. Explicit (in words), e.g. P reads and signs a medical consent form; or 2. Implied in Fact (inferred from the facts), e.g. from P's explicit consent to removal of kidney, jury can plausibly infer that P also actually consents to the incision necessary to remove the kidney, even if P does not explicitly say so. ii. Apparent Consent : A reasonable person in the position of D would believe P actually consented (even if P did not actually consent). ● The Restatement Third would say that apparent consent likely applies to a tap on the shoulder.

3 Amy The Restatement Third would use apparent consent in the case that someone accidentally hugs someone else reasonably thinking that she was his wife, even if it turns out to be an eggshell skull case. iii. Emergency Doctrine: It is reasonable for D to assume that P would consent if she could, and it is permissible for D to proceed with emergency medical treatment, because ● given the emergency, it is not feasible to obtain the consent of P or of someone with authority to consent for P; ● P would suffer serious harm if D did not proceed with medical treatment of P; and ● there is no reason to think that P would not consent to the treatment. ii. Substitute Consent: P has authorized another person to consent on her behalf. iii. "Implied in Law"/"Constructive" Consent (fictitious): Liability is precluded for, roughly speaking, minor or predictable contacts on crowded subways (“Do not touch me or I will sue!”), on stairwells during fire drills (e.g. Wallace), and in sports and recreational activities. ● These are socially acceptable contacts, even if D knows that P objects to them; they are “deemed” consented to, but that is a fiction. P only “consents” in an attenuated sense, if at all. ● “Assumption of risk”/“limited duty” Example: P participates in a sport or recreational activity that P knows will include intentional contacts that create some inherent risks of harm. b. Other Issues i. Idiosyncratic Objections or Preferences: P can usually refuse or qualify his consent for unusual, personal reasons. ● BUT public policy might place some limits here, e.g. perhaps P can’t insist that his doctor disclose her religion or whether she has been treated for depression. ● Courts normally presume that patients would consent to life-saving treatment, unless there is clear proof of P’s unusual preference to refuse medical treatment that would save his life. Werth: P was in critical condition. Even though her doctor Parsons informed the other doctor present, Taylor, that P was a Jehovah’s Witness, Taylor ordered the transfusion anyway. Court stated that in the absence of an express refusal, doctors may take necessary actions in emergencies when they cannot reasonably obtain P's consent. Here, P’s prior refusals had not been made when her life was hanging in the balance or when it appeared that death might be a possibility if a transfusion were not given. Clearly, her refusals were, therefore, not contemporaneous or informed. ii. Conditional Consent: D must respect the conditions that P places on P’s consent. ● In battery, consent to an operation on the right ear does not permit an operation on the left (Mohr). ● In trespass, consent to enter land only on specified conditions does not permit entry in violation of those conditions. See R2 §168, Illustration 4, p. 32, last full para. iii. Fraud or Misrepresentation: Fraud and misrepresentation can render the consent invalid. ● But this depends on what P was deceived about. Not all fraud or misrepresentation undermines consent. ●

4 Amy If deceived about a “collateral” matter, P cannot recover in tort. If deceived about an “essential” matter, he can recover. ▪ The matter is more likely to be considered “essential” in a battery case (and thus to make “consent” invalid) if: ● P is misled about the nature of the physical contact (fistfight v. brass knuckles), or ● P suffers physical harm, not just offense. ▪ Compare the two counterfeit payment cases, p. 24 bottom and p. 25 top: ● NL if counterfeit $ paid to prostitute; ● L if counterfeit $ paid for blood donation and P suffers physical harm from botched blood transfer. Desnick suggests that, in both battery and trespass, fraud vitiates o consent only if the fraud implicates the interest that the tort protects, either the inviolability of the person or the inviolability of the person’s property. But this test is not easy to apply. Desnick: Here, there was no invasion of any specific interests that the tort of trespass seeks to protect. The test patients entered offices that were open to anyone expressing a desire for ophthalmic services and videotaped physicians engaged in professional, not personal, communications with strangers (the testers themselves). There was no violation of the doctor-patient privilege. There was no theft, or intent to steal, trade secrets; no disruption of decorum, of peace and quiet; no noisy or distracting demonstrations. The entry was not invasive in the sense of infringing the kind of interest of the plaintiffs that the law of trespass protects; it was not an interference with the ownership or possession of land. o These categories are themselves unclear. Brzoska (NL): D dentist NL even though it was later discovered that he had HIV because battery is properly limited in the medical/dental setting to those circumstances in which a health care provider performs a procedure to which the patient has not consented. A patient’s consent is not vitiated when the patient is touched in exactly the way he or she consented. Consent to Illegal Mutual Combat ● Majority (L) Rule: Consent to an unlawful act is no defense to a claim of battery. Either participant in mutual combat can collect damages from the other. McNeil v. Mullin: P’s consent to fight must be treated as utterly void, and each party must be left to suffer all consequences, civil and criminal, of his reprehensible conduct. The rule of law is clear and unquestionable that consent to an assault is no justification. ● Minority (NL) Rule: One who engages in prize fighting, even though prohibited by positive law, and sustains an injury, should not have a right to recover any damages that he may sustain as the result of the combat, which he expressly consented to and engaged in as a matter of business or sport. (Hart v. Geysel) o Statutory Rape Exception RST 2d. §892C. Consent to Crime (2) If conduct is made criminal in order to protect certain class of persons irrespective of their consent, the consent of members of that class to the conduct is not effective to bar a tort action. o o

iv.

5 Amy Policy Arguments: o Incentives not to fight, but this relies on people being rational o Criminal law vs. tort policies "Informed Consent" [to be discussed later]: This is a distinct, negligence doctrine, where the question is whether a doctor gave enough information to the patient about the “material” risks of a medical procedure such as surgery. ●

v.

Other Considerations I.

II.

Victim's Conduct ● Relevance of P's contributory negligence: D's conduct

P's conduct

Result?

Intentional tort

Contributory negligence

P still recovers in full

Negligence

Contributory negligence

P obtains limited (or no) recovery

Characterizing D's Conduct as an Intentional Tort vs. Negligence ● For advantages and disadvantages to P of characterizing as one or the other, see Handout 2a.

TRESPASS ●

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To be liable for trespass to land, 1. D must voluntarily and intentionally enter, or cause entry of a thing onto, the land, and RST 2d. §158. Liability for Intentional Intrusions on Land Comment i. Causing entry of a thing. The actor, without himself entering the land, may invade another’s interest in its exclusive possession by throwing, propelling, or placing a thing either on or beneath the surface of the land or in the air space above it. 2. The land must be owned by P. D is still liable for reasonable mistake in regards to either (RST 2d. §164): o D’s belief that D is on her own land. o D’s belief that P has consented to D entering the land. Liability for trespass exists even if D has not caused economic loss or property damage to P; a mere violation of P’s property rights is sufficient for liability, though this will affect the damages P can recover. RST 2d. §166. Non-Liability for Accidental Intrusions Except where the actor is engaged in an abnormally dangerous activity, an unintentional and non-negligent entry on land in the possession of another, or causing a thing or third person to enter the land, does not subject the actor to liability to the possessor, even though the entry causes harm to the possessor or to a thing or third person in whose security the possessor has a legally protected interest. RST 2d. §168. Conditional or Restricted Consent A conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with. Fraud o Fraud alone does not vitiate consent to enter property (Desnick(see above)). In addition to the “essential features” factors (see above), other relevant factors to consider to determine whether the fraud affects the interest that the torts in question is meant to protect: 1. Whether P opens its doors to the public (favors NL) 2. Physical nature of intrusion

6 Amy 3. Seriousness of harm to P from fraudulent invasion (favors L) 4. Whether P actually or potentially benefits if D's entry is allowed (favors NL) 5. Social benefit of permitting entry despite fraud (favors NL)

FALSE IMPRISONMENT ●

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Basic Definition: Intentionally confining another person without his or her consent, unless the person knows of a reasonable means of escape. Intent to cause harm/offense is not required - only need intent to confine. Elements (from RST 2d. §35(1)) a. Intent (desire/purpose or knowledge to a substantial certainty) to confine the other or a third person within boundaries fixed by the actor, o If actor accidentally confines another, the length of time of confinement matters (e.g., locking in freezer hypo): ▪ If short amount of time, NL ▪ If long amount of time, L o An act which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for a merely transitory or otherwise harmless confinement, although the act involves an unreasonable risk of imposing it and therefore would be negligent or reckless if the risk threatened bodily harm. (RST 2d. §35(2)) b. Act directly or indirectly results in such a confinement of the other, and o RST 2. §36. What Constitutes Confinement ▪ Boundaries fixed by the actor must be complete. ▪ The confinement is complete although there is a reasonable means of escape, unless the other knows of it. ▪ The actor does not become liable for false imprisonment by intentionally preventing another from going in a particular direction in which he has a right or privilege to go. Illustration 7. A serves upon B an invalid writ purporting to restrain B from leaving a particular State of the United States. B submits, believing the writ to be valid. A has confined B. o Exclusion from a particular place (e.g. a store) is not sufficient. o Restricting someone to a particular place (e.g. UCI campus) is sufficient. o If D asserts legal authority and P believes he has it (or may have it), P submits to custody, it is confinement. However there is also a desire to encourage civilians to cooperate with police enforcement. o RST 2d. §38. Confinement by Physical Barriers The confinement may be by actual or apparent physical barriers. Illustration 2. A takes away the crutches of B who, being a cripple, is unable to walk without them. A has confined B. c. The other is conscious of the confinement or is harmed by it. Specific Privileges o Privilege of school authorities or merchants to detain P o Privilege of parent to discipline a child ▪ Peterson v. Sorlien (very likely a minority rule) vs. Eilers v. Coy: --Whether P had reasonable opportunity to escape (Peterson had reasonable opportunity to escape vs. Eilers where he had no opportunity to escape and his consent was pretended) --Whether parent has a limited privilege to confine an adult child for the child’s long-term benefit

7 Amy

DEFENSES: PRIVILEGES Self-Defense and Defense of Property (briefly) I. II.

SELF-DEFENSE ● Requires both necessity and proportionality. o Reasonable mistake (analogous to apparent consent) DEFENSE OF PROPERTY ● Only minor force can be used in defense of property.

Private Necessity I.

II.

COMPLETE PRIVILEGE (D does not need to pay for the harm) ● Requires: 1. Necessity in the means used, i.e. there must be no reasonable alternative means available; and 2. Proportionality, i.e. D must have chosen the lesser evil (whether D's interest outweighs P's right) Ploof : Privilege to trespass because of private necessity → dock owner has no right to interfere with this privileged trespass. Texas Midland Ry. Co. v. Geraldon: The agent having thus knowingly forced P’s wife out the room and into the rain, causing her to suffer physical pain, the railroad company was properly held responsible for the results. ● Mechanical Devices vs. Human Interference with Privilege o NL unless the technological solution is unreasonable. o Dog attacks: usually strict liability imposed on owner, unless P is a trespasser. ▪ BUT if P has necessity privilege, then strict liability imposed on owner. Rossi v. DelDuca: Necessity privilege is read into a statutory rule that otherwise precludes owner liability for harm caused by dogs to trespassers. One is privileged to enter land in the possession of another if it is, or reasonably appears to be, necessary to prevent serious harm to the actor or his property. This privilege not only relieves the intruder from liability for technical trespass, but it also destroys the possessor’s immunity from liability in resisting the intrusion. ● Limits on Ploof's Necessity Privilege: Private necessity is circumscribed to small and immediate needs and does not encompass needs that are provided by the government. London Borough (no privilege): Doctrine permitting encroachment on private property in case of great and imminent danger, in order to preserve life, must be carefully circumscribed, or else the plea would be an excuse for all sorts of wrongdoing. The court cannot allow any individuals, however great their despair, to take the law into their own hands and enter these premises and appropriate the premises as squatters. INCOMLETE PRIVILEGE (D needs to pay for the harm) Vincent suggests that if a D p...