Torts

what is tort law

Wrongdoing and harm

What does tort law focus on

Individual rights and private harms

What qs do you think about for torts

What conduct is tortious or wrongful? Did conduct cause kind of harm that law would recognize? What defenses are there to liability?

Goals of tort law

Moral or corrective justice, social utility or public policy and potential conflicts

Van Camp v Mcafoo

D was 3 years 1 month. Drove tricycle into P on sidewalk, injuring achilles tendon. Trial ruled in favor of D to dismiss. Appeals held no wrongful not intentional wrongful or negligence (fault). P failed to state a claim bc missed key element but knew couldn’t put at fault bc so young, claimed hitting was enough to recover so didn’t meet prima facie case for fault

What is a tort

A civil wrongful (identify the loss and who bears the loss), with compensable and non-compensabl losses

Types of harms

Physical or sometimes emotional; more rarely economic; defamation and injury to reputation

Prima facie

Must prove all elements in pleadings and allege, then prove allegations at trial

McElhaney v Thomas

High school, D drives over to P and friend. Tire rolls over P feet and makes her fall over bc broken. D claims just trying to park but passenger and P claim D was trying to intentionally bump her. Battery intentional tort elements: intent to injure by cause harmful bodily harm or intent to cause offensive bodily contact that invades other’s reasonable sense of personal dignity. Although didn’t meet first option, did meet second by messing with her and a large truck bump is enough

How does assault and battery differ

Assault doesn’t require contact. Battery is separate

Elements of battery

1. Harmful/offensive contact

2. Intent

Offensive contact for battery

if offends reasonable sense of personal dignity and excpetion which liablilty not imposed if violate public policy or require actor to avoid contact would be unduly Burdensome

Dual intent

Dual: intent to cause contact and intent to cause a harmful/offensive contact

Single intent

Single: intent to cause contact that turns out to be harmful/offensive, doesn’t have to appreciate wrongfulness of conduct

White v Muniz

Punchd while trying to change adult diaper. Then ordered out of room. Issue was that jury instruction involvingb mentally disabled (dementia), for wrongful conduct, must have appreciated the offensiveness of conduct? Dual intent state, must have intent to cause a contact and a harmful/offensive contact. Court said correctly applied and dismissla affirmed bc didn’t intend to cause harmful contact

Cohen v Smith

Came into hospital to deliver baby. Requested no male see naked body bc of religious beliefs (implied not to touch either). Male nurse did and knew of notification. Was there intent? Yes bc offensive against religious beliefs, offends reasonable sense of personal dignity. Trial court erred in dismissing charges.

Wagner v state

Shopping while in customer service line, attacked from behind by mentally disabled patient accompanied by state employees as part of state menatl health treatment program. Was there intent? D would want single intent bc didn’t want to be liable if came to battery based on statute so immune. Affirmed dismissal of P claim

Polmatier

D shot father in law till death. Not guilty by insanity bc schizophrenic. Insanity person may have intent to invade interests of otheres even if reasons and nmotives for forming intent is irrational so yes battery and P prevailed against D

Garrett v Dailey

D 5 years old. P claimed as came to sit down, D deliberately pulled out from under. D claims moved seat to sit down for self and realized P was gonna sit where chair was before and tried to move it to her in time. Trial court said no intent to cause harm. Appellate said purpose to produce consequences OR knowledge that consequences are substantially certain to result, like close to 90% certain. Appellate said didn’t correctly provide instructions. Age is usually 7 cut off but depends

Rest 2 intent to cause harm

Purpose of causing contact of harmful or offensive contact OR knew with substantial certainty

Rest 3 intent to cause harm

Purpose to produce consequence OR knowledge conseuqence is substantially certain to result, more general for all intentional torts

Defining intent hypos

Baseball thrower, praying brick dropper, smoker’s club, flag pole incident

Intent and mental deficiency

White: insanity is not defense to intentional tort, but can make it important bc need to know risk

Palmatier: insane person may have intent to invade even if reasonign and motives is irrational

Volitional act requirement

MEdical exam for chest pains, if seizure, not volitional

Proof of intent

Burden of proof for torts is preponderance of evidence/more likely than not, 51%. Subjective bc based on mental state of actor and actions at time. Can rely on circumstnatial evidence for jury

Fault continuum

Intentional torts: purpose or knowledge, intent is mental state

Reckless, willful or wanton: less than intent like road rage, grey area between intentional and negligent torts, very high risk with no intent

Negligent torts: act unreasonably, not a mental state

Damages recoverable for intentional tort

Nominal damages: $1, min recovery and no need for physical harm

Economic: substantial, medical bills or lost wages like if young person lost ability

Pain and suffering and emotional damages

Punitive: to punish, possible but not automatic

Liability of parents for child

Not automatic. Liable for 2 optiosn

1. Statute makes parents laible

2. Parents themselves commit a tort like not supervising or negligence but hard to prove bc various parenting styles

Eichenwald v Rivello

Journalist who spoke out against trump. D sent post on twitter saying deserve to get seizure with flashing lights. P got seizure. Physical touching isn’t required to make contact, contact was light contact from gif. Purposeful infliction of bodily harm re harmful contac

Contact for battery

Doesn’t have to be physical, connected to body, touching the body

Invisible touchings

Sound waves, ozone, light projection, typically not enough if can’t see it

Transferred intent for intentional torts

Take intent directed at one person and transfer to other to complete tort for another person. Invented fiction bc already had elements for intentional tort

Baska case

Mom stepped in to fight at a party and Ds claimed only trying to hit each other but affirmed bc of transferred intent. Already had elements of tort

Extended liabliity for intentional torts

If all elements are present, D liable even for unforseen consequences. Doesn’t explain transferred intent bc transferred is for intent element meet while extended expands all consequences

Assault

Intent, reasonable comprehension of imminent harmful or offensive contact

Cullison

P claims father committed assault after innocent invite to daughter of coke. Grabbed gun a few times and said if keep doing this, will attack. D claims conditional threat based on engaging with daughter so not imminent. Apprehension?

Elements and picky rules of assault

1. Traditional rule: mere words are not enough, words + action needed

2. Reasonable apprehension required based on plaintiff

3. Must be apprehension of imminent battery

   1. Dickens, without sig delay (jury)

4. Does every battery include an assault?

   1. Sleeping beauty

5. Damages for assault

6. Words and intent

   1. Hypo: disgusted student and grey-haired professor, "if it weren't for your grey hair, I would do XX" aka not gonna do it, so words themselves can negate the intent

   2. Hypo: "whip her ass, anytime, anywhere" and court said close enough

7. Apparent ability

   1. Hypo: unloaded gun with robber but banker doesn't know that, still assault

      1. Ex: even toy gun if looks realistic

8. Fear and apprehension

   1. Jason v Danny

      1. Takes a swing and misses

False imprisonment

Person confides another intentionally without lawful privilege. Limited range of movement, no reasonable and safe means of escape. Confinement by threat or duress. Can be any amount of time. P must be aware of confinement or actually sustained harm

False imprisonment elements

Intent, actual confinement, knowledge of confinement, confinement against P’s will (goes against defense of consent)

McCann

Walmart. Stopped family from leaving and made them move to other area. THreat of confinement by claiming calling police. Ignored ID. Kept 1 hour. Hand on shopping cart. Wouldn’t allow son to go to bathroom (actual accused). Upheld 20k damages bc didn’t have to be physically restrained to satisfy actual confinement element

Knowledge of confinement exception

No knowledge but injured, like kidnapped baby in bank vault and injured

False imprisonment hypos

Detective shoes: “don‘t leave town”, possible but if large area like state or country, not as imprisoned

Student activists trying to storm faculty meeting but hired security to keep you outside, not confined

Legal writing paper: someone took it from you when paper is due in 2 hours, duress of goods

Married couple: see man trying to get out and says need help but you don’t help them cuz of class and man sues. No causal act even though all other elements met

Barricaded door: in dorm room, maybe if first floor can have reasonable means of escape

Lenient police officer: leaves drunk guys on golf course and one of them gets killed wandering onto freeway, although extended liability and transferred intent, released maybe

Duress of goods

Type of confinement by taking something that is theirs and keeping it from them

Shopkeeper privlege

Reasonable belief to search, not fool proof defense though. Risk false imprisonment if wrong, or recovery of chattels if right

Briggs v Southwest

Owned land next to D for natural gas extraction. Claimed D took land from underneath land. For trespassing, must actually enter the land. Need intent and actual enter land. Never entered land bc relied on pressure of sucking up oil

Trespass to chattels and conversion

Interference with chattel which is personal property, difference is in extent of interference

Conversion elements

Intent to exercise substantial dominion over chattel; exercise of substantial dominion over chattel (vs trespass to chattels is mere interference/intermeddling), if you convert something, remedy is you pay for it

Trespass to chattels elements

Intent to intermeddle, actual intermeddling, actual harm is required either by damage to chattel OR dispossession (loss of use), little sibling to conversion

School of visual arts case

Interference with computer system hard drive, contact was electrical signal. Accepted damages to computer for remedy, an email doesn’t constitute chattels for trespass to chattels

Difference in remedy for conversion and trespass to chattels

Forced “purchase” vs damages OR get chattel back (replevin); actual (not nominal damages) required for trespass to chattel

Bonified (good faith) purchaser

Og owner can sue purchaser of stolen item bc still converter since thieft never got title. Exception: if thief gets title from og owner by fraud or trickery, purchaser of stolen item is not liable

Intentional infliction of emotional distress elements

Intent or recklessness (broadens it), extreme or outrageous conduct (outside of what you would normally expect), causal connection built in, and severe emotional distress

Chanko case

P husband brought to hospital and moaning, on death bed, filmed dying by documentary and filmed notification to family without consent. P saw on tv 8 months later and sued. Court said not extreme or outrageous bc short duration, blurred face, exceedingly high legal standard designed to filter out petty complains and assure that emotional distress is genuine

Extreme and outrageous conduct

Insults aren’t enough (exception is common carriers like trains, planes, hotels), relationships involving vulnerability and abuse of power, repetition/regularity

GTE Southwest case

Power imbalance. Members of employer filed bc he would physically charge at employees with fists up and super close to face. Call them into office to stare at them for 30 min. Vacuum everyday even with janitorial staff. Yelled at, screamed at top of lungs and pounded fists. Extreme and outrageous bc frequency, severity and regularity. Management style went beyond bounds of tolerable workplace conduct

Roth v Islamic party of Iran

3rd party IIED bc weren’t there when it happened, indirect. For third party, special requirements: presence and immediate family. But since terrorist act, ignored line and fudges here to allow them to recover bc sufficiently extreme and outrageous enough

3rd party IIED requirements

Presence but with new exceptions: terrorism, molestation, immediate aftermath, sensory and contemporaneous awareness

Immediate family

Defenses to intentional torts

Separate from prima facie case, not changing the elements but separate facts to justify tort. 3 types: response to misconduct, consent, and policy based priviledges

Self defense

Threat is imminent, reasonable force, proportional amount of force, deadly if deadly threat, no retaliation ever, retreat not required if being attacked, can use false imprisonment to claim justify self defense

Facts to consider for self defense

Instigator, where it occurred, retreat or not, physical characteristics

Grimes v Saban

• Grimes

  • Grimes went to the door and banged on it. Demands take fb post down. Saban comes out to show took down post. Grimes backs away. Grimes said I don’t care, you're crazy, we're done. Saban used both hands and shoved Grimes into door frame. So self defense from contact, harmful or offensive. Can react with reasonable force. Saban punches 5+ times in face. If reasonable, then this is retaliation and not allowed. Another battery. After first punch, said gonna call the cops. Did not swing back but arm up to defend myself

• Saban

  • Said Grimes intiated confrontation by opening the door in response to Saban FB post. Yelling and pounding on Saban's door. Saban opened door and Grimes was within inches of Saban's face. Looked reasonable and no duty to retreat and right to stand her ground, justified using physical force. But no facts about actual using force, other than very close and yelling. Push is reasonable if looks like self defense

Was there enough material fact for trial? Look at reasonabelness based on facts

Hypo: fight outside bar

D fight with a guy who leaves. So D leaves and is paranoid. Accidentally hits police officeer. If make a mistake, can use self defense as an defense

Defense of otheres

Reasnable force, can use self defense as defense if mistake in defending someone else. Courts are split on the mistake

Defense of real property qs to consider

Use reasonable force, can request intruder to depart, and trespasser cannot respond with force and can escalate to self defense by property owner

Katko v briney

Aimed gun at legs in bedroom of house after series of trespassing issues. Not living there. Gun went off and damaged Ds lg, 40 days in hospital. Owner is prohibited from willfully or intentionally injuring trespasser by means of force that either takes life or inflicts great bodily injury. Value of life overpowers property. If home invasion, maybe can defend self if serious threat of bodily injury

Restatement rule for mechanical devices for self defense

• “a possessor of land cannot do indirectly and by a mechanical device that which, were he present, he could not do immediately and in person...."

• Doesn't make sense bc involves if not in person but if if person, imminent threat and could self defend self

• Mechanical device doesn't take into account circumstances and context tthat person would

Brown v Martinez

2 boys on property trying to steal watermelons. Boys run to southwest corner of property and D shoots in south east to scare them but P was in southeast corner and bullet hit leg. Katko rule. Transferred intent and can’t use deadly force. Reversed judgment in favor of D. But actually incorrect outcome bc already threaten to force is privileged to put someone in apprehension of offensive contact without actually inflicting it

Defending real property steps

1. Warning if feasible

2. Reasonalbe force, start gently

3. Trespasser has no right to resist. Privilege can turn into privilege of sel fdefense

4. Force to recapture real property? Courts split

Comon law rules for merchants

1. Merchant can recapture stolen chattel

2. But must be in "hot pursuit"/"fresh pursuit" and use reasonable force

3. Otherwise privilege ends and must call police. Then can only recover without using force

4. If merchant is wrong using force to re-take chattel, no privilege

Shopkeeper’s privilege

Must have reasonable belief and detain on premises for reasonable investigation

Gotarez v Smity’s

P and cousin went in store for D to buy something. P saw 60 cent vaporizer and asked to pay later. D saw them leave and thought ripped them off. Assistant manager and 2 security guards ran after them. Searched cousin without saying what looking for. D put P in chokehold even after he said he put it back. Store employee eventually found varorizer. Sued for med treatment, false imprisonment, assault and battery. Was there reasonable cause, manner and time, purpose for questioning or notifying law enforcement? Trial court incorrectly didn’t apply whole statute, only reasonable cause. Had reasonable belief but not reasonable investigation and also not on premises, searched wrong person, didn’t know what to look for, didn’t verablize it, chokehold

Discipline privilege

Parents: force and confinement within limits, can’t be excessive. But courts are weary about stepping in bc parents have dif discipline and parenting techniques. Teachers/school bus drivers too but way more limited

Consent parts

Entering into consent, was there consent and could P consent, scope of consent, effectiveness of consent

Logical conclusions of consent

Actions can be nonverbal consent. If says no, no consent. If consent to game and contacts, consent can cover unexpected outcome. Not really a defense, has limits.

Basic rules of consent

1. Apparent Consent: Rely on reasonable appearance. Look to the circumstances

2. Hypo: The immigrant and the immunization shot

   1. Have to be immunized at boat

   2. Horrible reaction to shot

   3. Battery suit, did she consent? Yes bc lifted arm up even though didn't say anything

3. No” means “No.”

4. Extent of consent: unexpected consequences. Think: “inverse” of extended consequences.

   1. Consented to all consequences as long as arise from contact

5. Consent can be seen as negating harmful intent. But you must treat as a privilege

   1. Analyze two separately for purposes of our class

6. Need mental capacity for consent

Wulf case

P and D joking around in nurse break room with other nurses. P is female nurse and D is male dr. D tapped P on neck after P made joke. Otheres claim playful manner but P claims dropped phone, blurred vision and dizziness, nausea, ice, crying. P consented to previous thumpings before. Own physician said unrelated and exaggerated. Consent may be mnanifested in action or inaction. Time and place and circumstances for cosnent

Generfal consent issues

• Dif jurisdictions: no means no or yes means yes

• Consent and dual/single intent

  • Dual intent jurisdiction: doesn't intend harmful or offenseive

  • Single: maybe means no harmful or offensive

• Consequences of consent

  • Ex: wulf, consented to everything

• Conduct consent to

  • Limit to conduct consent

  • Rest says "extends to conduct that is not substantially different in nature from the conduct that the person is willing to permit"

• Presumed consent: social norms

  • Certain contexts presumed consent

  • Ex: on crowded subway, pretty limited context

Robins

P is female inmate and D is corrections officer, new. P flashed him. Brought P in to perform fellatio. Lack of consent? Can’t willingly agree bc of relationship with officer and statute already says for criminal consequence, no consent between jailer and inmate so should adopt here

Types of environments to consider consent

Employees, minors, incapable adults (if don’t have capacity to appreciate consequences, can’t consent), drunkedness (depends on circumstances), stautes for child labor for certain industrys

Misrep

1. Information or not when consented

2. The affair between P and D

   1. D has STD

   2. P asks if you have any STD

   3. D says no

   4. Have sex and P gets STD

   5. Didn't consent bc material facts was misrep

Fraud

If bought airpods with a bad check and sold the stolen airpods to another, fraud

Nondisclosure

1. P doesn't ask about STD and D doesn't tell them, same outcome

2. Do you need that info of STD to consent?

   1. Yes, material info in making choice in engaging in activity

3. Bodily autonomy

Can you consent to crimianl act

If P consent, incentive to D to engage in conduct even if its legal. If P cannot consent, incentive to P to engage in conduct bc can still bring suit

Duress or coercion

Give me your money or else. Not valid consent under duress or coercion. Against volujntary consent. Duress, can’t weigh what you’re doikng properly

Revocation

Can revoke at any time

Implied consent

For emergencies, implied when incapable like unconscious or in pain. Rest 3 says preventing or reducing risk to life or health. Can do multiple things in one surgery if can esaily in same operation, very limited times. Actually just a fiction

Kaplan

Sued bc dr operated on wrong herniated disks. Didn’t consent. Georgraphic limit on consent in medical context