LAW 3000: Test #2 (Torts)

Tort

• A wrongful act, other than a breach of contract, that results in an injury to another party’s person, property, dignity, or reputation, recognized by common law or statute as a basis for civil liability

  • Preponderance of evidence is the burden of proof

  • Includes a suit for damages or injunctive relief

• Comes primarily from common law and occasionally from statutes

  • Laws passed by a legislature for bringing tort liability overrule common law

Intentional Torts

• Requires intent on the part of the tortfeasor

  • Means the tortfeasor acted purposefully and:

  • With the intent of producing the injurious consequence

  • With the knowledge that the injurious consequence was substantially certain

• Focused on the purpose or knowledge of the defendant

  • Looking for harmful intent

• Punitive damages are available for these types of torts

  • Also seem more severe to the judge and jury

• Intentional misconduct is not insurable

• Examples: Assault, battery, and intentional infliction of emotional distress

Garratt (P) v. Dailey (D)

Citation: Washington Supreme Court, 1955

Issue: Is the infant (D) liable for the alleged battery?

Facts:

• D is 5, visiting the Ps, both adult sisters

• P comes into the backyard to talk to her sister, and as she starts to sit down, claims D purposefully pulled the chair out from under her

  • Causes her to fall onto the ground and fracture her hip

  • This is based on the testimony from P’s sister

• D claims that he moved the chair sideways and had sat in it himself

  • Only then did he realize that P was trying to sit down, and he attempted to move it back, but could not in time

PH:

• Judgment for D

• Finds that D did not have intent/design/purpose to prank R, injure her, make any other offensive contact with her, or effect an assault and battery

H:

• Remand the case for a retrial to investigate whether he had knowledge at the time he moved the chair

  • Intent includes knowledge with substantial certainty that injury would occur

  • Did D know with substantial certainty that R would try to sit where the chair had been and injure herself in the process?

Reasoning:

• The trial court did not accept the argument that D purposefully moved the chair when P was sitting down, causing injurious contact

• Need to find out the knowledge that D had at the time to see if he had intent

Rules from Garratt v. Dailey (Common Law)

• Battery is the intentional infliction of unwanted and offensive bodily contact upon another, with intent to harm or knowledge that harm is substantially certain

  • This contact can be indirect if it sets in motion a chain of events leading to the unwanted and offensive bodily contact

• Intent:

  • Includes purpose to produce injurious consequences or knowledge with substantial certainty that injurious consequence is likely to occur

• When a minor commits an intentional tort with force, he is liable to the same extent as adults

  • Age is relevant to determining what he knew for intent purposes

  • His experience, capacity, and understanding are material to his knowledge

Wishnatsky (P) v. Huey (D)

Citation: Court of Appeals, North Dakota, 1998

Issue:

• Did D commit a battery against D? (Is the conduct offensive?)

Facts:

• P tries to enter a room in which D is holding a private conversation

  • Consequently, D pushes the door shut, pushing P back into the hallway

• P files a motion against D, seeking damages for battery

PH:

• Trial Court enters summary judgment for D

  • Says no reasonable jury could find for P

Reasoning:

• D did react rudely and abruptly to P’s entrance, but his conduct is not battery

• P is unduly sensitive as to his personal dignity

  • D’s conduct would not be offensive to a person with a reasonable sense of personal dignity

• Especially considering the circumstances

  • Personal conversation he did not expect to have intruded

  • Bodily contact was momentary, indirect and incidental

Rules from Wishnatsky v. Huey

• A bodily contact is offensive if it offends a reasonable sense of personal dignity

  • Must offend a reasonable person, not one unduly sensitive to their personal dignity

  • Contact must be unwarranted by social usages at the time and place where it is inflicted

Battery: Policy Interests

• The tort of battery vindicated the rights of the P to:

  • Autonomy and self-determination

  • Decide for themselves how others can treat their body

  • Exclude invasions as a matter of (reasonable) personal preference, whether or not there is actual physical harm

    • However, minimal harm usually equals minimal (“nominal”) damages

• Good intentions do not shield us from intentional tort liability if the 4 prongs of the test for battery are met

Direct or Indirect Contact

• Unwanted and offensive bodily contact can be direct or indirect

  • Indirect contact sets in motion a chain of events leading to the unwanted and offensive bodily contact

• Examples of indirect contact

  • Contact by extensions of the body - things held in one’s hand

  • Pulling out a chair (Garratt)

  • Giving someone poison to drink

  • Pushing something into someone else (Wishnatsky)

  • Pushing someone into someone else

Assault

• Act that is intended to, and does, place P in apprehension of an immediate, unwanted, and offensive touching that would amount to battery

  • Key is the apprehension of imminent unwanted and offensive contact

  • Often happens with a battery, but is a separate and distinct tort

• Does not require physical contact; in fact, it typically happens without physical contact

• The victim must be aware of the potential immediate and uncontested touching

  • Awareness leads to apprehension/fear

• Words alone are not enough; they need some accompanying action in the past or present to make the threat real

  • Words must be paired with the defendant’s ability to complete battery

• Threat must be imminent, meaning they pose an immediate danger

  • Not threats to do something in the future or conditional threats

Picard v. Barry-Pontiac-Buick

Citation: Rhode Island Supreme Court, 1995

Facts:

• Dealer says the brakes on the automobile must be replaced

  • P takes the vehicle elsewhere, and it passes inspection

• P and D go to the repair shop together to inspect the brakes

• P has a camera

  • Alleges D lunges at her and spins her around

    • P and her doctor claim permanent damage to her back as a result

  • Says D grabbed/threatened her

• D claims that he only pointed at her and asked who gave her permission to take his picture

PH:

• P wins in Trial Court, awarded compensatory and punitive damages

• D appeals

  • Claims that P failed to prove assault or battery

    • P was not placed in reasonable fear of imminent bodily harm

    • Evidence failed to establish D inflicted an unwanted touching on P

  • Alleges the damages awards were grossly excessive and inappropriate

  • Claims P’s injuries were not caused by his conduct

Issue:

• Did assault and battery occur?

Holding:

• Assault and battery did occur

Reasoning:

Battery

• D intentionally touched the camera

  • This contact was unwanted and offensive to a reasonable P

  • Knew it was substantially certain injuries would flow to P from that contact

• P’s camera, being grasped by her hand, is considered intimately connected with P’s body and universally regarded as part of their person

  • Thus, D’s contact with the camera is sufficient to constitute battery

Assault

• P testified to apprehension of a battery, and a review of the circumstances shows that such apprehension in this situation was reasonable

  • D approached her and pointed his finger at her

Picard Rules

Battery

• Intent to injure P is unnecessary where D intentionally sets in motion a force D knows is substantially certain to cause injury

  • Garratt v. Dailey

• Contact with anything so connected with the body as to be customarily regarded as part of the other person is the same as contact with that person

Assault

• Apprehension must be viewed from the perspective of a reasonable person

  • Would D’s conduct place a reasonable person in apprehension of an imminent, unwanted touching amounting to battery?

Intentional Infliction of Emotional Distress

• An actor who, by extreme and outrageous conduct, intentionally or recklessly causes severe emotional harm to another is subject to liability for emotional harm

  • No requirement of physical injury

• Elements:

  • Intentional or reckless conduct

  • Conduct is also extreme and outrageous

  • Emotional distress is caused by the conduct

  • The emotional distress was severe

• Common scenarios

  • Abuse of power and position

  • Taking advantage of a P known to be vulnerable

  • Extended pattern of undesirable acts

Womack v. Eldridge

Citation: Virginia Supreme Court, 1974

Facts:

• P alleges mental shock and distress caused by D’s actions

• D is an investigator who lies to P, telling him she works for a newspaper and is taking his picture for an article

• Uses this photo during a child molestation trial, showing it to the boys

• Boys do not recognize P, but the judge and prosecutor are interested in him and ask him to come to trial

  • Ask him different questions

• P suffers shock, distress, and nervousness

  • Worried people would think he molested the boys (Remeber distress must be severe)

PH:

• Verdict for P by jury; however, the judge overrules it, claiming there cannot be a recovery for IIED in the absence of physical contact

Issue:

• Whether one who, by extreme and outrageous conduct, intentionally or recklessly causes severe emotional distress to another is subject to liability without there being bodily injury?

Reasoning:

• No question that the emotional distress was severe and that it was caused by D’s actions

• The conduct was outrageous

  • D lied to P, tricking him into posing for the picture

  • No reason to think P was involved in the case

  • A reasonable person should have recognized the likelihood of severe mental distress for involving an innocent person in a child molestation case

• Conduct was reckless

  • D intended to take a picture and use it in the case

  • Should have known it would cause emotional distress to P

Rules from Womack v. Eldridge

• Recovery is permitted for IIED cases without physical contact if the four elements of the test are met

  • Intentional or reckless conduct

  • Conduct is also extreme and outrageous

  • Emotional distress is caused by the conduct

  • The emotional distress was severe

• Reckless Conduct

  • Wrongdoer intended the specific conduct and knew or should have known emotional distress was likely to result

• Extreme and Outrageous conduct

  • Offends against the generally accepted standards of decency and morality