Torts #2

What are some policy issues guiding tort law

1. liability should be fault based

   1. proportional to fault

   2. based on fault

2. Cost spreading

3. Cost shifting

   1. shift the cost to those best able to bear them

4. Detterance

   1. want to deter people from accidents

5. Accident victims should be full compensated

How to show intent

purpose, knowledge, transferred (Keel v. Hanline-meaning to throw them at eachother and hit her)

what does NOT negate intent

age (child), mentally insane McGuire v. almy , mistake—ranson v. kitner, being intoxicated

Hypothetical where she thought her car could fly: she did not have the necessary intent there, she was incapable of forming it because she thought she could fly.

parents can be vicariously liable in some situations

what is respondeat superior?

The doctrine holding an employer or principal liable for the employee’s or agent’s wrongful acts committed within the scope of the employment or agency

eggshell doctrine

take your victim as you find them.

defendant is fully liable for all damages caused by their wrongful act, even if the victim had a hidden physical or mental vulnerability that made the injury much worse than it would have been for a normal person

continuing tort doctrine

Where a tort involves a continuing or

repeated injury the limitations period does

not begin to run until the date of the last

injury or the date the tortious acts cease

• important for domestic abuse

What is assault?

assault is the intentional creation of imminent apprehension of unconsented harmful or offensive contact.

What are the elements to an assault claim?

1. Act

   1. volitional, voluntary act

2. Intent to place in apprehension

   1. purpose or knowledge

   2. also goes into this—but the ability to cause the apprehension—Western Union Telegraph

3. Imminent apprehension

   1. of harmful or offensive contact

Also: no consent, no privilege

What is a battery?

a battery is an intentional unconsented harmful or offensive contact to a plaintiffs person.

What are the elements to a battery claim?

1. Act

2. Intent to make contact

   1. purpose or knowledge

3. Contact

   1. harmful or offensive

What needs to be proven for an act?

a voltional movement

How can you show intent?

• Purpose

  • desire to cause contact

• Knowledge

  • substantial certainty contact will result

• Transferred

  • intent follows the bullet, when you intend to commit any one of the five trespassory torts, but commit a different one or a different victim, than your intent transfers.

What does harmful mean?

harmful contact is the unconsented alteration of a structure or function of the body.

What does offensive mean?

offensive contact is contact that would offend a reasonable persons sense of personal dignity.

What is false imprisonment

False imprisonment is the unconsented intentional confinement within fixed boundaries by the use of force, threat of force or assertion of legal authority.

What are the elements to false imprisonment?

1. Act

2. Intent to confine

3. Confinement within fixed boundaries

4. apparent lack of a reasonable exit

5. use of force, threat of force, or assertion of legal authority

6. Injury

7. no consent

What is the requisite intent?

purpose- the desire

OR

Knowledge- substantial certainty

The requirement for confinement?

within boundaries fixed by the defendant

what is a reasonable means of escape?

A means of escape that wouldn’t harm the plaintiff physically nor offend their dignity. HOWEVER if there is a reasonable means of escape, and the victim does not take advantage, there is not false imprisonment.

EXCEPTION: if there is a reasonable means of escape but they are retaining your property. like your purse with your id and keys in it, you cannot leave.

What is injury?

There either needs to be harm done to the plaintiff, or they need to know that they are being confined

• waste of their time

What is an exception to false imprisonment

Shopkeepers exception. Reasonable belief that they are stealing and a reasonable search

• allows a shopkeeper to detain a person to investigate the ownership of property if the shopkeeper reasonably believes that the person has stolen or is attempting to steal store merchandise so long as the detention is in a reasonable manner and for a reasonable period of time.

  • detain temporarily

  • in or near the store

  • reasonable suspection of theft

  • for purposes of a reasonable investigation

    • dillards: here this was an unreasonable manner because they handcuffed him and just had him lay on the floor

What is not adequate use of force, threat of force, or assertion of legal authority?

threat of future harm, calling the police, or losing a job are not adequate

What is iied?

IIED is the intentional infliction of severe emotional distress by extreme and outrageous conduct

What are the elements for an IIED claim?

1. intent

2. extreme and outrageous conduct

   1. complete goes beyond human decency

3. Causes severe emotional distress

   1. showing Intensity and duration of distress help claim

4. there is a connection between the conduct and the distress

Why are courts reluctant to find IIED?

genuiness and seriousness. people bringing claims to bring them.

What is the requisite intent?

the intent to cause severe emotional distress

what is considered severe emotional distress?

distress so extreme and severe that a reasonable person could not be expected to endure it

what is extreme and outrageous conduct?

Conduct that strikes at the very core of ones being.

Completely violates human dignity.

GENERALLY: mere abusive language is not sufficiently "extreme or outrageous" to support a claim  

What are some exceptions to the conduct needing to be extreme and outrageous

Common Carries

• they are held to a higher standard of care. Bus drivers, pilots

known sensitivity

• if the plaintiff is known to have a sensitivity and the defendant exploits it. HOWEVER people who are hypersensitive are not protected unless you know of the sensitivity.

What is Trespass to Chattels?

A minor interference by the defendant of the plaintiffs possessory right.

What are the elements to a trespass to chattels claim?

1. intent to affect the chattel

2. minor interference with the plaintiffs possessory interest

3. damage to the chattel

What it the requisite intent?

intent to affect the chattel

Purpose is now defined as the conscious object to affect the chattel

How to show minor interference

1. Dispossession

   1. interference with the owners right to use it or taking it.

2. use

3. intermeddling

   1. physical contact with the chattel

What are damages?

1. substantial loss of use

2. impairment of condition, value, or quality

Conversion

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 full value of the chattel.  

elements of conversion

1. Act

2. intent to exercise dominion or control

3. excercise dominion or control, which seriouly interfers with the others right to control

4. damages requiring for the full value of the chattel

What is exercising dominion or control?

Treating another person's property as if it belongs to you, depriving the owner of its use or value

What are the factors for determining damages?

1. Extent and duration of exercise of dominion and control  

2. Intent to assert a right inconsistent with the other’s right of control  

3. Actor’s good or bad faith  

4. Extent and duration of interference  

5. Harm done to chattel  

6. Inconvenience and expense caused the other 

What are not defenses to conversion?

Good motive and innocence

what do defenses do for an intentional tort?

if defendant can prove it, it bars recovery

What are privileges?

Self defense

• silas case where the man was bigger than him and he was truly scared

• only able to use the force that is necessary

Defense of property

• never can use deadly force, human life is more valuable then

Recapture of chattels

• can use reasonable force, but you have to act right then and there. cannot wait needs to be prompt.

Defense of others

private or public necessity

• saving someone from a fire

what is one major defense?

Consent

HAVE to have the capacity to consent though, so no children or mentally incapacitated

Scope of consent: the action has to be within the scope of the actions you consented too.

• case with the social drinking club where he consented to be initiated but only to a certain extent, the force feeding of alcohol falls outside of that consent.

  • davies v. butler, revoked consent and also intoxicated so incapable of consent

What are the types of consent?

1. Actual consent

2. Apparent consent

3. implied consent

What is actual consent?

• Subjective willingness for the act to occur. 

• May be manifested by words, affirmative action, or by silence or inaction under the circumstances 

Apparent consent

• Conduct, including words, that are reasonably understood by another as reflection of consent. 

• If you reasonably rely on something, the law usually favors you.

Case: Where the women raises her arm for the vaccine.

implied consent

• Certain circumstance 

  • Save lives/help people in way that they are usually okay with 

 

Mistake and Consent

Ranson v. Kitner

• shot a dog, that they thought was a wolf.

Unilateral Mistake

• voids consent

Mutual Mistake

• does not void consent

Mistake by fraud in the essence, voids consent.

• nature of the consent

• the extent of the harm reasonably to be expected,

• the facts which make the defendants acts harmful or offensive.

• this is the very nature of what you are consenting too.

  • if you consent to getting flouride and they take the tooth that is in the essence

Mistake by fraud in the inducement is not actionable. they still signed up for the action.

• you knew exactly what was happening, you consent to surgery thinking insurance will cover it but they don’t

Consent is not effective if….

given under duress

views on mistake

Traditional rule:  fraud that goes to the essence of the transaction voids the consent but fraud in the inducement (related to collateral reasons for agreement) does not.

Modern approach:  any mistake sufficiently material to play a role in the plaintiff’s decisionmaking will invalidate consent if the defendant knows about the mistake