Torts

Battery: Prima Facie

1. A acts,

2. Intending to cause contact with P; 

3. The contact with P that A intends is of a harmful or offensive type; and 

4. A’s act causes P to suffer a contact that is harmful or offensive.

Battery: limits of contact

Some degree of physicality (cigar smoke; extended personality)

Battery: offensive contact

1. Offensive to a reasonable sense of personal dignity OR 

2. The actor knows that the contact is highly offensive to another’s [unreasonable] sense of personal dignity AND contacts the other person with the primary purpose that the contact will be offensive.

3. Objective standard.

Battery: Consent as an element vs defense

1. ELEMENT: Some treat lack of consent as an element of the Prima Facie case – plaintiff must prove nonconsent in order to prevail. 

2. DEFENSE: Some treat consent as an affirmative defense – pleaded and proven by the defendant

A majority fail to take a clear stance. Implied consent in shared social spaces.

Battery: Spectrum of Intent

1. Most expansive liability: Intent to take the action that ends up causing the contact. Did A mean to move their arm as they did? [EXAMPLE]

2. Intent to cause contact. Did A mean to cause any bodily contact with V? Doesn’t require the contact to be of a harmful or offensive type. [Wagner] 

3. Intent to touch another in a way that is harmful or unacceptable. Did A mean to perform the act-type? Doesn’t require A to intend harm or offense or appreciate the wrongfulness of their actions. [Vosburg; Cole]

4. Intent to harm or offend. Did A mean to injury V in some way?

5. Most restrictive liability: Intent to produce the act’s consequences. Did A mean for V to lose three teeth when he punched them in the face? [Spivey]

Battery: Single intent v. Dual intent

• Single Intent: Requires only the intent to make contact, NOT an intent to harm or offend. R3T supports this because single intent is more protective of the victim's bodily autonomy. ACT ONLY: Wagner. 

• Dual Intent: Requires that A intends both the contact, and that the contact be harmful or offensive. ACT & H/O: Vosburg (because unlawful)

• Under Single standard, he doesn’t need to h/o, but under dual, he does.

Battery: Intent & Knowledge to a Near Certainty

• Most courts define intent to include situations where the defendant acts with knowledge that harmful contact is substantially certain to occur, even if not specifically desired. [

• R3T: A person acts with the intent to produce a consequence if: 

  • The person acts with the purpose of producing that consequence, OR 

  • The person acts knowing that consequence is substantially certain to result.

Knowing is subjective. The issue is what D actually knew, not what they should have known.

Eggshell Skull Rule

Wrongdoer in a tort is liable for all injuries directly resulting from a wrongful act, whether it could be reasonably foreseeable.

Battery Cases:
Cecarelli v. Maher; Paul v. Holbrook; Vosburg v. Putney; Cole v. Hibbard; Wagner v. State;

Cecarelli v. Maher. Beaten by 3 assailants, plaintiff sues, Maher fails to appear → default judgment of lost wages and pain & suffering. SHOWS: classic harmful contact with intent. 

Paul v. Holbrook. SHOWS: classic offensive touch with intent. 

Vosburg v. Putney. Intent to harm is not necessary if the act itself was unlawful. Defendant could be held liable for all injuries directly resulting from the wrongful act, regardless of whether those injuries were foreseeable (Eggshell rule). 

Cole v. Hibberd. The essential character of the tort governs the applicable claim, regardless of how the plaintiff frames it. The intent to harm is unnecessary for battery; the intent to make contact is sufficient.  

Wagner v. State. Battery requires only “intent to make [any] contact, not any intent to harm, injure or offend through that contact.” The state argued in favor of battery because then they would have immunity. Adopts single intent.

Assault: Prima Facie

1. A acts

2. Intending to cause V apprehension of imminent harmful or offensive contact; and 

3. A’s act causes V reasonably to apprehend such contact

Assault is not the inchoate wrong of attempted battery; it is the completed wrong of causing the victim to experience a certain kind of threat.

Assault: Elements

Fear vs. Apprehension. Plaintiff does not need to prove fear of imminent harm, but must show awareness that such contact might occur. (Lack of fear may affect compensatory damages). 

Conditional Threats. For a threat to qualify as assault, it must create a reasonable belief in the victim that the threatened contact is imminent/immediate. “One of these days, you’re gonna get it” = likely not assault. Context heavily impacts how courts interpret threats. 

Present Ability & Reasonableness of Apprehension. Not all apprehensions constitute assault; there must be an objective basis for the fear (must consider social norms and physical proximity).

Assault: Transferred Intent (four categories)

1. Same intended victim, different intentional tort. [Nelson v. Carroll]

2. Unintended victim, same intentional tort. [In re White] 

3. Unintended victim, different intentional tort [In re White, if White only intended to scare Tipton]

4. Intent to contact property transfers to intent to contact a person [Lunn v. Burnette]

What transfers is the Defendant’s INTENT. The victim's apprehension can never be transferred.

Assault cases: Beach v. Hancock; Brooker v. Silverthorn; Vetter v. Morgan; Nelson v. Carroll; in re White; Lynn v. Burnette

• Brooker v. Silverthorn. There was no assault as a matter of law. The defendant wasn’t present to make good on his words and the threat was stated conditionally–D didn’t intend for P to apprehend imminent h/o contact. Behavior can be abusive without being assault. The plaintiff’s fear of imminent harm was unreasonable due to the lack of physical proximity between her and the defendant. 

• Vetter v. Morgan. Summary judgment was inappropriate here because a jury could reasonably find “yes” or “no” to both. Objective grounds for fearing imminent harm due to 1) close physical proximity; 2) time of night; 3) aggressive behavior of the defendant. 

• Nelson v. Carroll

• In re White. White cannot discharge his tort liability to Davis, because even though Davis was the wrong victim, the act itself was “willful and malicious” and therefore the Bankruptcy Code was interpreted to include the common law doctrine of transferred intent. 

• Mullins v. Parkview Hospital. Reasonable belief for consent. The court emphasized that the student had no reason to suspect that plaintiff had insisted on modifying the standard consent for, because couldn’t prove the student touched with intent to harm. 

• O’Brien v. Cunard. Rule: liability is barred when D, based on plaintiff’s conduct, actually and reasonably believed that P had consented to contact.

Intentional Torts: Affirmative Defenses

Tort defenses are justifications, not excuses

JUSTIFICATION: Defendant’s conduct meets the definition of a tort but, under the circumstances, was not wrongful (self-defense)

EXCUSE: Defendant’s conduct meets the definition of a tort but, under the circumstances, was understandable, even if still wrongful (duress)

Intentional Torts: Consent as a Defense

Express vs. Implied [Koffman]

1. Express: Clearly communicated through verbal or written agreement. The scope of the consent is usually the question. 

2. Implied: Consent is inferred through the plaintiff’s actions: conduct or participation in certain activities.

Made via reasonable inference.

Intentional Torts: Self-defense, Stand Your Ground Laws

1. One who is involved in an altercation with another has the right to use such force as is necessary to protect himself from imminent bodily injury. Requires actual belief that harm is imminent AND reasonable belief that use of force is necessary. 

2. Stand Your Ground Laws: 

Zone 1: Occupied House or Vehicle. D is presumed to have a reasonable basis for apprehending harm or risk of harm. Presumption is irrebuttable. 

Zone 2: Any other Place One Has a Right to Be. No duty to retreat, but if D provokes P, D faces liability for P’s use of defensive force UNLESS: 

a. P continues the altercation after D breaks it off; or 

b. During the engagement, D has no option but to use force to save himself (no retreat available).

Intentional Torts: Factors for Judging Proportionality

1. Level of threat and response. Force that is deadly or likely to cause serious bodily harm is never allowed to merely block entry or evict.

2. Necessity of using deadly or serious force. Deadly force is only justified if the intruder poses an imminent danger. 

3. Important of human life over property

4. Presence of warnings

5. Status of the intruder. Trespassers who pose no threat to people are not subject to deadly force.

Consent/Self defense cases: Koffman, Haussler, Katko

• Koffman v. Garnett: Defendant Coach tackled plaintiff (14 year old) after telling him to stand still and be a tackle demonstration. Lifted him up and threw him on the ground, injuring P’s wrist. The court ruled that the summary judgment for D was wrong because it was a matter of fact. Did the child consent to being tackled when he signed up for football and agreed to stand there to be tackled? 

• Haussler v. De Loretto: D pushes P out of his house after dog ran away and was justified due to circumstances, would not have been justified if he had shot P. Reasonable force in self defense.

• Katko v. Briney: Spring gun case; Plaintiff was a petty thief, but ruled in his favor because deadly force or force likely to cause serious bodily harm may never be used merely to block entry or evict. A warning would make it okay.

Trespass: Prima Facie

1. D enters or causes an entry onto a land (entry requires physical contact: physical can include smoke or gas)

2. The land is lawfully possessed by another 

3. D intended to enter or cause entry onto the land, or remain on the land, or failed to remove a thing from the land (intent is satisfied even if D had no idea they were entering land possessed by another)

Strict Liability

Burns Philp made an honest mistake. Why did it still lose?

Trespass is strict liability; an honest mistake is no defense. Trespass requires only that you be where you are, not that you know it is your land or not.

Trespass: Who can sue?

Standing to sue: plaintiff must have a possessory interest in the invaded property (landowners, tenants, etc.). Injury v. damages: the injury is the boundary-crossing. On, above, or below the property line: no tangible harm required.

Carelessness or recklessness need not be proven.

Trespass: Necessity and the consent defense

One is sometimes responsible for bad consequences of a good choice.
Consent defense: Desnick v. Food Lion v. Copeland: Trespassing is a normal space versus trespassing to gain access to a private space.

Trespass Cases: Burns Philp; Kopka; Vincent; Ploof; Copeland; Desnick; Food Lion.

Burns Philp Food v. Cavalea: BPF unknowingly builds a fence on Cavalea’s land. Case of strict liability: BPF believed it was their land, but it was not, so they were liable. 

Kopka: 

Vincent v. Lake Erie Transp. Co: Storm rolls in, D keeps ship at dock even though departure is required by terms of use, and the dock was damaged. The court ruled that while this was the right choice, someone had to pay for the damages, and that would be the person responsible for the bad consequences of the good choice (Lake Erie). 

Copeland v. Hubbard: Ps permit vet and student to enter home, student is secretly videotaping and later broadcasts images of P’s home. This entry exceeded the scope of consent that P gave to the student. 

Desnick: Reporters pose as patients at P’s clinic to record for expose, no trespass because P consented to the entry. 

Food Lion: Reporters use fake resumes to obtain jobs, record back area for expose. Trespass was present because it was beyond what they could normally get to.

Negligence defintion and elements:

A breach of duty owed to a class of persons to avoid causing injury to any of them through careless conduct.

1. Injury

2. Duty

3. Breach of Duty

4. Causation

Negligence: Injury

Physical Harm: bodily harms and property damage. Corresponding duty is general/unqualified

Economic Loss & Emotional Distress: Corresponding duty is limited/qualified.

Negligence Duty (nonfeasance)

Matter of law: decided by the judge
General (unqualified) Duty: To take reasonable care to avoid causing physical harm to foreseeable victims

Limited (qualified) Duty: 1) To make reasonable efforts to protect or rescue; 2) to provide safe premises; 3) to take care to avoid causing non-physical harm

Negligence Duty: Reasonable Foreseeability for physical harm

• Physical harm: owe a duty to each member of the class of persons whom one can reasonably foresee physically harming if one were careless in undertaking a given court of conduct. 

• Probabilities: Harm to a person such as P must be a ‘meaningful possibility’doesn’t need to be a high percentage 

• In the duty, RF is always about the class of person who is protected. BREACH is about the exact circumstances. 

• Attractive Nuisance Doctrine – condition would pique a child’s curiosity and that the danger would not be apparent to the child.   

• Recreational Use Statute: If you are on land but not paying, no liability. 

• Normative Judgments: 

• Measuring foreseeability (judgment call)

  • The floor: Meaningful Possibility

  • The frame: class of victims, not individuals

  • The viewpoint: ordinary sense, never hindsight

Negligence: Limited (Qualified) Duties of Care: Affirmative Duties to Rescue or Protect

Traditional approach: Presumptive no duty with yes-duty exceptions. These are:
duty to rescue statutes, voluntary undertakings, imperilment, special relations

Special relations:

• If a possessor of land knows or should know that an invitee on the premises needs assistance, the possessor must take steps to assist, even if the possessor did not create the need.

• Tarasoff

Negligence: Limited (qualified) duties of care: Premises Liability

Trichotomy:

• Invitee enters at invitation of the possessor in furtherance of possessor’s business or mission → Possessor must take care to provide reasonably safe premises. 

• Licensee enters with permission but not in furtherance of possessor’s business or mission → Possessor must warn of hidden dangers about which the possessor knows or should know

• Trespasser enters without permission → No duty of care owed to adults (only a duty to refrain from willful/wanton injuring); duty owed to minors to care against attractive nuisance

Rejecting the trichotomy turns into: Permitted Entrant v. Trespasser. A duty of care is owed to all, except flagrant trespassers, in which there is a responsibility to not act in a willful or wanton manner and exericse reasonable care should they become imperiled.

Negligence: Limited (qualified) duties of care: Pure Economic Loss

No liability even if economic loss to a nearby business was reasonably foreseeable because there was no duty to avoid causing this sort of loss. 

Special Relation exceptions: attorneys and accountants 

Predicate Injuries & Parasitic Damages

1. Predicate Injuries are required, because without one, the ripple-effect. 

2. If there was property damage to the motel = predicate injury. Lost revenues would then be parasitic on the predicate injury, not through the pure economic loss avenue. Same dollars, different door. 

3. Outlier: Railroad. Highly foreseeable economic loss

Negligence: Limited (qualified) duties of care: NIED

Zone of Duty:

1. D’s negligence must carelessly place P at risk of imminent physical harm, and

2. P’s contemporaneous awareness of the risk causes her to fear for her own safety.

The defendant's negligence must place the plaintiff in immediate risk of physical harm, and the plaintiff must suffer serious emotional distress because of that danger.

Negligence Cases:
General Duty:
Affirmative Duty/Duty to Rescue:
Premises Liability:
Pure Economic Loss:
Emotional Distress

General Duty

• MacPherson v. Buick: No contractual privity between the wheelmaker and M; Court held that one who invites another to make use of an appliance is bound to reasonable care (applied only to products). To be read narrowly. 

• Mussivand v. David: Husband sued lover for STD; Court ruled that STD-haver owes the married person’s spouse a duty to take care against infecting the spouse, but only until the married person knows or should know. 

Affirmative Duties or Duties to Rescue/Protect

• Osterlind v. Hill: P rents canoe from D, canoe tips, P drowns

• Baker v. Fenneman & Brown: Taco Bell. If a possessor of land knows or should know that an invitee on the premises needs assistance, the possessor must take steps to assist, even if the possessor did not create the need. 

• Tarasoff v. Regents: Poddar shared homicidal thoughts, P sued against therapists for careless failure to warn Tarasoff. 

Premises Liability

• Leffler v. Sharp: Quarter Inn, trichotomic distinction, overstayed his welcome. 

• Demag v. BPE: Distinction between invitees and licensees abandoned; trespasser category retained (50% courts do this)

• Ornelas: need to add RUS and swimming pool? 

Pure Economic Loss

• Aikens v. Debow: Damage done only to the road near the hotel, nothing actually done to the hotel itself. No duty between the driver and the hotel owner. 

• People Express v. Consolidated Rail: Outlier Case. 

Emotional Distress

• Wyman v. Leavitt: D blasting rocks onto P’s property; Court ruled there was no Injury. So far as negligence law is concerned, pure emotional harm does not meet the injury element. 

• Robb v. Pennsylvania: Rejected the impact rule and starts the Zone of Duty Rule

• Consolidated Rail v. Gottshall: Federal case. Under FELA, NIED is a standard negligence case (no special rules) where P need only prove injury, duty, breach, and causation under usual standards. 

Breach of Duty: Misfeasance

• Matter of fact: decided by the jury; deeply impacted by how the judge frames the jury instructions. 

• The failure to conduct oneself as would a person of ordinary prudence. Ordinary suggests a moderate and reasonable amount of care–care that is neither minimal nor extreme. 

• When trying to determine the breach, the question is not whether the duty exists (that has already been decided) but how to define the duty of care owed by D to P (Heritage). 

• Common carriers owe their passengers the highest degree of diligence and care in the operation of its vehicles. Common carrier = commercial enterprise that holds itself out to the public as an offer to transport freight or passengers for a fee. [Jones v. Port Auth.]

• Exceptions to the Decision by Jury: 

  • Campbell (lawnmower case): when a person uses ordinary care and there is no reason they should have exercised extraordinary care. 

  • Adams v. Bullock: Trolley case. Must put limitations on foreseeability.

Breach: An objective standard

• Do or do not use ordinary care. There is no try. 

• No breach arguments that don’t have authority, but may be relevant:

  • “I did my best”

  • “I meant to be careful”

    • Because Tort law is all about allocating damages: who should be held liable?

• Congenital defects may get you into heaven, but his neighbors require him to come up to their standard.

Adjusting the objective standard of breach

• Not taken into account: 

  • Clumsiness

  • Foolishness

  • Mental illness/incapacity

  • Old age

• Taken into account: 

  • Youth

  • Physical disability

  • Expertise

Breach: Ordinary care spectrum

• Least Demanding: Duty to avoid recklessly injuring another. 

• Good Samaritan Statutes: Duty to avoid causing injury through gross negligence

  • Covers good faith efforts. 

  • Voluntary undertakings: 

• Martin: Duty to take ordinary care to avoid injuring another. 

• Jones: Duty to take extraordinary care to avoid injuring another. 

• Strict Liability: Duty to avoid injuring another (fault irrelevant)

Breach of Duty cases

• Martin v. Evans: Defendant parks in the last space, returns from the bathroom and enters the cab. Completes log (2 minutes), releases brakes (hisses), uses flashers and mirrors, backs up, hits plaintiff. The Supreme Court ruled that the trial court cannot  retry the case because it shocked the court’s sense of justice, because it’s a question for the jury. 

• Myers v. Heritage: Plaintiff injured when placed in Hoyer lift by CNA. The jury was instructed to determine breach of professional care standard, when they should have been instructed to determine breach of ordinary care standard. Jury instructions matter. 

• Jones v. Port Authority: Guy gets hurt as the bus moves on with him standing in the door; the common carrier owes the highest degree of diligence. 

• Campbell v. Kovich: NOT decided by the jury; was summary judgment. All evidence showed that Kovich used reasonable care when mowing the lawn, and such activity does not require an extraordinary level of care. 

• Adams v. Bullock: Trolley case. No breach AMOL because no professional or industrial standard was violated, no history of similar accidents, use of overhead wire system was lawful. 

• Vaughan v. Menlove: D’s haystack spontaneously combusted after being told it would, the defense argued that he acted as prudently as he could given that he was a fool. Solidifies the 

• Appelhans v. McFall: Tender Years Doctrine–5-year-old not liable (under age 7) for hitting 66-year-old with bike, parents not liable because there was no evidence of prior dangerous incidents.

• TJ Hooper: Compliance with custom is probative of ordinary care, not dispositive. Just because it was standard to sail without radios doesn’t make that a Good Standard.  

• Johnson: former medical malpractice standard that said if you acted within professional standards you were acting reasonably. 

• Condra: In medical malpractice suits, expert testimony is admissible only if the putative expert has actual professional knowledge and experience and practiced within three of the last five years. 

• Largey v. Rothman: For informed-consent malpractice, we return to TJ Hooper.