Torts

VOSBURG V PUTNEY

Facts: D kicks P in shins while in class, before class had been called to order. Aggravated pre-existing P’s leg injury; leg becomes lame. Sues for battery. 

Decision/Holding: Liable; 

• Battery is about intent to touch, not intent to harm

• Not an excuse that amount of damage was not foreseeable; you take the victim as you find them ~ “eggshell plaintiff” rule 

Reasoning:

• Intent element: not about intent to do harm, about intent to contact; P did intend to kick, even if not harm

• Contact: self-explanatory

• Unlawful (harmful/offensive): because class had been called to order, touching was unlawful

  • Might be different on playground ~ implied license to some rough housing

KNIGHT V JEWETT

Facts: P and D playing touch football. D playing rough, P warns D to stop playing rough. D steps on P’s finger; finger eventually amputated. P sues D for battery; both sides agree D did not mean to step on the finger.

Decision/Holding: Not liable; “intent to touch” element of battery means that if contact is not intentional—even if negligent—it cannot be battery 

Reasoning:

• Without requisite intent, P cannot state a CoA for battery

  • Reminder: battery is an intentional tort

  • QUESTION: Would it be different if battery was classified as an unintentional tort?

WHITE V UNIVERSITY OF OHIO

Facts: Piano teacher lightly touches student on the back to demonstrate how to touch piano keys. Causes severe injury. P sues. 

Decision/Holding: Liable

Reasoning: Intent element for battery does not require purpose to cause specific result or injury →  satisfied if actor’s affirmative act causes intended contact which is unpermitted and harmful/offensive.

• NOTE: not specified in class, but says she would not have consented; compare to consent cases → if she had consented then not unlawful or offensive

POLMATIER V RUSS

Facts: A man kills his father during a schizophrenic episode. Found not guilty (criminal) by reason of insanity. Estate (P) files a wrongful death lawsuit against him. 

Decision/Holding: Liable; insanity defense does not negate liability for wrongful death (intent satisfied even if not rational)

Reasoning:

• Did D satisfy the “intent to contact” / voluntary act element? ~ YES

  • For intent, must be voluntary act/external manifestation of will → can’t be reflexive, convulsive, or epileptic

  • No evidence actions were reflexive, convulsive, or epileptic

  • Even if no ability to form rational choice, he was acting through irrational choice

  • Rational choice not required → Insane person could have intent to invade interest if another (see 2nd Restatement §895Jc)

• Policy rationales

  • Incentives: If insane person not held liable for his torts, those interested in his estate (friends and family) have lessened incentive to prevent them person from harming others during episodes ~ ✅

  • Administrability: Fear of people pretending to be insane to escape liability ~ ✅

  • Fairness: More injustice in denying injured party damages than there is in having D/ D’s relatives & friends pay

    • QUESTION: Does this rely on the logic of friends/family eventually benefitting from D’s will? So charging D, because it will affect relatives, is more fair?

LAIDLAW V SAGE

Facts: 3rd party comes to D’s office, threatens him with bomb, D uses P as human shield. P sues for battery.

Decision/Holding: Not liable because no intent element; though P touched D and put him in harm’s way, action not considered a voluntary act. 

Reasoning: Act committed under influence of pressing danger = involuntary because “self-preservation is first law of nature”

• In-class policy analysis:

  • Incentives: cannot incentivize someone not to act if they think they will die otherwise

  • Administrability: Unlike insanity, cannot fake pressing danger

    • Personal note ~ relies on objective rather than subjective measure of danger

  • Fairness: IMO cuts against D’s favor even if slightly

• NOTE: 3rd Restatement §26

  • If one is uses another as a human shield, can be liable

  • If one, contacts another while in escaping from danger, not liable

    • Ex: someone running after A with a gun; A, while running, pushes B out of the way

KEEL V HAINLINE

Facts: Teacher late to class. Students begin horseplay, throwing wooden erasers across the room. P is not playing; gets hit with an eraser, breaks glasses, loses an eye. Ds did not mean to hit her. P sues for battery. 

Decision/Holding: Liable; 

1. Throwing an eraser is unlawful;

2. Even if a D did not “do” the contact, if they aid/abet/encourage/etc, they can be liable for battery

3. Transferred intent when object throw at one person but hits another

Reasoning:

• Was the contact unlawful (harmful/offensive)?

  • Yes. Even if done in spirt/without intention to injure, throwing wooden erasers in a crowded classroom is objectively harmful; doesn’t matter if the teacher had not called class to order (compare to Vosburg)

• Was D liable even though did not throw eraser

  • Yes. 

    • Contact? Yes ~ aided/abetted/encouraged

    • Harmful offensive. Yes ~ see above

    • Intent to harm ~ transferred intent

      • If A tries to commit battery on but inflicts on C instead, C can sue A

LEICTMAN V WLW JACOR COMMUNICATIONS, INC.

Facts: P is antismoking advocate, and goes on a radio show. Host (D), intentionally blows cigar smoke in his face

Decision/Holding: 

• Smoke, as particulate matter, could fulfill the “contact” element of battery.

• Blowing smoke in someone’s face could qualify as harmful/offensive for the unlawful element

  • NOTE: perhaps different based on context (busy city, time period, known information about victim)

Reasoning:

• Tobacco smoke was particulate matter capable of making physical contact 

• Tobacco smoke was capable of offending a person with a reasonable sense of personal dignity

MADDEN V DC TRANSIT SYSTEMS

Facts: P, while standing on a traffic island, has fumes and oily substance spewed on him from a bus. Sues, arguing that D was aware these substances were discharged from the bus → intentional

Decision/Holding: Not liable; 

• Offensive/harmful contact → No.

• Intent → No.

Reasoning:

• Offensive → perhaps crowded world; perhaps implied license when near a bus in a city

• Intent → perhaps not specific knowledge of P sufficient to qualify as intentionally (via substantial certainty)

MORGAN V LOYACOMO

Facts: D thinks P steals from his store, chases P, grabs package out of her hand; P was not stealing. P sues for battery.

Decision/Holding: Liable; 

• Contact element: not necessary to touch someone’s body

• Harmful/offensive: done in rude or insolent manner

NOTE:

• Privilege for merchants to use contact to stop theft broadened overtime; if reasonable suspicion, may detain someone suspected of shoplifting

WALLACE V ROSEN

Facts: P at school trying to drop off homework for her kid. While at school, fire alarm goes off. Teacher (D) touches her on the shoulder → P falls down the stairs. Sues for battery 

Decision/Holding: Not liable; normal hinds of touching that are inevitable in everyday life are not battery (unless rude or insolent)

• Crowded world concept

Reasoning:

• In crowded world, some contact is inevitable and must be accepted

  • Normal kinds of contact (like tap on shoulder), consent is assumed

• Someone standing in a crowded hallway during a fire drill could expect that some contact could be inevitable → the touching on the shoulder was not offensive

MOHR V WILLIAMS

Facts: P consents to surgery on right ear. Once P is unconscious, doctor (D) finds less issue with right ear, but more issue with left ear; operates on left ear w/out consent. Operation successful (though, P reports issues with right ear after), but P sues for battery because no consent

Decision/Holding: Liable; even if consent given to operate on one part of the body, consent needed and not given (explicitly or implied)

Reasoning:

• Consent is necessary

  • Patient must be consulted before operation, no matter how helpful

    • Natural/legal right to decide whether to take chance of surgery or chance of living without surgery

  • In all other trades, contracts are entered into by mutual agreement; no reason doctors should be different

• Consent was not implied

  • If person injured + unconscious and needs surgery → consent implied

  • If during surgery, surgeon discovers condition that endangers life/health → consent implied

    • Not the case here

  • Here:

1. Issue to left ear was no discovered in exam of right ear

2. No evidence of immediate/serious injury to P (not an emergency)

   1. P had not even reported trouble with left ear

GRABOWSKI V QUIGLEY

Facts: P gets injured, agrees to get surgery from D. Surgery performed by a different doctor. P sues for battery because consent was not given to the actual surgeon.

Decision/Holding: Liable; consent given to one doctor does not entitle a different doctor to perform the same surgery ~ violates bodily integrity

• NOTE: Different if patient consents to surgery done by the hospital/staff rather than a specific surgeon → consent then includes doctors and others (see 2nd Restatement §52)

Reasoning:

• PA SC said that [when patient mentally/physically able to consult on condition + in absence of emergency] consent is prerequisite to a surgical operation

• Operation w/out consent is a technical assault (Smith v Yorke) → facts here sufficient to establish CoA for battery

BRZOSKA V OLSON

Facts: Dentist has AIDS, dies. Patients did not know he was sick; wouldn’t have consented to the dental work otherwise. Sues for battery.

• NOTE: none were actually exposed to HIV; damages were only mental anguish

Decision/Holding: Not liable; no offensive touching + consent was viable even without knowledge of AIDS .

Reasoning:

• No offensive touching:

  • Offensive touching is objective reasonableness standard → no exposure = not offensive

• Consent:

  • Even though P would not have consented, they did → consent not violated when touched in exactly the way agreed to

ELEMENTS OF TRESPASS

1. D enters, or causes entry, onto land (or remains on land, or fails to remove a thing from land that D is duty bound to remove)

2. The land is in the lawful possession of another

3. D intended to enter, or cause entry onto, the land (or intended to remain on the land, or to fail to remove a thing from the land. Note that D need not know the land belongs to another, just needs to intend to enter that land)