Torts

  1. Torts: the law of wrongs

    1. Non-accidental injuries: 

      1. Intentional torts (personal or property

  1. Battery

    1. Cecarelli v Maher (1943) 

      1. Facts: Maher, Heinz, and a third person brutally beat up and damaged Cecarelli

      2. No real talk about Battery; Maher didn’t show up to court, so the Judge just decided

      3. Talked about many reasons why charges were dropped against Heinz:

        1. Judgment-proof defendant: can’t recover from someone if they don’t have assets; they settled the matter outside court, etc

    2. Paul v. Holbrook (1997)

      1. Facts: Paul and Holbrook were coworkers; on many occasions Holbrook made sexual comments to Paul, and massaged her shoulders on two.

      2. Issue: Did the prior court rule in error when it granted summary judgment to all of Paul's claims? Was the massage battery instead of “casual touching”

      3. Rule: A battery consists of the infliction of a harmful or offensive contact upon another with the intent to cause such contact or the apprehension of such contact is imminent

      4. Ruling: To figure out whether the massages were battery is to be left to the fact finder

        1. Why? 

          1. Test of offensiveness is deemed what is offensive to an ordinary person who doesn't have a heightened sensitivity to personal dignity. 

          2. The case that the trial court used to say that it wasn't battery is not similar enough to this case to make that judgment

            1. Gatto v. Publix Supermarket, Inc: a grocery employee trying to stop a shoplifting doesn't commit battery when they accidentally and briefly came into contact with the shoplifter

    3. Spivey v. Battaglia (1972)

      1. Facts: Spivey (shy) + Battaglia worked at a fruit company; on lunch break, Battaglia teases Spivey by giving her a hug and pushing her head → caused Spivey to get pain in her face and paralyze the left side of her face

      2. Battaglia argued that yes, this was assault and battery, but it expired under the statute of limitations (lower court agreed)

      3. Issue: whether Battaglia's act was negligence or battery

      4. Rule: Intent component in battery requires an offender (reasonable man) knowing that the harmful result is substantially certain to follow; negligence involves the knowledge of a foreseeable risk that a reasonable man should avoid 

      5. Ruling: a reasonable man would not believe the bizarre results and injury that happened to Spivey to be substantially certain to follow from Battaglia's act; therefore battaglia is negligent. 

        1. Why? Compared McDonald, where a person kept kissing another despite her struggling; the struggling was proof of knowing she was certain to be harmed or offended, which constituted battery, to this case, and said that there was no way for Battaglia to intend or know that Spivey would get harmed in such a way by his simple hug, however, there was always a risk, given that Spivey is shy, and there is damages which points to negligence. 

    4. Leichtman v. WLW Jacor Communications (1994)

      1. Facts: Leichtman: well-known anti-smoking advocate, goes to advocate anti-smoking on WLW show, WLW host blows smoke in L’s face, to distress and humiliate him, and L sues for battery, invasion of privacy, and health code violation.

      2. Issue: Did the court err in dismissing L’s claims for failure to state a claim 

      3. Rule: Liable for battery if: “he intends to cause a harmful or offensive contact with the other person AND a harmful contact with the person of the other directly or indirectly results OR an offensive contact with the person of the other directly or indirectly results”

        1. Offensive to a reasonable sense of personal dignity; “disagreeable, or nauseating or painful because of outrage to taste and sensibilities or affronting insultingness.

      4. Ruling: WLW host’s act was a battery, as there was offensive contact; smoke has particulate matter, so it can make contact, and L was harmed

        1. However, this case is trivial; it's silly, and such cases distract the court from more important cases, BUT it is still a battery, and everyone is entitled to have their case heard and to expect justice, so this case survives and isn't dismissed for no claim.

  1. Battery:

    1. Battery : an act with intent causing harmful or offensive contact; can be by instrumentality or within a zone of personality [without privilege]

      1. Single intent: need just to intend to do the act

      2. Dual intent: need both intent to do the act, AND intent to do the harm

      3. Contact: either harmful OR offensive

      4. Zone of personality: extends from the body; the more likely the item in the ZOP is to come into contact with the person, the more the act inflicts on the ZOP (kicking stroller someone is pushing vs. kicking tire of car someone is in)

  2. Overall notes: 

    1. Tort law is mainly common law

    2. Pleading the alternative: long list of charges → putting anything you think could be proven, knowing it may be cut down to ones that stick

    3. Summary judgment: to end a case or claim before trial b/c there is no genuine dispute over facts, or any dispute is not relevant to an element of the law

/

  1. Assault, transferred intent

    1. Assault

      1. Beach v. Hancock (1853)

        1. Facts: Beach + Hancock in an argument; Hancock pulls gun out on beach in a threatening manner; he pulled the trigger twice (gun was unloaded)

        2. Ruling: Hancock liable for assault.

        3. Reasoning: 

          1. Society needs security; without it, it loses value (business, peace, order all stem from personal security)

          2. Therefore, we have a right to live in society without fear of personal harm

          3. Reasonable fear → it's reasonable to fear someone pointing a pistol at you in a threatening manner regardless of whether it's loaded or not

      2. Brooker v. Silverthorne (1919)

        1. Facts: Brooker = night operator at a telephone exchange; Silverthorne calls for a connection, and Brooker can't get it. Silverthorne gets upset → starts cursing; Brooker tells her, “If I were there, I would break your goddamn neck”

        2. Ruling: Silverthorne’s words were not an assault

        3. Reasoning: A reasonable person would not apprehend the words of Silverthorne to be a threat because there was no imminent danger to Brooker (she was in the company building; Silverthorne was at home)

      3. Vetter v. Morgan (1995)

        1. Facts: Vetter stops her van at a red light; Morgan pulls up in a car driven by Gaither. Morgan began threatening Vetter (threatened to remove her from the car); 

        2. Ruling: A reasonable mind could think that Morgan's actions could meet the requirements for assault

        3. Reasoning:

          1. Due to proximity of cars, Morgan's behavior, and the whole fact pattern, Vetter could’ve had a reasonable apprehension of an imminent threat

      4. Assault: 

        1. An act with intent to place plaintiff in apprehension of an imminent contact that is either harmful or offensive 

        2. Apprehension must be: 

          1. Actual

          2. Reasonable or subjective? (majority of states: would a reasonable person think this, minority of states: would THIS person think this)

        3. Imminent is an open-textured idea

    2. Transferred Intent

      1. In Re White (1982)

        1. Facts: White shot Davis in the stomach, but he intended to shoot Lipton. Davis successfully sued White for $50k in damages, White filed bankruptcy. Case to determine if White’s debt is nondichargeable. 

        2. Rule: 1 U.S.C Section 523(a)(6): A debt incurred from an action based upon a willful and malicious injury by the debtor ro another person may be nondischargeable in bankruptcy

        3. Ruling: Relies on transferred intent; one who intends a battery is liable for that battery when he unexpectedly hits a stranger instead of the intended victim.

          1. White Intended to shoot Lipton, but shot Davis instead therefore the intent to shoot Lipton is tranferred to Davis.

        4. Reasoning: 

          1. When someone acts in malice toward an intended target, they act in malice in general; they shouldn’t be excused because they’re bad at whatever act they did. 

        5. Proposed Hypotheticals: What if White shot davis by accident? (Still transferred intent from tort to tort, from assault to battery)

        6. Takeaway: The court is willing to transfer intent only when transferring intent is the only way plaintiff can get damages (for example, in this case, a nondischargeable debt can only be so IF there the act was willful and malicious (needed intent for a battery to be there)

      2. Transferred Intent

Intent

Result

Transfer? 

Tort A (ex: assault)

Tort B (ex: battery)

Yes

Target A (ex. Jones) 

Target B (ex: Smith)

Yes

Tort A Assault → Target A Jones

Tort B Battery → Target B Jones

Yes, but courts are less comfortable

Property Tort A

Bodily Tort B

Courts are least comfortable with this because it looks the most like negligence (think about a graffiti artist tagging a Starbucks and accidentally spraying a barista that walks out)



  1. Defenses

    1. Koffman v. Garnett (consent defense not proven)

      1. Facts: Koffman football team, Garnett, assistant coach. One day after practice, Garnett gets mad at the team, asks Koffman to come up and “stand motionless and upright” so he can “explain the proper way to tackle” → without warning, he picked up and slammed Koffman to the ground. 

      2. Ruling: Koffman's claims were insufficient for assault, but there was sufficiency for a battery claim. 

      3. Reasoning: 

        1. Battery: Andy only consented to being tackled by players of like age and experience; he didn't consent to being tackled by his coacch. There was also an element of fraudulence because the coach only told him that he was going to explain the situation. Also Koffman is 13, so he lacks capacity to consent. 

        2. Battery: There wasn’t a long enough window between when Garnett began to tackle Koffman to when he touched him for Koffman to have a reasonable apprehension of fear. 

      4. Hypotheticals/Takeaways: 

        1. Does it change the fact if Andy willingly got up there and said “yea” → not really because we can still find that such consent stemmed from things that negate it. 

    2. Haeussler v. DeLoretto (self defense proven)

      1. Facts: P and D were arguing about P’s dog that was at D’s house, P started coming up to D, D asked him to leave the property three times, thought P was gonna hit him, so D pushed or struck D and closed the door. 

      2. Ruling: D used reasonable force in defense of himself. 

      3. Reasoning: In defending himself, D used proportional force toward P, as he thought P was going to hurt him. 

      4. Hypotheticals/Takeaways: 

        1. We talked a lot about what kind of force that would be proportional for certain defenses, ie., if a little lady came up to your door to push her? Proportional force is an open-textured element

        2. Response to reasonable belief of harm must be proportional (same w/defense of others)

    3. Katko v. Briney (defense of property not proven, force was too much) 

      1. Facts: Briney rigged up a spring trap gun to defend his house. Katko came in looking for jars; the gun shot Katko and destroyed his leg. Briney said he was defending his property

      2. Ruling: An owner cannot use a spring trap gun to protect property against trespassers and thieves. 

      3. Reasoning: The force is not proportional; it is not discriminatory (ie., a spring gun fires at anyone regardless). The life and integrity of the body take priority over defending property. Katko wasn’t threatening anyone's bodily safety or life.

      4. Hypotheticals/Takeaways: 

        1. The life and integrity of the body take priority over defending property. Defendant can only use deadly force or force likely to cause serious injury to protect property only if there's a substantial threat to their life or body, and if they would only be allowed to use that same force if they were standing there in person. You have the right to exclude people from your property (but it must be proportional) 

    4. Defense to Intentional Torts

      1. Consent defense:

        1. Actual consent: words or conduct that plaintiff intends, and defendant understands as willingness to submit to relevant act 

        2. Implied consent: participation in ordinary social circumstances where relevant act is ordinary and to be expected 

        3. Apparent consent: words or conduct that are reasonably understood to confer consent even when plaintiff did not so intend them 

        4. Scope of consent: Plaintiff’s consent is not unlimited, so going beyond boundaries of what plaintiff allowed is still unconsented and gives rise to liability

        5. Consent is invalidated in cases where it is derived from: duress, fraud, lack of capacity (underage, mentally impaired, impaired by substance)

      2. Self-defense:

        1. An actual and reasonable belief of imminent bodily harm (contact, confinement, negligence) to self or others.

          1. If belief is mistaken: minority districts = you forfeit the privilege (Pro-P); majority of districts = you retain privilege (Pro-D)

          2. If mistake made for others in need of defense: some jurisdictions forfeit the privilege and some you retain 

        2. Limits 

          1. Force must be proportional to threat

          2. Duty to retreat from deadly force: split authority

            1. Retreat to wall: retreat preferred to use of deadly force IF completely safe and attacked outside of home

              1. Retreat doesnt relinquish right to prevent intrusion into dwelling place

            2. Stand your ground: no duty to retreat IF in a place entitled to be and not engaged in criminal conduct 

              1. Irrebuttable presumption to the defendant of reasonable belief in imminent harm IF defendant knew victim was unlawfully and forcibly entering a residence/dwelling or an occupied vehicle.

      3. Defense of real property (land)

        1. Plaintiff has an unprivileged (no good reason) intrusion on defendant's land, AND Landowner reasonably believes force is necessary to repel intrusion and has requested that they leave.

          1. Actual lack of privilege 

          2. Perceived lack of privilege because of Plaintiff's intent not to say why they're on the land or negligence (failed) to properly state why they're on the land

          3. Request to leave either denied or deemed futile

        2. Limits:

          1. If an intruder is mistaken about privilege to enter, it does not forfeit defendant's privilege to defend

          2. Does not include privilege to cause death or serious injury UNLESS defendant has reasonable belief that self-defense is called for

          3. Must be proportional 

          4. Defendant is liable for injured third parties for negligent use of force

          5. In general, no mechanical devices intended to or likely to cause death or bodily harm are permitted (also vicious guard dogs)

            1. Doesn’t allow communication element to ask to leave or to figure out if there was a privilege to be there

      4. Defense of movable property

        1. Privilege to retake exists IF defendant had previous possession of or is entitled to immediate possession of AND plaintiff has taken chattel wrongfully or forcibly AND defendant begins retaking effort immediately/timely discovery AND defendant first demands return or such a demand is futile. 

        2. Privilege permits use of force and entry on land without trespass liability, 

          1. However, IF defendant consented to chattel being on land (ie., they said you can borrow something) must use legal process (suing or police) to get it back, and IF defendant is a conditional seller (eg., dealership who sells a car based on the condition that you must make loan payments, but you don't make payments), defendant (or someone they hire (repo man)) may enter if peaceable and with no force

        3. Limits: 

          1. Must be proportional 

          2. No deadly force 

          3. Defendant's mistake regarding privilege to use force does forfeit privilege to commit a tort 

      5. Hierarchy of justified force to defend: (1) life, (2) bodily integrity, (3) real property, (4) movable property 

  2. False imprisonment

    1. Fojtik v. Charter Med Corp.

      1. Facts: Fojtik admitted to an alcohol program (said if he didn't go they would call the police), was allowed to leave and always came back, consented to care, never asked to leave outright.

      2. Ruling: Fojtik’s claims are not sufficient for false imprisonment 

      3. Reasoning: 

        1. Elements of false imprisonment are: (1) willful detention by the defendant, (2) without consent of the detainee, and (3) without authority of law

          1. Detention by: violence, by threats, or by any other means that restrain

        2. Used four cases involving false imprisonment (for willful detention) mapped out what caused FI and what didn’t for the cases and determined that Fotjik was more on the didn't side 

          1. Black: experience gap + harsh interrogation (fear for her kid) = yes, FI

          2. Skillern: physical restraining = Yes, FI 

          3. Amburn: path was open, only threat of imprisonment = No FI

          4. Johnson: left and came back = No FI

      4. Hypotheticals/Takeaways: willful detention is an open-textured element.

    2. Grant v. Stop-N-Go Mkt., Inc

      1. Facts: Grant accused of stealing cigarettes; the store held him for more than 15 mins (almost an hour); police were called. Was told he could leave if he wanted to.  

      2. Ruling: Grant's claims are sufficient to raise False Imprisonment

      3. Reasoning: 

        1. (1) willful detention by the defendant, (2) without consent of the detainee, and (3) without authority of law

          1. Without authority: Shopkeeper's privilege: they can hold someone for stealing if (1) reasonable belief that person is stealing or is attempting to, (2) reasonable time of detention, and (3) reasonable manner of detention 

            1. Reasonable time has passed in this case

      4. Hypotheticals/Takeaways: It's still false imprisonment if you can’t leave; in this case, Grant couldn't leave because doing so would harm his reputation and make him appear to be a fugitive from justice. 

    3. False Imprisonment: An act with the intent to confine which causes confinement of which the plaintiff is aware, and the act is without consent or authority

      1. What can cause confinement:

        1. Force, threat, or any means that convey a reasonable fear of injury to person, property, or reputation

      2. What is confinement:

        1. Bounded physical space; size may vary; it may move

        2. The space may have an exit, but using it will either forfeit safety, forfeit reputation, or forfeit property

        3. X-blocking out

        4. X- locking out 

      3. If you lack intent to confine, then it's just negligence

    4. Privilege to arrest/FI

      1. Officer with valid warrant

      2. An officer or private person without a valid warrant IF

        1. To prevent what they perceive as an ongoing or imminent felony or breach of peace

          1. If mistake as to that: forfeits the privilege for private person

        2. Detain one suspected of felony 

          1. Officer needs reasonable grounds for person AND felony

          2. Private person needs reasonable grounds for person, but be accurate for felony committed (if wrong, you forfeit privilege)

      3. Shopkeepers privilege: basis, means, and duration of confinement must be reasonable. 

  3. IIED

    1. Littlefield v. McGuffey

      1. Facts: Littlefield entered renting agreement with McGuffey. McGuffey upon finding out that Littlefields bf was black and that they had a kid, went back on the agreement, refused to rent + thre Littlefields stuff outside. Then McGuffey made routine and lasting harassment calls to Littlefield and even sent a note threatening her boyfriend. Littlefield says that McGuffeys actions caused several eps of emotional distress, upset stomach and diahhrea, and she was scared walking around. 

      2. Ruling: There was Intentional Infliction of Emotional Damage

      3. Reasoning: In Illinois evidence of a physical manifestation of IIED is not required, and the acts of McGuffey meet the requirements of IIED

        1. (1) the conduct must be truly extreme and outrageous, (2) the actor must either intend that their conduct inflict severe emotional distress OR know that there is at least a high probability that it will, and (3) conduct must in fact cause severe emotional distress

      4. Hypotheticals/Takeaways: In most states evidence of physical manifestations of emotional damage is required to prove the claim. IIED claims are usually the only ways minorities and women can get damages. 

    2. Dickens v Puryear

      1. Facts: Complaint filed more than 1 year but less than 3 after incident. Dickens had sex with 17 y/o daughter of Puryear, he found out, lured Dickens out to rural area, beat him up badly, threatened to kill or castrate him and then said IF he doenst leave the state he will kill him. 

        1. Question: whether this was assault and battery (expires by the 1 year statute of limitations), or if it is IIED (expires after 3 years)

      2. Ruling: Yes, there is a viable claim for IIED that a jury must decide.

      3. Reasoning:  A lot of Dickens claims fall under A + B, BUT the final conditional threat of future harm if he doesnt leave the state → will be killed doesnt fall into either 

        1. No contact, so not battery; no immediate apprehension of imminent harm so not assault = has to be IIED

      4. Hypotheticals/Takeaways: 

    3. Intentional Infliction of Emotional Distress: Intent to cause severe emotional distress or knowledge with substantial certainty that distress will result from extreme and outrageous behavior, that causes severe emotional distress. 

      1. Extreme and outrageous is open-textured. 

        1. Outrageous = would an average person in the community see the facts and say “that's outrageous” 

          1. “Beyond the bounds of civilized conduct that no man should bear”

  4. Property torts: Trespass and Conversion

    1. Burns Philp Food v. Cavalea Continental Freight

      1. Facts: Tax issue (Burns Philp paid taxes to Cavalea due to tax error (unjust enrichment)). Cavalea countersued for trespass b/c the fence that Philps built cut 2000 square feet into their land. 

        1. Previous court held that b/c Cavalea didn’t inform Burns that the fence was trespassing, there would be no damages; chose elemental justice

      2. Holding: Trespass is a strict liability tort, and an obligation to notify the intruder is not required to find liability 

        1. Trespass is a hybrid SL and intentional tort: SL because the act alone is enough; you don’t have to know you're doing it, and intentional b/c you do intend to be on that land. 

    2. Jaques v. Steenburg Homes, Inc

      1. Facts: Steenburg Homes cut through Jacques' property to deliver a mobile home after Jacques repeatedly told them not to. (was no necessity), Jacques was awarded $1 in nominal damages and $100,000 in punitive damages. 

        1. The previous court set aside the punitive damages because an award of nominal damages can't sustain punitive damages. Need to show actual harm for there to be a societal reason to inflict punitive damages. 

      2. Holding: The trespass itself is the damage; property rights are ingrained in society and are key parts of the law; we need to protect them. $1 only in nominal damages wouldn't deter anyone from trespassing, but $100,000 would. 

    3. Trespass to Land: Intent to enter land in possession of another by self or by instrumentality, or remain on land (after consent or privilege has expired), or fail to remove thing from land (originally consented to or privileged)

      1. Harm to land unnecessary; the harm is “breaking the close”

        1. Liable for harm to: land, things, possessor, members of possessor's household, things of members of possessor's household

      2. Strict liability in that no defense available for possession, consent, privilege. 

      3. Reckless or negligent entry on land by self, instrumentality, third party; negligent liability requires harm to land, to possessor, to possessor's interest, or to a thing or person on the land 

      4. Unintentional or non-negligent = no liability 

    4. Thyroff v. Nationwide Mutual Insurance Company

      1. Facts: Thyroff worked for Nationwide; they gave him a data system he used for company practices and personal info; Nationwide fired him and took away the system. Thyroff sued for the conversion of his business and personal information stored on the computer 

      2. Novel question of whether intangible property can be converted 

      3. Holding: Courts need to stay updated with the law; personal property changes over time; first it was only tangible, then it became things that could represent intangible things, and now it needs to (due to reliance on tech), making tangible property personal property. So yes, the data that Nationwide took from Thyroff is intangible property, and yes, intangible property can be converted. 

    5. Conversion: an act or omission with the intent to assert dominion or control over movable property belonging to plaintiff, by destruction, alteration, unauthorized use, unauthorized sale, or refusal to surrender, resulting in substantial damage to chattel or significant dispossession to plaintiff. 

      1. Remedy: full, fair value of chattel at time of conversion.

    6. Trespass to movable property: act with intent to dispossess, use, or interfere without right or title, resulting in possessor to be dispossessed, impaired, deprived of use for a substantial time, or bodily harm, causing damage to chattel or bodily or emotional damage to plaintiff.  

      1. Take without consent, obtain by fraud or duress, bar access, destroy, take custody of law 

        1. If serious, then conversion

      2. Remedy: cost of repair of substitute, ask “what do I think the remedy is”

    7. The difference between trespass to chattels and conversion is the degree of dispossession/destruction: complete vs. incomplete. 

  5. Additional Defenses to Int’l Torts

    1. Copeland v. Hubbard Broadcasting

      1. Facts: KSTP ran a show on vets; Copeland’s cat was treated by Dr. Ulland, who brought along a student assistant. The student assistant was actually a KSTP employee and secretly filmed the Copelands' house, which was later broadcast. Copelands sued for trespass.

        1. Lower court ruled that the student didn't exceed the boundaries of Copeland's consent, and the Copelands didn't limit their consent to the student's educational or job goals

        2. Why not invasion of privacy? Invasion of privacy laws include broad exceptions for news agencies and the publishing of “newsworthy” information

      2. Holding: consent was only given to a VET student to enter the property, and none was given to the recording; therefore the consent scope was exceeded, and the student and KSTP are liable for trespass. 

        1. Consent can also have a purposive scope. 

    2. Vincent v. Lake Erie Transport (landmark case)

      1. Facts: Lake Erie Transport docked at Vincent's dock to unload cargo; a severe storm came, and they couldn't leave the dock, so they kept the boat there, and when the lines snapped, they retied them. The boat owners acted with good judgment. The boat damaged the dock in the storm. 

      2. Holding: The boat owners didn't trespass (necessity), but they still had to pay $500 in damages for the dock.

      3. Reasons why both no negligence and damages:

        1. When there is necessity, you have the privilege to break the law, but whenever you cause harm, you are liable for that harm

        2. Conditional privilege: privilege conditioned on the fact that if you break the close and cause harm, you are liable for that harm

        3. It's not a tort rationale at all; it's restitution: the boat owner was unjustly enriched by saving his boat and harming the dock, so he must pay to make the dockowner whole. 

        4. Economically efficient outcome: rather have $500 paid, then lose the asset worth more and have $2000 paid by someone. 

    3. Trespass to land (defenses): affirmative defenses, consent, privilege, necessity (liable for harm you cause)

      1. Necessity: threat of imminent harm for which plaintiff is not responsible 

        1. Public: complete privilege to trespass to protect community at large

        2. Private: incomplete privilege to protect one’s individual rights

      2. Other defenses: 

        1. Return or retrieve chattel

        2. Abate a nuisance 

        3. Stop or prevent a crime

        4. Incident to use public way.