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TORTS I - PROFESSOR MOORE

I. DEVELOPMENT OF LIABILITY BASED ON FAULT

1. TORT

i. Definition of tort: a civil wrong for which the law provides a remedy (not a breach of contract here)

tortus” in Latin = twisted

tort” in French = injury or wrong

2. P URPOSE OF TORT L AW:

- To prevent people from taking the law into their own hands

- To deter wrongful conduct

- To encourage socially responsible behavior

- To restore injured parties to their original condition (as well as law can)

II. INTENTIONAL INTERFERENCE WITH PERSON OR PROPERTY

There are 7 Intentional Torts: (“I C FITBAT”)

1.

Battery

2.

Assault

3.

False Imprisonment (False Arrest sub-tort of FI)

 

4.

Intentional Infliction of Emotional Distress

5.

Trespass to Land (trespass: direct and immediate application of force to the person or tangible property)

6.

Trespass to Chattel

7.

Conversion

A.

INTENT

i.

Definition of intent: The desire to bring about a result and the belief that the result is substantially certain to

 

occur

Can be malicious or well-meaning/helpful

 

Intent brought to life” by external factors and acts—that’s what we look at (we’re not mind readers)

Objective verifiable facts determine intent

 

Liable for reasonably foreseen consequences, though the result and damages were not contemplated

To be liable, you do not need intent to do harm intent to do the thing or act is key

ii.

Definition of general intent: setting in motion a chain of events knowing with substantial certainty a result will occur (reasonable that pulling out chair would cause woman to hit ground—chain of events). The actor intends only to do the act prohibited by law.

substantial certainty = general intent

iii.

Definition of specific intent: Acting with purpose or design to accomplish an act. The actor intends for a specific result to occur.

It’s called “specific” because you meant for what happened to happen exactly as it did

When dealing with intent, you have specific intent on one side of the spectrum and on the other side you have negligence, and general intent falls somewhere in between the two. This means as the certainty of the consequences decreases you get closer to negligence. The court determines where the line is drawn distinguishing general intent from negligence by evaluating the circumstances and evidence presented in each case.

B.

Situations that DO NOT negate intent:

M A

G

5

1. Children 5 years-old & older

are responsible for actions

younger than this & court says too young to formulate intent

Garratt v. Dailey Little boy pulls out chair from old woman broken hip (general intent)

2.

Good Faith Mistake

Public Policy:

- Act with more care even if you act in good faith

- State of mind is not governing factor b/c it opens up lying as a defense (“But it was an accident!” Who can really know someone’s internal thoughts when they acted?)

Do you need motive to have intent? No

Motive immaterial

Ranson v. Kitner intended to kill a wolf & accidentally shoot neighbor’s dog instead. Even though they were acting in good faith and made a mistake that the dog was a wolf, they had the intent to kill the wolf, so they still had general intent and are liable for damages

In the case of you cutting down a neighbor’s tree thinking it was your own, the court will make you pay your neighbor so that it will deter you from trespassing in the future and prevent you from having an unjust enrichment at another’s expense.

If you make a reasonable mistake in self-defense, then you can use that as a defense. Moore’s example of irate shopper at Neiman’s: Woman trying to return a dress, reaches into her bag to pull out a boiled egg (why?) and manager and employees jump on her b/c they think she’s reaching in for a gun. They are not liable b/c they thought she had a gun and were acting in self defense. The jury said that under the circumstances that was a reasonable mistake to make.

3.

Accident

If the shooting was accidental (gun misfires of own accord & bullet hits dog), then they could be charged with negligence.

4.

Insanity & Mental Illness

McGuire v. Almy nurse hit over head with sofa leg by her mentally ill patient.

4 strong public policies the court talks about regarding why a mentally ill person is to be held responsible:

i. Court wants to make those that are responsible for the mentally ill ∆ (family members, caretakers, etc.) liable for ∆’s actions. If the mentally ill person commits an intentional tort and is liable for them, then it will come out of the family members’ pockets. Typically, courts hope this will ensure there is more supervision/control of mentally ill person in future—preserving his property.

ii. If the mentally ill person can afford the help/care, then he should be able to afford the damages he causes to victim.

iii. The civil courts do no want to have to debate the mental capacities of the mentally ill person. That would require determining to what degree is a person mentally ill, which is already used as a defense in criminal courts. We don’t allow this defense in civil courts so that victim can have a remedy in at least one of the courts.

iv. An insane person who has abundant wealth shouldn’t be able to continue in unimpaired enjoyment of the comfort his money brings to him while his victim bears the burden of his actions unaided.

Fault is not necessary for liability

Has to entertain same intent as a normal person

Specific intent not needed, simply show that the mentally ill person acted voluntarily.

4.

Voluntary Intoxication

Get drunk/take drugs of own volition—not forced upon you, so you’re liable

C. Doctrine of Transferred Intent

Talmage v. Smith man intends to commit assault by throwing a stick at Boy #1 to scare him off a roof, but he commits a battery instead when the stick hits and blinds Boy #2

Definition: Doctrine permits to prove intent by showing the intended to commit one tort but ended up accomplishing another; also intended the tort for one person but got another instead

Must originally have intent

Ex: A hits B intentionallyB crashes into C = A is liable to both B and C

Ask: Does the act set in motion the harm?

Public Policies:

- Law wants to limit antisocial behavior

- Law wants people to bring disputes into court (rather than take law into their own hands)

- Law holds you responsible for results of your actions even if it didn’t come out like you intended

5 interchangeable torts (trespass writ torts) that transferred intent applies to: FITBAT

1. False Imprisonment

2. Trespass to Chattel

3. Battery

4. Assault

5. Trespass to Land

1. BATTERY INTENTIONAL, TRANSFERRABLE

Definition of battery: The intentional, unlawful, harmful, or offensive touching of another, directly or indirectly, without justification or excuse. General intent is the minimum.

Anger is not a component of battery (though it was before 1704)

If there is no intent, you may be held liable for negligence, but not a battery

Battery can exist in absence of a physical injury as long as there were offensive and/or insulting acts (grabbing a plate, knocking off a hat)

Good intentions do not negate here. Accidents do not negate intent.

You have to take into any known sensitivities in person (you know tapping them on shoulder will upset them and you do it anyway)

Causal link between two things

Do not have to show actual damages

Implied consent: for example – giving CPR. In this situation the ∆ is not liable. Don’t have time to get

consent. Battery & HIV: if I have it & I know it & sleep with someone that’s a battery. If I didn’t know I had it and had no reason to know then I am not liable. Mortuary: universal precautions…if a body arrived that had HIV, no liability to ∆ because of that.

Hypotheticals in class: spitting in someone’s face, grabbing their hat, etc…all qualify.

Public Policy of battery:

- Law protects bodily integrity

- Law protects personal dignity

- Law protects mental suffering (as shown in Fisher v. Carrousel Motor Hotel, Inc. grabbing the plate…)

Remember: accidents don’t negate intent (you throw a rock at a bird and hit a boy instead)

Fisher v Carrousel Motor hotel: touching anything so intimately connected with one’s body as to be

universally regarded as part of the person. It is a direct touching. This is a rule of law, defining what a touching can be. What is the court trying to do in awarding plaintiff? Restore personal dignity. If this wasn’t the case then it allows for people to violate your rights with impunity and get away with it.

A. The Agency Theory

Says touching element of battery can be accomplished by touching something so intimately connected to the person (the agent) so as to be deemed part of that person

Fisher v. Carrousel Motor Hotel, Inc African-American man who worked for NASA assaulted at buffet via his dinner plate1st time court really looked at emotions involved of victim

Agent used for touching could be connected to or

- Ex: Kicking someone in his false leg (false leg intimately connected w/ person)

- Ex: Pulling chair out from beneath someone—contact with the ground serves as agent

2. ASSAULT INTENTIONAL, TRANSFERRABLE

Definition of assault: the intentional, unlawful, placing of another in apprehension of imminent harmful or offensive bodily contact, with the apparent ability to do so

Tort ahead of its time b/c recognized the right to be free from fear or apprehension of unwanted contact

Per contra = “on the other hand”

Western Union Telegraph Co. v. Hill woman believes imminent apprehension of bodily contact with an

employee who wants to love and pet her.Respondiant Superior: “look to the man above…” Let the employer answer. When he reached for her she felt threatened, finding for plaintiff. Benefit of the case: this case shows the “apparent ability” standard. Don’t have to carry act out, just have the apparent ability to do it.

Examples: Leering does not constitute assault. There has to be some movement towards to constitute assault.

Vicarious liability – responsibility of one for the acts of another. Guy throwing rocks at you, he’s 100 feet away: can the rocks reach you? If they can, there’s likely an apparent ability. If it’s some fat guy that can’t do it: likely no apparent ability. Mad at neighbor: you’re holding rocks staring at your neighbor in the street NO – mere preparation

for assault does not constitute assault, has to be “preparation plus.” There has to be a step toward. You’re at a job interview. They see a gun in your briefcase. No assault. What if you place it on the desk, “Man, I really want this job…” Yes, assault.

Apprehension in mind of ∏ what is essential

seizing of the mind”—believes it’s possible for offensive/harmful touching to happen

Deals with the here & now—not future, threats of future action are not enough.

Do not have to show actual damages just like battery.

Every battery does not include an assault.

Tort of assault different than assault in criminal law: In torts, the victim must have the apprehension of direct contact (know in advance)—thinking it will happen is critical

Fear is NOT required only apprehension, but fear gets you higher damages if you can prove it

Like battery, anger is not an element of assault

I de S et ux v W de S assault exists even if he said he didn’t mean to do b/c transferred intent applies. Assault is not necessarily an attempted battery. Tort law requires that you are aware that the other person is attempting to place you in apprehension, if you are not aware, there is NO ASSAULT.

Words that give an intentional false warning are an assault b/c they place the other in imminent apprehension (“Watch out! There’s a snake behind you!”)

Words that impose an UNLAWFUL condition are assault (“Give me your money, or it’s your life.”)

Public Policy of assault:

- Law values mental tranquility

- Law wants to deter anti-social behavior

What is NOT an assault?

- If you are blindsided there was no apprehension or “seizing” no assault

- Analyze physical proximity & ability to carry out:

Not assault to “blow” kisses at another from across a room.

Not assault to shoot a gun at someone across a lake.

Can a man on crutches chase you down the street?

- Mere words are not enough

- Mere preparation not enough

- Future threats not assault (“I’m going to beat you up next week.”)

- Conditional threats/words that negate bodily contact not enough (“If your hair weren’t gray, I’d slap you silly.”)

- Words that report danger from an independent source not assault

- Leering at another person is not enough to constitute an assault. (Action + movement is key)

From: http://www.40nations.com/outlines/index.php?&direction=0&order=&directory=Torts

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