Torts Class Notes
Last
time, we talked about assault. We talked
about trespass. When it was direct, and
there was harm, there would be liability despite no fault.
Then in Weaver v. Ward, there are possibilities
discussed where you might not be liable if the act was involuntary.
We talked about reasons
things were the way they were and why they changed (i.e. the growth of industry
in the
I de S
showed that you had to prove the intent of the acting party, the creation of
the apprehension of harmful or offensive contact.
The Restatement of Torts
suggested reasonableness is not a requirement.
The court decided in I de S that you can have mental as well as
physical harm.
Western Union Telegraph v. Hill
What happened at trial? The trial court finds for the plaintiff. The defendant appealed.
What did the trial court get
wrong? The defendant said that he never
could have reached her. The issue is
whether or not the defendant had the apparent ability to commit
assault. The contact can’t be imminent
if you’re not able to make the contact.
Remember, any factual
questions must be addressed by the jury.
It’s only questions of law that the
The court reversed because
Sapp wasn’t acting within the scope of his employment. It wasn’t the company doing the assault, and
it wasn’t paying him to do the assault.
What’s the impact of Sapp’s
drinking? Did the drinking cause
anything? The drinking may be
outside the scope of people’s employment.
But we don’t even need to get to that part. Unless your job entails intentional torts,
like if you’re a bouncer, intentional torts are considered outside the scope of
your employment.
So why did they sue
Assault Concepts
1.
Intent
to cause imminent apprehension
2.
Harmful
Contact vs. Offensive Contact
3.
Actual
Apprehension (reasonable, depending on jurisdiction)
a.
Western Union — Apparent Ability
b.
I de S — Mental Injury
Words alone do not amount
to assault. But why?
Hypotheticals
The kissy-kissy case: We say it’s not actionable. How come?
Part of it is the slippery slope.
That is, if we open up this action too broadly, we will have more
lawsuits than people will tolerate in society.
It’s not enough to be an
injury that’s recognized in a court of law.
Also, it’s hard to ascertain the amount that should be recovered for
mental injuries.
Does the environment you’re
in contribute? Yes. C.f. Fisher v. Carrousel. The customs of the world will impact
liability. You look at the testimony of
both plaintiff and defendant and weigh intent heavily.
The KKK case: What would the Vietnamese fishermen have to prove to
show assault? The KKK must have actually
made a move towards harming the families.
Can the KKK be liable for assault simply by putting on the robes? No…at least you’d have 1st
amendment problems, I think. You can’t
just guess people’s intent.
Bringing a gun along for
an interview: Does it depend on how
you’re carrying the gun? What if it was
concealed? It’s hard to call that a
threat. What if it’s in a holster? Does the mere sight of a gun constitute an
assault?
“Like I said, I sure would
be happy to have you as my son-in-law.”
Next door neighbor: Let’s say I call you up and I’m over to beat you up,
but I never come over. If I didn’t do
anything, it can’t be an assault. If I
threaten your dog, is that an assault?
No, because I’m not threatening to touch the dog’s owner. If the dog is harmed, then I’ve committed
trespass to chattels.
Assault
can be attempted battery, although it can stand on
its own.
Sleeping kisser! Is this
assault? It might be battery (offensive touching), but I didn’t apprehend
the harmful or offensive contact, so it’s not assault.
Not all batteries include
assault.
What if I sic my dog on
you? We don’t want people to get off the
hook by saying they didn’t directly cause the battery.
Momentary apprehension is
worth something to a jury, but not as much as the battery.
Apprehension is necessary for
assault.
Contact is not. Once you get
contact, you move to battery.
So the dog attack is assault
if you run and then break your leg.
Sometimes judges are wrong.
Note (9)
A.
If
it weren’t for…I’d kick your ass. Well,
if your words disclaim the assault, you don’t have an assault. Does it make a difference that the guy has
his hand on his sword? The words still
disclaim the assault.
B.
Same
C.
Same
D.
?
E.
“Your
money or your life”? You can’t impose an
unlawful condition. But what if you just
said the words but did not make a gesture? That’s tricky.
Why is there an assault
tort?
·
Psychological
Injury is Compensable
·
Legal
Protection of Mental Tranquility
·
Threats
of Force Resulting in Economic Gain
·
Consistent
with
Defendant must intend to cause
harmful or offensive contact with the person of another which causes harmful or
offensive contact.
How did things change from Cole?
You don’t have to be angry. The
part about going through a narrow passage is still not actionable due to
slippery slope and other stuff.
What about when they
“struggle about the passage”? Actually a
lot less than this can constitute battery now, especially when you look
at the role of intent today.
Elements of
-
Touching
another in anger?
- Intentional touching?
- Intent to cause harmful or offensive contact?
- Voluntary?
- Harmful or Offensive
- Contact—of person?
- Actual touching?
The touching has to be things
connected to you.
More Hypotheticals
Six-year old boy shoves
four-year old girl. Is the boy
liable? Yes, it’s battery. When you shove someone, you expect to cause
them mild harm, not major harm. Does it
matter that the harm in this case exceeded what a reasonable person would
expect?
What about kicking someone
playfully, with no harm intended? Are
you liable? Well, what if he is? Maybe kids wouldn’t be allowed to kick each
other and have fun anymore. What about
shared liability? The kid with the
potential infection is the cheapest cost-avoider. Why doesn’t he wear a shin-guard? Where do we want to put the incentive? We want to say, “you have to wear a
shin-guard when you think you might get infected”. The playful kicking should occur on the
playground. What about in class? The expectations of appropriate behavior might
be different in class. There’s a strong
argument that he should wear the shin-guard in situations where he’s likely to
get kicked.
For tomorrow, read 17-20 and
37-41.