Torts Class Notes 8/20/03


Yesterday, we talked about assault.We focused on the issue of apparent abilityÖthis is something the plaintiff must demonstrate.


Assault is typically a mental injury.Only when you combine it with battery will you get a physical injury.


Apprehension doesnít mean fearÖit means the sense of about to be touched.Most of the time, the damages for assault will involve offense rather than harm.


In battery, who determines what contact is harmful and offensive?


We will also talk about intent today.


Last time, we talked about three hypothetical situations.Who is the cheapest cost avoider?We think maybe the one kid should have worn a shin guard (except the contact occurred in class, where you wouldnít normally expect it).


How do you describe Putneyís intent?There was definitely intent to touch, and itís designed to be at least mildly offensive.


Where does the idea of ďcheapest cost avoiderĒ come from?C.f. Posner & U. of C.


Question 4, p. 31 in Prosser.What if thereís intent to touch but not intent to harm?What if she asked the employees not to touch her?Does it depend on who can say if itís offensive contact?This is a battery, although you might not get much in damages. If you donít consent to contact, itís battery.


Intent is important in this case.If the plaintiff finds the contact harmful or offensive and protests, the defendant canít say they didnít know it would be harmful or offensive.If there are no protests, thatís different.


If someone says ďnoĒ, and you go ahead and do the thing, itís battery.But again, youíre not going to get much money.


Some cases are battery, but the cases will never make it to court because itís not worth it monetarily.


Itís battery to touch someone who doesnít want to be touched, once you know they donít want to be touched, even if youíre trying to help.


We make an exception for doctors treating unconscious people.


Fisher v. Carrousel


Issue: How far does your ďpersonĒ extend?


What happened at trial?The jury awarded damages to the plaintiff, but the judge vacated the verdict and ruled in favor of the defendants.The Court of Civil Appeals upheld this decision.Then the plaintiff appealed to the Supreme Court of Texas.


The trial court itself can overrule the juryís verdict.Youíll file a motion for this frequently, but it will rarely actually happen.


This is called the extended personality doctrine.


Weíre looking for an intimate association with your body to find liability.


Does the racial epithet matter?Maybe for damages, but grabbing anything intimately associated with someoneís body in a mean way is battery.


You must be performing the act to harm.


What about blowing smoke in someoneís face?Whatís different between a dog and smoke?A dog has a mind of its own (though the owner would be liable if the owner sics the dog on the plaintiff).Itís easier to get away from smoke than a dog.One is particulate matter, whereas a dog isnít.The problem with smoke is how do you know when it has ďtouchedĒ you?


When someone is allergic to something and theyíve told you so, and then you expose them to it, you can be liable for battery.


What about the plaintiffís responsibility?Thereís an element of that.


Intent to harm is important.When we donít know what the intent is, we do not assume it from the context.


Note 4, p. 34


A, B and C.C is liable for battery to both A and B.If you set the force in motion, and it caused harm, youíre liable for battery.Imagine if you shoot a bullet at somebody.




Garratt v. Dailey


Two ways to prove intent:


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


1.     The person has the purpose of producing that consequence, or

2.     The person knows to a substantial certainty that the consequence will ensue from the personís conduct


What is substantial certainty?50%?Greater than 50%?


With intentional torts, age is relevant to asking what a child knows.Has the kid ever seen someone fall when there isnít a chair beneath them?He can be liable.He can form an intention.But can he form an intention of substantial certainty?


You need to infer intent from knowledge.


What does it mean to remand to clarify?


The trial court (there was a bench trial) determined damages as if it was worried it would get reversed.There must have been some concern ďpercolatingĒ in the court.


What constitutes substantial certainty?Itís a tough question.E.g. Tootsie Roll pop case.Intent matters.Itís sort of a matter of likelihood.If there is a high risk of harm, even if the plaintiff didnít intend to harm anyone, then they are liable.


What if you warned people before you threw the Tootsie Roll Pops?You wouldnít be off the hook.


False Imprisonment


Elements of false imprisonment:


1.     Intent to confine

2.     Bounded area

3.     Must be awareness

4.     Unconsented and unprivileged (not really part of the prima facie case)


Big Town v. Newman


Big Town tried to keep Newman at their nursing home against his will.


We say it certainly was false imprisonment.What are the key facts that make this so?


1.     The admission papers said that Newman would not be confined against his will.

2.     Newman didnít want to be confined there.

3.     He is precluded from leaving.


What if the plaintiff had been allowed to wander around the grounds, but couldnít leave the grounds, is that still false imprisonment? What if the nursing home was really nice?Doesnít matter, still false imprisonment.


What if he wants to get into the nursing home and they say no?Is that false imprisonment?Can he sue the nursing home for keeping him out?No.


What about if you have a ticket to the race track?


In a moving car, you can be falsely imprisoned.


What about reasonable means of escape?Thatís a defense that can be raised.


You must escape if itís reasonable to do so.


You shouldnít have to incur risks that you would normally not incur in order to escape.


What if you canít escape unless you knock someone unconscious?Is that false imprisonment?You donít want to risk getting hurt by that person, so that is false imprisonment.


It doesnít take much to be false imprisonment.If you would rip your clothes while escaping, thatís false imprisonment.


We protect against dignitary harms in intentional torts.


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