Torts Class Notes
Yesterday, we talked about
assault. We focused on the issue of apparent
ability…this 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 doesn’t mean
fear…it 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 wouldn’t normally expect it).
How do you describe Putney’s
intent? There was definitely intent to
touch, and it’s designed to be at least mildly offensive.
Where does the idea of “cheapest
cost avoider” come from? C.f. Posner &
Question 4,
p. 31 in Prosser. What if there’s 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 it’s offensive contact? This
is a battery, although you might not get much in damages. If you don’t consent to contact, it’s battery.
Intent is important in this
case. If the plaintiff finds the contact
harmful or offensive and protests, the defendant can’t say they didn’t know it
would be harmful or offensive. If there
are no protests, that’s different.
If someone says “no”, and you
go ahead and do the thing, it’s battery.
But again, you’re not going to get much money.
Some cases are
battery, but the cases will never make it to court because it’s not worth it
monetarily.
It’s battery to touch
someone who doesn’t want to be touched, once you know they don’t want to be
touched, even if you’re trying to help.
We make an exception for
doctors treating unconscious people.
Issue: How far does your “person” 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 jury’s verdict. You’ll file
a motion for this frequently, but it will rarely actually happen.
This is called the extended
personality doctrine.
We’re 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 someone’s body in a mean way is battery.
You must be performing the
act to harm.
What about blowing smoke in
someone’s face? What’s 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). It’s easier to get away from smoke than a
dog. One is particulate matter, whereas
a dog isn’t. The problem with smoke is
how do you know when it has “touched” you?
When someone is allergic to
something and they’ve told you so, and then you expose them to it, you can be
liable for battery.
What about the plaintiff’s responsibility? There’s an element of that.
Intent to harm is
important. When we don’t 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, you’re liable for battery. Imagine if you shoot a bullet at somebody.
Intent
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 person’s 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 isn’t 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 “percolating” in the court.
What constitutes substantial
certainty? It’s a tough
question. E.g. Tootsie Roll pop
case. Intent matters. It’s sort of a matter of likelihood. If there is a high risk of harm, even
if the plaintiff didn’t intend to harm anyone, then they are liable.
What if you warned people
before you threw the Tootsie Roll Pops?
You wouldn’t be off the hook.
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 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
didn’t want to be confined there.
3.
He
is precluded from leaving.
What if the plaintiff had
been allowed to wander around the grounds, but couldn’t leave the grounds, is
that still false imprisonment? What if
the nursing home was really nice? Doesn’t 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? That’s a defense that can be
raised.
You must escape if it’s
reasonable to do so.
You shouldn’t have to incur
risks that you would normally not incur in order to escape.
What if you can’t escape
unless you knock someone unconscious? Is
that false imprisonment? You don’t want
to risk getting hurt by that person, so that is false imprisonment.
It doesn’t take much to be
false imprisonment. If you would rip
your clothes while escaping, that’s false imprisonment.
We protect against
dignitary harms in intentional torts.