Torts Class Notes 9/2/03


Last time…we discussed intentional infliction of mental distress.


Reckless = 85% likely to cause a problem, substantially certain = 90-95% likely to cause a problem.  However, negligent behavior means below the standard of care; you haven’t done what a reasonable person would do under the circumstances.  This would be around 50-55% on our scale.


When you’re reckless, you’re not thinking about your actions, but it’s a risky behavior that’s likely to be damaging.


Patterns of repeated behavior will be more likely to result in a judgment for intentional infliction of mental distress.


If the defendant knows that a plaintiff has a certain emotional sensitivity and they take advantage of it, the plaintiff will be more likely to prevail.


Harris v. Jones is an example of a “poorly lawyered” case in this field.


Some defendants have a lower standard, such as common carriers, which are held to a higher standard.


You have to prove severe emotional distress.  One way to do so is to show physical signs of emotional harm.  You can also show emotional harm that was treated by a psychiatrist or psychologist.  You must prove, for example, that you were unable to work due to significant stress stemming from the claimed injury.


There is also a tort for negligent infliction of mental distress.


Bystanders Taylor v. Vallelunga


What do you need to prove intentional infliction of mental distress to a bystander?


The defendants said that they didn’t dispute the facts, but that intentional infliction of mental distress cannot lie because the defendants didn’t beat up the plaintiff’s father for the purpose of causing her emotional distress, nor did they have substantial certainty that such an outcome would follow.


Is presence necessary for intentional infliction of mental distress to lie?  If we allow non-present parties to collect, would this create an overflow of cases?


Wouldn’t a babysitter have known with substantial certainty that molesting a child would cause severe emotional distress to the parents?


What is the benefit of the “presence” rule?  It gives you a bright line; it’s predictable.


But isn’t there sympathy for the mother?  The “presence” rule cuts off certain people we might be better off covering.


California requires presence, the Restatement requires presence, but not all jurisdictions require it.


Part of your job on an exam is to predict how similar or how different a given case is to a cause of action for intentional infliction of mental distress.


If a member of your family is present at the time you are harmed, and the defendant knows that some third party is there, the third party need not show physical harm to show damages.  If it’s a friend instead, they would have to show physical consequences.


There is no transferred intent with intentional infliction of mental distress.


Cole is not a big fan of the presence rule.


If someone makes a reasonable request of me and there’s no intent to cause harm, they can’t be liable for intentional infliction of mental distress.


What if your mother tells you off and you get really upset and hurt?  Can you sue her?  The courts don’t want to get involved in family feuds.  You’d have a better case with total strangers.  There’s a slippery slope concern here.  Family members say mean things to each other all the time.  Society wants to maximize free communication among family members.  For example, for a long time there was parental immunity from getting sued by their children.  The concern is that there will be a flood of groundless claims that will clog the courts and hurt families.


Trespass to property - Dougherty v. Stepp


This is an intentional tort.  The most interesting thing is that the intent required is the intent to enter the property of another.  That isn’t much!


Don’t forget that mistake does not negate intent.


Every authorized entry onto the land of another is trespass.


Why would you sue for $1?  You might sue to assert property rights.


There’s also something called adverse possession.  If someone holds property “hostile and adverse to the world”, he will own that property after some statutory period of time, usually seven years.


You can’t sit on your rights with respect to property; you must assert your rights.


Was it important in this case that the property wasn’t fenced?  No, you don’t need a fence or a sign.


Who was the owner of this property?  It doesn’t matter who.  It only matters who possesses the land.  For example, I can sue someone who comes into my apartment inappropriately even though I don’t own it.


What if the defendant tripped and fell onto the plaintiff’s property?  Mistake does not negate intent, except when you can’t stop yourself from doing something because you’re tripping.  It’s a “technical trespass”.  It’s of such minor importance that we won’t allow a suit.  We might be able to sue for negligence.


Tripping counts as a voluntary act.  The only thing that doesn’t count as a voluntary act is when somebody pushes you.


One of Cole’s favorite cases, because it took place in a town she grew up in:


Bradley v. American Smelting and Refining Co.


The ASARCO smelter spewed lots of bad stuff into Tacoma.  The people who are suing live on an island which is a ferry-ride away from the smelter.  They argue the bad stuff blew across the water to their island.


How did the case get where it is?  It’s in the Washington Supreme Court.  How the heck did it get there?  It was in the United States District Court.  The federal court wants to “certify a question” to the state Supreme Court.  They want to know more about the state laws of Washington.  In particular, they want to know about the law in the state in regard to particulate matter falling on property and if that’s trespass.


The case is in federal court because the plaintiff is suing under a federal environment statute.


Why does the plaintiff want to sue under trespass rather than nuisance?  What do we know about this smelter?  Has it just recently started polluting?  No, it’s been going on a long time.  What is the problem of statute of limitations?  The statute of limitations may have expired for nuisance but not for trespass.  The trespass is continuing.  We say that there is damage every time a trespass occurs onto your property.  You have two years from when each incidence of trespass occurs within which you must sue.


On the other hand, the nuisance claim requires an invasion of the plaintiff’s use and enjoyment of their property.  Nuisance is a hard case.  There’s also no such thing as a continuing nuisance rule.


If we didn’t know something was harmful, and then we discover that it’s harmful, it’s too bad.  This plaintiff wants trespass to lie for strategic reasons.


But did trespass lie in this case?  No, because there were no actual or substantial damages.  The court doesn’t really give a reason why trespass didn’t lie.  The court more or less creates a new rule that there is only a trespass if you can prove actual damages.  Nominal damages are no longer allowed as such.


Is this a good rule?  Why or why not?  As a policy matter, we don’t want a huge number of lawsuits on this topic because it will bankrupt companies.


This blurs the line between trespass and nuisance because you just have to show intent to enter the land.  Once you prove trespass, you can collect for all the damages that occurred.  Being found liable for trespass can be very expensive to you.


Nuisance allows more of a balance between what’s good for society and what’s good for the individual.  In other words, it balances the risks and benefits of an activity.


Bradley holds that you cannot sue for trespass, but you can sue for nuisance.


What about the race track and the outdoor movie theater?  That’s nuisance though it’s not trespass.  Light and sound are nuisance causes of action rather than trespass causes of action.


For example, at Polaris or an airport: you’re not due damages for nuisance because you got a better deal on that house because you have to put up with noise.  You knew about the nuisance when you came, so you can’t complain about it now.  On the other hand, if you didn’t expect it, you may have a case.


Herrin v. Sutherland


A guy fires his shotgun over somebody else’s property.  Why did this lawsuit take place?  Why would you bother to sue in this case?  You don’t want somebody shooting over your property.  You might sue for an injunction instead of suing for money.  Nevertheless, the plaintiff figures that if the defendant has to pay him money, he won’t do this anymore.  The defendant might have a lot of money, though, and might be willing to pay the plaintiff.


What do we learn about property ownership from this case?  It extends into the sky and down into the ground.


One hypothetical


What if the defendant had accidentally hit someone on the plaintiff’s land while firing at the ducks?  Would the defendant be liable for anything?  The defendant would be liable for battery.  How does the plaintiff get to the defendant?  They can use the doctrine of transferred intent.  If the defendant intended to trespass on the plaintiff’s land, but you ended up committing battery, and the intent properly transfers between the two torts.


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