Torts
Class Notes
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.
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
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
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.
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.