Torts Class Notes 9/8/03

About the practice exam

It’s next Wednesday, it will be 30 minutes (so you can gauge your time).

It’s open book and open note (that’s your case book and your class notes).

On the final exam, you probably have print stuff off your computer. The computer rules are extensive. Don’t search! Don’t cut and paste from your outline!

You can handwrite or type. Typing people can go print it out and give it to Prof. Cole by (hopefully) 4 PM.

It’s just one question, and it will be about intentional torts and defenses to them.

Don’t use old exams yet, they cover stuff we haven’t covered.

Review

Last time, we talked about trespass to chattels and started talking about conversion.

You can’t transfer intent with conversion.

Conversion is an inefficient way to get your goods back because you force the sale of the goods. Generally, the further away goods move, the more likely a jury will call it conversion. The question is: at what point is it so inconvenient that the plaintiff can sue for conversion?

Mistake does not negate intent.

An alternative action to conversion is to replevin the goods, which means to get the stuff back rather than forcing it resold. If somebody took a lottery ticket or a special pet, the situation would suggest using an action for replevin instead of an action for conversion.

Don’t ever make up facts on a test question.

We’ve now covered all the prima facie cases you can establish for intentional torts. Now we’ll cover defenses that can be asserted.

Consent

This is based on the plaintiff’s conduct. The defendant will argue that a reasonable person would have taken the plaintiff’s actions as consent to the defendant’s act.

O’Brien v. Cunard S.S. Co.

How would a reasonable person view what the plaintiff did? She mentioned in passing that she had already been vaccinated, and did not protest when he said that he didn’t see a mark.

Are there any arguments for the plaintiff that would avoid the outcome in this case? She could argue that it was a coercive and oppressive environment where she didn’t have much power. Therefore, it wasn’t appropriate to infer consent.

Most people read the case in such a way that the consent is reasonable, but it’s useful to explore the opposing view.

Custom and circumstances weigh heavily in determining whether someone has consented to a particular action.

What’s the problem with suggesting that the plaintiff should prevail? You would have a policy problem and a conflict with the legitimate interest in preventing disease. Also, if you can’t rely on the objective appearance of consent, it would be slow and expensive because you would need forms and procedures and so on. In this case, we treat the objective appearance of consent as actual consent.

If the circumstances indicate implied consent, the plaintiff needs to explicitly withdraw consent. Otherwise, the plaintiff is responsible for her own protection, for example, through insurance.

You can infer consent from the existence of a relationship through action or words. Therefore, in order to withdraw consent, the plaintiff must use action or words to make it clear.

Hackbart v. Cincinnati Bengals, Inc.

There was a game between the Bengals and the Broncos. Clark of the Bengals intentionally hit Hackbart of the Broncos in the back of the head with a forearm because he was mad they were losing. Neither person complained to the officials, and no penalty was called.

What’s the consent issue here? Do the players implicitly consent to violence simply by playing the game of football?

Does it matter if the injury happened during a play? Can we tell from the facts?

If the injury happened outside the course of playing the game itself, it’s not governed by the rules of the game and you can be held liable for battery.

It’s presumed that players consent to conduct that’s within the rules, but not conduct that’s outside the rules of play.

How do you figure it out? Well, what’s the custom of a football game? Does the given conduct fit into the custom of the game? Well, no, hitting isn’t allowed by rule or by custom in the game.

If it happens in the course of the game, it’s unlikely you’ll be able to recover for battery. If a fight breaks out that you didn’t get involved in but you get whacked anyway, you probably have a good case.

You can imply consent from a course of dealing that the parties have had in the past. Conduct that is normally accepted in society will not be called battery.

Mohr v. Williams

The plaintiff was a patient who was told that her right ear needed an operation. During the operation, the surgeon decided the right ear was fine, but the left ear needed surgery, which he performed. At trial, the jury found for the plaintiff with a big verdict, but the trial judge granted a new trial on the basis of excessive damages.

This is technical battery based on the interest in protecting people from interference with their person.

We allow parents to waive children’s rights during medical procedures.

Furthermore, in terms of determining the costs and benefits of determining a particular procedure, the best person to make the judgment is the plaintiff, so we need to wake the plaintiff up and do the procedure another day.

Why does the plaintiff sue for battery rather than negligence? The doctor did the procedure right, so you can’t sue for negligence on that basis. In 1905, there was no informed consent, so the plaintiff in this case had to sue under battery.

Consent may be implied if a procedure is necessary to preserve life or limb and the person is unable to give express intent.

Next time, we’ll continue with consent.

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