Torts
Class Notes
How
does the defense part of a torts case work?
The
plaintiff has the burden to establish the prima facie case. If the plaintiff fails to do so, the defendant
can file a motion for a directed verdict.
If this motion fails, then the defendant has the burden to prove one of
the defenses or disprove an element of the prima facie case. Then it’s up to the jury to make factual
determinations.
When
there are words that indicate consent or lack thereof, you have an easier case to
decide than if you consider the circumstances in general.
An
unlawful or unreasonable demand that is made of a plaintiff will not lead us to
conclude that their silent constitutes consent.
In
football, you may have an intentional tort in conduct that is outside the rules
or normal customs of the game.
In
medicine, you consent to the procedure you consented to when you were capable
of doing so. In other words, you have to
wake a patient up and make sure that they’re okay with the new, different thing
you’re planning to do.
Is fraudulently
obtained consent still valid consent?
Consent which is obtained
through fraud is not valid consent.
A
lot of people wouldn’t consider this a battery now, but it would have been
inappropriate at the time. You must
prove intent in battery, but a lack of bad intent on the part of the defendant
can be overcome by an overwhelming societal opinion that the contact in
question is always harmful or offensive.
Notes
on De May
If
you give someone some poison candy, you can be held liable for battery. The defendant’s knowledge that the candy is
poison does not eliminate the defendant’s liability.
Say
A consents to sex with B who has an STD.
Is B liable to A for battery?
What if a woman misrepresents her fertility to a man, they have sex, and
then they have a baby? Let’s say she’s
suing for child support. Would her
misrepresentation make a difference? Why
might we not want to get into this area?
Courts don’t like to get involves in people’s intimate
relationships. The facts are frequently fuzzy
and often amount to “he said, she said”.
On
the other hand, there may be public policy concerns in regard to transmission
of disease, as opposed to fertility.
Usually
misrepresentation of fertility or disease will result in liability to the other
party.
What
about a wife consenting to sex with her husband who claims the consent was
obtained fraudulently because he didn’t tell her he was having an affair? If we allowed lawsuits in cases like this, we
might have a slippery slope problem. The
case in question was dismissed.
The
plaintiff and defendant were in a prize fight and the plaintiff died as a
result of the fight. Can the plaintiff
consent to an unlawful act?
There
are two views. The majority view says
that both parties are liable to each other, while the minority view says
neither can collect because they were both engaged in an illegal act.
The
court decides that neither party is liable to each other. The rationale for the minority view is that
you need to reward the loser against the victor in order to enforce the
criminal statute against the illegal conduct.
Think
about the incentives that this rule would create: it gives you an incentive to know
and follow the law and to avoid risky illegal activity.
The
court also says that you shouldn’t profit from your wrongdoing.
At
best, we can say there are two principles:
1. We discourage
illegal activity.
2. We do not
reward wrongdoers for their wrong conduct.
What
incentives would the majority rule create, and why would we pick one rule over
another? What would happen in a jurisdiction
with this majority rule? Would there be
more or less illegal activity? The
minority rule tends to discourage illegal activity more. However, the majority rule might create an
incentive for the winning fighter to pull back instead of risking a lawsuit for
beating his opponent up too much.
The
incentives are not a whole lot different between the two rules under
consideration in Hart.
Notes
on Hart
License
requirements for boxers are meant to protect the boxers. If they participate in illegal boxing, they
can still sue because the statute was written to protect them.
The
classic example of this is statutory rape.
If the purpose of a statute is to prevent a certain class of people from
harm, people in that class can still sue.
A plaintiff’s consent to an
illegal act is not valid if the statute against the act exists to protect him.
Sometimes your will is not
free if there is a significant power differential between the parties.
You cannot rely on consent that
does not reasonably appear to be freely given.
Hypos
gone wild!!!
A
customer swears a lot at a mechanic and the mechanic hits him. Can the mechanic claim self-defense? Words are insufficient provocation to trigger
the privilege of self-defense. Language
doesn’t constitute assault. You must use
reasonable force when using your privilege of self-defense.
You can use reasonable force
in amount and duration based on the circumstances to protect your person.
The
force you use must be proportional in some sense. There must be an immediate threat of
harm to trigger the self-defense privilege.
Transferred intent does not hold in self-defense situations.
Self-defense
rules
1. You can only
use deadly force to counter deadly force.
Circumstances will vary: “Detached reflection cannot be demanded in the
presence of an uplifted knife.” Juries
will take into account that your behavior came about during an emergency and
will judge you accordingly.
2. If you are in
your own home, you have no obligation to retreat from deadly force in any jurisdiction. In some jurisdictions, there are so-called “make
my day” laws that let you use deadly force against burglars and other
trespassers.
3. There is no
obligation to retreat if there is non-deadly force; you may use non-deadly
force in response.
4. There is an
obligation to retreat if you’re confronted with deadly force outside your home,
but the circumstances may vary.
Two
approaches:
1. You stand in
the shoes of the person who is attacked, and thus you will be treated like that
person insofar as you have exactly the same privilege as that person. If you defend someone under attack, you have
privilege, while if you defend the aggressor, you have no privilege.
2. Some jurisdictions
will allow a reasonable mistake under the circumstances. If you tried to help the aggressor thinking
that he was under attack, you may maintain the privilege.
Which
rule is better? Is it a good policy to
encourage people to get involved and stop a fight? You may not want to encourage vigilantism,
and you want people to call the police.
We
generally want to discourage violence, especially against an adversary who is
behaving peacefully.
We’ll
do Katko next time.