Torts Outline

I.         Development of Liability Based Upon Fault

A.   A tort is a civil wrong

B.    Originally, you had to get a writ from the king in order to sue

i.          Trespass

a.      This was some direct harm, like someone punching you in the face

b.     Intentional torts come out of this writ

ii.        Case

a.      This lets you recover on something not so immediate

b.     This is the root of modern negligence claims

C.   Anonymous (1466) – Even if you don’t mean to hurt somebody, they can sue you if you do.

D.   Weaver v. Ward (1616) – Unless the defendant is totally without fault, the plaintiff collects.

E.    Brown v. Kendall (1850) – NEW RULE!  If an act is unintentional, then the plaintiff can collect on an action only if the defendant acted without ordinary care and the plaintiff acted with ordinary care.

II.      Intentional Interference With Person or Property

A.   Intent

i.          Garratt v. Dailey (1955) – If the defendant “knew with substantial certainty” that his actions would cause harmful contact, then the defendant is liable for battery.

ii.        Ranson v. Kitner (1889) – A person is liable for damages caused by a mistake, even if it is made in good faith.

iii.      McGuire v. Almy (1937) – Broadly speaking, insane people are liable: an insane person is as liable as a normal person when he does intentional damage to people or property.

iv.      Talmage v. Smith (1894) – According to the doctrine of transferred intent, if the defendant intends to hit somebody, the defendant will be liable for hitting anybody.

B.    Battery

i.          Cole v. Turner (1704) – If you’re angry at someone and touch them in even the slightest way, that’s battery.

ii.        Restatement (Second) of Torts (1965)

a.      Battery is defined as action with intent to touch someone and cause harm or offense or the apprehension of harmful or offensive contact; plus, the harmful contact actually happens, but not necessarily as a direct result of that action.

b.     If the batterer acts intending to cause…the same stuff as before…and offensive contact directly or indirectly results, then you have battery.

c.     But, if the act was done without intent, you’re not liable for battery just for offensive contact.  It says you might be negligent or reckless, though.

d.     If the intent was to cause harm or offense to a third person, and the person misses and hits somebody else…still battery!

iii.      Fisher v. Carrousel Motor Hotel, Inc. (1967) – The basis of an action for battery is the “unpermitted and intentional invasion of the plaintiff’s person and not the actual harm done to the plaintiff’s body”.

C.   Assault

i.          I de S et ux. v. W de S (1348) – If you “with force and arms…make an assault” on someone, they are entitled to recover damages from you.

ii.        Western Union Telegraph Co. v. Hill (1933)

a.      An assault takes place when someone makes “an unlawful attempt to commit a battery”.

b.     “There must be an intentional, unlawful, offer to touch the person of another” and that the other person must have “a well-founded fear of an imminent battery”.

c.     The perpetrator must possess “the apparent present ability to effectuate the attempt”.

D.   False Imprisonment

i.          Big Town Nursing Home, Inc. v. Newman

a.      False imprisonment occurs when one person directly restrains another person’s physical freedom without legal justification.

b.     Punitive damages can be awarded if the defendant intentionally violates the rights of the plaintiff.

ii.        Parvi v. City of Kingston – False imprisonment is suffered only when the victim is conscious of the imprisonment.

iii.      Hardy v. LaBelle’s Distributing Co. – In order to prove false imprisonment, the plaintiff must show he was restrained unlawfully and against his will.

iv.      Enright v. Groves – “False arrest arises when one is taken into custody by a person who claims but does not have proper legal authority.”

v.        Whittaker v. Sandford (1912) – The plaintiff must be restrained by the defendant physically and unlawfully in order for false imprisonment to lie.

E.    Intentional Infliction of Mental Distress

i.          State Rubbish Collectors Ass’n v. Siliznoff (1952)

a.      The old rules state that the law will not protect individuals from invasions of their emotional and mental well-being.

b.     However, a change in the law reflected in the Restatement of Torts that says that there may be an action for infliction of severe emotional distress.

ii.        Slocum v. Food Fair Stores of Florida (1958) – An action for intentional infliction of mental distress may lie if the distress is severe, or if an insult is suffered by a patron of a common carrier such as an employee of a hotel, theater, or telegraph office.

iii.      Harris v. Jones – An action for intentional infliction of mental distress must contain four elements:

a.      intentional or reckless conduct

b.     extreme and outrageous conduct

c.     a causal connection between the conduct and the distress

d.     distress that can be considered severe

iv.      Taylor v. Vallelunga – In order for the defendants to be liable for intentional infliction of mental distress:

a.      The beating must be done for the purpose of causing the plaintiff mental distress, or

b.     The defendants must possess substantial certainty that the beating will cause the plaintiff substantial distress.

F.    Trespass to Land

i.          Dougherty v. Stepp (1835) – Every unauthorized entry to someone else’s land is a trespass.

ii.        Bradley v. American Smelting and Refining Co. (1985) – Even the slightest bit of harm, including “by the vibration of the soil or by the concussion of the air” constitutes trespass.

iii.      Herrin v. Sutherland (1925) – The air space near the ground over your land is as much your property as the land itself.

iv.      Rogers v. Board of Road Com’rs for Kent County (1947) - The Restatement says that “trespass by continued presence” may lie if consent of some object’s presence has been terminated.

G.   Trespass to Chattels

i.          Glidden v. Szybiak – Someone cannot be held liable for trespass to chattels unless some harm comes to the chattel.

ii.        CompuServe Inc. v. Cyber Promotions, Inc. – Trespass to chattels occurs when the defendant intrudes upon the plaintiff’s property such that damage results.

H.   Conversion

i.          Pearson v. Dodd - In order for conversion to occur, some property must be interfered with in a “complete or very substantial” way.

ii.        What makes a particular interference with chattels into a conversion?

a.      The “serious interference” test

1.     How serious does the interference have to be?  It must be serious enough that damages for the full market price of the chattel should be awarded.

b.       Some other criteria for identifying a conversion include:

1.     How long the actor had control of the chattel

2.     How long the interference lasted

3.     The actor’s good faith

4.     How much harm was done to the chattel, and

5.     How much inconvenience was caused to the other person.

c.     Ways that a chattel may be converted:

1.     Stealing it

2.     Damaging it

3.     Using it

4.     Buying it from a thief

5.     Selling it to somebody else

6.     Delivering it to the wrong person

7.     Refusing to return it

iii.      Effect of good faith – If you deliver goods to the wrong person (like someone in disguise) or buy something from a thief, you may still be liable for conversion even if you acted in good faith.

iv.      Necessity of demand

a.      In most jurisdictions, conversion happens as soon as someone unlawfully takes possession of the chattel.

b.     In a few jurisdictions, the owner of a chattel must demand their property back from the possessor and be rejected.

v.        Return of chattel

a.      If the possessor gives the chattel back to the owner, it doesn’t bar an action for conversion, but the damages will be mitigated.

b.     The owner doesn’t have to accept the return of the goods, except that in some jurisdictions, if the conversion was innocent and the chattel wasn’t damaged, the owner must take back the goods and won’t have an action for conversion.

vi.      Damages

a.      If something gets converted from yours to theirs, you’re due the full value of the property converted.  How this is calculated can vary, but usually it’s done by market price.

b.     Though the property may have special value to the owner, only market price may be recovered unless the defendant’s conduct is outrageous, in which case the plaintiff may be able to get damages for emotional harm.

vii.    What May Be Converted

a.      Conversion originated from trover, which applied to things that can be “lost and found”.

b.     However, conversion has now been extended to apply to intangibles such as stock holdings.

viii.  Who May Maintain the Action

a.      Anyone who has the chattel when it’s converted can sue for conversion.

b.     One converter can even recover from another.

c.     Usually, the plaintiff can show some right to the converted good.

III.   Privileges

A.   Consent

i.          O’Brien v. Cunard S.S. Co. (1891) – If the plaintiff’s behavior indicated consent, then the defendant’s reasonable act was not tortious.

ii.        Hackbart v. Cincinnati Bengals, Inc. – If there are rules in an organized activity to prevent the infliction of serious injuries, then the plaintiff cannot be construed to have given up his rights by participating.

iii.      Mohr v. Williams (1905) – Any unlawful touching of the plaintiff constitutes battery unless it is necessary.

iv.      De May v. Roberts (1881) – Consent is negated if obtained by deceit or fraud.

v.        Hart v. Geysel (1930) – A plaintiff’s consent will be negated if the defendant’s conduct violated a statute that is supposed to protect the class of people to which the plaintiff belongs.

B.    Self-Defense

i.          You have the privilege to defend yourself against a threatened battery.

ii.        Retaliation is not allowed: once battery is no longer threatened, you no longer have the privilege of self-defense.

iii.      You have the privilege to defend yourself when you reasonably believe you are threatened with battery, even if in fact you are not.  Your mistake may protect you in this limited case.

iv.      Language is not sufficient to justify self-defense.

v.        The privilege of self-defense is limited to the use of force that is necessary or reasonably appears necessary to protect yourself.

vi.      Self-defense carries over to transferred intent such that if you harm a third-party in self-defense, you’re not liable.

C.   Defense of Others

i.          This privilege is similar to that of self-defense.  Most cases involving defense of others relate to family members.

ii.        A point of disagreement is whether reasonable mistake applies to defense of others as it does to self-defense.

a.      Some courts say that the intervenor only gains the privilege in fact of the person he is defending.

b.     Other courts say that reasonable mistake does not negate the privilege.

D.   Defense of PropertyKatko v. Briney – You do not have the privilege to use force that may cause death or serious injury against trespassers unless the trespass itself threatens death or serious injury.

E.    Recovery of Property

i.          Hodgeden v. Hubbard – Property owners have the right to recover chattel if it can be done “without unnecessary violence to the person, or without breach of the peace”.

ii.        Bonkowski v. Arlan’s Department Store – A shopkeeper may “detain for reasonable investigation a person whom he reasonably believes to have taken a chattel unlawfully”.

F.    Necessity

i.          Surocco v. Geary (1853) – The good of society overall provides a defense to taking away private rights.

ii.        Vincent v. Lake Eric Transp. Co. (1910) – When a defendant “prudently and advisedly” avails itself of the plaintiff’s property to preserve his own property, the plaintiffs can receive compensation for their injury.

G.   Authority of Law – If a defendant is authorized by law to do what he does, he is not liable for doing it.

H.   Discipline – The necessity of orderly discipline gives persons who have control of others the privilege of exercising reasonable force and restraint upon them.

I.       Justification – Sindle v. New York City Transit Authority – Reasonable restraint or detention may be imposed for the purpose of protecting the safety of people and property

IV.   Punitive damages

V.      Negligence

A.   Elements

i.          A duty to exercise reasonable care under the circumstances

a.      A duty of care is an obligation recognized by the law.

b.     Such a duty requires the actor to conform to a certain standard of conduct.

c.     The purpose of such conduct is to protect others against unreasonable risks.

ii.        A breach of duty

iii.      Causation – the breach of duty caused damages

a.      Causation-in-fact

b.     “Proximate” causation

iv.      Damages – the damages must be actual, not presumed from the fact of the tort

a.      Negligence grew out of “action on the case”, which required proof of actual damages.

b.     Recovery of nominal damages is not allowed.

c.     It’s uncertain just what constitutes damage.

B.    Damages for negligence

i.          Lost wages

ii.        Medical expenses

iii.      Pain and suffering (amorphous, the target for tort reform)

iv.      Future losses (not related to your inability to work or medical expenses)

C.   Standard of conduct

i.          The reasonable person

a.      Takes precautions against foreseeable harm

1.     Was the harm foreseeable?

2.     Were the precautions feasible?

(I)             The Hand formula: B < pL à reasonable burden

b.     An objective standard

c.     A subjective standard

d.     The standard for children

ii.        Professional standards of care

a.      You must act with the knowledge and skill of an ordinary person in your profession.

b.     You must use reasonable care and diligence.

c.     You must exercise your best judgment in attending to your work.

iii.      Custom

a.      The custom must show evidence of negligence.

b.     The custom must be directly on point.

c.     Sometimes we may use custom, while other times we will use B < PL.

iv.      Medical malpractice

a.      Locality rules

1.     Strict locality

2.     National standard of care

3.     Standard of care in “similar” communities

b.     Informed consent

1.     Standards

(I)             Reasonable doctor standard (majority)

(II)          Reasonable patient standard

(III)       Subjective patient standard (small minority)

2.     Exceptions

(I)             You don’t need to tell the patient anything the patient knows or should know.

(II)          You don’t need to disclose information that would be detrimental to the overall best interests of the patient.

(III)       You don’t need to disclose in an emergency situation where consent is impossible to obtain.

v.        Rules of law

vi.      Negligence per se

a.      Test for applying a (criminal) statute for a negligence standard of care

1.     Was the statute in question designed to protect the class of persons that includes the plaintiff?

2.     Was the statute designed to protect against the kind of harm the plaintiff actually suffered?

b.     Rationale

1.     It would be weird for a court to approve conduct as reasonable if it violates a criminal statute.

2.     If the legislature sets the standard of care, you don’t need the jury to say what behavior is reasonable.  In other words, there is better evidence of society’s views on what behavior is reasonable and unreasonable.

3.     Negligence per se also deals well with cases of recurring conduct.  If certain statutes will be treated as the standard of care, society will be on notice of how they have to act in order to be considered reasonable.

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