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.
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.
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”.
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
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.
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
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.
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.
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.
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.
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 Property – Katko
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.
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.
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.