TORTS I

A tort is a civil wrong, other than a breach of contract, for which the law provides a remedy. Wrongdoer Defendant Wronged Plaintiff Tort law allows for a more civilized resolution than if the parties would settle things themselves. Compensatory damages are there to make the plaintiff whole. *The most important question in torts is, Who pays? It will either be the defendant or the plaintiff; the defendant will pay when he is liable.* Weaver v. Ward For liability you need fault The defendant will pay when he is liable Brown v. Kendall Plaintiff has to prove that the defendant was at fault by a preponderance of the evidence (more likely than not). *Who pays? The defendant will pay when he is liable; he is liable when he is more likely than not at fault* Cohen v. Petty Defendant was found not at fault b/c there is no way that he was able to prevent his illness (fainting) from occurring. The 3 bases to find someone at fault are: 1. intentional conduct 2. negligence/unreasonable behavior 3. engaging in a strict liability or absolute liability activity *Who pays? The defendant will pay when he is liable; he is liable when he is more likely than not at fault. He is at fault when he acted intentionally, negligently/behaved unreasonably, or engaged in a strict/absolute liability activity.* INTENTIONAL TORTS The Seven Intentional Torts 1. Assault 2. Battery

3. 4. 5. 6. 7.

False Imprisonment Trespass to Land Trespass to Chattels IIED Conversion

Garrat v. Dailey real inquiry is whether the defendant had intent whether a five year old can appreciate the consequences of his actions intent is a state of mind and is found in the defendants mind a child can be held at fault with intent The 2 sufficient factors of intent are: 1. acting with purpose OR 2. acting with knowledge of substantial certainty Hypo. Wallace likes to test out his hand eye coordination by driving his motorcycle as fast as he can through school zones while the children are crossing. One day he hits Tammy, did he intend to do this? Wallace likes to see buildings burn, one day he goes to an abandoned warehouse and sets it on fire. Unknown to him Tammy and Tommy were exploring the warehouse that day and are injured, did Wallace have intent? In both scenarios Wallace is liable because one of the factors of intent are satisfied; Wallace acted with knowledge of substantial certainty that he could hit a child with his motorcycle or hurt someone by setting the building on fire. Ranson v. Kitner Ranson is saying he had no intent to kill the dog b/c he was shooting at what he thought was a wolf Courts say that the fact that he was mistaken does not remove the intent he had to shoot at the object Rule The defense of mistake does not eliminate intent McGuirre v. Almy The defense will say that crazy lady is unable to formulate intent because she is crazy Rule Crazy people are deemed to be able to formulate intent Acting with malice or motive is not the same as acting with intent. Hypo Hutchins is wasted with a friend and tells her that she likes her scarf and wants it. Hutchins goes to pull off the scarf and then passes out; Hutchins friend is injured when Hutchins went to grab the scarf, is Hutchins liable?

It depends whether Hutchins was voluntarily intoxicated or if someone slipped her something. A voluntarily intoxicated person is liable even if they cannot remember. Talmage v. Smith Smith throws a stick at the boys on the roof Smith has no intent to hit Talmage, he intended to hit/scare Byron Court creates doctrine of transferred intent Transferred intent could be: same tort different victim (A throws a rock at B, B ducks and the rock hits C) different tort same victim (A throws a rock at B, B ducks and the rock breaks Bs car window) different tort different victim (A throws a rock at B and ends up breaking Cs car window)

Transferred intent can only be applied to: Assault Battery False Imprisonment Trespass to Land Trespass to Chattels Battery For battery: A. intends to cause a harmful or offensive bodily contact OR B. intends to cause fear or apprehension of a harmful or offensive bodily contact AND C. Plaintiff suffers from a harmful or offensive bodily contact Harmful or offensive contact is loosely interpreted but refers to protecting the integrity of ones personal space. All that is required is the intent for the contact. Fischer v. Carrousel Motor Hotel court allows for something to be considered the extension of someones body, such as the plate Fischer was holding. Hypo Lashof is in an elevator with Hutchins and as the doors close he looks at her and says, I hope you enjoy this and then farts. Battery or not? Maybe, but it would be more difficult to prove. If he would have lit the fart on fire it is much easier to prove.

Assault State of mind for Assault: intends to cause a harmful or offensive bodily contact OR intends to cause a fear or apprehension of a harmful or offensive bodily contact Consequence of Assault suffers from a fear or apprehension of a harmful or offensive bodily contact. The defendant has to have present apparent ability to carry out the act. The ability must be apparent it does not need to be actual. Western Union v. Hill employee reaches to touch Hills wife. Court says it is not an assault because he did not have the ability to touch her. Tort of assault is to protect someones peace of mind. Future threats (Ill kill you tomorrow) and conditional threats (if you werent a woman I would kick your ass) are not sufficient for assault. False Imprisonment For false imprisonment: intends to restrain the was actually restrained/confined there is no reasonable means of escape is aware of the confinement, either presently or at the time of confinement, or the was harmed by the confinement This tort is protecting your freedom of movement. Big Town Nursing Home v. Newman For a remititur the court can offer the plaintiff the reduced amount of damages or the plaintiff can go to a new trial for the damages (this process is normally done at the trial court, the defendant motions for a remititur because the damages are to high). Additur is the inverse, the plaintiff believes that the damages are too low. Parvi v. City of Kingston

Plaintiff is aware of the confinement, either present or at the time, or the plaintiff was harmed by it. Hardy v. LaBelle No false imprisonment was decided by the court (if you only go through the elements though, does have a colorable claim) Hypo If you leave this classroom before 12:30 you will get an F in the class. False imprisonment? Either side could be argued. What about if you leave I will shoot your dog? Enright v. Groves Officer sees a dog loose, asks the woman for her drivers license, she gives her address and refuses to give the license and is arrested. Only issue is was the false imprisonment with legal justification. Authority of law? Whittaker v. Sanford Wife is leaving a religious sect in Tel Aviv and gets a ride to Maine on the sect leaders yacht.

The water in the case is the equivalent to walls, the boat necessary to go ashore could be considered the key to a locked door. The defense can argue that the wife was not their against her will (like the Hardee case she has a reason to stay) and she had a reasonable means of escape. IIED Elements for IIED: must act intentionally or recklessly to cause emotional distress s conduct must be extreme and outrageous must suffer severe emotional distress

3 possible elements if you have a bystander: Was aware of bystanders presence AND Bystander is a member of the victims family OR (restatement says or, strongest case is and)

Bystander suffers physical injury or harm from the emotional distress

IIED protects you from suffering IIED. State Rubbish Collectors v. Siliznoff Rubbish collectors force Siliznoff to sign notes that he will pay them for the money he earned from his own sanitation services. o A battery claim is problematic because there was no harmful or offensive bodily contact o An assault claim is problematic because there was only a conditional threat o The false imprisonment claim is weak because the defense could say that Siliznoff stayed on his own volition, that he was free to leave as soon as he signed the notes. Slocum v. Food Stores Employee tells woman to find out the price the best way she knows how, you stink to me. She gets upset and then has a heart attack. Not IIED b/c the conduct was not outrageous enough. The heart attack can be used as evidence of the severe emotional distress Harris v. Jones Supervisor is making fun of the because of his speech impediment. This is similar to the Slocum case because it is only words. Hypo Hernandez says, Andrew I dont think youre showing me the proper respect, let me show you what happens when you dont pay me the proper respect and then hits Suklow, who is sitting next to him, in the face. Is this IIED? Yes but not standard IIED, Taylor v. Vallelunga Daughter is suing her fathers attacker for IIED while she was inside the home and not visible to him.

--------SOM---------> Victim \ \ \ Bystander (IIED?)

Defendant did not have a SOM with the bystander an there cannot be transferred intent in IIED. You could make a claim of bystander IIED Trespass to Land Elements to trespass to land: has the intent to enter the land of another or to cause a person or thing to enter the land of another enters the land of another or the person/thing enters the land of another

It doesnt matter if the person/thing enters by mistake or under belief that it is the property of the person sending them in, the only thing that matters is that they enter. Note No damage needs to be done to the land for trespass. Bradley v. American Smelting microscopic particles of metals from the smelting company are landing on the s land

This case is the exception not the rule. The court rules that the particle is too small to constitute a trespass; if the particles would have caused some damage to the land then it would have been a trespass. Herrin v. Sutherland was shooting at ducks over the s land

Hypo Same facts as the case but a duck is killed over the s land and the duck falls onto it. Is that a trespass? Yes, b/c the duck is the thing committing the trespass. Now assume that the bullet missed and the buckshot landed on the property is that a trespass? Yes, the intent was there to have the bullet enter the s land. Rogers v. Board of Road Commissioners husband dies after hitting a road stake that was left by the board with his riding lawnmower

The trespass occurred when the license expired, before that time it was a trespass with permission. For all of the intentional torts you can recover all consequential damages that follow from the commission of the intentional tort.

Trespass to Chattels Elements of trespass to chattels: intentionally intermeddles with the chattel of another AND chattel is impaired as to its condition, quality, or value OR is deprived use of the chattel for a substantial period of time OR The intermeddling with the chattel causes harm to the or someone associated with the , or property of the

Hypo Alex and Camacho have the same type of puppy and Camachos puppy is lost. When she is out looking for it she finds Alexs puppy and takes him home. Camachos neighbor then brings Camacho her puppy. She then takes Alexs puppy and puts it back on his property. Trespass to chattels? Ryan has a jet ski in a public dock and Tobar asks to use it. Ryan says absolutely not and then goes to NY for the weekend. Tobar goes to the dock over the weekend and rides the jet ski for a few hours and brings the jet ski back in the same condition. Trespass to chattels? Maybe. The hardest part to prove will be that the was deprived use for a substantial time. Conversion (Extreme trespass to chattels) Elements of conversion: intends to exercise dominion and control over the chattel The interference deprives the of its use, control, or possession The interference is so substantial as to obligate payment of the chattels full market value

Deprivation ex destruction, used up, moved very far away ex the wine bottle moved to Argentina Example:

1. Defendant doesnt like the victim and says to her, I hate you and I hope this hurts and then throws a rock at her. The victim ducks and the rock flies over her and the bush and ends up breaking the victims car window. The did not see the car behind the bush and did not intend to hit it. What is the victims cause of action (ignoring assault)? a. The victim has a cause of action of trespass to chattels against the . The did not have intent to intermeddle with the chattel but he did have the intent to throw the rock at the victim, through transferred intent the intent to throw the rock is now is now transferred to the trespass to chattel so the first element is satisfied. The car has been impaired as to its condition, quality, or value so the second element is satisfied. 2. Defendant doesnt like the victim and says to her, I hate you and I hope this hurts and then throws a rock at her. The victim ducks and the rock flies over her and the bush and ends up breaking Larossas grandmothers antique vase that he placed on the floor. Can Larossa bring a suit for conversion or IIED? a. Not for conversion because there is no intent. The has the intent to throw the rock at the victim but transferred intent cannot be used in conversion or IIED. However, in regards to IIED Larossa could make the argument that the acted recklessly and then the first element for IIED would be met. PRIVILEGES Privileges are defenses to intentional torts. Think of privileges as a tennis match between the and Intentional Tort ---------> <-------------Privilege

-Consent

Consent could be either implied or expressed. Expressed consent The either gave consent verbally or in writing Implied consent A reasonable person viewing the same facts could say that the could reasonably believe that the was consenting. Obrien v. Cunnard SS Co. Transatlantic ship that is vaccinating people for smallpox so they wont be quarantined in the US. In this case a doctor in the same scenario could reasonably believe that the was consenting because she followed the crowd and did not remove herself from the line.

Did a battery occur? Yes. Does have a colorable claim? Yes. Will the doctor be found liable? Probably not because he had implied consent for the vaccine. Mohr v. Williams doctor got consent to operate on s right ear but when she was under anesthesia he noticed that s left ear was the one he should be operating so he goes ahead and performs the surgery on the left ear.

The court found that the doctor could not reasonably believe that he had implied consent to operate on the other ear. Hypo An Amish man is walking down the street and gets run over by a car, he sustains serious injuries, is unconscious, and about to bleed to death. Garcia is a doctor that is driving by, he sees the man on the road and immediately begins tending to his injuries. A few days later the Amish man wakes up in the hospital, after he recovers he sues Garcia for treating him because he would have refused the treatment due to his religious beliefs. Will the Amish man succeed in an action of battery? Did a battery occur, yes. Will Garcia be found liable, probably not. A reasonable person who is a trained medical professional would reasonably believe that the man would consent to treatment to save his life. -Self Defense You are allowed to use reasonable force to protect yourself; you are only allowed to use deadly force when you are threatened with deadly force. You cannot use the privilege of self defense in retaliation. Self defense can be transferred.

Hypo Assume raising pitbulls is legal but fighting them is illegal. Brill and Botts both agree to and have a dog fight between their 2 dogs, Brills dog gets seriously injured and now she wants to sue Botts, can she? If Brill gave valid consent then Botts is not liable, however, both would still get a criminal fine. The consent could be invalidated, because it was consent to commit an illegal act, then Botts could not assert the privilege and he would be held liable. -Defense of Others is allowed to use force against a person when the feels he has to protect that victim. A----------does something----------B C

2 Views Steps and Shoes Analysis(Minority Position) If B can claim self defense then C can claim defense of others Mistaken Belief(Majority Position) C can use reasonable force if he reasonably believed A to be the aggressor -Defense of Property You can use any reasonable force necessary short of lethal force. -Recovery of Property Could be done without unnecessary violence to the person or without a breach of the peace. If a merchant has a reasonable belief that a customer stole something he can reasonably detain the customer. -Necessity Public o harm imposing is less than the harm you are seeking to prevent o is acting under an official capacity for a public interest Private

o is seeking to protect his interest which is a greater value than the other This privilege inhibits the from denying the the ability to commit the tort. Even if you have private necessity the is still liable for the actual damages. Hypo Garcia and 5 others have sheep farms one right next to the other, Garcias is at the end and Eduardos is first. Eduardos sheep get a deadly virus and are dying, the disease is extremely contagious to sheep. Garcia then destroys Tobars farm, which was right next to Eduardos, and Eduardos in order to prevent the spread of the virus. If both of these people sue Garcia can he assert necessity? Yes, he can assert public necessity because he potentially saved everyone elses sheep. He can also assert private necessity because he was trying to save his sheep, he would then be liable for the cost of the sheep. -Authority of Law There is a law or statute that allows you to commit the act. The person acting has either a statutory, common law, or regulatory authority (such as a health inspector that can go into any restaurants kitchen unannounced during normal business hours) -Discipline You look for a supervisory relationship such as parent/child, jailor/prisoner, military superior/military subordinate. -Justification When it is reasonable to do so under the circumstances. *Hernandez doesnt like this privilege b/c it sort of undermines intentional torts. Use this as a last resort.* NEGLIGENCE Four Elements of Negligence: Duty did the exercise reasonable care Breach failure to conform to this required standard Causation a reasonably close causal relation between the conduct and the resulting injury Injury/Damages actual loss or damage resulting to the interest of another

If any one of the elements are missing you do not have negligence. Judge Learned Hands Approach:

B<PL B = Burden P = Probability L = Injury Standard of Care Reasonable person Would a reasonable person in the same circumstances act the same way If someone did not act like a reasonable person then they breached their duty Reasonable Person: Would act the same way in the same circumstances Including in an emergency situation (not when the emergency is caused by the ) With the same physical disability of (if relevant)

Exceptions: No concessions for lack of intelligence or voluntary intoxication

If there is a child : look at age, intelligence, experience, education, and maturity exception when the child engages in an inherently dangerous or adult activity

Breunig v. American Family Ins. Co. was driving his truck when a car driving on the wrong side of the road hit his truck. The other driver was insane and claimed that God took over the wheel and she also thought her car would fly. A shrink testified that she was overcome suddenly by insanity. RULE: Standard of Care for Insane Person: Held to the same standard as a reasonable person Exception to the standard of an insane person: Insanity is a valid defense in a negligence case when the person is suddenly overcome, without forewarning, by a mental disability which incapacitates them from conforming their conduct to the standards of a reasonable person The Professional Professionals are held to a higher standard of care in negligence cases. They are held to the standard of the reasonable prudent professional under the circumstances. It is only applied to a professional in the scope of their duty. (objective professional standard)

Expert testimony is required to establish reasonable standard of professional care. It is not enough that an expert witness testify that he would not personally follow s practice; he must also testify that the practice did not conform with the standard of the profession Pharmacists do not have a duty to disclose side effects (as long as no list provided at all) Medical specialist are held to an even higher standard (i.e., neurosurgeon, cardiologist) Standard is not modified if services are pro bono: whether the patient/client be homeless or a millionaire, whether he be treated/counseled gratuitously or for reward, the professional owes him precisely the same measure of duty, and the same degree of skill

Scott v. Bradford sued her doctor after side effects and injuries from a surgery she underwent. claims the doctor did not inform her of the possible risks of the surgery. RULE: Every physician has a duty to their patient to inform them of their options and their apparent risks. The breach of this duty can make the physician liable, unless the physician has a privilege not to disclose such information. What material risks are involved 1. a reasonable prudent doctor would disclose (majority position) 2. a reasonably prudent patient would want to know (minority position) 3. what would the specific patient want disclosed Heath v. Swift Wings Inc. Pilot crashed plane and killed everyone on board including himself. He checked the plane before he left and tried twice to take off. RULE: The standard of reasonable care is established by the standard of the profession. Hodges v. Carter Client sues attorney for negligence to recover compensation for poorly litigated cases. The attorney lost the case after it was dismissed for insufficiency of process. RULE: An attorney is not liable if he acts in good faith and honest belief for a mere error in judgment or for a mistake on an unsettled point of law where well informed attorneys will entertain doubt. Ordinarily, when an attorney engages in the practice of the law and contracts to take a case on behalf of his client, he impliedly represents that: 1. He possesses the requisite degree of learning, skill, and ability necessary to the practice of his profession and which other similarly situated ordinarily possess;

1. He will exert his best judgment in the prosecution of the case entrusted to him; and 2. He will exercise reasonable and ordinary care and diligence in the use of his skill and in the application of his knowledge to his clients cause of action. The client must show that they would have been successful in prosecuting/defending claim had it not been for the attorneys acts or omissions.

Boyce v. Brown Woman with broken ankle underwent surgery to put a screw in and never fully recovered. She went to another doctor who fixed her problem. RULE: A medical doctor must be held to a medical standard that is reasonable under the circumstances presuming to possess a license to practice as well as possess the skill and learning of a reasonable member of the profession. Morrison v. MacNamara went to clinic for an exam it was administered while was standing, then passed out and hit his head, causing his loss of smell and taste. The local standard was to stay standing and the national standard was to sit or lie down. RULE: At least as to board certified physicians, hospitals, medical laboratories, and other health care providers, the standard of care is to be measured by the national standard because of todays technology and availability of information to all physicians. Moore v Regents of UCLA When a doctor has something personally at stake with the operation he must disclose that because it could affect the patients decision. Osbourne v McMasters For negligence we look at: Would a reasonable person act this way Is there an industry custom to label poison Foreseeability Learned Hands Analysis Professional standard Violation of a Statute Tier 1 Tier 2

1. What class of people is the statute designed to protect and from what harm? 2. Is the in the class of people the statute seeks to protect and did he suffer from the harm the statute seeks to avoid 3. What is the nature of the statute/law we are considering and what are its components? a. statute b. regulation/admin. reg c. government guideline d. Is the statute ambiguous? e. Does it clearly define a type of behavior? f. Did the clearly violate the statute? g. Does the statute punish action or inaction? 4. Look at the sanction the statute imposes and compare that to the potential tort liability that might result if we allow the statute to be used to determine unreasonable behavior. If the statute only has a small civil fine or penalty, we might question whether it should be used to lead to potentially significant civil damages?

1. The most weight it can give the violation is to determine that the violation of the statute is negligence per se. (This is really breach of duty per se). This means that the court determines that the violation of the statue is unreasonable behavior. 2. The next level of weight the court could give the violation is that the violation of the statute is prima facie negligence. (This really is prima facie breach of duty). This creates a rebuttable presumption that the violation of the statute should be deemed by the jury to be breach of a duty. However, it really shifts to the Defendant (or at least allows the Defendant the ability) the need to argue that in this case the Defendants behavior (although violative of a statute) was not unreasonable. 3. The next level of weight the court could give is that the violation of the statute is merely evidence of negligence. The jury can consider the violation, just like it considers the rest of the evidence and decide whether the plaintiff has met his/her burden of proof in proving that the Defendant breached a duty. 4. Lastly, the court could determine that the violation of the statute is not relevant or should not be admitted because it would be too prejudicial. (This means it has no weight).