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Torts Outline Fall 2011 Prof.

John Diamond



A. Desire - Intent is satisfied if the defendant desires the consequences of their actions. B. Substantial Certainty - Also usually satisfied if D is substantially certain that her acts will cause the elements of the tort to occur. Garry v. Dailey: Where D, a child, was substantially certain P would fall if he pulled the chair out from under her

C. Transferred Intent Doctrine: Transferred intent historically applied to 5 intentional torts: battery, assault, false imprisonment, trespass to chattel, and trespass to land. If D intends one tort, but their actions, instead of or in addition to, cause a different one of the 5 torts, then D is liable for the 2nd tort. e.g. A intends to assault B, but accidentally batters C, A is liable for the battery. Case: Alteiri v. Colasso, where a child was found liable for battery after throwing a rock, merely intending to scare somebody.

D. Mistake Doctrine: If D intends to commit acts which are a tort, it doesnt matter if D mistakes, even reasonably, the identity of the person or property they acted upon or believes incorrectly that there was a privilege. Case: Ranson v. Kitner -- A shoots Bs dog, believing it was a wolf. Perry v. Jeffries-- A cuts down trees on land belonging to B, because he thought it was his land, A still liable E. Insanity: Insanity not a defense against intentional torts, unlike in criminal law. Case: Williams v. Kearbey, where an insane student shot and killed several students. F. Infancy: Infancy also not a defense, although it is subjective since its based on their desire or what they shouldve been substantially certain of. Case: Garrat v. Dailey -- 5yo boy pulled out the chair from underneath P, could be found liable

II. Intentional Torts

1. Battery
Def: Battery: the intentional infliction of a harmful or offensive bodily contact upon another. Desire or substantial certainty A. Intent a. Substantial Certainty -- Garrat v. Dailey b. Insanity as defense -- Williams v. Kearbey c. Harmful or Offensive Contact -Cases: Leichtman v. WLW Jacor Communications (purposeful blowing of smoke) Bohrmann v. Maine Yankee Atomic (radiation exposure, need to show damages) B. Conciousness: No requirement of conciousness to constitute battery. C. Causation: Ds voluntary action must be the direct or indirect legal cause of the harmful or offensive contact, e.g. A intentionally hits B with a rock, A has commited battery.

2. Assault
Def: Intentionally bringing about apprehension of an imminent harmful or offensive contact A. Intent requirement e.g. A shoots an arrow over Bs head to scare them but no A scares B by running toward him. B. Apprehension Victim must perceive that harmful or offensive contact is about to happen to them. Must be conscious of the act Case: I DE S ET UX v. W DE S, A sues B for scaring As wife with an axe. C. Imminent: Words alone are not assault, needs to be apprehension of imminent harmful or offensive contact Case: Castro v. Local 1199, As threats of later violence

didnt satisfy.

D. Reasonable? Many jurisdictions require the apprenhension to be reasonable, although Restatement doesnt make that distinction. e.g. A holds a pencil to Bs head (B thinks its a gun) E. Conditional Assault: If A waves a club at B, but wont strike if B gives up his wallet, still assault.

3. False Imprisonment
Def.: D unlawfully acts to intentionally cause confinement or restraint of the victim within a bounded area A. Bounded Area Victim must be confined within a bounded area without a reasonable means of escape. B. Means of Confinement 1) Physical Barriers e.g. trunk of a car 2) Force or Threat of Immediate force against the victim, victims family or others in immediate presence, or victims property e.g. grabbing someones coat knowing they wont leave without it. 3) Omission where the D has a legal duty to act e.g. A takes B on a boatride, promising to bring B back when requested 4) Improper assertion of legal authority case: Enright v. Groves, where a cop arrested P for failure to produce a drivers license when out walking their dog C. In employment setting -case: Dupler v. Seubert, P kept in the office by supervisor demanding she either quit or be fired. D. Not false imprisonment to misuse legal procedures -case: Maniaci v. Marquette -- P was 51-50d to keep her from dropping out of college, not false imprisonment since they used the legal process.

4. Intentional Infliction of Emotional Distress Def: Exists when the D, by extreme and outrageous conduct, intentionally or recklessly causes the victim severe mental distress. (Most states no longer require physical manifestations of the mental distress) A. Extreme & Outrageous Conduct: Def: Restatement defines it as extreme and outrageous conduct as behavior which is beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community. a. Unkind words -- Slocum v. Food Fair Stores Exception Common Carriers (different standard for buses & trains). Gross insult, which isnt necessarily extreme/outrageous, is still a torts B. Employment / Firing -- Rulon-Miller v. IBM C. Sexual/Workplace harassment -- Jones v. Clinton D. Racial Epithets Not usually considered, unless there is a pattern of harrasment that is constant and on-going E. Constitutional Limitscase: Hustler Magazine v. Falwell Court held unconstitutional the determination that a parody ad in Hustler could result in liability of IIED. Public figure cant recover without proving such statements were made with New York Times malice, i.e. with knowledge or reckless disregard toward the truth or falsity of the assertion (New York Times v. Sullivan) F. Intent or Recklessness to cause severe mental distress P must prove D intended to cause severe emotional distress or acted with reckless disregard as to whether the victim would suffer. G. Severe Mental Distress Once require physical manifestations, e.g. heart attack, ulcers, etc. Most states no longer do

H. Third-Party Recovery: Courts typically award 3rd party recovery if, in addition to all the elements of the tort: P is 1) close relative of the victim, 2) present at the scene of the outrageous conduct, 3) D knew P was present. Restatement less restrictive, only requirements of tort and immediate family members present. I. Exception for Innkeepers, Common Carriers, and other Public Utilities: Liable for intentional gross insults that cause patrons to suffer mental distress.

III. Defenses against Intentional Torts

1. Consent except fraud, duress, & other illegalities 2. Self-Defense: Reasonable force can be used where one reasonably believes that such force is necessary to protect oneself from immediate harm. a. Threat must be immediate b. Victims response must be reasonable e.g. Even if wrong about intent, e.g. Waiter with a knife raised hypo. c. Obligation to Retreat from Deadly Force Under majority view, do not need to retreat, assuming legal right to be present or proceed. Under minority view, endorsed by Restatement 65, requires retreat if possible where serious bodily injury or death would otherwise be required for self-defense, however does not apply to your home. 3. Defense of Others A. Limited Privilege Rule Old view could only use defense of others if person protected was privileged to be defending themselves, e.g. help a suspect being attacked by undercover cops. B. Restatement Rule Reasonable person test.

case: Drabek v. Sabley, where D detained a 10yo boy who had been throwing snowballs at passing cars. 4. Defense and Recovery of Property: An individual is privileged to use reasonable force to prevent a tort against their real or personal property, but unlike selfdefense, reasonable mistake will not excuse force that is directed against an innocent party. 5. Necessity A. Private Necessity An individual has the privilege to interfere with anothers property right to avoid a greater harm, but must compensate the victim for the interference after the fact. Case: Vincent v. Lake Eerie Transp. Co., where a ship damaged a dock during a storm. Also, Ploof v. Putnam: where a servant untied a boat from a dock during a storm, owner can be found liable for damage and injuries B. Public Necessity Allows the appropriation or injury of an innocent partys property to avoid more substantial public harm 6. Intentional Injury & Killing case: Regina v. Dudley & Stephens, where a crew ate a 17yo boy while stranded in a lifeboat, court in dicta stated a fair lottery mightve been justified.

V. Economic Torts
1. Fraudulent Misrepresentation.
Def: 5 elements 1) Material Misrepresentation 2) D acted with the requisite scienter; i.e. she knew the statement was false or made it with reckless disregard as to its truth or falsity 3) D intended to induce reliance 4) Misrepresentation caused Ps justifiable reliance 5) Pecuniary damages resulted to P

A. Material Misreprentation: As a general rule, misrepresentation by D must be of a past or present material fact. e.g. if A tells B a painting was made by Picasso. Also if statement is technically accurate but intended to convey a factual misrepresentation, it applies. E.g. A tells B business income has stabilized, when income is zero Promises in the future dont count if made in good faith, but not if D never intended on keeping said promise. case: Nader v. Allegheny Airlines -- Where Nader sued over the definition of a confirmed reservation after being bumped from a flight. B. Scienter Requires D knew the misrepresentation was false or acted with reckless disregard as to its truth or falsity. case: New Jersey Carpenters Health Fund v. Philip Morris, where an insurance co. sued philip morris for intentional misrepresenting risks of tobacco. C. Intent to Induce Reliance e.g. a joke not meant to be taken seriously wouldnt qualify D. Causation Must have caused reliance case: Nader v. Allegheny Airlines -- Where Nader sued over the definition of a confirmed reservation after being bumped from a flight. Ultimately lost because he had been bumped before and was aware of the practice. E. Justifiable Reliance Reliance must be justified Usually not the case with mere opinions F. Damages

2. Intentional Interference with Contract and Intentional Interference with Prospective Economic Advantage
Defs: Interference with a contract requires a valid contract while the other requires legitimate economic expectancy A. Overview a. 5 elements -1) Valid contract or economic expectancy between the P and a 3rd

party 2) Knowledge of the valid contract or economic expectancy by the D 3) Intent by the D to interfere with the contract or economic expectancy 4) Interference caused by D 5) Damages to P A. Elements 1. Valid Contract or Economic Expectancy Must either have a valid contract or proof of valid economic expectation a. At-Will contracts case: Calbom v. Knudtzon, where a CPA interferred with an atwill contract with a lawyer over an estate. b. Prospective Economic Advantage case: Lowell v. Mothers Cake & Cookie Co. -- D told potential buyers of Ps company that they would cancel their contract if the company was sold c. Non-terminable Contract case: Texaco, Inc. v. Pennzoil, where Pennzoil attempted to persuade Getty Trust to merge with it instead of Texaco, despite an agreement already being in place 2.. Knowledge of Valid Contract or Economic Expectancy by Defendant see Texaco, Inc. v Pennzoil, didnt matter if the papers were signed, D knew or shouldve known about the unsigned agreement between the companies.

3. Intent by the Defendant to Interfere with the Contract or Economic Expectancy Interference must be intentional (either purposeful or substantially certain) 4. Interference caused by the Defendant e.g. A hires B after B breaches an employment contract, no proof that A caused B to breach. 5. Damages Sometimes compensation for mental distress and punitive damages awarded.

B. Justifications 1. Honest advice within the scope of a request, or stating truthful information whether or not the advice was requested. e.g. asking a general practitioner if you should breach a contract with a surgeon. 2. Interference by a person responsible for the welfare of another while acting to protect that persons welfare see above 3. Interference with a contract that is illegal or violates public policy 4. Interference by a person protecting their own legally protected right in good faith and by appropriate means 5. For economic expectancy: Fair and ethical competition or acting to protect ones own financial interest e.g. Can urge people to buy As hamburgers instead of Bs as long as theres no non-terminable contract, but cant say Bs hamburgers have spider eggs in them. 6. Restatement 767 provides 7 factors to help determine other instances where interference with prospective economic relations might not be improper a. Nature of the actors conduct b. Actors motives c. interests of the other with which the actors conduct interferes d. interests sought to be advanced by the actor e. social interests in protecting the freedom of action of the actor and the contractual interests of the other f. Proximity or remoteness of the actors conduct to the interference, and g. The relations between the parties 7. Political Activism and Economic Boycotts case: Environmental Planning and Information Council of El Dorado County, (EPIC), Superior Court. Urging readers to boycott businesses who advertise in a paper for their political spin not a tort.

3. Tortious Breach of the Covenant of Good Faith and Fair Dealing

In each contract, there is an implied covenant of good faith an fair

dealing Generally limited to insurance co. case: Egan v. Mutual Insurance of Omaha; where the insurance co didnt investigate a claim in good faith by a disabled worker. Not general commerce case: Foley v. Interactive Data Corp. Covenant didnt cover case of wrongful termination

4. Wrongful Termination
case: Foley v. Interactive Data Corp. Not wrongful termination because firing wasnt against public policy. (employee fired after warning incoming supervisor was under investigation for embezzlement. d. political activism and economic boycotts ok case: Environmental Planning and Information Council of El Dorado County, (EPIC), Superior Court. Urging readers to boycott businesses who advertise in a paper for their political spin not a tort.

VI. Misuse of Legal Processes

A. Overview 3 torts: malicious prosecution, malicious institutional of civil proceedings, and abuse of process. Malicious Prosecution: Wrongful criminal prosecution of an innocent D in bad faith. See below for all necessary elements, very difficult to prove Malicious Institution of Civil Proceedings: Addressed wrongfully starting civil proceedings against a nonliable D in bad faith. Abuse of Process: Addressed misuse of legal processes such as depositions, subpoenas, and property attachments. See below False Arrest: Dress up as policeman, type of false imprisonment where theres no basis for arrest, and confined without probably cause

Malicious Prosecution & Malicious Institution of Civil Proceedings


Definition: 1. Institution or continuation of a criminal or civil proceeding against the accused 2. Termination of the proceeding in favor of the accused 3. Absence of probable cause 4. Improper purpose of the accuser 5. Damages suffered by the accused a. Immunity of Public Officials Prosecutors, judges and other public officials and the government which employs them are generally immune from discretionary decisions to prosecute.

D. Abuse of Process

Intentional misuse of civil or criminal legal process for an ulterior purpose resulting in damage to the P. Dont need to win the proceedings as in the other two. case: Like occurred in Maniaci v. Marquette, where a student was involuntarily committed after attempting to drop out of college.

IV. Negligence
1. Overview P must prove these elements to establish a prima facie case: Duty: A legally recognized relationship between the parties Standard of Care: The measure of the duty owed Breach of Duty: Failure to meet the standard of care Cause-in-fact: Ps harm must have the required nexus to the Ds breach of duty Proximate Cause: There are no policy reasons to relieve the D of liability Damages - The P suffered a cognizable injury. 2. Standard of Care: Negligence only flows where Ds conduct has fallen below the

relevant standard of care. 3. Reasonable Person Standard: Most common standard of care requires D to act as would a reasonably prudent person in the same or similar circumstances. case: US Fidelity v. Plovidba: Where a longshoremen fell to his death after a hold was left open How reasonably foreseeable was the risk? case: Pitre v. Employers Liability Insurance Co. Where a little boy was killed by a baseball at a firefighters faire. A. Emergency: Bar is not as high if D is acting under emergency conditions. However doesnt apply if Ds tortious conduct caused the emergency. case: Cordas v. Peerless Transp. Co: Where a cab driver jumped from a moving cab after a gunman entered, and the cab later hit a woman and her children. B. Physical Conditions: Can be taken into account, e.g. a reasonable deaf person. C. Mental Conditions: Not taken into account, e.g. insanity in majority view case: Breunig v. American Family Insurance Co., D hit P while driving during a mental delusion (Court did find a sudden mental disorder would be treated like other sudden physical conditions) 4. Child Standard of Care: Typically children are compared to other children of the same age, experience and intelligence. However, theres an exception if theyre engaged in activities primarilly for adults, e.g. driving, boating, etc. Case: Neumann v. Shlanksy: Golf is an adult activity? 5. The Risk Calculus Judge Learned Hands equation -- B<PL B is burden, P is probability and L is extent of loss. case: United States Fidelity & Guaranty v. Plovidba P considered low in death of longshoremen who fell into hold. 6. The Role of Custom Can be compelling evidence, but doesnt determine standard of

care, except in the case of medical malpractice. 7. Judicial Rule-making Case: Akins v. Glens Falls City School District, where judge decided backdrop was only safety precaution needed at a baseball field

IV. Negligence Torts

A. Negligence Per Se In certain situations a criminal statute (or administrative regulation, municipal ordinance, etc.) may be used to set the standard of care in a negligence case. 1. Type of Harm Must be determined if the case in question was the type of harm meant to be avoided by the given statute or regulation. Case: Wawanesa Mutual Insurance Co. v. Matlock, Where negligence per se was not found for buying cigarettes for a minor and a fire resulted. 2. Plaintiffs in Protected Classes P must be within the class of people designed to be protected by the statute. case: Stachniewicz v. Mar-Com Corp. Bar patrons were intended to be protected by regulation requiring the ejection of rowdy customers. B. Medical Malpractice: Custom is determinative for doctors, left to expertise of profession to determine standard of care. 1. Expert Witnesses Because of the technical nature of most medical malpractice cases, expert witnesses are required to help establish the applicable standard of care.

Jurisdictional splits as to whether or not the doctor must be from the same community, state, region, etc. Case: Cobbs v. Grant -- Malpractice couldnt be proven since there was no expert witnesses testimony Case: Melville v. Southward -- Orthopedist couldnt be used to establish the standard of care for a podiatrist 2. Common Knowledge Exception If negligence is so egregious it can be understood by a layperson, then expert witnesses are not necessary. 3. Informed Consent A physicians failure to provide information to a patient A. Battery Initially were considered battery cases B. Negligence Now mostly treated as a negligence issue. Did patient have enough info about risks of the proposed treatment or procedure so that they were able to make an intelligent decision about their medical care? C. Physicians rule Used to be based on what the standard was for Dr.s, did they typically disclose a given risk? D. Patient Rule Now patient rule more common. Up to the jury to decide the materiality of the info. Would a reasonable person have made a different decision re: the procedure if theyd known? Depends a lot on probability and extent of the harm