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Torts Hill CompletedOutline, Study notes of Law of Torts

Indiana University Bloomington (IU)Law of Torts

Final Outline for the semester

Typology: Study notes

2011/2012

Uploaded on 12/14/2012

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Torts&Outline&

&

1. Intentional&Torts&

a. Intent&

i. Volition&–&An&Act&

ii. Substantial&Certainty&

1. How&certain&are&you&that&the&act&will&happen&–&desire&for&

act&

iii. Consequences&

1. Battery&–&Harmful&or&Offensive&Contact&

2. Assault&–&The&apprehension&of&harmful&or&offensive&

bodily&contact&

3. False&Imprisonment&–&Confinement&of&bodily&

movements&

b. No&intentional&tort&if&there&is&consent&

c. Know&restatement&286&and&288&

d. Statutes&don’t&give&cause&of&action&but&show&standard&of&care&

e. Assault&and&Battery&are&not&negligence,&an&act&is&intentional,&while&

negligence&is&an&unintentional&act&

f. Battery&

i. Intent&

1. Volition&

2. Substantial&Certainty&&

3. That&harmful&or&offensive&contact&would&happen&

ii. Does&not&have&to&see&the&consequences&just&that&harmful&or&

offensive&contact&is&made&

iii. Garratt&v.&Dailey&(Supreme&Court&of&Washington,&1955)&

1. Plaintiff,&Ruth&Garratt&–&Defendant,&Brian&Dailey&

2. Defendant&intentionally&pulled&the&chair&from&under&

plaintiff&

3. Defendant&claims&he&moved&the&chair&to&sit&in,&and&when&

he&tried&to&put&the&chair&back&he&failed&making&her&fall&

down&

4. Finding&of&fact&–&If&Brian&intended&for&Ruth&to&hit&the&

ground&&

5. Harmful/Offensive&contact&was&made&and&Brian&was&

substantially&certain&it&was&going&to&happen&–&the&court&

found&

6. Damages&awarded&based&on&hospital&bills&or&Volition&of&

Dignity&

iv. Spivey&v.&Battaglia&(Supreme&Court&of&Florida,&1972)&

1. Plaintiff,&Spivey&–&Defendant,&Battaglia&

2. At&lunch&the&defendant&gave&an&“unsolicited&friendly&

hug”&to&the&plaintiff&and&it&resulted&in&a&sharp&pain&the&

back&of&her&neck&and&ear.&&This&ends&with&the&plaintiff&

being&paralyzed&on&the&left&side&of&her&face&

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Torts Outline

Intentional Torts a. Intent i. Volition – An Act ii. Substantial Certainty
How certain are you that the act will happen – desire for act iii. Consequences
Battery – Harmful or Offensive Contact
Assault – The apprehension of harmful or offensive bodily contact
False Imprisonment – Confinement of bodily movements b. No intentional tort if there is consent c. Know restatement 286 and 288 d. Statutes don’t give cause of action but show standard of care e. Assault and Battery are not negligence, an act is intentional, while negligence is an unintentional act f. Battery i. Intent 1. Volition 2. Substantial Certainty 3. That harmful or offensive contact would happen ii. Does not have to see the consequences just that harmful or offensive contact is made iii. Garratt v. Dailey (Supreme Court of Washington, 1955)
Plaintiff, Ruth Garratt – Defendant, Brian Dailey
Defendant intentionally pulled the chair from under plaintiff
Defendant claims he moved the chair to sit in, and when he tried to put the chair back he failed making her fall down
Finding of fact – If Brian intended for Ruth to hit the ground
Harmful/Offensive contact was made and Brian was substantially certain it was going to happen – the court found
Damages awarded based on hospital bills or Volition of Dignity iv. Spivey v. Battaglia (Supreme Court of Florida, 1972)
Plaintiff, Spivey – Defendant, Battaglia
At lunch the defendant gave an “unsolicited friendly hug” to the plaintiff and it resulted in a sharp pain the back of her neck and ear. This ends with the plaintiff being paralyzed on the left side of her face

The defendant only had to be substantially certain he was going to make harmful and offensive contact not the specific injury
Even if she was not hurt she would get nominal damages v. Ranson v. Kitner (Appellate Court of Illinois, 1889)
Trespass of Chattels – Interfering with someone’s property
Expansion of the Intent Doctrine
Distinguishing between and accident and mistake a. Accident is a term for negligence b. With a misstate one is substantially certain of affecting an object you have mistaken what that object is
Doctrine of Mistake: a. Volition b. Substantially certain of affecting some object c. Turns out to be someone’s property -‐ mistakenly
Defendant kills plaintiffs dog mistaking it for a wolf
The third element is weak
Distinguishing between and accident and mistake
Defendant did not think this was anyone’s property
Court wants to compensate plaintiffs for their losses so they expand the doctrine vi. McGuire v. Almy (Supreme Judicial Court of Mass, 1937)
Plaintiff employed to take care of the defendant – 14 months
Defendant broke her room apart in a fit – threatened to kill whoever came in
Plaintiff hit on head by defendant who was holding the leg of a low boy as a club
Mentally ill person can be held liable a. When is someone liable b. Must have intent to be liable c. Capable of entertaining intent i. Volition, Substantial certainty that she will cause harm, harmful or offensive contact vii. Talmage v. Smith (Supreme Court of Michigan, 1894)
Doctrine of Transferred Intent a. Can be transferred in plaintiffs and not defendants b. Volition – Throws a stick c. Substantially Certain that he will hit someone d. Harmful or offensive contact

Damages were awarded not for physical but for mental-‐ dignity
New ruling that anything closely associated with the plaintiff can be considered the plaintiff’s self a. Clothes, in hand objects g. Assault Assault cannot be done in the future it has to be imminent i. Intent
Volition
Substantial certainty
Put person in apprehension of bodily harm ii. Western Union Telegraph v. Hill (Court of Appeals of Alabama,

Sapp, Defendant – Hill’s Wife, Plaintiff
Hill’s wife needs the clock fixed, Sapp propositions the wife after a few drinks saying he will love her, pet her and fix her clock
Issue: Did the plaintiff have an apprehension of bodily contact? Could a reasonable person believe Sapp could have made contact with her?
Yes it is reasonably that Sapp could have touched Mrs. Hill; therefore, an assault was committed. h. False Imprisonment i. Intent
Volition
Substantially certain
Of confinement – Movement is restricted Must be consciously aware of confinement when the false imprisonment is happening ii. Parvi v. City of Kingdom (Court of Appeals of New York, 1977)
Parvi – Plaintiff, City of Kingdom – Defendant
Parvi drunk took by police and dropped off at golf course. Claims that being left at the golf course falsely imprisoned him.
When he was in the car demanding to be let out – false imprisonment
When he was left at the golf course – NO false imprisonment – his movements were no longer restricted – false imprisonment over iii. Whittaker v. Sanford (Supreme Judicial Court of Maine, 1912)
Whittaker, Plaintiff – Sanford, Defendant
Whittaker part of religious sect, Sanford cult leader, Whittaker plans to leave and take children to America, Sanford offers to take her on his yacht, when they arrive in America won’t give her boat to be released.

When Sanford agreed to take her to America this is a volition a. Created a duty by making a promise – created obligation
Falsely imprisoned on the boat, court holds that the water was physically restricting her movements. i. Intentional Infliction of Emotional Distress – NO TRANSFERRED INTENT i. Intent
Intentional Conduct
Conduct must be extreme and outrageous
Causal connection between the conduct and the mental distress
Severe mental distress ii. Intent is not a motive iii. All you need is substantially certain not a desire to cause distress iv. State Rubbish Collectors Association v. Siliznoff (Supreme Court of California, 1952)
Siliznoff – Plaintiff, Association – Defendants
Siliznoff took a client from Association, Association called meeting with Siliznoff, told him they would beat him up if he did not join, Siliznoff agreed because he feared them
Siliznoff was then physically sick and could not work
This fear was purposefully inflicted, extreme and outrageous, connection between doing what they wanted and being beat, severe mental distress v. Harris v. Jones (Court of Appeals of Maryland, 1977)
Harris, Plaintiff – Jones, Defendant
Harris employee of GM and supervised by Jones. Harris is a stutterer and nervous, Jones mocked this repeatedly for months
While the conduct was intentional, it was extreme and outrageous (coworker vs. supervisor), and there would have been the connection between the taunting and the mental distress; HOWEVER, there was no severe mental distress – NO INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS vi. Taylor v. Vellelunga (District Court of Appeal of Cali, 1959)
Plaintiff says she has mental distress from having witnessed her father being beat
Court says it was not intentional infliction of emotional distress because the intent element was not met a. People beating him were not substantially certain she was present

Nominal damages can apply
Punitive damages can apply iv. Pearson v. Dodd (US Court of Appeals, DC Circuit, 1969)
Dodd, Plaintiff – Pearson, Defendant
Pearson made copies of documents in Dodd’s office, put files back, and then published contents of the files
Dodd claims intangible thing has been copied and converted
No conversion a. Because he wasn’t deprived of his documents b. If it had commercial value or real value would have been conversion c. No property right to intangible information
Trespass to chattels m. Privileges i. Privilege to commit an intentional tort when you have an affirmed defense
Affirmed defense is not a defense a. It is where you make out elements of case but still have a trump card ii. Consent
Hackbart v. Cincinnati Bengals (US Court of Appeals, 10 th^ Circuit, 1979) a. Hackbart, Plaintiff – Bengals, Defendant (Charles Clark) b. Professional football game – Clark hit Hackbart in the back of the head and neck with forearm because he was frustrated they were losing the game. c. Trial court said it was part of the violence of the game, and the consent was participating in a violent game/business d. Appellate court says there is a cause of action, reverse and remand e. The act was so far outside the rules of football it was no longer consenting to other activities f. Jury to decide want is outside the rules with consideration that minor violations are expected
Mohr v. Williams (Supreme Court of Minnesota, 1905) a. Mohr, Plaintiff – Williams, Defendant b. Mohr consulted Williams about her right ear, he found it diseased and surgery was mandatory. Once she was unconscious he realized it was the left hear and proceeded to operate, operation was a success – did it without consent c. $14, 322.50 damages – trial court, remanded $

d. Nominal damages vs. compensatory damages e. Acted outside the bounds of consent f. “In good faith” g. Offensive contact vs. emergency rule

De May v. Roberts (Supreme Court of Michigan, 1881) a. Roberts, Plaintiff – De May, Defendant b. Roberts was at home getting ready to give birth, De May brought Scattergood as his assistant, Roberts granted Scattergood to be in room because they thought he was a professional. c. Scattergood held Robert’s hand = battery d. De May had a duty to inform them that Scattergood was not a professional, consent was needed by the Roberts’ for Scattergood to be there e. Misrepresentation undoes consent
Hypo: a. Man has STD, sleeps with woman, she contracts STD i. Battery – communication of STD ii. Duty to disclose b. Man says he is a movie producer and he is a shoe salesman i. Still duty to disclose ii. But does not matter the motivation behind the sex n. Affirmative Defenses i. Plaintiff must be able to prove the evidence ii. Then goes to defendant to prove affirmative defense iii. Consent:
Realm of the game or activity that you consent to by participating
In order to consent a person has to know what they are consenting to a. Sometimes a duty to disclose iv. Self Defense:
Privilege in tort law
Only can use reasonable force under the circumstances a. Can’t used deadly force where the threat does not call for it b. Can’t use self defense once attacker has withdrawn
Reasonable mistake can work for defense a. The law deems that the law of self preservation is so ingrained in our systems to defend
Retreat to the wall before using deadly force

b. Ship docked and ship caused damage to dock during storm i. Trespass to Chattels ii. If dock would have been completely destroyed = conversion c. Private Necessity d. Act is tying the boat to the dock, boat company to pay for loss of the dock e. No punitive damages because of privilege, utilitarian decision o. Negligence i. Duty ii. Breach

What did defendant do or fail to do
Question of fact
Question of if defendant met the standard of care iii. Causation – Cause iv. Damages – Need real damages, NOT Nominal v. Set by objective standards vi. Formula
N=PG>B
Negligence x Gravity > Burden of Precautions a. Was there a duty to act vii. Lubitz v. Wells (Superior Court of Connecticut, 1955)
Lubitz, Plaintiff – Wells, Defendant
Father left golf club in yard, son picked it up and hit Lubitiz – cause deals with father not son
Son – swung club without telling playmate and without looking
Father’s negligence – leaving golf club to access of son
Court dismisses – if it had been shot gun different story; probability of harm is higher – greater danger viii. Blyth v. Birmingham Waterworks Co (Court of Exchequer, 1856 )
Blyth, Plaintiff – Birmingham Waterworks, Defendant
Defendants installed water plugs – flooding in plaintiff’s house after plugs failed
Weather caused plugs to fail and a reasonable person would have believed the defendant’s acted prudently under the severe weather they were not expecting ix. Pipher v. Parsell (Supreme Court of Delaware, 2007)
Pipher, Plaintiff – Parsell, Defendant, Driver
3 friends riding in a truck, Pipher is the middle passenger, Bisel grabs wheel and the truck swerves. Driver continues driving 30 seconds later Bisel grabs wheel again this time causing truck to leave road.

Driver had a duty to put Bisel in the back or kick out
Trial court found driver not to be liable as a matter of law
Driver was not negligent the first time but failure to take action meant the second action he was negligent
Breached his duty x. Chicago B. & Q.R. Co v. Krayenbuhl (Supreme Court of Nebraska, 1902)
Children were playing on railroad turntable
Belief turntable was secure it was not, kid’s leg got caught
Defendant has a duty to protect land/turntable and make it safe – duty is simple
Severity of harm a. What would have taken on defendant’s part b. Utilitarian approach to duty xi. Davison v. Snohomish County (Supreme Court of Washington, 1928 )
Car goes over bridge – needs guard rolls
Court finds too high of cost
As cars increase, probability of harm increases
Cost of putting up guard rails goes down
Utilitarian need has gone up xii. The Standard of Care
Custom and Usage, “Common Practice” a. Most had began to used Plexiglas
Burden of replacing the doors is not too high to be able to do it a. Cost effective and feasible b. Ought to do it for safety c. Easy for Defendant to learn about
The Reasonable Prudent Person a. Vaughan v. Menlove (Court of Common Pleas, 1837 ) i. Defendant built hay rick, plaintiff had cottages ii. Defendant was told it would catch farm, chose to chance it iii. Plaintiff loses cottages iv. Court chooses to measure based on objective standard
If a subjective standard it would be a “sliding scale” b. Delair v. McAdoo (Supreme Court of Pennsylvania, 1936)

ii. Person has a duty to act reasonably under the circumstances, extends to emergency situations as well iii. If someone else’s emergency you are not liable to affirmatively act in someone else’s emergency iv. If you caused the emergency then you have a duty to act v. Everyone is held to the same objective standard, and same level of knowledge e. Roberts v. State of Louisiana (Court of Appeals of Louisiana, 1981) i. Roberts, Plaintiff – State of Louisiana, Defendant (Blind man) ii. Blind man operating concession stand left to go to the restroom and bumped into Roberts who fell and hurt hip iii. Testimony to establish custom and usage as the testimony from experts to say blind man does not have to use cane, blind man used what is reasonable to him iv. 2 different theories of liability

Responding at superior – respondent superior
Employer is responsible for employee’s responsibility
Agency negligent responsible for employee v. Negligent failure of the state to properly supervise and oversee the safe operation of the concession stand
Negligence by state and have duty to supervise owner – liable f. Robinson v. Lindsay (Supreme Court of Washington, 1979) i. Robinson, Plaintiff – Lindsay, Defendant ii. 11 year old being pulled by inner tube and gets thumb severed and it was reattached, suing the owner of snow mobile and 13 year old driver, Billy Anderson iii. Standard of care to measure child’s negligence:
Reasonably careful child of same age, intelligence, maturity, training, and experience

Child is held to exercise such a degree of care to be expected from a child of his age
Child of -‐ 7 – not negligent, 7-‐ 13 – could be negligent, +14 – negligent
- traditional rule, but now reasonableness
If child engages in a dangerous activity can be found as an adult g. Breunig v. American Family Ins. Co. (Supreme Court of Wisconsin, 1970) i. Breunig, Plaintiff – American Family Ins, Defendant (Veith drove car) ii. Veith heard voices, saw a light, and believed g-‐d was driving the car – believed car would fly – it didn’t “Paranoid Schizophrenic Reaction, Acute” iii. Direct action suit – can sue insurance company direct iv. Insane/Mentally ill are held to the standard of a normal prudent reasonable person
Exception: Sudden mental incapacity equivalent to a heart attack, seizure, stroke, or fainting v. If you know you suffer from ailment then you are responsible
The Professional a. Heath v. Swift Wings, Inc. (Court of Appeals of NC, 1979) i. Fred Heath, pilot, flew his wife and son and a family friend crashed during take off – alleged Fred did not use wing flaps ii. Estate of wife and son brought negligence charge against husband’s estate iii. Standard – ordinary prudent pilot
Subjective standard was too low
Average is too high b. Hodges v. Carter (Supreme Court of NC, 1954) i. Plaintiff lost drug store in fire, sought insurance claim – 4 claims – sent summons to commissioner of insurance of NC and insurance company says not proper service, statute of limitations runs out, plaintiff sues lawyers, lawyers claim

fistulas was a risk, says she would not have had surgery if she would have known, says no informed consent iii. Elements of informed consent

Duty to inform
Causation
Injury
What might change a patient’s mind = Material Risk
Would patient have chosen treatments or alternatives iv. No informed needed
Emergencies
When everyone knows the risks
Therapeutic – when doctor holds back information for the good of the patient (controversial privilege) v. Objective Standard – “reasonable patient” would they have gone through with treatment vi. Subjective Standard – what the plaintiff would have done vii. Court likes subjective standard in this case because it is based off the plaintiff’s autonomy – says she does not make the elements f. Moore v. The Regents of the University of California (Supreme Court of California, 1990) i. Moore, Plaintiff – Regents, Defendant (Dr. Golde) ii. Moore diagnosed with hairy cell leukemia, Golde says to remove spleen, Moore does not know he is becoming a research subject, told he needs to keep coming back to UCLA over the course of several years iii. 13 causes of actions – Conversion main one
Moore’s cells based on his property interest
Trial court says no conversion, Appellate court holds conversion iv. Breach of fiduciary duties

One has a legal relationship and has to disclose one’s financial interest v. No conversion but breach of fiduciary duties xiii. Violation of Statute
Osborne v. McMasters (Supreme Court of Minnesota, 1889 ) a. Osborne, Plaintiff – McMasters, Defendant b. McMasters sold Osborne poison without labeling it c. Statute says all poisons must be labeled – establishes standard of care d. Violate the statute = breach of duty xiv. Applicability of Statute
Stachniewicz v. Mar-‐Cam Corp (Supreme Court of Oregon, 1971) a. Bar fight between American Indians vs. table with plaintiff – plaintiff injured and found in doorway b. Trial court found it did not constitute negligence per se (Of, in, or by itself; standing alone, without reference to additional facts -‐ Presumption) c. Statute says if someone appears intoxicated no longer serve them and statute says to prevent bar fights d. If statute fails then can sue based on common law
Ney v. Yellow Cab co (Illinois Supreme Court, 1954) a. Judges may look to legislative intent about statutes b. Cab driver left keys in cab, cab was stolen and got into an accident – cab was running c. Plaintiff was hit by thief in cab d. Safety measure to benefit public, anti theft measure
Perry v. S.N. and S.N. (Texas Supreme Court, 1998) a. S.N., Plaintiff – Perry, Defendant b. B.N. and K.N. were at day care and Daniel Keller was abusing the children. Perry, White, Quintero were witnesses to the abuse c. Statute requires any person who “has cause to believe or that a child’s physical or mental health or welfare has been or may be adversely affected by abuse” d. No duty to rescue, but this is reporting

e. Rely on common sense – matter of common knowledge

Larson v. St. Francis Hotel (District Court of Appeals of California, 1948) a. VJ Day August 14, 1945 b. Larson was outside of hotel and hit by overstuffed arm chair c. Court refuses Res Ipsa Loquitur d. Hotel not negligent
Ybarra v. Spangard (Supreme Court of California, 1944) a. Ybarra, Plaintiff – Spangard, Defendant b. Ybarra goes in for appendectomy, paralysis occurred after surgery, does not know what or who caused it c. Team work together, hospital employs all these people – exception to exclusive control d. Burden can shift i. If one defendant can prove they were not negligent then they could get off the hook
Sullivan v. Crabtree (Court of Appeals of Tennessee, 1953 ) a. Sullivan, Plaintiff – Crabtree, Defendant b. Sullivan guest of semi truck that went off hwy and crashed and killed him c. Inference vs. presumption i. Jury told to make inference based on facts and can draw inference of negligence ii. RIL usually used as inference
Some states see it as inference – plaintiff
Some states see it as presumption

plaintiff

Some states shift burden to defendant xvii. Causation In Fact
Perkins v. Texas and New Orleans R. Co. (Supreme Court of Louisiana, 1962) a. Widow of Perkins seeking recovery for her husband who was a passenger in a truck approaching RR tracks and the truck is obstructed by warehouse. Train has light and bell system that was working. Struck by engine and applied brakes, and took 1250 feet to stop, both men killed. b. Trial court awarded damages to widow

c. Supreme court overturned the decision – says this should have never gone to jury anyway – should have not been enough evidence to let it go to jury in the first place. d. Negligence Per Se – train violating local ordinance i. Even if the train had been going 25mph the accident still would have occurred because it could not have stopped in time e. Cause in Fact: The negligent speed of the train was not enough, it was the fact there was not enough room to stop i. The breach of the duty itself must be the cause of the accident

The speeding of the train must have caused the train to strike truck. The accident still would have happened ii. Violating the speed limit was not the cause of the damages iii. To be the cause, the Δ speed had to be at the outset f. The train caused the death but negligence did not
Proof of Causation a. Reynolds v. Texas & Pac. Ry. Co. (Court of Appeals of Louisiana, 1885) b. Gentry v. Douglas Hereford Ranch (Supreme Court of Montana, 1998) i. Δ Bacon was at his wife’s grandmother’s ranch, Bacon was setting up to go hunting and stumbled upon the steps and his gun fired shooting the grandmother in the head and killing her. ii. Bacon judgment proof due to bankruptcy iii. Δ is now the ranch – Douglas Hereford iv. π is saying the upkeep made Bacon stumble and they are liable of the gunshot killing Gentry v. Could a reasonable jury find that the poorly maintained steps caused the accident vi. Bacon says he does not know what happened vii. Jury cannot find enough evidence to hold the ranch liable

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