#11848 - Torts - Torts

INTENTIONAL TORTS

1. Intent

   1. Applies to conduct, not the consequence

      1. Vosburg v. Putney: D kicked P’s knee. Liable for all harm done because he intended to do a degree of harm.

   2. Strict liability for all intent

      1. Lack of knowledge does not mitigate

      2. Intent only needs to be to do the action, not to do it to a specific P

      3. Cannot use “I meant X, not Y” as a defense.

      4. Policy: An accident is a side effect; direct result of something actor meant to do.

   3. Substantial Certainty

      1. If harm is substantially certain to result from D’s actions, the harm is treated as D’s intent even if it was not his goal.

   4. Transferred Intent

      1. If you intent to tort A but tort B instead, your tort on B is intentional.

2. Battery

   1. Intentional harmful of offensive contact that does actual harm to P

   2. Contact results, directly or indirectly, from D’s actions

   3. Must go beyond incidental, harmless, and inoffensive touching

      1. Vosburg: D’s kick was intentional and significant enough to constitute battery

   4. Strict liability: D liable for all results of intended battery

3. Assault

   1. Elements

      1. Intentional act

      2. Imminent threat to person

         1. Tuberville v. Savage: “If it were not assis-time I would beat you” is not an assault because if it is assis-time, the threat is not imminent.

         2. Timing of imminence is fuzzy; jury question.

      3. Places P in reasonable apprehension of bodily harm

         1. Not necessarily fear (whether the P is subjectively afraid is immaterial)

         2. Emotional preparation to respond to imminent threat

         3. P can be apprehensive and also reasonable believe that no real harm will come his way (bigger stick scenario)

         4. Apprehension can be subjective; a person can be in apprehension of an unloaded gun they believe to be loaded (Allen v. Hannaford)

   2. Does not require physical contact

      1. Protects intangible interest in bodily integrity—emotions, security of the mind

      2. Injury done is apprehension, an emotional harm

4. Trespass

   1. Intent to enter real property

      1. Dougherty v. Stepp: Intent element goes toward entering the land, not toward knowing it was private property.

      2. Intent does not go toward it being someone else’s land; ignorance of ownership is no excuse. Just coming onto the land voluntarily is sufficient.

   2. Strict liability for all damages caused by entry.

      1. Property is subject to Eggshell Plaintiff

   3. Intangible trespass: requirement is on P to show harm (not required for other types of trespass.)

      1. E.g. harm from electric fields.

   4. Policy: Trespass suits are often brought to get court ruling on where a party’s property line is.

5. Affirmative Defenses

   1. Consent

      1. Mohr v. Williams: D operated on P’s other ear and P claimed battery. Patient has autonomy unless there is an emergency or expressly implied consent.

         1. Policy: Autonomy trumps best interests except in emergency cases

         2. Good decision theory: Let the party (usually the person himself) in the best position make the decision.

      2. General consent form: once you sign it, you turn over your autonomy to the doctor. Enables the doctor to make the best decisions for the patient without fear of malpractice.

      3. Nonverbal Consent: Consent need not be spoken or written. Per custom, a person’s actions can be reasonably interpreted as giving consent.

      4. Implicit consent: Sports

         1. Combatants in sports consent to violence that occurs within normal boundaries of the sport, but not gratuitous violence. Hackbert v. Cincinnati Bengals

            1. “Deliberate, willfull, or reckless disregard for safety”

         2. Violent non fit injuria—the willing suffer no injury

         3. Exception: Illegal Acts

            1. Hudson: Cannot consent to an illegal prizefight; tort liability for battery done on the promoter.

            2. Rule: No one can consent to participation in illegal activity

      5. Consent is a common-law principle that can be superseded by statute

         1. Cannot consent to unlawful activity

         2. Torts adjust to fit criminal law

      6. Safe Harbor

         1. Sufficient but not necessary condition for preferential treatment

         2. Localized rules establish consent for certain actions

            1. E.g. the rules of football are a safe harbor for most batteries.

   2. Necessity

      1. When life or limb is threatened, normal rules of trespass do not apply.

         1. Cuts back on rights of property owner.

         2. Society values P’s life over D’s property rights

      2. Threat must be serious, necessity action must be reasonable.

      3. Self-help

         1. OK to do things that would otherwise be torts if you interests have been invaded

         2. Excessive self-help is a tort

         3. Much harder to claim self-help when the harm is done to a person than to property.

      4. Holdouts

         1. Occurs when a bilateral monopoly exists

         2. Deal in both parties’ interests is much more valuable to the party in need than the holder.

      5. Damages

         1. Owner can recover compensatory damages in necessity cases, but not punitive ones

         2. Excessive self-help triggers punitive damages

         3. Incentivizes P to only engage in self-help if there is true necessity—person in true need won’t consider costs.

      6. Also a defense to CN. See Raimondo.

EMERGENCE OF NEGLIGENCE

1. Forms of Action

   1. Trespass: Direct harm done

      1. Scott v. Shepard

         1. Lighted squib caused game of hot potato

         2. Rule: Removing self from danger justifiable; blame on initial trespasser.

      2. Guille v. Swan: Intent does not matter for trespass; strict liability for all injurt (balloon over NYC case).

      3. Foundations for strict liability

   2. Case (“trespass on the case”): Harm resulting from earlier actions

      1. Foundation for negligence: creation of dangerous situation that ends up harming.

   3. Problems

      1. Wrong form of action resulted in dismissal

      2. Interested parties could not testify

2. Introduction of Due Care

   1. Brown v. Kendall (MA SJC, Shaw, landmark negligence case)

      1. D accidently hit P with stick while trying to separate fighting dogs

         1. Old trespass system: SL

         2. Negligence: P had burden to show D was acting unreasonably

      2. Old system required P to merely show causation

      3. New rule: causation plus unreasonable want of due care

   2. Brown v. Collins

      1. D exercised reasonable care over horses, but they did damage anyway

      2. P couldn’t show negligence and lost.

   3. Duty to exercise due care extends to everyone

      1. Old system: rule was SL, unless D was under specific duty, then negligence.

      2. New system: negligence for all but certain exceptions

3. Modern Rule of Negligence: Action or failure to take action to avoid injury to another

   1. Duty, Breach, Causation, Damages

4. Procedure: The jury, not the judge, determines what due care is and whether the parties took it

   1. Pokora v. Wabash: Cardozo; negligence is a standard, not a rule. Contra Baltimore & OH v. Goodman; Holmes argued that judge should be able to instruct jury on what the reasonable person is.

      1. Why Cardozo is right: Fact patterns are complicated and no singular judge rule can determine what a reasonable person would do in every possible situation. Better to make it a standard and let the jury apply that standard to the facts of the case.

      2. Juries tend to favor D on liability, but award higher damages to P when D is found liable

      3. Judges have seen so many things that they may not see the obvious answer in each case

      4. Judge retains power to take case from jury when “no reasonable jury” situation arises

      5. Juries have the sense of the common man and provide a check on the legal intelligentsia

      6. Judge argument: all cases should be decided alike; fewer people deciding cases is better

5. Policy: Economics of Negligence

   1. SL system was bankrupting industry

   2. State could not afford to directly subsidize industry

   3. Negligence lowered costs of doing business for factories, etc.

      1. Only had to pay costs of precaution, not serve as an insurer for all employee accidents

6. Policy: Corrective Justice

   1. With Strict Liability: Blameworthiness. Person at fault pays. Corrects all harms.

   2. With Negligence: Golden rule. Liability only if person treated you at a standard of care lower than they would treat themselves.

7. Policy: Incentives

   1. With Strict Liability: Precautions taken up to point of cost-efficiency. If you don’t take enough precaution, you pay.

   2. With Negligence: Rewards people who take due care by releasing them from liability. Causes people’s conduct to reflect the effects of that conduct on others.

      1. Injured P does not recover if D took due care.

      2. Assuming others are taking due care, incentivizes P to avoid injury.

8. Policy: Paerto

   1. Pareto improvement is a move that makes at least one person better w/o making anyone worse

   2. Pareto optimality is when all possible Pareto improvements have been made

9. Policy: Kaldor-Hicks Efficiency

   1. Conduct is negligent if disadvantages outweigh advantages

      1. Advantage can be saving money by not taking precaution against unlikely events.

      2. Not the same as a Pareto improvement: A person can be made worse off, but so long as the person benefitting can compensate the person being harmed, it works.

         1. This is how the legal system works. Take precautions that are justified and be prepared to pay the other person for what you don’t precaution for.

         2. You can be forced by the legal system to make a K-H improvement.

      3. This encourages internalization of risk. Look at what is cost-justified to do.

   2. Policy changes should be made if they benefit X more than they harm Y

10. Policy: Activity Level

    1. Strict Liability: The law of odds says that even if taking due care, you will eventually be in an accident if you do something often enough, and will have to pay. Disincentivizes activities (driving)

       1. Thus we only impose it for activities we want to limit the use of (ultrahazardous)

    2. Negligence: Doesn’t discourage activities. Negligence only cares about how you drive, SL cares about how much you drive.

THE REASONABLE PERSON STANDARD

1. Objective Standard of Care

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