Torts Outline PDF

Bailey Kennedy Torts WJD Fall 2024 Outline **[Torts]** A tort is a civil cause of action to recovery monetary damages for personal injury or property damage caused by the wrongful conduct of another. 1. What did the defendant do? a. Did they action intentionally? b. Did they breach...

Bailey Kennedy Torts WJD Fall 2024 Outline **[Torts]** A tort is a civil cause of action to recovery monetary damages for personal injury or property damage caused by the wrongful conduct of another. 1. What did the defendant do? a. Did they action intentionally? b. Did they breach a duty of care? 2. Did the defendant's conduct cause harm to the plaintiff? 3. What is the nature of the plaintiff's harm? What damages are being sought? 4. Are there any defenses available to the defendant? **Types of Torts** 1. Intentional Torts -- defendant acted with intent 2. Negligence -- defendant acted without reasonable care in the face of known risks 3. Strict Liability -- defendant acted or defendant's relationship imposes liability without inquiry into conduct -- defective products, especially dangerous circumstances, vicarious liability of employer for employee's actions **Goals of Tort Law** 1. Compensation -- fairness or corrective; backward looking; imposes tort liability as a remedy for harm, makes victims whole 2. Deterrence -- economic; forward-looking; imposes liability to deter future misconduct and ensure an efficient distribution of risks and rewards between actors and society at large; deters wasteful behavior 3. Social norms -- allows society to "call out" socially unacceptable conduct. Social norms become embedded in popular discourse and in legally enforceable rules that emerge as binding precedent from the case law **Types of Damages** 1. Economic damages -- concrete damages that the injured person has paid out or will continue to pay out as a result of the injury; amounts the plaintiff has missed out on or will continue to miss out on like lost wages 2. Non-economic damages -- "pain and suffering", "loss of enjoyment of life"; subjective evaluation 3. Punitive damages -- intended to reflect the reprehensibility of the defendant's conduct and to punish the defendant, not compensate the plaintiff **Process of Adjudication** 1. Complaint 2. Response: Motion to dismiss or Answer 3. Discovery 4. Motion for Summary Judgment 5. Trial 6. Motion for Directed Verdict 7. Jury Instructions; Decisions by Jury 8. Judgment Notwithstanding the Verdict (JNOV) 9. Motion for a New Trial **Pleadings** 1. Motion to Dismiss -- asserting that the complaint fails to state a claim upon which relief can be granted 2. Motion for Summary Judgment -- no real and genuine dispute exists as to any material facts 3. Motion for a Directed Verdict -- plaintiff has failed to prove one or more of the elements of the case 4. Motion for Judgment Notwithstanding the Verdict -- renewed motion for summary judgment; jury verdict is against the clear weight of the evidence **[Battery]** Battery is the intentional, unprivileged, and either harmful or offensive contact with the person of another. In order for an act to constitute battery, it must be volitional A defendant is not subject to liability for involuntary acts such as: -Accidents -Involuntary muscle spasm -Seizure [Restatement (Second) of Torts Section 13 Battery: Harmful Contac]t An actor is subject to liability to another for battery if a. he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and b. a harmful contact with the person of the other directly or indirectly results. [Restatement (Second) of Torts Section 18 Battery: Offensive Contact] An actor is subject to liability to another for battery if a. he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and b. an offensive contact with the person of the other directly or indirectly results **Prima Facie Case for Battery** 1. Intent 2. Harmful or Offensive Contact 3. Causation 4. Harm **[Intent]** Did the defendant have the requisite intent? What did the defendant intend to cause? **Ways of Establishing Intent** 1. Intent to cause harmful contact 2. Intent to cause offensive contact 3. Intent to cause contact that a reasonable person would find harmful or offensive 4. Intent to cause imminent apprehension of harmful or offensive contact 5. Knowledge with substantial certainty (98%) that harmful or offensive contact would occur 6. Transferred intent [Restatement (Second) of Torts Section 16 Character of Intent Necessary for Battery:] Transferred intent -- Intent transfers when defendant intends to hit A but hits B instead. Tort transfers when defendant intends one tort like assault and ends up committing another tort like battery. **Case on Intent**: *Vosburg v. Putney* [Key terms]: Children, school room, kick, permanent damage to leg, pre-existing condition [Issue]: Is intent to harm required for liability for assault and battery? [Holding]: No. Intent to cause the contact is required, but the intent to harm is not. **Eggshell skull rule**: All damages caused by the defendant's wrongdoing are recoverable, whether or not the damages were reasonably foreseeable and whether or not they flowed from an unusual trait or preexisting condition of the plaintiff. **Case on Intent**: *Garratt v. Dailey* [Key terms]: Child, chair pulled out from under plaintiff [Issue]: Can a five year old child be held liable for battery? **Worker's Compensation Cases:** *Turner v. PCR* -- Intentional tort exception to worker's compensation claims *List Indus., Inc. v. Dalien* -- change from "substantial certainty" to "virtually certain" standard adopted in many state statutes that the plaintiff has to show based on prior similar accidents or on explicit warnings specifically identifying a known danger *Travelers Indemnity Co. v. PCR Inc.* -- insurance companies responsible for covering intentional torts based on the substantial certainty or virtual certainty standards *Laidlow v. Hariton Machinery Co*. -- two-pronged test -- 1. Did the employer know with substantial certainty that the injury would result? 2. Was the injury simply the result of everyday industrial life, in which case worker's compensation was the exclusive remedy, or plainly outside the legislative grant of immunity from tort law under the worker's compensation statute? **Other Intent Cases:** *Kerans v. Porter Paint Co.* -- sexual harassment claim not barred by worker's compensation *Shaw v. Brown & Williamson Tobacco Corp* -- the fact that the defendant knew that their products would impact some nonsmokers was too generalized to satisfy the knowledge-based intent requirement for battery *Carnes v. Thompson* -- transferred intent -- "If one person strikes at, throws at, or shoots at another and unintentionally strikes a third person, he is not excused, on the ground that it was a mere accident, but it is a battery of the third person. Defendant's intention, in such a case, is to strike an unlawful blow, to injure some person by his act, and it is not essential tha the injury be to the one intended. **[Contact]** Was there contact? Was it harmful or offensive? **Ways of Establishing Contact** 1. Direct contact 2. Indirect contact 3. Case law [Restatement (Third) of Torts: Liability for Physical and Emotional Harm Section 4] [Restatement (Second) or Torts Section 19 What Constitutes Offensive Contact] A bodily contact is offensive if it offends a reasonable sense of personal dignity **Case on Contact**: *Fisher v. Carrousel Motor Hotel* [Key terms]: Plate snatched, racist remark, NASA employee, manager **Case on Contact**: *Leichtman v. WLW Jacor Communication, Inc.* [Key terms]: Anti-smoking advocate, radio show, smoke blown, particulate matter [Issue]: Can someone commit a battery by intentionally blowing smoke on another person? [Holding:] Yes, a battery can be committed by smoke. [Rule]: Intentionally blowing smoke on another person can constitute a battery **Other Contact Cases**: *McCracken v. Sloan* -- "glass cage" defense; employee allergic to smoke, boss smoking in his office. Decided in 1979. [Restatement (Third) of Torts Section 103 Intentional Torts to Persons] Contact is offensive if: a. the contact offends a reasonable sense of personal dignity; or b. the contact is highly offensive to the other's unusually sensitive sense of personal dignity, and the actor knows that the contact will be highly offensive to the other **[Privileges]** 1. Consent 2. Self-Defense 3. Defense of Others 4. Defense of Property 5. Necessity **[Consent]** Consent is willingness in fact for conduct to occur. Most courts treat consent as a defense; some courts treat consent (non-consent) as part of the plaintiff's prima facie case. Will consent be enforced? 1. Capacity to consent 2. Fraud or coercion 3. Form contracts 4. Did the doctor explain the procedure and the alternatives and give patient a choice or was the patient asked to sign the form with little or no explanation? Case on Consent: *O'Brien v. Cunard Steamship* **Key terms:** Small pox vaccine, doctor, overt actions **Holding:** No. The trial court did not err. Case on Consent: *Barton v. Bee Line, Inc.* **Key terms:** Rape, 15 year old, nature and quality **Holding:** Yes, the trial court erred. Case on Consent: *Bang v. Charles T. Miller Hospital* **Key terms:** Spermatic cords, Case on Consent: *Kennedy v. Parrott* **Key terms:** Appendectomy, ovarian cysts, punctured, phlebitis in leg **Holding:** No, the trial court did not err. A surgeon is not liable. Case on Consent: *Hackbart v. Cincinnati Bengals, Inc.* **Key terms:** Football game, opponent hit him while on the field, not during play **Holding:** Yes, the trial court erred. A football player can be held liable, however, A screenshot of a computer Description automatically generated Other Cases on Consent: [Medical Malpractice Cases:] *Washburn v. Klara --* consent authorized removal of disc and fusion of C6-7, injury at C7-T1, court held that if the surgery extended there that consent had not been given, battery *Kaplan v. Mamelak ­--* diff. spinal areas, were they "substantially different procedures", up to jury *Massingale v. Lee --* battery claim from bilateral hernia procedure, doctor removed patient's left testicle, patient had asked if the surgery would "affect me in any way in my manhood", doctor had said no. P had signed consent form that provided for procedures "in addition or different than those contemplated", court ruled that the trial court erred in granting a directed verdict for the defendant. *Robinson v. Cutchin --* woman sterilized during emergency c-section. Court held she failed to state a claim for battery because of no malice since sterilization could be viewed as an extension of the c-section. Court opinion "fact that she couldn't have a seventh child...hardly offend dignity" *Hoofnel v. Segal --* battery arising out of colorectal cancer surgery and appendectomy, P stated she didn't want her uterus removed, signed consent form, uterus removed. Court ruled in favor of D because of signed consent form. *Christman v. Davis --* where treatment is unauthorized, doctor has committed a battery. If doctor obtains consent, but breached a duty to inform the patient, then negligence. *Mitchell v. Kayem --* summary judgment for defendant surgeon in fault-based informed consent action because P testified that she would have consented to the surgery if she had known all the risks. *Jandre v. Wisconsin IPFCF --* doctor misdiagnosed, didn't tell about options for better diagnosis, P suffered another stroke, jury held doctors misdiagnosis wasn't negligent, but failure to inform of options was. *Henderson v. Milobsky --* dentist did not owe duty to warn of a 1 in 20k chance of slight loss of sensation to small section of face. *Martin v Richards --* court held that a 1 to 3 percent chance of developing intracranial bleeding merits disclosure by a physician, fatal consequences. *Johnson by Adler v. Kokemoor --* informed consent may require disclosure of the fact that different physicians may have substantially different success rates with the same procedure. *Goldberg v. Boone --* jury decides whether the defendant surgeon had a duty to inform the patient that there were more experienced surgeons in the region -- other jdx hesitant but misrepresentation of credentials not allowed. [Sports Cases:] *Avila v. Citrus Cmty. Coll. Dist. --* collegiate baseball players assume the risk that pitchers will intentionally throw pitches at them *Knight v. Jewett --* held backyard games to the same standard as Hackbart -- impliedly consent to violent contact, but not to conduct that is so reckless as to be totally outside. The range of the ordinary activity involved in the sport. *Pfister v. Shusta --* college student could not recover damages for injuries sustained during a game of "kick the can" [Consent Obtained Under Fraud or Duress] *DeMay v. Roberts --* arranged for at home birth Dr., he brought a friend, friend wasn't a doctor, she could recover for their failing to disclose the identity of the friend, they had fraudulently procured P's consent to the man's presence in the birthing room *Bowman v. Home Life Ins. Co --* insurance employee falsely represented as a physician, conducted physical exams, D had procured consent through fraudulent misrepresentation *Sanchez-Scott v. Alza Pharm --* pharmaceutical salesman "assisting" Dr. during breast exam, could collect because consent procured by fraud *Conley v. Romeri --* sterile man, misrepresented to woman that he could have kids, woman wanted kids, woman could not recovery for battery, his misrep wasn't fraud *Reavis v. Slominski --* threat from employer to fire, "economic duress" in order to get consent for sexual advances, employee could recover *State Farm Fire & Casualty Co. v. SS & GW --* man gives woman genital herpes, [Lifesaving Medical Treatment] *In re Estate of Brooks --* patient expressly refuses blood transfusion on religious grounds, hospital had guardian appointed, guardian consented, court held consent was invalid *Anderson v. St. Francis-St. George Hospital --* hospital administered life-prolonging treatment against instruction of the patient, patient suffered a stroke that only happened because they lived long enough to have it, court held this was a battery *In re Maria Isabel Duran --* liver transplant, Jehovah's Witness, refused blood transfusion, court allowed husband to be appointed, she died, but her clear and unequivocal refusal of the medical treatment meant the court should have never allowed husband to try to save her *In re Fetus Brown --* 34 week pregnant, Jehovah's Witness, refused blood transfusion, hospital sought a court order to save the fetus and mother, court held they couldn't based on her refusal *HCA v. Miller --* 23 week old fetus severe impairments, parents requested no heroic measures to save, court held that the hospital doesn't have to follow the parent's direction *Shindler v.. Schiavo --* permanent vegetative state, court held they could step in to determine the outcome, evidence that Terry wouldn't have wanted to live on life support [Public Health] *Jacobson v. Massachusetts ­*-- small pox vaccine, public health argument *Klaasen v. Trustees of Indiana University* -- COVID 19 vaccine, public health argument, at-will relationship *Madrigal v. Quilliigan --* involuntary sterilization -- ten Mexican women sued because they hadn't been explained the sterilization procedure, court held that if the patient gave free and knowing consent then the physician may not face liability **[Self-Defense]** Restatement (Second) of Torts Section §63. Self-Defense by Force not Threatening Death or Serious Bodily Harm \(1) An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him. \(2) Self-defense is privileged under the conditions stated in Subsection (1), although the actor correctly or reasonably believes that he can avoid the necessity of so defending himself, \(a) by retreating or otherwise giving up a right or privilege, or \(b) by complying with a command with which the actor is under no duty to comply or which the other is not privileged to enforce by the means threatened. §64. Self-Defense Against Negligent Conduct \(1) Except as stated in Subsection (2), an actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against harmful or offensive contact or bodily harm which he reasonably believes to be threatened by the conduct of another, although he recognizes such conduct to be negligent. \(2) The actor is not privileged so to defend himself if he knows or should know that he can escape the necessity of doing so by retreating, or by giving up the exercise of a right or privilege which, under the circumstances, it is reasonable to require him to relinquish. §65. Self-Defense by Force Threatening Death or Serious Bodily Harm \(1) Subject to the statement in Subsection (3), an actor is privileged to defend himself against another by force intended or likely to cause death or serious bodily harm, when he reasonably believes that \(a) the other is about to inflict upon him an intentional contact or other bodily harm, and that \(b) he is thereby put in peril of death or serious bodily harm or ravishment, which can safely be prevented only by the immediate use of such force. \(2) The privilege stated in Subsection (1) exists although the actor correctly or reasonably believes that he can safely avoid the necessity of so defending himself by \(a) retreating if he is attacked within his dwelling place, which is not also the dwelling place of the other, or \(b) permitting the other to intrude upon or dispossess him of his dwelling place, or \(c) abandoning an attempt to effect a lawful arrest. \(3) The privilege stated in Subsection (1) does not exist if the actor correctly or reasonably believes that he can with complete safety avoid the necessity of so defending himself by \(a) retreating if attacked in any place other than his dwelling place, or in a place which is also the dwelling of the other, or \(b) relinquishing the exercise of any right or privilege other than his privilege to prevent intrusion upon or dispossession of his dwelling place or to effect a lawful arrest. §70. Character and Extent of Force Permissible \(1) The actor is not privileged to use any means of self-defense which is intended or likely to cause a bodily harm... in excess of that which the actor correctly or reasonably believes to be necessary for his protection.... Case on Self Defense: *Courvoisier v. Raymond* **Key Terms:** Shop break in, owner shoots police officer believing him to be criminal **Issue:** Whether self-defense may be alleged as a defense to liability for intentional torts **[Defense of Others]** The force that may be used by the intervenor to repel an attack on another is measured by the force that the other could lawfully use. Thus, if the attack imperils the life of the third person, the intervenor can use deadly force on behalf of that person. 1. The defendant must have subjectively believed that an attack was imminent 2. The defendant's subjective belief must have been objectively reasonable under the circumstances Exception: Mistake Intervenor is mistaken as to which of the two persons is the aggressor [Restatement (Second) of Torts Section 76] adopts the view that the intervenor's privilege is independent of that held by the person to be protected. Thus, an intervenor is entitled to use reasonable force to protect a third party as long as the intervenor reasonably believes that intervention is necessary and that the third party would be privileged to use self-defense. **[Defense of Property]** [§77. Defense of Possession by Force Not Threatening Death or Serious Bodily Harm] An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to prevent or terminate another's intrusion upon the actor's land or chattels, if \(a) the intrusion is not privileged... and \(b) the actor reasonably believes that the intrusion can be prevented or terminated only by the force used, and \(c) the actor has first requested the other to desist and the other has disregarded the request, or the actor reasonably believes that a request will be useless or that substantial harm will be done before it can be made. [§79. Defense of Possession by Force Threatening Death or Serious Bodily Harm] The intentional infliction upon another of a harmful or offensive contact or other bodily harm by a means which is intended or likely to cause death or serious bodily harm, for the purpose of preventing or terminating the other's intrusion upon the actor's possession of land or chattels, is privileged if, but only if, the actor reasonably believes that the intruder, unless expelled or excluded, is likely to cause death or serious bodily harm to the actor or to a third person whom the actor is privileged to protect. Case on Defense of Property: *Katko v. Briney* **Key terms:** Spring shot gun, abandoned house, intruder's leg **Holding:** No, personal rights are given a higher value than property rights. **[Necessity]** Case on Necessity: *Ploof v. Putnam* **Key terms:** Boat, tied to private dock, employee untied boat, boat crashed **Issue:** Whether necessity involving another's land would constitute a trespass **Holding:** Yes, necessity is a privilege to trespass Case on Necessity: *Vincent v. Lake Erie Transportation Co.* **Key terms**: Storm, ship tied to dock, storm slammed ship against, damaging dock **Holding**: Yes, even if the act is necessary, they may still be liable for damages. Case on Necessity: *Mouse's Case* **Key terms**: Boat started taking on water in a storm, D threw luggage overboard to save **Issue**: Whether the D can be held liable for damages for the greater good **[Assault]** [Restatement (Second) of Torts Section 21 Assault] An actor is subject to liability to another for assault if: a. He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and b. The other is thereby put in such imminent apprehension [Comment:] d. An act is done with the intention of putting the other in apprehension of an immediate harmful or offensive contact if it is done for the purpose of causing such an apprehension or with knowledge that, to a substantial certainty, such apprehension will result. [Restatement (Second) of Torts Section 29] 1. To make the actor liable for an assault he must put the other in apprehension of an imminent contact 2. An act intended by the actor as a step toward the infliction of a future contact, which is so recognized by the other, does not make the actor liable for an assault under the rule stated in Section 21. [Restatement (Second) of Torts Section 22 Attempt Unknown to the Other] [Restatement (Second) of Torts Section 30 Conditional Threat] [Restatement (Second) of Torts Section 31 Threat by Words] Reasonable person standard is a prescriptive standard *Brzoska* - HIV positive dentist example **Elements of Assault** 1. Intent 2. Causation 3. Imminent Apprehension Other Cases: *Bouton v. Allstate Insurance -- boy went trick or treating dressed in military fatigues, owner shot and killed him, acquitted, then sued the insurance companies saying boys assaulted him, lost, "reasonable person" standard* *Legal Formalism* *Legal Realism*