TORTS I OUTLINE
INTENTIONAL TORTS
-PHYSICAL HARMSI.
BATTERY:
Elements are (1) intent to touch and (2) actual touching (may be indirect)
1. Vosburg v. Putney – don’t need intent to harm, just intent to touch; kick may
have been lawful in another context like recess (“implied consent of the
playground”) or maybe implied consent if it were a habit but here it was
unlawful so automatically unlawful intent
2. Garratt v. Dailey – D a boy who pulled chair out from under arthritic lady;
illustrates how only intent to touch, not to harm, is required for battery…
only need substantial certainty contact will occur
3. Wagner v. Utah – mental patient attacks lady at K-mart, held liable
4. White v. University of Idaho – piano playing case where court rejected
Restatement rule, held intent to touch is enough (the majority view) – P here
claimed the touching was nonconsensual and won
5. Shaw v. Brown & Williamson Tobacco – “generalized knowledge insufficient”;
battery claim from second hand smoke denied here, no battery (note: court
did not want to open floodgates of tort litigation here)
6. Talmage v. Smith – while trespassing, P hit by stick thrown by D – D claimed
he did not see P or mean harm but court transferred intent so liable
*aim of tort law to decide who should bear the loss
*anything intimately connected to a person can be touched in battering way – ex:
substantial enough = kicking cane, grabbing plate out of hands, tugging shirt; but
stereo vibrations not a touching; smoking can be though
II.
TRESPASS TO LAND
Plaintiff must show: (1) willful entry and intention to be there (2) without
consent; need not show malicious intent
1. Dougherty v. Stepp – TC said no trespass because no harm done but AC
reversed, holding “it is the entry that constitutes the trespass” ~ even
treading on grass enough by D here who was surveying the land – immaterial
whether he marked trees or not because trespass either way – trespass even
if D believes the land is his!
2. Brown v. Dellinger – 2 boys lit unauthorized fire on P’s land, held liable for
damages
3. Cleveland Park Club v. Perry – D a boy who put rubber ball in pool drain
thinking it had no suction…liable for the damage done; illustration how even
consent to be on the property does not insulate from tort of trespass where
actions on property are unauthorized!
4. Public Service Co. v. Van Wyk – utility co. sued for electromagnetic waves and
radiation ~ said for intangible trespass cases, must show harm (limit
liability); denied intangible trespass claim but held nuisance
III.
TRESPASS TO CHATTELS: “the little brother of conversion”
Interference here less than conversion; P awarded only damages caused
1. Blondell v. Consolidated Gas Co. – Ds attached governors to gas meters; court
did not care if any harm resulted, still interference and so trespass to
chattels; held any interference a trespass to chattels = against Restatement
*Restatement: trespass to chattels only where interference harms
possessor’s materially valuable interest in the personal property or deprives
use for some time (ex: pulling dogs ear unactionable)
2. Intel v. Hamidi – email system trespass to chattels claim – but no physical
damage, deprivation or breach of security = no trespass to chattels; court
took Restatement approach here (must show harm); different from
Compuserve or eBay cases because there, system actually impaired ~ here,
“impairment by content” argument rejected, too far of a stretch of the tort
---dissents: (1) undermined system’s utility, hurt worker productivity,
companies should be able to exclude unwanted mail for any reason
including content and (2) D essentially invaded private intranet
analogous to commandeering mail cart and delivering thousands
IV.
CONVERSION: D must exercise control/dominion over the property, but
need not have malicious intent (still conversion if believes he owns it)
P can recover full value of property ~ qualified now though
1. Poggi v. Scott – not just interfering but exercising control…D claiming
innocence because did not know barrels full of wine (believed they were
empty) ~ only need intent to act as owner, not intent to harm; if wine stolen
rather than sold, then no conversion
2. Maye v. Tappan – D dug up gold-bearing soil on land P told him he owned =
still conversion (“immaterial whether D acted willfully and maliciously or
ignorantly and innocently in digging…”)
3. Kremen v. Cohen – dispute over sex.com domain name – held Network
Solutions liable for conversion because negligent or not, gave away property;
illustrates that conversion can happen with intangibles, too (still a
“document” – need not be in ink)
*Holmes: this tort fair in its essence ~ so long as act intended, good faith is
irrelevant (but relevant to damages usually)
-DEFENSES TO INTENTIONAL TORTSI. CONSENT
1. Mohr v. Williams – ear surgery where D surgeon performed surgery on different
ear than anticipated while P unconscious and had only consent to surgery on
right ear, not left (even though left in worse shape as discovered in surgery);
reject D’s argument that he was not negligent and did not have evil intent so no
battery – court insists motive not relevant to battery liability ~ also not a good
argument to try to extend consent from right ear to left
*similar to Cleveland Park in that consent for one part of act but not another
***autonomy argument: “every person has a right to complete immunity of his
person from physical interference of others”
*utilitarian argument (people generally best off when they make their own
decisions) and ethical argument (freedom of ethics must be respected)
***we respect autonomy by taking consent seriously and not allowing recovery
where consent given….premise behind autonomy is experience, rationality &
capability of person (reason why children treated differently than adults)
2. Kennedy v. Parrott – D surgeon performed appendectomy where he discovered
and punctured ovarian cysts ~ not held liable because held “general consent” ~
illustration of how autonomy can compete with other values (P here unconscious
and so incapable of consenting and no one around who could consent for her so D
not liable for acting with sound judgment)
3. Hoofnel v. Segal – P can to D physician for removal of colon lesions, said she did
not want any female parts removed but signed consent form authorized such
procedure if necessary….court held “clear and unambiguous words of the consent
form” must be taken seriously and trump what she said
4. O’Brien v. Cunard – illustrates how “although consent is normally expressed in
words, it may also be inferred from conduct” – case about immigrant’s consent for
smallpox vaccine where she raised no objections while doctor gave shot
*subjective approach to consent: focus on specific person’s desire/intention
*objective approach to consent: ask how situation would appear to external,
reasonable observer (approach taken in O’Brien and Hoofnel)
***emergency rule = no liability for doctors treating E.R. patients where they
cannot obtain consent ~ requires:
(1) emergency situation
(2) no way to obtain consent
5. Hudson v. Craft – boxing exhibition where promoter did not have license, both
participants old enough and consented but this was not a defense for promoter…
 here, court takes majority view, says peace disturbed and “no one may
consent to such breach” and concludes promoter liable because violated
statutory provision (had no license) designed to protect the fighters
 paternalism used to promote public policy, make promoter more careful!
 Promoter liable for policy reasons ~ distinguish from boxer-boxer liability!
---majority view: society has an interest in stopping breaches of peace; idea
that allowing injured loser to sue in torts will deter fighting
---minority (Restatement view): (a) both parties equally wrong and (b) to
respect autonomy of injured person’s consent, do not allow recovery
*Hart v. Geysel – man killed in illegal prizefight he consented to
participate in but court here adopted minority (Restatement) view
and so no awarding for consensual injuries! – held consent precludes
liability
6. Barton v. Bee Line – minor girl claims statutory rape against chauffeur but it was
consensual so court said statute not designed to protect her
***note: most courts disagree with this stance and instead take paternalistic
view like Hudson that consent irrelevant
general theme here: some illegal situations will count consent, others will not
***questions to ask in these cases: who is statute meant to protect?
II. CONSENT IN ATHLETIC/RECREATIONAL CONTEXT
General rule: participation in sports = implied consent to ordinary
touchings/happenings of the game
 Extreme views: athletic field as no man’s land (view taken in Hackbart) or
consent only to touchings within rules of game
 *majority of courts fall between extremes saying implied consent for
touchings within general customs of the game
 if no intent to harm, usually no liability in these cases; no consent
where “reckless disregard for harm”
1. Gauvin v. Clark – majority view taken when D “butt-ended” P with hockey stick;
found D did not act willfully or recklessly; held part of “general customs” (Wells
questioned this though!) – special verdict found in this case
2. Hackbart v. Cincinnati Bengals – football player injured by angry player after the
play; held this injury expressly prohibited by rules of game = liability
3. Avila v. Citrus Community College – P hit by D pitcher on purpose ~ held not liable
because this kind of intimidation part of the game of baseball
4. Marchetti – kick the can case, D got summary judgment
III. INSANITY: Insane people liable for intentional torts where act intended (but
need not be a rational choice)–
*Insanity actually NOT A DEFENSE FOR INTENTIONAL TORTS – Rationale:
(1) make wealthy insane aid their victims
(2) incentivize caretakers to be more watchful
1. McGuire v. Almy – P a nurse who worked for D insane patient that injured her –
assumption of risk defense rejected here (knew the extent of risk only after already
in room); said “public policy demands that a mentally affected person be subjected
to the external standard for intentional wrongs”; P won
2. note: autonomis (sleep-walking) when unconscious generally held as not
intentionally acting, so not liable
3. note: messy to determine whether tortfeasor sane/rational or not ~ torts only really
concerned on who should bear the loss, not punishment (that is criminal law)
4. Gould v. American Family Mutual Insurance – established general policy that “when
there is a loss to be borne by one of 2 innocent persons, the one who occasioned it
ought to bear the loss” (even if insane tortfeasor) ~ but exceptions to this
IV. SELF-DEFENSE & DEFENSE OF PROPERTY
Can be a defense to intentional torts
1. hypo: Emmet (E) and George (G) hate each other, E swings at G but misses…G
returns swing and strikes – is G liable? – NO
2. rationale for this defense:
a. autonomy and individualism (freedom to protect oneself)
b. to prevent irreparable harms (loss of life/limb)
c. may be cheaper and simpler to defend right then than bring lawsuit later
3. Morris v. Platt – third party injured accidentally in efforts of self-defense; actor
defending held not liable to third party where he acted reasonably (if unreasonable,
then Restatement says there would be liability)
4. Courvoisier v. Raymond – P a police officer shot by D who was trying to scare off
burglars out of his jewelry store; unclear if D acted reasonably (P said he knew he
was an officer and fired recklessly but D says he was threatened by office who he
thought was one of the rioters)….good self-defense claims where
a. reasonable belief you are being insulted/attacked, or
b. you are actually presently being attacked
c. ***only self-defense where real threat is present or imminent (not the case in
the High Noon hypo)
d. USE EXTERNAL OBSERVER TEST to evaluate
e. Must act “reasonably” to effectively claim this defense
5. ***note: in trespass, mistake is no excuse but in self-defense it might be
6. Boston v. Muncy – parlor argument about an automobile heater turned into brawl;
appeal on jury instruction that said you may not defend yourself against any harm,
just “great” bodily harm ~ jury was mislead by this which suggested a heightened
burden for self-defense when really it is permissible to defend against any
unwanted touching as AC said…BUT, cannot defend in disproportionate manner ~
circumstances matter a lot – self-defense must be proportional
7. Note: may defend property but unlike self-defense, may never use deadly force
*key difference between defending “mere property” and property AND people
8. M’Ilovy v. Cockran – D shot and wounded man trying to take down his fence; D tried
to use defense of property but since here there was no actual force, unlawful to
oppose with force – cannot injure property damager; could have only used ordinary
force, not what D did
9. *note: when permission revoked and guest becomes trespasser, must make request
to depart before using force (give notice before force when no reason to believe
request to leave would not be obeyed)
10. Bird v. Holbrook – spring gun in the garden case because D recently robbed of tulips;
young person went into garden with innocent purpose of retrieving his pea-fowl but
wounded because spring gun went off – defense argued volenti non fit injuria (to a
willing person no injury is done) but court held for injured P, saying D should have
given notice (e.g. by posting a sign) and commented that if he meant only protection
from thieves he would have set the gun to trigger only at night
11. Note: general rule that no self-help in evicting tenants ~ no force lawful there
12. ***Note: difference between right to defend personal property and right to
recapture
13. Kirby v. Foster – about RECAPTURE of chattels – P a bookkeeper suing D for battery
– Ds used force to retake the $ that P was advised he could take; court held “the
injured party cannot be arbiter of his own claim” (don’t want to disturb peace) –
force not justified in this instance; $ here was voluntarily given/entrusted to P but if
instead of waiting for $ to be handed to him P had reached into register, then D
could use small amount of force to repel the action as defense of property (not
recapture in this hypo) but if D pushed bookkepper aside after $ already taken then
not allowed to use force because not in defense (P not using force in this hypo) –
force only when taking against will of property owner
RULE: “privilege to recapture with some force only when one person wrongfully
obtained possession of the chattel by either force, fraud, or without claim of right”
*hot pursuit requirement – privilege of recapture must be exercised promptly
*right to use force in retaking more limited than right to use force in defending property
V. NECESSITY DEFENSE TO TRESPASS
Needs to be an emergency situation!
1. Ploof v. Putname – sloop guy claiming trespass to chattels, charging D with actions
of his servants…court holds D liable because of necessity
2. note: principle of necessity not limited to preserving human life
a. Proctor v. Adams – D went on P’s beach to save boat, held no trespass
b. Mouse case – D sued for throwing P’s casket overboard during bad storm to save
lives of passengers – necessity defense successful
*in all these cases, no fault on the part of P
---where no trespass, no wrong, no recovery
3. note: necessity can overcome property rights where URGENCY, no time for consent
(like emergency rule except there the unconsented touching benefits P?)
4. Vincent v. Lake Erie Transportation – D moored steamship to P’s dock, storm came
and D kept retying it and tightening it (used reinforcements) and waves caused boat
to hit dock with force, causing damages; here, Ds acted – say they’re not at fault and
court agrees but says they still must pay…no good precedents to use so court makes
arguments trying to get support from earlier cases; court agrees they acted as
“prudent seaman” and docked in “proper and safe place” but because they
preserved their boat at the expense of the dock, must pay for injury inflicted; if Ds
had not kept retying, would not have been liable according to majority
*2 variations on majority’s argument:
1. if you get benefit, you should pay for it
2. if 2 innocent people, whichever one causes harm should pay for it
(Gould principle applied here by majority) ~ theme in these cases
that strictly liable for damages caused by necessity trespass
***competing thread of this theme = only liable when
blameworthy (Ploof, Boston v. Muncy, Couvoisier)
*dissent: it was an “inevitable accident” and legal status of parties unchanged
by renewing cables – says there was a contract where D presumed liability…
but ultimately loss will be borne by damager either way in the long run
directly in court or later by higher fees (unless isolated incident like Ploof)
***policy issue here: unfair to put all costs on one party while other gets all
benefits….but this argument incomplete on its own – complement in
urgency
---hypo: A needs kidney, B has extra, A cannot pay and force him to
give up the kidney – even if emergency/urgency here too, still could
not take it – why? ~ think about what most people would reasonably
agree/consent to – must respect P’s autonomy
Vincent’s incomplete/conditional privilege justified by:
1. cost-benefit (theory of unjust enrichment)
2. urgency of situation
3. whether most people would agree to invasion under circumstances
*note: in a sense, Vincent similar to a strict liability negligence case
5. hypo: A driving car w/o fault, hits B = A not liable! --- fault governs most
unintentional harms
6. Depue v. Flatau – court said P lawfully in D’s house but too ill to leave safely, Ds
responsible for damages incurred from compelling him to leave
Procedural Note: In torts, usually only need “preponderance of the evidence” (more likely than not)…P bears
burden of proof on elements except D has burden of proof for defenses (e.g. consent, necessity, etc.)
-EMOTIONAL AND DIGNITARY HARMI.
OFFENSIVE BATTERY
*idea that some touchings offensive without consent
1. Alcorn v. Mitchell – 2 parties involved in lawsuit, 1 spit on the
other…awarding of punitive damages upheld (no harm caused
but intent to
outrages” so that
touch present); protected social interest against “such
“public tranquility is preserved” ~ people ought
to be able to come to court w/o fearing this = “vindictive damages”
2. Respublica v. Longchamps – D struck cane of P, held battery
even though no bodily harm
3. *note: knowledge that an unpermitted conduct has taken place
is NOT
necessary to establish the battery (ex: A kisses B while asleep
but does not
waken or harm her; A is subject to liabiliy to B)
4. note: battery covers not just direct personal touchings but also
contact
with “anything so closely attached to the plaintiff’s person
that it is
customarily regarded as a part thereof and which is
offensive to a
reasonable sense of personal dignity” (ex: Clark v.
Downing – striking horse
P was riding, Fisher – plate grabbing,
Leichtman – blowing smoke in face of
II.
nonsmoking activist)
ASSAULT
*can be a good basis for self-defense
*goal = protect public interest in tranquility, peace, security
*actionable even if no harm occurs (just need intent + act)
ELEMENTS OF ASSAULT:
(1) 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 contact, and
(2) the other is thereby put in such imminent
apprehension
1. I. de S. and Wife v. W. de S. – D came at night to P’s tavern
looking to buy
wine but it was closed; D hit closed door with a
hatched, swung at P but
missed; P recovered damages for assault,
court rejected D’s defense he did not touch her because touching not
necessary for an assault
2. Tuberville v. Savage – P put his hand on sword and made
threat but said he
would not carry it out so long as it was “assize
time”; D hit P in self-
defense of provoking/perceived assault and
so P sued for injury; D unable
to prove self-defense
3. note: general rule = mere words do not amount to assault – but
many
exceptions
4. Allen v. Hannaford – P hired moving men to move furniture
but D claimed
lein on it – P appeared with pistol (unloaded but still
held assault); “where there is an assault in a given case depends more
upon the apprehensions
created in the mind of the person assaulted
than upon what may be the
secret intentions of the person
committing the assault”
5. Beach v. Hancock – said fear complained of must be reasonable
6. Brower v. Ackerly – example of assault from a distance; Ds
billboards did
not have proper permits and P ratted them out and
was then harassed,
anonymous caller claiming he would find out
where he lives and kick his
ass” = exception to general rule that
words not enough for assault because here, an “assaultive atmosphere”
created BUT claim still denied because
threat not imminent
7. ***note: do not need to believe the threat will be effective –
“enough that he
believes that the act is capable of immediately
inflicting the contact upon him unless something further occurs” –
even if self-defense could easily ward off the threat, assault still
actionable (but must be apprehension, not just fright)
8. hypo – E spits on G intending for spit to hit him – if the spit
assault and battery but if spit does not hit him,
does hit G, then
only assault (assuming there
was an “imminent apprehension”)
9. hypo – G turns away before E spits = no imminent
apprehension so not an
assault; but if spit hits him with intent,
then battery
10. hypo – E throws rocks at G’s windows thinking no one was at
home –
definitely imminent apprehension but no intent and so
elements of assault
not met! (but still liable for other torts like
trespass to land and maybe
emotional distress torts)
11. hypo – E & G arguing again, E points gun at G, G runs away
and sues E for
assault saying there was imminent apprehension but E
can prove the gun
was not loaded – still an assault though! – does
not matter whether he
could carry out the threat
12. note: apprehension of victim not enough, also need intent to
frighten
*if victim believed gun was unloaded and therefore thought
it was an
assault claim because
empty threat (even if it was in fact loaded), no
not frightened!
13. hypo – E & G arguing again, knife is on table between them, G
puts his
hand on the knife and says “if you were not as dumb as a
fence post, I
wouldn’t take that language from you” – E sues for
assault, G claims no
liability under Tuberville (assume for this hypo
Tuberville still good law) ~
here, just an insult and not a
statement of fact like in Tuberville (assize time) so assault more likely
to be found here than in that case
*note: today Tuberville would probably come out differently
because
the threat may have been taken as an insult
rather than a fact
statement (plus his hand was on
the sword)
14. hypo – E & G arguing again, G says E is “dumb as a fence post”
and E
responds “if you don’t apologize for that, I’ll break your
face” while he
closes his fist…G apologizes but sues for assault – good
claim? – YES
because conditional threats now regarded as assault
15. hypo – E & G arguing, E swings at G but G unafraid because he
has friends
who can and do stop the punch; but here it does not
matter if you could
easily prevent the punch by self-defense – still
an actionable assault!
*Policy behind this = promote civilized behavior; desirable
to have a
cause of action against such unruly conduct even
if harm unlikely
16. hypo – E & G fight, G follows E at distance of 100 ft. all the
while saying he
will beat E up – E sues for assault…but probably
not a good claim because
100 ft. may be too far for threat to be
imminent (see Brower)
17. *note: if the reason you are unafraid is because you can easily
defend
yourself, may still have a good assault claim; but if reason
you are unafraid
is because you know you cannot be harmed (e.g.
knowing gun not loaded),
then no assault claim ~ threat must result
in imminent apprehension
18. hypo – baseball game GT v. UGA in Athens; GT pitcher getting
insults yelled
at him so throws stray ball at screen towards crowd to
scare them but ball
goes through hitting a fan who sues for battery =
GT pitcher liable for battery!
*rule: if you intend an assault but it accidentally touches,
then you
are liable for the battery
III. FALSE IMPRISONMENT
*prison must have some boundaries ~ cannot just be blocking
another’s
way; must be intent to imprison but need not show harm
here
1. Bird v. Jones – one direction obstructed on public highway
(enclosed for boat race you had to pay to get into); P never
restrained, always at liberty to go any direction except over
barriers = no imprisonment…but if policeman/guard had a gun,
could have been assault
*rationale: if this constitutes imprisonment, then every
obstruction of
right of way would be imprisonment
---dissent: these acts imprisonment because the term means
“any
restraint of the person by force” – only needs to
be restraint from
doing what you desire even if there is
an easy escape
rule: an action for false/wrongful imprisonment depends on a
showing of
effective confinement, not a simple restriction on
movement
2. Hypo – not imprisonment where car blocking way you want to go
3. Note: cannot say you are imprisoned in the U.S. but may be
wrongly imprisoned within city limits or “considerable town” –
blurry line
4. Whittaker v. Sandford – yacht case where woman had total
freedom of movement onboard but not for onshore trips; court
said this was imprisonment because denied access to onshore
leisures
*illustration of how prison need not be one defined space
(Restatement also says the area may be large and need not be
stationary)
5. General rule: only need restraint on movement, not physical
boundary
6. Coblyn v. Kennedy’s – P a 70 yr. old man shopping wearing scarf
he bought at another store….D stopped him, demanding he come
back – later vindicated but P alleging he was so upset he needed
medical treatment; judge says imprisonments are questions of fact
best left to juries (D here arguing no reasonable jury could find
for P so should win summary judgment); significant that P here
must stay to clear his name ~ often helps support false
imprisonment claims (also, aggravating facts here like D grabbing
P by the arm and not identifying himself as store employee
initially = unreasonable way to enforce detention); D tried to use
merchant’s privilege defense but unsuccessful because not a
reasonable mistake here!....D also argues for a subjective standard
for jury to use but court rejects this, saying it would afford
merchants more power than police
*Hypo 1 – D owned jewelry store where P customer, D
notices ring
missing, believed P took it, went to her
house and questioned her for
20 min. – she sued jewelry store
owner for false imprisonment; court
granted judgment as a
matter of law for D, said jury not permitted to
find
imprisonment
*Hypo 2 – 2 people at restaurant – only 1 eats and that 1
pays but
cashier suspicious so holds them for 30 min.;
customer sues for
false imprisonment, D moves for
directed verdict but is denied
because jury could
reasonably find false imprisonment here
7. Hypo (from Restatement) – if D mistakenly locks P in cold storage
valut P was permitted to enter, if D discovers mistake before
injuries ensure, he is excused of consequences because only
“momentary confinement” but he realizes the mistake only hours
later after P suffers injury, then liable
8. General rule: a person is not imprisoned if there is a reasonable
means of escape (ex: locked in room w/ easy access to window on
1st floor but probably imprisoned if room on 2nd floor)
9. Hypo – locked in bathroom after store closed – imprisonment? –
NO because no intent (unless store should have known you were
there)
10.
Sindle v. New York City Transit – D a school bus driver
who changed route towards police station when passenger
students became abusive and vandalized; P who had been
behaving well, jumped out window and was run over by bus’s
back wells; on appeal, D driver allowed to submit evidence to
jury that reasonable because he had duty to protect both
passengers and property
IV. DEFENSES TO FALSE IMPRISONMENT
1. Consent
a. Herd v. Weardale Steel, Coal, & Coke Co. – P a miner who
usually worked until 4 pm but claimed unsafe working
conditions one day and asked to be taken up at 11 am –
elevator not available until 1 pm and did not arrive until
1:30 pm; court said the 30 min. delay did not constitute false
imprisonment, partly because P consented to be there at first
(illustration of how consent can be revoked)
2. self-defense
a. hypo – E & G arguing, E chases G around his house, G locks E
in his basement = not false imprisonment
b. hypo – but if he had locked him there for 2 days, then not
proportional response and so would be imprisonment because
defense there excessive
3. parental rights
a. examples: grounding your kid, keeping kid after school for
detention
b. Peterson v. Sorlein – P a college student whose parents
determined she was victim of cult’s brainwashing; parents took
her to a “deprogrammer” – daughter sued for false
imprisonment but court cautiously agreed with parents
*note: this defense only works when child under 18 unless
parents
can show child lost all rational capability (like
Peterson)
---dissent: parents treated her in degrading and
humiliating way that
suppressed her youthful freedom,
should not be endorsed
4. merchant’s privilege
a. defense in Coblyn tried to argue this because statute allows
merchant to detain customers for (1) a reaonsable time in (2) a
reasonable manner (3) on reasonable grounds (*focus in
Coblyn case); store owners may avoid liability for reasonable
mistakes = different from recapture of property by private
persons where mistake is no excuse
b. *when determining whether “reasonable grounds” use
objective/external test for policy reasons – because compromise
between the 2 interests (storeowner’s desire not to have his
goods stolen and customer’s interest in not being hassled)
---another reason for objective test = follow legislative
intent which
refers to “reasonable” in external sense
V. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: EXTREME
AND
OUTRAGEOUS CONDUCT ~ “THE OUTRAGE TORT”
1. Wilkinson v. Downtown – English case influencing American
law: D trying to play a practical jokes and so told P her
husband was brutally injured in accident and that she needed to
go get him  P suffered shock to her nervous system causing
permanent damage (just after hearing this, no prior condition); P
won because intention and not too remote
2. *note: “knows” usually denotes a subjective test
3. *note: unlike assault where you need not show genuine fear,
here you must show emotional upset
4. rationale:
a. utility – want to maximize happiness (the strongest argument)
*benefit from having this tort, but also costs – not
necessarily true
that benefits will outweigh the costs
(litigation, insurance)
b. right to emotional tranquility such than invasion on it could
be viewed as infringing on autonomy (but this may be
stretching too far)
c. critique – maybe this tort discourages people from developing
think skin
5. Restatement: to win, P must show:
a. *extreme and outrageous conduct*
b. intent or recklessness
c. severe emotional distress
---notes: “recklessness” a subjective test, “intent” means only D
meant to
do what he did, “severe” a question of fact, “extreme &
outrageous” is the
key element in most these cases – objective test
asking whether the
average member of society upon hearing it would
exclaim “outrageous” or
find it beyond the boundaries of decency
6. note: knowledge of a particular person’s susceptibility can be
significant in determining whether “extreme and outrageous”
7. Bouillon v. Laclede Gaslight Co. – D tried to force his way
through pregnant P’s front door, D very rude to P and left door
open after which P suffered chills and had miscarriage that
night – court said although D (meter reader) had right to enter,
did not have right to do so in this manner and so P allowed to
bring claim for emotional distress w/o charging trespass too
8. *note: in both Wilkinson and Bouillon, Ds committed
independent torts of deceit and trespass respectively in addition
to intentional infliction of emotional distress
9. hypo – man accidentally pays with $100 bill, restaurant insists
he only gave them a $50 = NOT extreme and outrageous conduct
Siliznoff – could not win on original assault claim
10.
because no immediate threat of harm but can win on outrage tort
---note: cases where P wins usually situation of person with
abusing the one with less (in Siliznoff, one party
more power
was the mob)
11.
hypo – owner of restaurant learns a waiter is stealing by
checking register, says he will fire them alphabetically and so
Ms. Abel fired 1st and sues for outrage tort…court said jury could
reasonably find for her
12.
George v. Jordan Marsh Co. – bill collectors calling lady
late at night to revoke her credit, she suffered 2 heart attacks =
court said jury could reasonably find for her
13.
example – man buys life insurance policy with wife as
beneficiary, he was murdered, insurance co. refused to pay and
claimed his death intentional and so offered to settle for less =
wife has good claim because they are in position of power trying
to take advantage, she needs the $, and their argument is
meritless)
14.
Rockhill v. Pollard – Ps mom & daughter seriously injured
in car accident, D physician gave them only brief exams, ignored
their complaints and left them out in freezing rain = held
outrage tort
15.
Estate of Trentadue v. U.S. – prison failed to properly
return convict’s body to his family (also refused to disclose how
he died) = held outrageous because it “needlessly and recklessly”
intensified family’s gried/distress
16.
note: Ps usually more successful in sexual harassment
inflictions of emotional distress which are judged by the
“reasonable woman standard” (exception in Patterson where P
lost)
17.
Hustler Magazine v. Falwell – Hustler did parody of
Falwell but had disclaimer it was not to be taken seriously;
Falwell lost because Supreme Ct. said the press needs “breathing
room” under 1st Amendment even where their actions not
admirable
NEGLIGENCE – the “reasonable person” standard
4 elements:
(1) duty
(2) breach
(3) causation
(4) damages
I. NEGLIGENCE INTRODUCTION
P must show fault/negligence
*in theory, negligence meant to limit liability for accidental harms
1. Vaughan v. Menlove – neighbors; D’s rick caught fire, spread to P’s
cottages which were
destroyed; defense argued it should be judges only as to whether he acted bona fide to the best of his
judgment, not held to “standard of ordinary prudence” but court says that would be too
subjective so they stick to reasonable person test…D liable to P
*note: if horse kept in a barn, bailee not liable if horse stolen by
thieves unless entrance gained by his negligence in leaving gate
open
---change facts: if no one had warned Vaughan and he built hayricks in ordinary way but still
set fire, then what? – similar to driver who has sudden heart attack with no foreknowledge…
*not really blameworthy here, but argument for strict liability in
Gould (where loss is borne by one of 2 innocent persons, it should be
borne
by he who occasioned it) – but this argument usually rejected!
*is it fair to hold these Ds liable? How are they different from people
who did not act at all?
---“a choice which entails a concealed consequence is as to that
consequence NO choice” = freedom of action argument: our
freedom to act normally should not be disrupted; negligence
only
where justly liable where choice of risk taken
---here in Vaughan, the freedom of action argument by D is that he did the
best he could
and so unfair to hold him liable (but facts contradict this
anyway since he was warned of the
danger)
2. note: not much actual law about what it or is not negligence; problem that
rules often too
particular to accommodate the facts
3. note: if judge believes no reasonable jury could find negligence, may grant
motion for
directed verdict
4. hypo – A takes B’s hand to hit C, B not liable to C because no one proposes
holding
someone liable who has done no act (must be choice to act)
5. *note: use objective, NOT subjective test for negligence (ordinary
prudence, not bona fide
judgment or good faith)
*Holmes: “the law takes no account of the infinite varieties of
temperament, intellect, and education which makes the internal
character of a
given act so different in different men”
---Holmes’ reasons for using objective test = (a) easier to assume
people know the law/hard to know each person’s abilities and (b)
minimal
level of conduct is necessary for the general welfare
(exceptions for
disabled/incapacitated ~ some accommodation)
6. purposes of negligence
a. utilitarian – maximize happiness (Holmes)
b. fairness concern – includes freedom of action argument
*these are in tension
7. Tuberville v. Stamp – court required D to guard his field fire and said if
wind carried it
elsewhere under his watch, it would be gross negligence
8. note: negligence requires fault for liability (except strict liability)
*based in part on fairness proposition
II. SPECIAL ABILITIES: children, disabled persons, exceptional skills, etc.
1. Roberts v. Ring – 7 yr. old boy injured by 77 yr. old D driver; D driving slow (not negligent
speed) but saw boy in enough time to have stopped; maybe issue of contributory negligence
here too
*utilitarian argument: people over 70 have more car accidents so good argument for
disallowing jury instruction saying D could get special exception for old age (this is not allowed under
Restatement, only consider
infirmities not age per se)
*fairness argument: cannot help your age; rejected by court
*in the end, confirmation that elderly people do not get a special break
2. *Note: some people held to higher standards:
a. doctors and professionals
b. individuals who represent themselves as especially skilled
c. persons who don’t represent special abilities of profession or representation but
nonetheless have some special skill (e.g. race car driver)
*in Vaughan, education disparity about how to make hayricks probably irrelevant unless could
prove such evidence to jury in which case it could
count against him
3. general rule: beginners held to same standard as experts
*exception: when P assumes risk that D will exercise lower standard of care, like driver’s ed.
Student (but here, even though passenger/instructor
assumed the risk, driver would still be liable to
third parties)
4. Daniels v. Evans – P suing on behalf of 19 yr. old who was killed when his motorcycle hit D’s
car; jury instruction said P should be held to standard of the average minor his age but court
rejects this minors privilege and says he should be judged by ordinary standard of care as adults
 Policy concern: harmful to public safety to allow minors a different standard of care in a
hazardous activity like driving, especially because you cannot tell whether driver young
or not from a distance; utility for public welfare + fairness concern for victims
5. Goss v. Allen – 17 yr. old skier held to standard of youths his age rather than adult – court
distinguished skiing from other adult activities (e.g. driving), saying skiing does not require a
license
---dissent: license not needed for bike riding either but that is dangerous
6. Dellwo v. Pearson – 12 yr. old held to adult standard for operating speed boat even though no
license required for that
7. Harrelson v. Whitehead – 15 yr. old motorcyclist held to adult standard
8. Jackson v. McCuiston – 13 yr. old farm boy held to adult standard in operation dangerous piece
of farm equipment
9. Purtle v. Shelton – retreat from Jackson – refused to hold 17 yr. old to adult standard for deer
hunting, saying not an exclusively adult activity
*dissent: irrelevant because bullets fired by minors just as deadly
10. Hudson-Conner v. Putney- driving a golf cart on private property not an
adult activity,
no license required
11. note: Holmes would consider childhood a “distinct defect…all could
recognize”; courts
usually give youth exceptions but not exceptions for
mentally infirm
12. *note: test for minors not completely objective how adult test is
13. Fletcher v. City of Aberdeen – D wanted jury instruction holding P to reasonable person
standard but court held blind P can only be held to
standard of reasonable person with the same
disability; here, barrier around hole in sidewalk temporarily moved by worker, blind P fell into hole
while using his cane to find his path; court held city “charged with
knowledge that its
streets will be used by those who are physically infirm” as well as regular people; judgment for P
affirmed
Restatement: the conduct of an actor with physical disability is negligent
only if it does
not conform to that of a reasonably careful person with the
same disability
14. Denver & Rio Grande R.R. v. Peterson – duty of care owed is unrelated to
financial status
15. Poyner v. Loftus – legally blind P could see 6-8 feet ahead but feel 4 ft
above street level when distracted - own testimony proved his negligence
16. Robinson v. Pioche, Bayerque & Co. - “intoxication of the plaintiff cannot
excuse such
gross negligence” as done by the D who did not cover a hole in
a public street….further, “a
drunken man is as much entitled to a safe street, as a sober one, and much more in need of it” ~
judgment reversed and remanded
17. *note: insanity NEVER taken into account in negligence unless the actor
has no
foresight/awareness of the condition (must have notice to be held liable, but even minor notice
counts)