Chapter II (2) CB
Battery
9/25/2006
Professor McNichols
1
Cole v. Turner (1704)
“The least touching in anger is a
battery.”
Modern Law?
“The least [intentional] touching in
anger is a battery.”
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Professor McNichols
2
INTENT FOR BATTERY?
Wallace vs. Rosen (Ind. App. 2002)
(CB p. 30)
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3
Wallace v. Rosen
(Ind. App. 2002)(CB p. 30)
FACTS: During an unannounced fire drill, one week
after a fire in a bathroom, as students were exiting
the school down a stair case, defendant teacher
touched a student’s mother on the shoulder as she
was standing on the stairs near the top of the
stairway talking to her daughter and two friends. The
teacher turned her around 90’ toward the exit, saying:
“You’ve got to get moving because this is a fire drill.”
The teacher touched Pl. because Pl. was standing
with her back to Def. & Def. could not get P’s
attention because of the noise. The touch caused Pl to
fall down the stairs and suffer injuries. T/ct refused to
instruct on battery. The jury found for defendants.
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Professor McNichols
4
Wallace v. Rosen
(Ind. App. 2002)(CB p. 30)
* The P’s requested instruction was:
“A battery is the knowing or intentional touching of
one person by another in a rude, insolent or angry
manner.
Any touching , however, slight , may constitute
and assault and battery.
Also, a battery may be recklessly committed where
one acts in reckless disregard of the consequences,
and the fact the person does not intend that the act
shall result in injury is immaterial.”
9/25/2006
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5
Wallace v. Rosen
(Ind. App. 2002)(CB p. 30)
• Issue: Did the trial court correctly refuse to give
plaintiff’s requested instruction on a battery
theory where, during an unnannounced fire drill,
a teacher touched a student’s mother at the top a
staircase to get her attention and turned her
around and told her to get moving because it was
a drill, causing the mother to fall down the stairs
and suffer physical injuries?
• Decision: Yes. Judgment for Def. affirmed
9/25/2006
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Wallace v. Rosen
(Ind. App. 2002)(CB p. 30)
Rule (Holding): “The intent with which tort
liability is concerned is an intent to bring about
a result which will invade the interests of
another in a way that the law forbids.” [CB p.
32] . . . Battery requires not only an intent to
touch, but that defendant “did so in a rude ,
insolent or angry manner, i.e. that she intended
to invade Wallace’s interests in a way that the
law forbids.” [CB p. 32] [emphasis added]
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Wallace v. Rosen
(Ind. App. 2002)(CB p. 30)
Rationale:
This touch is an example of the touches which
Prosser & Keeton refer to as the touches in a
“crowded world,” where a certain amount of
personal contact is inevitable and must be accepted.
Individuals standing in “the middle of a stairway
during the fire drill could expect that a certain
amount of contact would be inevitable.”
[The teacher’s/ touching to get attention over the
noise of the alarm cannot be said to be a rude,
insolent or angry touch.]
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8
Intent for Battery?
(Necessary & Sufficient Intent?)
Possible Positions: INTEND?
z Contact ? (Lambertson)
z Contact + Intend Offense or Physical Harm? (Rest. II)
--------------------------------????
* Contact + Intend to Invade a Legally Protected
Interest ? (Wallace?)
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Battery?
(Necessary & Sufficient Intent?)
Problem: How best to interpret this passage?
Is it saying that D must intend to touch Pl + must
intend to invade a legally protected interest?
Or is it saying (like Lambertson) that the
necessary & sufficient intent is intent to touch + the
touching that is intended must be of the type that
constitutes a legally compensable interest (i.e. an
“Injury”) (e.g. a touching that is offensive to an
ordinary person of ordinary sensibilities – as opposed
to one which is one of the “crowded world “ type?
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10
Battery - Harmful Contact (Rest. 2d §13)
Torts Casebook p. 33
1.
2.
3.
4.
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Act
+
Intent - “Harmful or Offensive Contact”
+
Cause
+
Injury - Harmful Contact
Professor McNichols
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Battery - Harmful Contact (Rest. 2d §13)
1.
2.
Act
+
Intent
Harm
contact + intend
+
3.
4.
or
Offense
Cause
+
Injury - Harmful Contact
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Battery - Harmful Contact (Rest. 2d §13)
1.
2.
Act
+
Intent
Harmful
Contact
(which is)
+
3.
4.
or
Offensive
Cause
+
Injury - Harmful Contact
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Rest. 2nd §§ 13 & 14 - Ambiguity
• Dobbs. The Law of Torts §30 (West 2000)
The Restatement’s formula is perhaps ambiguous,
but it probably means intent to harm or offend
as well as an intent to touch is required.”
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Intent for Battery?
(Necessary & Sufficient Intent?)
Possible Positions: INTEND?
z
Contact ?
z
Contact + Offense?
Wallace?
z
-------------------------------Questionable as modern view: Intend
* “The Act” ( + the act is wrongful)?
-------------------------------Views which are Wrong: Intend
* Contact + Harm?
* The Act + All the [bizarre] consequences?
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Professor McNichols
(Lambertson)
(Rest. II)
(Vosberg?)
(D’Angelo)
(Spivey)
15
Intent to Touch = Sufficient?
* Dobbs. The Law of Torts §28 (West 2000)
“It is enough that the defendant intends bodily
contact that is offensive, which is to say a
bodily contact that does not appear acceptable
to plaintiff and that is not permitted by a rule of
law.” [emphasis added]
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16
Wallace v. Rosen
(Ind. App. 2002)(CB p. 30)
OTHER POINTS IN THE OPINION:
* Relevance of Evidence of a Reasonable Person’s State
of Mind? [CB 31]
• Quare: Even if the court thought that a jury might
reasonably conclude that the touch was rude, would
the instruction asked for be objectionable? Why?
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17
Transferred Intent
X
Intent
transfers
Defendant
(Intends Action)
Plaintiff
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18
Battery - Harmful or Offensive Contact
(Rest. 2d §13 & 18) CB p. 30
1.
2.
Act
+
Intent +
3.
Cause
4.
+
Injury -
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Harmful or Offensive
Contact
or
Imminent Apprehension
of Contact
with Plaintiff
or with a Third Person
Harmful or Offensive Contact
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19
Talmage v. Smith (Mich. 1894)
•
•
•
FACTS: Action for trespass by Pl., a boy who was hit and blinded by a 16” stick
thrown by defendant (Smith) at one of two boys who were apparently
trespassing on his shed. Def. said he first warned them to get down and then
threw at one of the two boys whom he saw (also named Smith) but that he did
not see Pl.
PROCEDURE: Jury verdict for Pl.
The T/Ct instruction: (in relevant part stated);
Pl could recover if [defendant did not see Pl. but ]intended to hit [either
boy on the roof] if the force was unreasonable under all the circumstances
because the act would be unlawful if the force was unreasonable.
HELD: T/ct instruction = correct. J for Pl = affirmed
* RULE: If, in using unlawful unreasonable force, a person intends to strike
someone trespassing on his land and strikes someone else, the defendant’s
intent to hit the first person will support the plaintiff’s right to recover in an
action for trespass (i.e. battery).
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20
Transferred Intent – Scope of Doctrine
Scope?
Suppose D shoots at a dog & hits a sleeping person
(Torts which evolved from trespass writ)
[CB p. 29, note 2: Prosser’s position]
*
*
*
*
Battery
Assault
False Imprisonment
Trespass to Land & Chattels
* But not Emotional Distress.
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21
Intent for Battery
HYPOTHETICAL:
#1 Suppose that Jack shot at Charley, a
bully who had previously threatened Jack,
& who Jack now reasonably thought was
about to shoot him? Jack’s shot missed
but struck Fred, a stranger, who was
standing nearby. Fred sues Jack. Battery?
Issue?
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Intent for Battery
HYPOTHETICAL - Answer to Hypo#1:
* Does the doctrine of “transferred
intent” apply to supply the missing intent
by Jack toward Fred?
* Does the doctrine apply even if Jack
would have been privileged by self
defense if he had shot Charley?
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23
Keel v. Hainline (OK 1958)
Transferred Intent?
9/25/2006
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Keel v. Hainline (OK 1958)
Facts:
Students in a junior high classroom were throwing erasers
“at each other” before the teacher arrived. An eraser hit
and blinded a girl who was not in the game.
Issue:
Error for t/ct to refuse to direct a verdict for defendant in
the absence of evidence that the injury was willfully or
intentionally inflicted or was the result of wrongful and
unlawful activity?
Held: No. Judgment for plaintiff affirmed. Intent to injure
either plaintiff or each other is not necessary. It was
sufficient for liability that the students were throwing at
each other in sport and without an intent to injure. Their
action was sufficiently wrongful and unlawful.
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25
Keel v. Hainline (OK 1958)
Rule\Rationale #1: Deliberate throwing of
erasers at other persons in a classroom in a
voluntary game in the teacher’s absence is
not lawful and is wrongful even if done
without intent to injure anyone.
The Applicable Rule (citing Am. Jur. treatise) is:
The intent with which an injury is inflicted is
immaterial for assault and battery if the
activity was wrongful.
“If the act was wrongful, the intent must
necessarily have been wrongful.”
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Keel v. Hainline (OK 1958)
Rule\Rationale #2 (Alternate Holding?):
(Relying on Singer vs. Marx), an infant is
liable for battery without an intent to injure.
The only intent necessary is to do the act in
question (throw a rock at somebody).
Rule: In such circumstances (intentionally
intending to hit another):
“the doctrine of transferred intent”
renders him liable for a battery.
Quaere:Does this extend TI beyond Talmage?
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27
Transferred Intent Doctrine- Scope?
•
Transferred “Intent” or Uncompleted Tort?
•
Is the OK Keel case an Extension?
* Could those engaged in the eraser fight sure each
other if one of them suffered the same injuries as did
the plaintiff?
What does the Talmage case suggest on this issue?
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28
Transferred Intent Doctrine- Scope?
•
Transferred “Intent” or Uncompleted Tort?
•
See, Brudney v. Ematrudo, 414 F. Supp. 1187
(D.C. Conn. 1976) (Conn. Law)
(no battery where policeman used reasonable
force against demonstrators but hit innocent
bystander with blackjack)
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29
Transferred Intent Principle - Scope?
* Suppose the old man in Talmage threw the stick not
intending to hit the boys but creating an unreasonable
risk that he would do so. Instead the stick hits Little
Sally Sweet, who is hiding behind some bushes where
the man could not reasonably expect anyone to be?
Issue?
= “Transferred Negligence?”
n Two views:
1. No: (Palsgraf case - CB p. 303)
2. Yes: (Palsgraf dissent - CB p. 307)
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30
Transferred Intent Principle - Scope?
n
See:
n
n
V. Johnson, Transferred Intent in American Tort Law, 87
Marquette L. Rev. 903 (2004) (advocating that courts
significantly limit the scope of tort transferred intent on the
grounds that, at least in cases of unexpected victims of
conduct intended to harm another, liability is more properly
governed by the law of negligence and recklessness)
O. Reynolds, Transferred Intent: Should Its “Curious
Survival” Continue? 50 Okla. L. Rev. 529 (1997)(maintains
that courts should abandon the tort doctrine of transferred
intent because appropriate results can be achieved through
other doctrines)
9/25/2006
Professor McNichols
31
Chapter II (2)
Battery
9/25/2006
Professor McNichols
32
Cole v. Turner (1704)
“The least touching in anger is a
battery.”
Modern Law?
“The least [intentional] touching in
anger is a battery.”
9/25/2006
Professor McNichols
33
Chapter II (2)
Battery
(Offensive Contact) – CB 33
9/25/2006
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34
Battery - Offensive Contact (Rest. 2d §13)
Torts Casebook p. 33
1.
2.
3.
4.
Act
+
Intent - “Harmful or Offensive Contact . . . ”
+
Cause
+
Injury - “Offensive Contact . . . Results”
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35
Offensive Battery – Rest. 2nd § 19
“A bodily contact is offensive if
it offends a reasonable sense
of dignity.”
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36
Offensive Battery–Notes CB p. 34
Notes 1&2 - Liability for Unforeseeable Consequences
Note 3: Does it matter that Def. is trying to help?
(It is the unpermitted and unprivileged
intentional touching that is being protected.)
No.
Nt. 4: The Glass Cage Problem –
Knowingly touching the unduly insensitive person.
Nt. 5: Is Contemporaneous Awareness Necessary? (Was
Sleeping Beauty battered by the Prince?)
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37
Fisher v. Carousel Motor Hotel
(Tex. 1967)
OFFENSIVE BATTERY
(The things attached to persons rule)
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38
Fisher v. Carousel Motor Hotel
(Tex. 1967)
Facts: Action for assault & battery.
An employee of a club located in a motel snatched
a plate from a black plaintiff in a buffet line and
shouted that, as a negro, plaintiff could not be served
in the club
T/ct. = JNOV for defendant. Affirmed by Ct. of Appeals.
9/25/2006
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39
Fisher v. Carousel Motor Hotel
(Tex. 1967)
Issue: Is there an offensive battery where a hotel employee
snatches a plate from a person’s hand, in refusing him
service because he is black, but without touching his
body?
Held: Yes. Compensatory & Punitive Damages Affirmed
Rule/Rationale: An intentional touching of anything so
connected with the body as to be customarily regarded as
a part of the individual’s person invades the inviolability of
the person and constitutes an offensive battery. Rest.
(2d) § 18
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40
Fisher v. Carousel Motor Hotel
(Tex. 1967)
Rationale [Rest. (2d) § 18, Comment]:
“Personal indignity is the essence of an action for battery.“
“[P]laintiff’s grievance is the offense to the dignity involved
in the unpermitted and intentional invasion of the
inviolability of his person . . . “
Thus, “unpermitted and intentional contacts with anything so
connected with the body as to be customarily regarded as
part of the other’s person and therefore partaking of its
inviolability is actionable as an offensive contact.”
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41
Ch. II (3) - Assault
ASSAULT?
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42
I de S & Wife v. W de S (Assze 1348)
ASSAULT?
Facts: D struck with a hatchet at a woman who had
put her head out a tavern window, but did not
strike her.
Verdict of Inquest: No trespass because no harm was
done.
Thorpe, C.J.: There was harm done.
The harm was the assault. An action for damages
for trespass is available for an assault.
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43
PFC - Assault (Rest. 2d §21)
1.
Act
+
2. Intent
+
3. Cause
+
4. Injury 9/25/2006
Harmful or Offensive Contact
or
Imminent Apprehension of
Such Contact with Plaintiff
or with a Third Person
Imminent Apprehension of Contact
(with Person)
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Assault
Apprehension
of
Imminent Contact
With the Person
“Imminent apprehension of such contact”
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ASSAULT - SOME ISSUES
* APPREHENSION OF CONTACT v. FRIGHT?
* IMMINENT v. FUTURE CONTACT?
* CRIME v. TORT?
* REASONABLE? APPREHENSION
* WORDS ALONE?
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46
Western Union v. Hill
ASSAULT?
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47
Assault (Rest. 2d, §21)
(a) Acts Intending . . .
An IMMINENT APPREHENSION of
(Harmful or Offensive CONTACT
With the Person)
+
(b)
The other is thereby put in such
Imminent Apprehension
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48
Western Union v. Hill
P’s Evidence:
“I was in reach…”
D’s Evidence:
D not within striking distance
Held: JQ. Sufficient evidence of assault - (JQ as to what?)
Assault Definitions (stated by court):
1. Attempted Battery
vs.
2. Intentional Offer . . . To Touch
+
Well Founded Fear of Imminent Battery
+
Apparent Present Ability
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Definition #2
Intentional Offer to Touch
+
Well Founded Fear of Imminent Battery
+
Apparent Present Ability (to touch) if not Stopped
Quaere: Jury Question AS TO WHAT?
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Western Union v. Hill
INTENT
+
RESULT
SOLUTION
Reasoning = Did plaintiff reasonably think
(fear) that defendant could strike her
(imminently) if she did not jump back?
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Western Union v. Hill
HELD: JQ. Assault requires both an intentional
offer to touch + a well founded fear
(apprehension) of imminent touching + the
apparent present ability to effect the touch if
not prevented.
While the evidence was conflicting, a jury
could find that plaintiff’s conclusion that she
was in reach if she did not jump back was a
reasonable apprehension of an imminent
battery.
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52
Ch. II (1) – Intent
Ransom v. Kitner (1889)(CB 23)
MISTAKE
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Ch. II (1) – Intent
Ransom v. Kitner (1889)(CB 23)
MISTAKE
Held: Defendant hunters, who shot
P’s dog in good faith thinking it
was a wolf because it resembled
one were liable for the value of
the dog because the good faith
mistake did not preclude liability.
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Ch. II (1) – Intent
Ransom v. Kitner (1889)(CB 23)
MISTAKE
Suppose that the hunters not only
acted in good faith, but also were
reasonable in believing that what
they were shooting was a wolf, not
a dog?
Would that make a difference? Should it?
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55
Mistake
General Rule:
Neither a good faith mistake,
nor a good faith and reasonable
mistake, excuses an intentional
interference with a legally
protected interest (e.g. security
of the person or property).
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56
Mistake: Exceptions to
General Rule
1. Legal privilege to make
a reasonable mistake
(e.g. self defense).
2. Mistake = induced by
plaintiff’s conduct.
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57
McGUIRE v. ALMY (MASS. ’37)
TORT LIABILITY OF THE INSANE?
TRADITIONAL RULE
vs.
FAULT RULE
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INSANITY - INTENT
TRADITIONAL (COMMON LAW) POSITION:
*
Insane persons are liable for their torts
*
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(whether or not they are capable of intent)
Policy Reasons?
vs.
Mc Guire v. Almy (Mass ’37)?
Professor McNichols
59
McGUIRE v. ALMY (MASS. ’37)
Public Policy Reasons for Common Law Rule:
• Encourage guardians to be more watchful
• As between two innocent persons the one who
caused the harm should bear the loss
• Avoids courts having to decide the difficult
questions of mental capacity
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60
McGUIRE v. ALMY (MASS. ’37)
FACTS/ISSUE?
HELD: There was sufficient evidence that defendant was
capable of and did intend to strike and hurt plaintiff
nurse. Judgment for Pl. affm’d.
Rule: Insane persons will be liable for intentional torts if
they were capable of intending the intent necessary
for the particular intentional tort.
* The court does not indicate which rule it would follow
if the defendant was not capable of intending physical
harm
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61
False Imprisonment
Restatement 2nd § 35
Intentional
Confinement
Within Boundaries
Fixed by Defendant
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False Imprisonment - Issues
* Confinement? vs. Exclusion
* Reasonable Escape
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Confinement – Area Too Large?
Shen vs. Daly Co., 222 F. 3d 472 (2000)(Neb. law)
(Pl detained in Taiwan by authorities because of
action of defendant company which had fired
him)
Held: Taiwan was too great an area within which
to be imprisoned
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64
Big Town Nursing Home vs. Newman (TX ’70)
Issue: Sufficient evidence of false imprisonment of
a 67 year old voluntary nursing home patient?
Held: Yes
Rule: “FALSE IMPRISONMENT IS THE DIRECT
RESTRAINT OF ONE PERSON OF THE PHYSICAL
LIBERTY OF ANOTHER WITHOUT ADEQUATE
JUSTIFICATION” [CB P. 41]
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65
Big Town Nursing Home vs. Newman (TX ’70)
Rule: “FALSE IMPRISONMENT IS THE
DIRECT RESTRAINT OF ONE PERSON OF
THE PHYSICAL LIBERTY OF ANOTHER
WITHOUT ADEQUATE JUSTIFICATION”
[CB P. 41]
Critique this definition? Is it adequately
precise?
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False Imprisonment - Issues
* Confinement? vs. Exclusion
* Reasonable Escape
* Awareness Necessary?
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Parvi v. City of Kingston (NY ’77)
AWARENESS NECESSARY?
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AWARENESS NECESSARY?
Views: Awareness Necessary for False Imprisonment?
1. Yes. Original Restatement & Parvi
2. No.
Small American majority view
3. Yes – unless plaintiff suffers physical harm
because of the confinement.
Restatement II, Sec. 42
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69
Parvi v. City of Kingston (NY ’77)
Issue: Is awareness during confinement necessary
for false imprisonment?
Held: Yes. JQ on awareness.
Courts are divided but NY law is clear that
there is no false imprisonment unless the
plaintiff knows of the dignitary invasion.
“Interestingly,” the Restatement (2d) of
Torts, Sec. 46 too has taken the position that
there is “no liability for intentionally confining
another unless the person physically restrained
knows of the confinement or is harmed by it.”
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Parvi v. City of Kingston (NY ’77)
Reasoning: In affirming the trial ct.’s
dismissal the intermediate ct. of appeals
confused that point about awareness in
ruling that there was no action if Pl could
not later remember what happened. The
evidence was sufficient to a raise jury
question that Pl was not so drunk as to be
unaware of his arrest: he responded to
requests and asked be let off elsewhere.
Dissent: Inadequate proof of consciousness
of confinement & of failure to consent.
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71
Parvi v. City of Kingston (NY ’77)
Quaere:
Under the court’s opinion, where was
plaintiff falsely imprisoned?
* In the police car?
* At the golf course?
* Both places?
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72
Parvi v. City of Kingston (NY ’77)
Under the dissent could the evidence
have been that the Plaintiff was sober
enough to be aware that he was being
confined, but still not sober enough to
be falsely imprisoned? Why?
Note: The dissent seems to assume that
“lack if consent” is part of the plaintiff’s
case, which he must plead & prove
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73
AWARENESS NECESSARY?
Scofield vs. Critical Air,
*
45 Cal. App. 4th 990 (2d Dist. ’96)
Held: Contemporaneous awareness is not an essential
element of false imprisonment
* Rationale: Awareness is not necessary because
harm MAY result even if a victim does not learn of
the confinement until afterward
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False Imprisonment - Issues
* Confinement? vs. Exclusion
* Reasonable Escape
* Awareness Necessary?
* Restraint of Will?
* Threats of Physical Force?
vs.
* “Mere Moral Force”
*Duty to Release?
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Hardy vs. LaBelle’s (Mont. ’83)
RESTRAINT AGAINST THE WILL
VS.
CONSENT
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Hardy v. LaBelle’s (Mont. ’83)
• ISSUE: Sufficient evidence to sustain a jury
verdict that plaintiff was not unlawfully
restrained against her will?
• HELD: Yes. JQ on FI
Rule: False imprisonment is an unlawful restraint
of an individual against his/her will.
Here, there was ample evidence that plaintiff
was not unlawfully restrained against her will
here.
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Hardy v. LaBelle’s (Mont. ’83)
• Reasoning: Restraint may be accomplished by acts
•
•
•
•
or merely by words which a person fears to
disregard.
Here the evidence was ample:
Pl was not told she could not leave
No threats of force or otherwise were made
She did not ask to leave
She admitted she stayed to clarify the situation,
although she said she felt compelled to stay
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Hardy v. LaBelle’s (Mont. ’83)
• Nt. 3 after Hardy case
• “False imprisonment has not been extended
beyond such direct duress to person or
proporty. If the plaintiff submit merely to
persuasion and accompanies the defendant to
clear himself of suspicion, without any implied
threat of force, the action does not lie.”
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79
Enright v. Groves (Col. App. ’77)
False Arrest
vs.
False Imprisonment
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Enright vs. Groves (Colo. ’83)
Submission to Assertions of Legal
Authority to Restrain (False Arrest)
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Enright vs. Groves (Colo. ’83)
Issue: Was there sufficient evidence to support a
verdict for damages for false arrest where
plaintiff was arrested for failing to produce her
driver’s license to a policeman who suspected
her of a violation of a dog leash ordinance for
which she was subsequently convicted?
Held: Yes. JV for Pl. affirmed for compensatory
($500) & punitive ($1000) damages.
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Enright vs. Groves (Colo. ’83)
Rationale (Rule): False arrest is taking a person
into custody without proper legal authority to
do so. False arrest does not lie against an
officer if he has a valid arrest warrant or has
probable cause that an offense was committed
and that plaintiff committed it.
Here, plaintiff was arrested for failing to
produce her driver’s license, not for violating
the leash law. Failing to produce a driver’s
license is not a crime, so there was no
probable cause for an arrest on that basis.
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83
Whittaker vs. Sanford (ME 1912
Is there an intentional tort here?
* Action vs. Inaction
* Intentional Refusal to Act?
* Rest. II Sec. 45
* Source of Duty to Release?
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84
Whittaker vs. Sanford (ME 1912
Restraint Against the Will
vs.
Moral Force
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Whitaker vs. Sanford (Maine ’12)
Issue: Did the t/ct correctly instruct that physical
restraint, not mere moral influence, was
required for false imprisonment and that D’s
refusal to provide a boat for plaintiff to get to
shore as promised constituted adequate physical
restraint as opposed to mere moral influence?
Held: Yes. J for Pl. affirmed.
Rule: Intentional refusal to free a person from a
place where the person has consented to be will
be false imprisonment if the person has a duty
to act and uses more than mere moral force.
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86
Whitaker vs. Sanford (Maine ’12)
Rationale:
Defendant’s intentional refusal to give
plaintiff a boat is equivalent to failing to
open a locked door. The boat is the key.
Defendant’s refusal is adequately
wrongful because he had a duty to give
her the boat. The FI action is not based
on their agreement, but the tort duty flows
from the agreement.
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87
TAYLOR V. GILMARTIN
686 F.2d 1346 (10th Cir. 1982) (Ok. Law)
Action by adult monk against religious “deprogramers.”
Evidence established “jury question” on:
(1) false imprisonment
&
(2) emotional distress
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88
Abraham - False Imprisonment (p. 28)
FI (& IIED) illustrate - something about the
NATURE OF RULES
The TENSION between
* the degree of protection afforded by tort law
&
* the need for easily administrable rules
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89
Abraham - False Imprisonment (p. 28)
TENSION
PREDICTIBILITY OF OUTCOME
vs.
FLEXIBILITY OF APPLICTION
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90
Abraham – Standards/Rules (pp. 30 -31)
[“Bright Line”]
RULES
vs.
STANDARDS
Predictability ----Flexibility
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91
Intentional Infliction of Mental
Distress Alone a Tort?
The Common Law = No
Why not?
Policy Reasons?
Should: I caused you mental distress and
had no privilege to do so be a tort?
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Intentional Infliction of Emotional Distress Casebook Cases
Silitznoff (Cal. 1952)
Slocum (Fla. 1958)
Harris (Md. 1977)
Taylor (Cal. 1959)
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St.Rubbish Collectors vs Silitznof - CA. ‘52
9/25/2006
•
Prior California law?
•
Is intentional infliction of
emotional distress alone a
tort?
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94
St.Rubbish Collectors vs Silitznof - CA. ‘52
Holding (Narrow): A cause of action exists for
intentional infliction of emotional distress where
a person, without a privilege, intentionally
subjects another to serious mental suffering by
serious threats of physical harm, even if the
threats do not constitute assault.
Holding (Broad): Unprivileged, intentional infliction
of serious emotional distress is actionable (Rest
I, § 46 (as amended 1947)
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Emotional Distress
Rest I, §46
z
Intends Severe ED
+
z
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Severe ED Results
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96
St. Rubbish Collectors vs Silitznof - CA. ‘52
Rationale:
* Prior Cal. Law = negligent production of bodily harm through mental
distress. The cause of action was for negligence.
*Justifications for adopting Rest I Sec. 46 (’47) rule (IIED):
*
Freedom from intentionally inflicted severe ED = an important
enough interest to be actionable independent harm
*
Absent privilege, no reason or policy supports non-liability
*
Analogies support the c/a: “Parasitic” ED damages = routinely
granted where Pl. establishes an independent c/a like & battery & negl.
*
Where ED = a major element of damages it is anomalous to deny
recovery because the conduct fell short of causing physical injury.
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St. Rubbish Collectors vs Silitznof - CA. ‘52
* Rationale: It may be argued that an IIED c/a will open
the doors to unfounded claims and a flood of litigation &
that the consequent physical injury rule is necessary to
insure that serious ED occurred
*
However:
A jury can more easily decide whether outrageous
conduct caused serious ED than whether that ED results in
physical injury.
From their own experience jurors can tell what kind
of ED may result from D’s conduct, but “a difficult medical
question is presented when it must be determined if ED
resulted in physical injury.”
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Slocum vs. Fair Food Stores – Fl. ‘58
Issue #1:
Is Intentional Infliction of
Emotional Distress (under Rest. I,
Sec. 46) Actionable in Florida)?
Held: Assuming, but not deciding that it is,
this evidence would not be sufficient to
state a cause of action under that rule.
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99
Slocum vs. Fair Food Stores – Fl. ‘58
Rationale:
1. this insult was not calculated to
produce severe ED as Rest. I requires.
* the conduct must be calculated
to cause severe emotional distress to a
person of ordinary sensibilities, in the
absence of special knowledge or notice
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100
Slocum vs. Fair Food Stores – Fl. ‘58
Rationale:
2. The rule emerging from the cases
decided under Rest. I have greater
limits, e.g.
* Defendant’s conduct must be
“outrageous” (exceeding all
bounds tolerated by society)
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101
Slocum vs. Fair Food Stores – Fl. ‘58
Issue # 2: Does the “Carrier/Public Utility” rule
making insults actionable extend to customers of a
retail store?
Held: No. The insult rule should not be extended to
defendants like retail stores because the
justifications for imposing it on carriers, innkeepers
& public utilities do not adequately apply to
businesses holding their premises open to the public
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102
Intentional Infliction of Emotional Distress Casebook Cases
Silitznoff (Cal. 1952) Rest. I §46
Slocum (Fla. 1958) Rest. I §46 + “Carrier Rule”
Harris (Md. 1977)
Rest. 2d §46
Taylor (Cal. 1959) Rest. I §46
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Harris vs. Jones – Md. ‘97
Applies Rest II § 46
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Harris vs. Jones – Md. ‘97
Decision: Reversal of jury verdict for plaintiff
affirmed.
Holding: Insufficient evidence under Rest. II that
plaintiff’s distress was severe
* court does not reach issues of:
* outrageous conduct?
&
* causation
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105
Rest 2d, §46 (1)
*
Conduct = Outrageous
(Beyond all Bounds of Decency)
+
*
Severe ED (Intended or Reckless)
+
*
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Severe ED Results
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Rest 2d, §46 (1)
Comments d, e, f: Extreme & Outrageous
Conduct
Comment h: Court & Jury
Comment i:
Intention & Recklessness
Comment j:
Severe Emotional Distress
Comment k: Bodily Harm
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Rest 2d, §46 (1)
Comments d, e, f: Extreme & Outrageous
Conduct
Caveat: No opinion as to whether there
may be other circumstance where liablity
exists [e.g. beyond outrageous conduct]
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Rest 2d, §46 (1)
Comment d: Extreme & Outrageous Conduct
•
The cases so far have been limited to extreme &
outrageous conduct (i.e. going beyond “all possible bounds
of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized society.
Generally the case is one where the recitation of the
facts to the an average member of the community
would arouse resentment against the actor, and lead
him to exclaim, “Outrageous!”
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109
Rest 2d, §46 (1)
Comment e. (Extreme & Outrageous Conduct)
•
•
Abuse of Position or Relationship – the extreme &
outrageous character may arise from an abuse by an actor
of a position or relation with another that gives him actual
or apparent authority over the other, or power to affect his
interests
* e.g. police officers, school authorities, landlords &
collecting creditors
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Rest 2d, §46 (1)
Comment f. (Extreme & Outrageous Conduct)
* Knowledge of Peculiar Susceptibility
* the extreme & outrageous character may arise from the actor’s
knowledge that the other is particularly susceptible to emotional
distress, by reason of some physical or mental condition or
peculiarity.
* however, major outrage is essential. It is not enough that the
actor knows that the other will regard the conduct as insulting or
have his feelings hurt.
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Rest 2d, §46 (1)
Comment h: Court & Jury
* It is for the court to determine whether D’s
conduct may reasonably considered to be
extreme & outrageous.
* Where reasonable people may differ, it is for the
jury to determine whether, in the particular case,
the conduct has been sufficiently extreme &
outrageous to result in liability
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Rest 2d, §46 (1)
Comment i:
•
•
Intention & Recklessness
Intent – includes knowing with substantial
certainty that severe ED is substantially certain
to result from the conduct.
Reckless – actor acts in “deliberate disregard of
a high degree of probability that the [severe] ED
will follow” (as defined in Rest. II, Sec. 500)
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Rest 2d, §46 (1)
Comment j:
Severe Emotional Distress
* Only when distress is so severe that no reasonable person could
be expected to endure it.
Comment k: Bodily Harm
* Normally severe ED is accompanied by shock, illness, or
bodily injury – the rule here is not limited to cases
where there is bodily harm
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Taylor vs Vallelunga
(Cal. 1959)
Complaint:
z
z
z
Defendants beat the father
Plaintiff (Daughter) = Present & Witnessed
Result = Severe ED suffered by plaintiff
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Taylor vs Vallelunga
(1959)
Held: Complaint failed to state cause of action
(under Rest. I, Sec. 46 – IIED)
Rationale: The complaint has no allegation
(1) “that def. knew that [Pl.] was present & witnessed
the beating administered to her father
nor
(2) [any allegation that the defendants beat the father]
for the purpose of causing [Pl.] to suffer emotional
distress or, in the alternative, [knowing] that
severe emotional distress was substantially certain
to be produced by their conduct.”
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Taylor vs Vallelunga
(1959)
Ambiguity? – would a good complaint require
that either allegation be pled or both? (i.e.
what is the meaning of neither/nor?)
Suppose that the complaint had alleged only
that the defendant knew with substantial
certainty that the Pl would suffer serious
ED as a result of his beating her father +
that severe ED resulted?
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Rest 2d, §46(2)
Defendant
Conduct
Directed
Toward
X
Plaintiff
(Intentionally or Recklessly Cause Severes ED to
Pl.)
Problem: More Limits on Liability?
* e.g.: Only Eyewitness? (Family vs. Others)
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Rest 2d, §46(2)
Defendant
conduct
directed
toward
X
Plaintiff
(2) Where such [outrageous]conduct is directed at a third person, an actor is
subject to liability if he intentionally or recklessly causes severe ED to:
(a) a member of such person’s immediate family who is present at the time,
whether or not such distress results in in bodily harm, or
(b) to any other person who is present at the time if such distress results in
bodily harm.
CAVEAT: no opinion as to liability extending to other situations.
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119
Okla. – Intentional Infliction of ED
Kraszewski v. Baptist Med. Cntr. (’97)
How does the case impact the
tort law of intentional infliction of
emotional distress in Oklahoma?
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Okla. – Intentional Infliction of ED
Kraszewski v. Baptist Med. Cntr. (’97)
Facts: Husband and wife, walking hand in hand,
were both struck by a drunken driver in a
parking lot. The husband received minor
physical injuries but the wife was dragged by
the truck while the husband followed knocking
on the window pleading in vain for the vehicle
to stop. He held her in his arms. She died later.
The husband sued for wrongful death and for
negligent infliction of his emotional distress. He
amended his claim to add a count for intentional
infliction of ED. Professor McNichols
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121
Okla. – Intentional Infliction of ED
Kraszewski v. Baptist Med. Cntr. (’97)
Facts (cont.): The trial court allowed the husband’s wrongful
death action to go to trial but denied the husband’s separate
claim for his own emotional distress at witnessing his wife’s
injury and death. The intermediate court affirmed on the
grounds that the husband could not recovery for IIED
because he was a bystander.
Issue: May the husband recover in an action for IIED for his ED
in witnessing his wife’s injuries?
Held: Yes. An action under the Rest. II Sec. 46 doctrine of OK
law could lie on these facts (& the case should also have
been submitted on negligent infliction of ED). It is remanded
for findings on (1) outrage & (2) serious ED. There was
sufficient evidence of “intentional act.”
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122
Okla. – Intentional Infliction of ED
Kraszewski v. Baptist Med. Cntr. (’97)
Held: “To support a cause of action for intentional
infliction of emotional distress” one must establish
that:
1. Plaintiff was directly physically involved in the
accident;
2. Plaintiff was damaged from actually viewing the
injury to another rather than from learning of the
accident later; and
3 . A familial or close personal relationship existed
between the plaintiff and the party whose injuries
whose injury gave rise to the plaintiff’s mental
anguish.
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Okla. – Intentional Infliction of ED
Kraszewski v. Baptist Med. Cntr. (’97)
Impact on OK Law?
• Court restricts liability by adding the 3-prong test to
Rest. § 46 when a plaintiff seeks to recover emotional
distress damages caused by witnessing harm caused by
defendant to another. P must be a “direct victim.”
• Court expands those who can recover ED without proof
of consequent bodily harm from immediate family
members to “familial or close personal relationship.
• Problem: Under which subsection of Sec. 46 is the case
decided?
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Okla. – Intentional Infliction of ED
Kraszewski v. Baptist Med. Cntr. (’97)
•
Does the court decide the case under Restatement 2d Sec.
46 (1) or Sec. 46(2)? What difference would it make?
Consider “Benny the Buzzer. ” Suppose that the
defendant was a personal enemy of the husband, who was
sober enough to drive his truck toward the husband
intending to make him think that he was going to be
struck by the truck. Suppose that, about 50 yards from his
target, the driver was distracted by a bee that flew into his
truck. Suppose that he lost control and ran into the wife,
who was standing in the parking lot 50 yards to the east of
her husband and of the truck’s original path. Suppose that
the husband saw his wife being struck, ran to her aid and
that all the other facts were the same as in the case.
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Okla. – Intentional Infliction of ED
Kraszewski v. Baptist Med. Cntr. (’97)
Possible Reading #1:
The case is decided under Rest. II, Sec. 46 (2) (conduct
directed at a third person) - even though the court does
not cite the section or suggest it or the problem exists.
Analysis: if so the case adds an additional limitation to
Oklahoma law – in section (2) cases the plaintiff must also
show in eyewitness cases that the plaintiff was a “direct
victim, “ physically involved in the accident.”
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126
Okla. – Intentional Infliction of ED
Kraszewski v. Baptist Med. Cntr. (’97)
Possible Reading #2: The case is decided under Rest. II, Sec. 46
(1) – as the courts opinion seems textually to do. (i.e. the case
is under (1) because Defendant’s conduct is directed at both
parties & defendant intends ED to both).
Analysis: if so the case adds several additional limitations to
Oklahoma law when the plaintiff seeks to recover ED for
witnessing an accident – viz.:
* the limitations of subsection (2) conduct directed at a 3rd
person
+
* the direct physical involvement in the accident requirement
(even though Defendant’s conduct is directed at both parties
and the defendant intends the emotional distress to the
defendant as well as to the third party.
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127
Okla. – Intentional Infliction of ED
Kraszewski v. Baptist Med. Cntr. (’97)
Compare to Kraszewski: Cases which have addressed the
Rest II §46(1) vs. (2) issue:
* Standard Fruit & Vegetable Co. vs. Johnson, 985
S.W. 2d 62 (TX 1998) (no liability under Sec. 46 (2); it
requires that D intend P’s severe ED or that ED is was
the primary risk of D’s reckless conduct)
• Dornfeld vs. Oberg, 503 N.W. 2d 115 (MN. ’93)
(motorist’s drunken driving was not directed at third
party as is required for Sec. 46(2)
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Okla. – Intentional Infliction of ED
Kraszewski v. Baptist Med. Cntr. (’97)
Compare:
• Doe vs Roman Catholic Diocese of Nashville, 154 SW 3d
22 (TN 2005)(Sec. 46(1) claims do not require conduct
directed at any particular person & the limits of Sec.
46(2) do not apply to Sec (1) claims
• See generally: Dobbs. The Law of Torts Sec. 302-313,
especially Sec 307
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129
TAYLOR V. GILMARTIN
686 F.2d 1346 (10th Cir. 1982) (Ok. Law)
Action by adult monk against religious “deprogramers.”
Evidence established “jury question” on:
(1) false imprisonment
&
(2) emotional distress
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130
Abraham - False Imprisonment (p. 28)
FI (& IIED) illustrate - something about the
NATURE OF RULES
The TENSION between
* the degree of protection afforded by tort law
&
* the need for easily administrable rules
9/25/2006
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131
Abraham - False Imprisonment (p. 28)
TENSION
PREDICTIBILITY OF OUTCOME
vs.
FLEXIBILITY OF APPLICTION
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132
Abraham – Standards/Rules (pp. 28-30)
“Bright Line” RULES
vs.
STANDARDS
Predictability ----Flexibility
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133