LAW427: Torts (Robertson) Outline
Outline by Max13UT
Table of Contents
Introduction ..................................................................................................................................... 2
Intentional Torts .............................................................................................................................. 2
Phase 1: Plaintiff’s Prima Facie Negligence Case .......................................................................... 7
The Duty Issue ............................................................................................................................ 7
Breach of Duty (negligence) ..................................................................................................... 16
Factual Causation Issues ........................................................................................................... 21
Scope of Liability (Proximate Cause) ....................................................................................... 27
Damages .................................................................................................................................... 31
Vicarious Liability (Respondeat Superior) ................................................................................... 32
Phase 2: Affirmative Defenses...................................................................................................... 33
Phase 3: Apportioning Comparative Fault and crafting the Judgment ......................................... 35
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Introduction
1) Fields of Tort Law
a) Intentional Torts
b) Negligence
c) Strict Liability
2) Conceptual Phases of tort cases
a) Phase 1: Plaintiff’s Prima Facie Case
b) Phase 2: D’s affirmative defenses
c) Phase 3: Comparative Fault
3) Chronology of a Tort Case
a) Complaint
b) Motion to Dismiss
c) Summary Judgment
d) P’s case in chief
e) Motion for directed verdict #1
f) D’s case in chief
g) Motion for directed verdict #2
h) Jury instructions
i) The verdict
j) Motion for judgment non obstante verdicto (notwithstanding the verdict).
4) Mental States
a) Knowledge
i) Person acts with K when he knew to a substantial certainty that the harm would result
from his conduct.
b) Reckless (R3d Sec. 2
i) Person knows risk of harm created by the conduct, or knows facts that make the risk
obvious to another in the person’s situation, and
ii) The precaution that would eliminate or reduce the risk involves burdens that are so
slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk
iii) R2nd (Deliberate disregard of probability that the [result] will follow). (Awareness is
the distinction between R and N, R3d weakens this distinction, R now looks more like
really bad negligence).
5) Policy Perspectives on Tort Law
a) Ex ante incentives to keep the peace (preventing tortious action and retaliation)
b) Keeping courts free of trivial matters
c) Providing Corrective Justice for Victims and Tortfeasors
d) Economic incentives to deter bad conduct and promote efficency
Intentional Torts
1) Battery
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a) Elements of P’s Prima Facie Case (In Ghassemieh)
i) D caused a touching of P
(1) Per Fisher, touching need only be of clothing or object closely connected with the
person
ii) Touching must be harmful or offensive
(1) Harmful: causes physical pain, injury or illness
(2) Offensive: offends a person’s reasonable sense of dignity.
iii) D intended to cause touching* (This varies by case)
b) 6 Possibilities for Intent requirement in Battery
i) D desired harm
ii) D knew to substantial certainty that harm would result
iii) D desired offensive (Ghassemieh)
iv) D knew offensive (White v. Muniz – Alzheimer’s patient struck caregiver, court said must K offensive).
v) D desired contact. White v. Univ. Idaho – D intentionally touched P’s back, caused
injuries, no intent to injure.
vi) D knew contact (Garratt and 3rd Restatement are here.)
c) Limitations for Young Children
i) Child under age of 7 not liable – DeLuca v. Bowden (OH)
ii) Infant must appreciate fact contact may be harmful – Horton v. Reaves (CO)
d) Cases
i) Ghassemieh v. Schafer
(1) Facts: An 13 year old student pulled a chair from out from under her teacher as
she was sitting down. SOL for battery expired pre-suit, so teacher (P) sued for
negligence. Trial judge instructed jury that battery and negligence are mutually
exclusive, and if they found student committed a battery, they could not find
negligence. P lost on jury verdict, and appealed
(2) Issue: Were the jury instructions erroneous?
(3) Holding: Yes, no mutual exclusivity (but P’s lawyer did not object in time, so ruling stands)
(4) Rule: Intent to do harm not essential to a battery, and Battery & Negligence not
mutually exclusive
ii) Garratt v. Dailey
(1) Facts: D (a 6 yr old) moved a chair and sat in it, and seeing that P was trying to sit down where
the chair had been, rushed to move it back, but was not in time, and P fell and hurt herself. P sued
for battery.
Issue: Did D’s actions constitute a Battery?
(2)
(3) Holding: Touch must be harmful or offensive, but D must at least know contact is
substantially certain to result from his conduct. (on remand, Trial court found
battery).
iii) Fisher v. Carrousel Motor Hotel Inc. (Tex. 1967).
(1) Facts: P (An African American) was in the buffet line at a luncheon, when the plate that he was
holding in his hand was snatched away by the manager, who shouted that he could not be served
in the club. D was not actually touched, nor suffered fear or apprehension of physical injury, but
was highly embarrassed and hurt by the manager’s conduct.
(2) Issue: Was a battery committed?
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(3) Holding: Yes, and P was entitled to damages for mental suffering even absent
any physical injury
(4) Rule: Actual physical contact is not necessary to constitute a battery, so long as there is contact
with clothing or an object closely identified with the body. (nor is assault required for a battery).
iv)Kress & Co. v. Brashier, (Snatched book from hand) – forceful act in an offensive
manner = battery.
v) Leichtman v. VLW Jacor Communications Inc (OH) – Battery to blow cigar smoke
into the face of an anti-smoking activist on radio talk show.
2) Assault
a) Elements (R2d)
i) D caused P to suffer imminent apprehension of imminent battery
ii) Apprehension was reasonable
iii) D intended or was reckless as to apprehension
b) Transferred intent can apply
i) If D intended only apprehension, but contact occurred, D can be held liable for
battery and vice versa (intended contact, but caused apprehension)
c) There are fewer occasions to single out assault from battery (often the two torts are
concurrent).
d) Vetter v. Morgan
i) Facts: P was alone in her car at a stoplight late at night, when 3 men pulled up in a car next to her,
and D started yelling vile obscenities and making obscene gestures in a violent manner, and the drive
moved the car back and forth while D was threatening to remove P from her van and spit on her door.
When both vehicles drove forward when the light turned, P claimed D’s car drove into her lane, and that she swerved to miss it and struck the curb and received injuries from the accident. D claimed that
they drove straight away and did not drive into P’s lane.
ii) Issue: Were there questions of fact that should be put to a jury on whether P was
assaulted?
iii) Holding: Yes
iv) Reasoning: Here there was evidence of a threat, because D threatened to take P from her van, which
constitutes a threat when taken together with surrounding circumstances (late at night, crazy behavior),
making it reasonable for P to believe that D would carry out his threat. In addition, D had the apparent
ability to harm P, because it was late at night, windows could be broken, and D was accompanied by
other males. The fact that P had the ability to flee does not preclude an assault, only that she believed
D was capable of immediately inflicting the contact unless prevented by self-defense, flight, or
intervention by others (Restatement 2nd).
e) Sides v. Cleland (Person approaches another with 2 associates wielding chainsaws,
screams “bring on the chainsaws”, sawyers respond by dismembering tree P is sitting on, sufficient evidence for Assault
3) Intentional Infliction of Emotional Distress
a) Elements
i) D caused P’s emotional distress
ii) ED was severe
iii) D intended or was reckless as to ED (No transferred Intent)
iv) D’s conduct was outrageous
(1) This is one of the most important elements, also very hard to define what is
outrageous
(2) Often related to abuse of power, cases that don’t fit into other categories
b) Eckenrode v. Life of America Insurance Company
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i) Facts: P’s husband took out a life insurance policy, and died, and the insurance company refused to
pay, breaching the policy’s promise to pay immediate to pay upon policyholder’s death, by implying that it had a valid defense to the claim (which it did not). P had no money, and had to live with
relatives and borrow money to support her family.
ii) Issue: Is there a IIED Tort and does P meet it?
iii) Holding: Yes and Yes, judgment reversed
iv) Reasoning: Tactics of insurance companies (bullying tactics and high pressure methods) may
qualify as outrageous conduct, and here the insurer engaged in such conduct, while aware of the
circumstances (P’s husband’s death) that would be very likely to cause emotional distress. Because the company’s methods were aimed at the very thing insured against, the company was on notice that their
tactics could have caused emotional distress, therefore judgment for P.
c) Dana v. Oak Park Marina
i) Facts: Marina employees installed cameras in the bathrooms, and videotaped female patrons in
various stages of undress, and displayed the tapes to others for purposes of trade.
ii) Issue: Did D’s conduct meet IIED?
iii) Holding: Yes, because reckless conduct is encompassed by the tort, and a jury could have found
selling tapes of female patrons undressing was outrageous
d) Twyman v. Twyman (Tex)
i) TX case has adopted IIED
ii) Justice Hecht dissented, saying outrageous would be hard to define and not provide
proper notice to D’s.
e) Roach v. Stern
i) Court held that Stern’s conduct was outrageous enough to go to trial (playing with
ashes of person on live radio).
f) Vetter – did not rise to the level of IIED, and Assault is better able to take care of the
situation
g) Possible Alternative versions of IIED
i) Eliminating reckless from intent element and replace it with D intended to cause
severe ED
ii) Requiring a person of ordinary sensitivities would suffer Severe ED under the
circumstances.
4) Affirmative Defenses to Intentional torts
a) If P proves prima facie case for the tort, burden shifts to D to establish a defense (D has
burden of pleading, production, and persuasion by preponderance of the evidence. Some
J’s require for Punitive damages, P show by Clear and convincing evidence).
i) Consent
ii) Self-Defense
iii) Defense of others
iv) Defense of property
b) Consent
i) Consent is ineffective if party was coerced, if consent was induced by
misrepresentations, or if party was incapacitated on account of infancy, mental
incompetency, or intoxication
ii) Measured by person’s objective manifestations – O’Brien v. Cunard S.S. Co.
(Objective Standard)
(1) Facts: P was an immigrant travelling aboard ship, and sued D for battery and negligence for
injuries from a vaccination she received on ship. P queued with others she understood were going
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