Introduction to American Tort Law
Syllabus, Outline of Course and Course Materials
University of Insubria, Como, Italy
July 18-22, 2011
Ann C. McGinley, William S. Boyd Professor of Law,
University of Nevada, Las Vegas,
William S. Boyd School of Law
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Outline and Syllabus: Introduction to American Tort Law
University of Insubria, Como, Italy
July 18 – 22, 2011
Ann C. McGinley
William S. Boyd Professor of Law, University of Nevada Las Vegas
Students: In separate documents you will find the Course Materials for our course on American Tort Law. There is a separate set of materials for each class (and classes 4 and 5 have a
set of materials and a pdf each.) This document includes the outlines, syllabus and background materials as well as the materials for Class One. Please read the materials BEFORE
the class for which they are assigned. Also, at the end of each day’s reading is a list of “key
terminology.” Look at these words BEFORE you do the reading and try to understand what
they mean in context. As in American law school classrooms, I intend to ask you questions
about your readings. Please be prepared. Do NOT worry about your English. Your English
is much better than my Italian!
Course Outline
1. The American System (Class 1)
A. Courts – Federal, State
1. Jury system
2. Alternative Dispute Resolution
B. Legislatures – Federal, State
C. Executive Branch – Administrative regulations, courts
2. Tort Law (Class 1)
A. Primarily state law (occasional federal statutes)
B. Common law (at times supplemented by state statute)
C. Usually enforced in state court (But may be brought in federal court if federal law or diversity jurisdiction—citizens of two states – but even where diversity jurisdiction, federal court will apply state law); some administrative law – e.g. OSHA
3. Common Law (Class 1)
A. Ordinarily in state court
B. Progression and interpretation of law via courts’ interpretations
C. Binding/Persuasive precedent
D. Each state: lower courts, Supreme Court (most have intermediate courts)
E. Higher courts binding on lower courts
F. How to defend against binding precedent? Importance of the facts of the case—
distinguish the case; look at the policy underlying the precedent and argue based on policy;
G. Supreme Court’s Stare decisis - argue to overrule old precedent—no longer up to date;
rule no longer supports underlying policy; policies have changed
H. Common argument: Not for the judiciary – for the legislature to decide
4. Procedure (Classes 1-4)
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A. Judge vs. Jury
B. Mechanisms for avoiding trials (Motions to Dismiss; Summary Judgment)
C. Appeals and Standards of Review
5. Coverage (Classes 1-5)
A. The American System
B. State v. federal law
C. Common law v. statutory law
D. Torts
1. Intentional Torts (Class 1)
2. Negligence/ Contingency Fees (Class 2)
3. Special Topics in Negligence (Medical Malpractice, Health Care Reform)(Class
3)
4. Strict Liability/Products Liability/Class Actions (Class 4)
5. Remedies/Insurance (Class 5) (Guest Lecture by Professor Jeffrey Stempel)
E. Exam (Class 5) (last 30 minutes)
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Professor McGinley
Background for Class Materials, Outline of Class Materials and Materials for Class 1
American Tort Law
University of Insubria, Como, Italy
The American torts system is a common law system that is generally a matter of state, not
federal, law. Thus, the 50 states may have slightly varying law in torts, and it is up to the state
Supreme Court to determine what the law is in the particular state. Historically, torts developed as
common law without statutes, but there have been statutes emerging in many states that deal with
some of the law of torts. We will see some of these statutes as we go along. Also, there is a body
called the American Law Institute that writes the Restatements of the Law. The Restatements are
similar to statutes. They have provisions and commentary and examples explaining the provisions.
They are not binding on the state courts, however, unless the state Supreme Court has adopted the
Restatement provision as the law of the state. Because the American Law Institute is a very
prestigious organization, the Restatements are influential, however, and are followed by many
courts. In Torts, there is a Restatement (Second) of Torts, which was published in 1965. There are
other Restatements that deal with tort law. For example, there is a Restatement of Products
Liability, which was published in 1998.
Outline of Readings for Class 1
I. Intentional Torts
A. Battery (Cohen)
B. Intentional Infliction of Emotional Distress (Cohen)
C. Assault (Raess)
D. False Imprisonment (Fuerschbach)
E. Trespass; Conversion
F. Practice Problems and Questions
Outline of Readings for Class 2
II.
Negligence
A. Duty (Doe)
B. Breach of Duty (Doe)
C. Causation
1. Actual Cause (Zuchowicz)
2. Proximate Cause (Palsgraf)
D. Harm
Outline of Readings for Class 3
III. Medical (or other professional) Malpractice
A. Standard of Care (locality rule, modified locality rule, national standard) lecture
only
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B.
C.
D.
E.
Expert testimony – importance -- lecture
Policy supporting medical malpractice
Informed Consent – autonomy issues
Policy Issues: Concern about the rising costs of healthcare and the legislative response – Nevada statute limiting non-economic damages
Outline of Readings for Class 4
IV. Vicarious Liability
V. Strict Liability
VI. Products Liability
A. Restatement (Second) Section 402A
B. Restatement (Third) of Products Liability
C. Manufacturing and Design Defects
1. Consumer Expectations Test (Leichtamer)
2. Risk/Utility Analysis (Honda)
D. Warning Defects (Liriano)
E. Case Study: Hepatitis C Case
Outline of Readings for Class 5
VII.
Remedies
A. Compensatory Damages
B. Punitive Damages
VIII. Insurance
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Class One Materials
READING MATERIALS FOR CLASS 1 (The following readings will be discussed in Class 1.
Please be prepared to discuss them.)
I.
Intentional Torts
What does “intent” mean?
1. acting with the purpose of bringing about the result; or
2. acting with the knowledge that the result is substantially certain
A. Battery
B. Intentional Infliction of Emotional Distress
PATRICIA K. COHEN and JOE COHEN, Plaintiffs-Appellants, v.
ROGER SMITH, Defendant-Appellee.
NOS. 5-94-0203 & 5-94-0204
APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
269 Ill. App. 3d 1087; 648 N.E.2d 329; 1995 Ill. App. LEXIS 185; 207 Ill.
Dec. 873
March 24, 1995, FILED1
JUDGES: JUSTICE CHAPMAN delivered the opinion of the court: MAAG, P.J., and HOPKINS,
J., concur.
OPINION BY: CHAPMAN
OPINION
JUSTICE CHAPMAN delivered the opinion of the court:
Patricia Cohen was admitted to St. Joseph Memorial Hospital ("Hospital") to deliver her baby.
After an examination, Cohen was informed that it would be necessary for her to have a cesarean
section. Cohen and her husband allegedly informed her physician, who in turn advised the Hospital
1
Citations to cases have been omitted. Throughout the materials, I have edited the cases and other materials without indicating where the editing takes place, but I have not changed the meaning of any case or other material.
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staff, that the couple's religious beliefs prohibited Cohen from being seen unclothed by a male.
Cohen's doctor assured her husband that their religious convictions would be respected.
During Cohen's cesarean section, Roger Smith, a male nurse on staff at the Hospital, allegedly
observed and touched Cohen's naked body. Cohen and her husband filed suit against Nurse Smith
and the Hospital. The trial court allowed defendants' motions to dismiss. We reverse.
The Restatement (Second) of Torts provides that an actor commits a battery if:
"(a) he acts intending to cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such a contact, and
(b) a harmful contact with the person of the other directly or indirectly results."
(Restatement (Second) of Torts, § 13 (1965).)2
Liability for battery emphasizes the plaintiff's lack of consent to the touching "Offensive contact" is said to occur when the contact "offends a reasonable sense of personal dignity." Restatement
(Second) of Torts § 19 (1965).
It is apparent that the plaintiffs in the instant case are not alleging that the cesarean section performed on Cohen violated any medical standard or was performed incorrectly or that any attendant
procedure was improper because of any deviation from any appropriate medical standard. The
plaintiffs' claim is in no way based upon medical malpractice. Cohen alleges instead that Roger
Smith knowingly violated her privacy interests and religious standards and beliefs by touching her
without her consent.
The only reason there is some hesitancy over the issue of whether a battery occurred in this case
is because the contact took place in a hospital between a medical professional and a patient. If
Patricia Cohen had been struck in the nose by Nurse Smith on a public street, everyone would agree
that a battery occurred, and under those limited facts, there would be no defense to the battery. In
contrast, medical professionals are allowed to touch patients during the course of medical treatment
because patients consent, either explicitly or implicitly, to the touching. The violation of a plaintiff's
right to bodily and personal integrity by an unconsented-to touching is the essence of a claim for
battery. Therefore, it is not the plaintiffs who are seeking damages because of healing act malpractice; it is the defendants who are raising a defense based upon their positions in the healing art
fields.
II. CAUSES OF ACTION
Counts I and II of the plaintiffs' complaint, battery and the intentional infliction of emotional
distress, respectively, are based on the same factual basis that Patricia Cohen informed the Hospital
and its employees of her religious views that she could not be viewed or touched by a male. Therefore, we will discuss these issues together.
A. Intentional Infliction of Emotional Distress and Battery
Battery has already been defined and discussed. To state a cause of action for intentional infliction of emotional distress, a plaintiff must show:
2
The Restatement (Second) of Torts is not a statute. Rather, it is a compilation by the American Law Institute, a prestigious body of lawyers, judges and academics, who study the law and its trends and attempt to codify it. It is not binding
on any court unless the Supreme Court of the state in which the court sits has adopted it as the law of the state. But, it is
influential.
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"(1) extreme and outrageous conduct, (2) intent by the defendant to cause, or reckless disregard of the probability of causing emotional distress, (3) severe or extreme
emotional distress suffered by the plaintiff, and (4) an actual proximate causation of
emotional distress by the defendant's outrageous conduct."
The plaintiffs' complaint against Nurse Smith alleges that Smith touched Cohen's naked body
after being informed of her moral and religious beliefs against such touching by a male. Similarly,
the plaintiffs' complaint against the Hospital alleges that the doctor performing the surgery told
Nurse Smith that the operation was to be performed without any male seeing Cohen naked. According to the complaint, despite being informed of Cohen's religious beliefs, Nurse Smith, an agent
and employee of the Hospital, intentionally saw and touched Cohen's naked body.
The allegation that both Nurse Smith and the Hospital were informed in advance of plaintiffs'
religious beliefs is important in this case, because the religious convictions of plaintiffs might not be
those of most people who enter the hospital to give birth. As a matter of fact, plaintiffs' counsel
candidly conceded that there would be no cause of action for battery if Patricia Cohen had been
placed in Nurse Smith's and the Hospital's care in an emergency situation in which Patricia had been
unable to inform the Hospital or its agents of her beliefs. Plaintiffs' attorney acknowledged that his
clients' moral and religious views are not widely held in the community and, because of this, plaintiffs could state a claim against defendants only if the plaintiffs plead that the defendants had
knowledge of those beliefs. But, he contends, the defendants' knowledge of the plaintiffs' religious
beliefs was pleaded in their complaint. Specifically, plaintiffs contend that defendants' knowledge is
clearly illustrated by an allegation in the plaintiffs' amended complaint that Nurse Smith requested
the presence of the Murphysboro City Police at the Hospital to prevent Mr. Cohen from objecting to
Nurse Smith's presence in the operating room while Mrs. Cohen was naked, and to physically restrain Mr. Cohen if necessary.
The fact that the plaintiffs hold deeply ingrained religious beliefs which are not shared by the
majority of society does not mean that those beliefs deserve less protection than more mainstream
religious beliefs. The plaintiffs were not trying to force their religion on other people; they were
only insisting that their beliefs be respected by the Hospital and the Hospital staff.
Although most people in modern society have come to accept the necessity of being seen unclothed and being touched by members of the opposite sex during medical treatment, the plaintiffs
had not accepted these procedures and, according to their complaint, had informed defendants of
their convictions. This case is similar to cases involving Jehovah's Witnesses who were unwilling to
accept blood transfusions because of religious convictions. Although most people do not share the
Jehovah's Witnesses' beliefs about blood transfusions, our society, and our courts, accept their right
to have that belief. Similarly, the courts have consistently recognized individuals' rights to refuse
medical treatment even if such a refusal would result in an increased likelihood of the individual's
death
A person's right to refuse or accept medical care is not one to be interfered with lightly. As Justice Cardozo stated, "Every human being of adult years and sound mind has a right to determine
what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages."
Knowing interference with the right of determination is battery. Our examination of the record
reveals that facts charging that interference are pleaded in plaintiffs' complaint against Nurse Smith
and against the Hospital. For purposes of a motion on the pleadings, a court must accept these facts
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as true. Accepting as true the plaintiffs' allegations that they informed defendants of their religious
beliefs and that defendants persisted in treating Patricia Cohen as they would have treated a patient
without those beliefs, we conclude that the trial court erred in dismissing both the battery and the
intentional infliction of emotional distress counts.
Based on the information found in the Cohens' complaint against Nurse Smith and the Cohens'
complaint against the Hospital, we find that the trial court erred in dismissing both complaints.
Reversed and remanded.
C.
Assault
DANIEL H. RAESS, M.D., Appellant (Defendant), v. JOSEPH E.
DOESCHER, Appellee (Plaintiff).
No. 49S02-0710-CV-424
SUPREME COURT OF INDIANA
883 N.E.2d 790; 2008 Ind. LEXIS 313; 155 Lab. Cas. (CCH) P60,601
April 8, 2008, Decided
April 8, 2008, Filed
JUDGES: Dickson, Justice. Shepard, C.J., and Rucker, J., concur. Sullivan, J., concurs in result
with separate opinion. Boehm, J., dissents with separate opinion.
OPINION BY: Dickson
OPINION
Dickson, Justice.
This is an appeal by defendant Daniel Raess, M.D., a cardiovascular surgeon, challenging a $
325,000 jury verdict and judgment on a claim for assault brought by plaintiff Joseph Doescher, a
hospital operating room perfusionist (the person who operates the heart/lung machine during open
heart surgeries). The Court of Appeals reversed and remanded for a new trial. We granted transfer
and now affirm the judgment of the trial court.
In his action against the defendant surgeon, the plaintiff perfusionist sought compensatory and
punitive damages for assault and intentional infliction of emotional distress following a verbal altercation adjacent to the open-heart surgery area at St. Francis Hospital in Beech Grove, Indiana.
The jury returned a verdict in favor of the defendant on the claim for intentional infliction of emotional distress but found for the plaintiff on his assault claim and awarded compensatory but not
punitive damages.
1. Denial of Judgment on the Evidence
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The defendant argues (a) that there was no evidence to support liability for assault and seeks entry of judgment in his favor.
The defendant first argues that there was no evidence to establish the following: (a) that an assault occurred, (b) that he acted with the requisite intent, or (c) that the plaintiff's reaction was reasonable. The elements of assault were explained to the jury in Instruction 10C, to which neither
party objected.
To establish assault, Mr. Doescher [the plaintiff] must prove, by a preponderance
of the evidence, that Dr. Raess acted in such a manner that Mr. Doescher was in reasonable fear of imminent harm at the time when Dr. Raess had the ability to inflict
harm. No physical contact had to occur so long as Mr. Doescher was reasonably afraid
that such contact would occur. If you find from the evidence that Dr. Raess committed
an assault upon Mr. Doescher, then Dr. Raess is liable for damages caused by the assault.
Assault is effectuated when one acts intending to cause an imminent apprehension of a harmful
or offensive contact with another person as we have explained, "Any act of such a nature as to excite an apprehension of a battery may constitute an assault. It is an assault to shake a fist under another's nose, . . . ."
Considering, as we must, only the evidence and inferences favorable to the non-moving party,
we find testimony from the plaintiff that the defendant, angry at the plaintiff about reports to the
hospital administration about the defendant's treatment of other perfusionists, aggressively and rapidly advanced on the plaintiff with clenched fists, piercing eyes, beet-red face, popping veins, and
screaming and swearing at him. The plaintiff backed up against a wall and put his hands up, believing that the defendant was going to hit him, "[t]hat he was going to smack the s**t out of me or do
something." Then the defendant suddenly stopped, turned, and stormed past the plaintiff and left the
room, momentarily stopping to declare to the plaintiff "you're finished, you're history." In light of
this evidence, there has not been a complete failure of proof. To the contrary, there is substantial
evidence or reasonable inferences to support the jury's conclusions that an assault occurred, that the
defendant acted with the requisite intent, and that the plaintiff's reaction was reasonable.
D.
False Imprisonment
MARCIE FUERSCHBACH, Plaintiff-Appellant, v. SOUTHWEST
AIRLINES CO.; CITY OF ALBUQUERQUE; DUANE HOPPE; ELDON MARTINEZ; MICHAEL SANTIAGO; and TINA MARIE
TAPIA, Defendants-Appellees.
No. 04-2117
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
439 F.3d 1197; 2006 U.S. App. LEXIS 5108; 44 A.L.R.6th 723
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February 28, 2006, Filed
JUDGES: Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and McCONNELL,
Circuit Judge.
OPINION BY: LUCERO
OPINION
LUCERO, Circuit Judge.
Several supervisors at Southwest Airlines convinced two Albuquerque police officers to stage
an arrest of Marcie Fuerschbach, a Southwest Airlines employee, as part of an elaborate prank that
included actual handcuffing and apparent arrest. This was a "joke gone bad," and turned out to be
anything but funny, as Fuerschbach allegedly suffered serious psychological injuries as a result of
the prank.
I
Marcie Fuerschbach worked as a customer service representative for Southwest Airlines
("Southwest"), serving travelers at Southwest's main ticket counter in Albuquerque's Sunport airport. Southwest prides itself on being a "fun-loving, spirited company." This lighthearted image extends from marketing and customer relations into the company's corporate culture. As part of this
fun-loving atmosphere, newly hired employees who have successfully completed an initial probationary period often find themselves subject to a prank commemorating the occasion.
Fuerschbach's supervisor, Tina Marie Tapia, and other customer service supervisors had discussed various pranks to commemorate Fuerschbach's successful completion of probation. Because
Tapia had once been subjected to a similar prank, and had thought the experience amusing, she suggested a mock arrest. The others agreed. On the day of the incident, one of the supervisors called the
Albuquerque police department and requested that officers come to the Southwest counter. When
Officers Duane Hoppe and Eldon Martinez arrived at the ticket counter, the supervisors told them of
the plan to arrest Fuerschbach as a celebratory prank. The officers, who were employed by the City
of Albuquerque's City Aviation Department and detailed to the Sunport, asked if Fuerschbach
"would be okay with it," and Tapia assured them that she would. With the assistance of the supervisors, the officers developed and executed the plan for staging the arrest.
Fuerschbach was working at a ticket counter crowded with customers when the two uniformed
and armed police officers approached her. One of the officers ordered Fuerschbach to go with him
to answer some questions, and proceeded to escort her to the end of the ticket counter. Once there,
the other officer informed Fuerschbach that during the course of performing her background check,
the City Aviation Department discovered an outstanding warrant for her arrest. The officers asked
Fuerschbach if she had ever been arrested before, and she replied that she had not. When she began
to explain that there must have been some mistake, and that there were no outstanding warrants, the
officers interrupted her and demanded that she take off her badges and turn them in. Fuerschbach
complied and handed her badges to Tapia, who was standing close by. Hoppe and Martinez then
asked if Fuerschbach had anyone to "bail her out," and she responded tearfully that she hoped Tapia
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would. After asking for a tissue to dry her tears, Fuerschbach asked if the arrest were a joke. Both
officers refused to respond. Instead, Hoppe asked if Fuerschbach had any unpaid traffic citations.
The officers then placed Fuerschbach's hands behind her back and handcuffed her tightly. A
crowd of employees and customers formed to watch the unfolding arrest. One of the officers said to
Fuerschbach, "we don't want to embarrass you anymore so we'll take you to the elevator so we don't
have to walk in front of all those people." Fuerschbach continued to cry. The officers led Fuerschbach in handcuffs fifteen feet to the elevator, at which point someone jumped out and yelled,
"congratulations for being off probation." The officers removed the handcuffs and people began to
clap. Fuerschbach, however, continued to cry. Later that day, she was found in the break room
weeping and was sent home. As a result of her distress, Fuerschbach began seeing a psychologist
for treatment. The psychologist diagnosed Fuerschbach as suffering from post-traumatic stress disorder ("PTSD").
Fuerschbach sued Hoppe, Martinez, and the City of Albuquerque. In the same action she sued
Southwest, Tapia, and Michael Santiago, a Southwest manager, for intentional infliction of emotional distress. Claims of conspiracy, false imprisonment, false arrest, assault and battery, and
defamation were asserted against all defendants, along with a claim for punitive damages.
In discussing intentional torts, the Restatement provides:
The fact that the defendant who intentionally inflicts bodily harm upon another does
so as a practical joke, does not render him immune from liability so long as the other
has not consented. This is true although the actor erroneously believes that the other will
regard it as a joke, or that the other has, in fact, consented to it. One who plays dangerous practical jokes on others takes the risk that his victims may not appreciate the humor of his conduct and may not take it in good part.
Thus, the common law of torts instructs that an intentional tortfeasor is held to the applicable
standard of care, notwithstanding the characterization of the tort as a prank, or even a good faith but
incorrect belief that the tort victim will enjoy the joke.
III
Fuerschbach asserts several state tort claims against Officers Hoppe and Martinez. Specifically,
Fuerschbach alleges that the officers committed false imprisonment, false arrest, assault and battery,
and civil conspiracy. Finding that the officers were entitled to judgment as a matter of law on all
counts, the district court granted the officers' motion for summary judgment.
A
"Under New Mexico law, 'false imprisonment consists of intentionally confining or restraining
another person without his consent and with knowledge that he has no lawful authority to do so.'"
False arrest or unlawful detention occurs when the "facts available to [a] detaining officer would
[not] warrant [a] person of reasonable caution to believe detention appropriate." A defendant possessed of a good faith and reasonable belief in the lawfulness of the action is not liable for false imprisonment or false arrest. The district court found that the officers had a good faith and reasonable belief that their actions were lawful because they only "briefly restrained Plaintiff as part of a
prank at the request of SWA."
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Neither the brevity of the seizure nor its characterization as a prank enable the officers to prevail
on summary judgment. False imprisonment may arise out of a brief encounter. Moreover, a good
faith belief in the lawfulness of the action ordinarily requires probable cause to arrest. The defendant officers lacked probable cause, and indeed did not even suspect Fuerschbach of wrongdoing.
Although they seized Fuerschbach at the invitation of her employer, and did so in the context of a
prank, they nonetheless had no lawful authority to inform her that she was under arrest, restrain her
in handcuffs, and direct her movement.
***
E.
Trespass, Conversion
These are intentional torts dealing with real property (land) and personal property. Trespass is
the intentional entry upon the property of another without permission. Conversion is the taking of
the personal property of another and treating it as if it belongs to the converter. These are intentional torts, but even if the trespasser mistakenly believes that the property belong to him or her,
s/he can be liable for trespass or conversion.
F.
Practice Problems
1. Cohen v. Smith – What if the plaintiff had not told the doctors that she did not want to be
viewed naked or touched by a male doctor? Would there still be a battery? Why? Why
not? Consent can be a defense to battery. How would a defendant attempt to make out
this defense in a case similar to this case?
2. Cohen v. Smith – What is the difference between battery and intentional infliction of
emotional distress? If you were a member of the jury, would you vote for the plaintiff in
a) the battery case; b) the intentional infliction of emotional distress case?
3. Raess v. Doescher – Should the doctor be liable for this behavior? Isn’t this ordinary
behavior in workplaces, especially stressful workplaces? Did the defendant in this case
have a purpose to bring about Raess’ distress? If not, how can Raess prove intent?
4. Fuerschbach v. Southwest Airlines – The defendants in this case were playing a prank on
the plaintiff. How, then, can the plaintiff prove intent in this case? Does the intent have
to be to harm the plaintiff or in a false imprisonment case, to confine the plaintiff against
her will?
Key Terminology: You should study and understand these key terms:
Liability
Battery
Consent
Privacy
Personal integrity
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Damages
Complaint
Intentional Infliction of Emotional Distress
Attorney
State a claim
Allegation
Reversed and remanded
Jury verdict
Assault
Affirm the judgment
Trial court
Court of appeals/appellate court
Compensatory damages
Punitive damages
Plaintiff
Defendant
Evidence
Intent
Burden of proof
Preponderance of the evidence
Substantial evidence
Motion for summary judgment
False imprisonment
Good faith and reasonable belief
Trespass
Conversion
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