TORTS
Introduction
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1
LAST NAME, 1ST - “Nickname”
•
•
•
•
Undergraduate School & Major
“Hometown” - (where you grew up, etc.)
Any Prior Graduate Work?
Any Prior “Law Experience?
• e.g. Legal Secretary
•
Insurance Adjuster
•
Law Enforcement
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Torts 1: Required Materials
* CASEBOOK: Schwartz, Kelly & Partlett.
Prosser, Wade & Schwartz’s Torts: Cases
& Materials (11th ed.) (West Pub. 2004)
* READINGS: K. Abraham. The Forms and
Functions of Tort Law (2d ed.)
(Foundation Press 2002)
* SUPPLEMENT: McNichols. Torts I
Supplemental Materials (Fall 2005)
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Torts 1: Reference & Study Materials
• TEXTBOOKS (“HORNBOOKS”)
* Keeton. Prosser & Keeton on Torts (5th
ed.) (West Pub. 1984)
* Dobbs. The Law of Torts (West Pub.
2000)
* Epstein. Torts (Aspen Pub. 1999)
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Torts 1: Reference & Study Materials
• American Law Institute (ALI): Restatements
* Restatement (Second) of the Law of
Torts (1949 et. seq.)
* Restatement (Third) of the Law of Torts:
Apportionment of Liability (2000)
* ALI (Selections compiled by K. Abraham).
A Concise Restatement of Torts (2000)
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Torts 1: Reference & Study Materials
• STUDY MATERIALS
* Kionka. Torts (West Pub. Black Letter
Series (West 2002)
* Glannon. The Law of Torts: Examples
and Explanations (2nd ed.) (Aspen Pub.
2000)
*
Rabin & Sugarman. Torts Stories
(Foundation Press 2003)
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General Reading Assignment & Policies
• GENERAL READING ASSIGNMENT
* Reading Assignment Topics
• ATTENDANCE POLICY
• STUDENTS WITH DISABILITIES
• HONOR CODE
• COURSE GRADE
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Objectives of a “Case Law” Class
• SKILLS TRAINING- Read & Think “Like a Lawyer”
• LEARN THE LAW - from Cases
• Identify - The Issue(s), Rule(s) & Reasoning
• USE THE LAW - in “Legal Reasoning”
• Compare & Distinguish Cases
• Make Legal Arguments
(e.g. By Precedent or Analogy)
• EVALUATE THE LAW
• What policies does the rule (law) further?
• What are the consequences of the rule
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AMBIGUITY
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INDETERMINANCY
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Sample Brief - McNichols
* Facts
* Procedure
* Issue(s) (precise question(s) presented
by parties on appeal)
* Decision (Judgment)
- (yes/no answer to
issue + what ct. decided -e.g. affirm)
* Rule (Holding) – (rule of law applied by ct.)
* Reasons (Rationale)
* Dissenting Opinions (if any)
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Sample Brief - Prof. Backus
’05 Orientation
* Procedural Posture
* Facts
* Issue(s) Presented –
(what parties ask
court to decide)
* Analysis - (how ct. applied rule to facts)
* Rule(s) - (the rule of law ct. relies upon)
* Holding – what court decides – e.g. new trial)
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Prof. Delaney (Example: Good/Poor Brief)
•
•
•
•
•
•
Facts
Procedural History
Issue
Holding - [Issue without a question mark]
Judgment - [What ct. decided; e.g. Reversed]
Reasoning
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Sample Brief - Tepker
* Facts
* Procedural History
* Issues Presented –
* Holding –
(Supp. pp. A-25)
(Precise issues decisive
on appeal)
(Yes/no answer to issue or more
comprehensive statement)
* Judgment – (What appellate ct. did; e.g. affirm)
* Reasoning or Rationale
* Dissenting Opinions
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Sample Brief - Tepker vs. McNichols
*
*
*
*
*
TEPKER
Facts
Procedural History
Issues Presented
Holding
Judgment
MCNICHOLS
- Facts
- Procedure
- [Issue(s)]
- [Decision & Judgment]
- [Holding/Rule]
* Reasoning or Rationale - [Reasons/Rationale]
* Dissenting Opinions
- [Dissenting Opinions]
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McBoyle vs. U.S – Example of Excellent Brief
FACTS: McBoyle transported an airplane from Ill.
to Okla. He knew the plane had been stolen.
PROCEDURAL HISTORY: U.S. Ct. of Appeals for
the 10th circuit affirmed McBoyle’s conviction
for violating the Nat. Motor Vehicle Theft Act by
transporting a “motor vehicle” in inter-state
commerce, knowing it to have been stolen. The
U.S. Sup. Ct granted a writ of certiorari.
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McBoyle vs. U.S – Example of Excellent Brief
ISSUE: Whether the meaning of the words ‘motor
vehicle’ as specified in Sec. 2 of the Nat. Motor
Vehicle Theft Act as “any other self-propelled
vehicle not designed for running on rails”
applies to aircraft.
HOLDING: The meaning of the words ‘motor
vehicle’ as specified in Sec. 2 of the Nat. Motor
Vehicle Theft Act as “any other self-popelled
vehicle not designed for running on rails” does
not apply to aircraft.
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McBoyle vs. U.S – Example of Excellent Brief
JUDGMENT: Ct. of Appeals judgment = reversed.
(The effect = to overturn conviction by t/ct.)
REASONING:
* Determining Congressional Intent
* In everyday usage – vehicles run on land
* State statutes agree with popular usage
* There was no evidence Congress intended
motor vehicle to include airplanes
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McBoyle vs. U.S – Example of Excellent Brief
REASONING (cont.):
* Policy
* The holding serves the objective that criminal
statutes must give fair warning of a penalty “if a
certain line is passed.” Fairness requires a “clear” line.
* The holding serves the objective of judicial
restraint. Courts will not extend the statute because
the policy served by punishment may apply equally to
airplanes or because Congress may have forgotten
about airplanes and would have been very likely to
have included them if it had thought of the matter.
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Dean Kronman. Chapman Law School
Groundbreaking Address (McN. Supp. A-45)
*
Why did you choose to come to law
school? To enter the profession of
law?
*
What does being “A Professional”
Mean?
*
Do you agree with Dean Kronman?
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Dean Kronman. Chapman Law School
Groundbreaking Address (McN. Supp. A-45)
Law As A Profession
• 4 Characteristics of Law as a Profession
• Forces of Societal Disintegration
• Dangers Threatening the Law as a Profession
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Dean Kronman. Chapman Law School
Groundbreaking Address (McN. Supp. A-45)
*
Four Characteristics of Law as a Profession
1.
Law = a Public Calling
2.
The Non-Specialized Nature of Law
* Purpose of Legal Education=Think Like Lawyer
3.
Being a Lawyer Engages the Whole Person
4
The Importance of Tradition
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Dean Kronman. Chapman Law School
Groundbreaking Address (McN. Supp. A-45)
* Forces of Societal Disintegration
*
*
*
*
Privatization
Specialization
Alienation
Forgetfulness
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Dean Kronman. Chapman Law School
Groundbreaking Address (McN. Supp. A-45)
* Dangerous Changes–Affecting Legal Profession
* Commercialization
* Specialization
* Shift to Large Institutions
* Technology’s Impact
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Ch. 1 - INTRODUCTION: CASEBOOK p. 1
•
•
•
•
•
•
Tort? - Injury or Wrong
Common Law?
Modern Tort Law – Field of Public Debate
Purposes of Tort Law
Insurance System - Backs Tort Law
CB Editors: Explore the Tort System;
Become an Educated Citizen; Participate
in the Debate
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Ch. 1 – INTRODUCTION: CASEBOOK P.2
• HISTORICAL ORIGINS?
• Theories:
• Original Liability = Based on Fault;
develops to take less account of
personal fault
• Original Liability = Based on Causation;
develops to liability based on fault
[most widely accepted view]
• No steady progression
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Ch. I - Development of Liability Based on Fault
X
harms
Y
CONDUCT
causes
HARM
* Loss
* “Injury”
* Damage
REMEDY = “DAMAGES”
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Ch. I - Development of Liability
Based on Fault
Interests
*
*
*
*
e.g.
Bodily Security
Property Protection
Emotional Tranquility
Reputation
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“Legally
Protected
Interest”
=
“INJURY”
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Ch. I - Development of Liability
Based on Fault
“Injury”
vs.
Damage
Damage without Injury
“Damnum Absque Injuria”
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Ch. I - Development of Liability
Based on Fault
Holmes. The Common Law (1881)
(McN, Supp. P. 1)
“The business of the law of torts is to fix the
dividing line between those cases in which
a man is liable for harm which he has
done, and those in which he is not.”
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Function of Tort Law:
Determine When Loss is to be Shifted
Holmes (1881) (The Common Law):
The General Principle of our Law:
Loss from accident must lie where it
falls (unless fault is proven).
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Ch. I - Development of Liability
Based on Fault
WHAT IS
A
“TORT?”
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Ch. I - Development of Liability
Based on Fault
A TORT
is a
CIVIL
WRONG OR INJURY
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Ch. I - Development of Liability
Based on Fault
“CIVIL WRONG?”
Private Law vs. Public Law
Tort vs. Crime
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Tort? Definition:
Civil Wrong
Law provides Remedy
(Other than Breach of
Contract)
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Ch. I - Development of Liability
Based on Fault
WHAT IS
“TORTS?”
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Ch. I - Development of Liability
Based on Fault
TORTS
is a an area of law
that imposes DUTIES on
persons to act in a manner
that will not
INJURE other PERSONS
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Ch. 1 –Development of Liability
• ANONYMOUS (King’s Bench 1466)
• WEAVER v. WARD (King’s Bench 1616)
• BROWN v. KENDALL (Mass. 1850)
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Ch. 1 –Development of Liability
COMPARE:
ANONYMOUS (King’s Bench 1466)
&
WEAVER v. WARD (King’s Bench 1616)
* What is the development in liability?
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ANONYMOUS (1466)
• “If a man does a thing he is bound to do
it [so that] no injury or damage is inflicted
on others.”
• Examples:
• In erecting a building timber falls without my
intent and bruises my neighbor’s house.
• In defending myself from an assault I lift a
stick and injure a man behind me without
intent.
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Ch. 1 – INTRODUCTION: CASEBOOK P. 3
• FORMS OF ACTION - 13th Century
• “WRITS” – issued from King’s Courts
* TRESPASS
* TRESPASS ON THE CASE
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Common Law Forms of Action
Trespass - (Direct Force)
vs.
Trespass on the Case - (Indirect Injury)
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Chapter 1
Direct Force
Trespass
+
Immediate
vs.
Trespass
on the
Case
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Indirect Force
Professor McNichols
Intent
or
Negligence
+
Tangible Injury
43
Ch. 1 –Development of Liability
COMPARE:
ANONYMOUS (King’s Bench 1466)
&
WEAVER v. WARD (King’s Bench 1616)
* What is the development in liability?
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WEAVER v. WARD (1616)
FACTS: Action for trespass for assault & battery. A soldier on maneuvers hurt
and wounded another soldier in discharging his musket.
Defendant pleads (inter alia) that it happened: “accidentally, by
misfortune and against [defendant’s] will.”
Plaintiff demurred to defendant’s plea.
[i.e. attacked the legal sufficiency of defendant’s defense]
ISSUE: Was it a good plea (excuse) – to allege that the shooting happened:
ACCIDENTALLY + BY MISFORTUNE + AGAINST DEFENDANT’S WILL?
HELD: No. That an event happened by accident (+ by misfortune & against one’s will)
is not a good plea (defense) to an action for trespass. (Here there was liability for
trespass; not liability in some other manner.)
DICTA?: “Utterly without fault” = Defense to action for trespass
(inevitable + no negligence)
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Ch. 1 - INTRODUCTION
Which is the
Better Tort General Rule?
Anoymous or Weaver vs. Ward?
Which Rule Better Serves the
Purpose(s) of Tort Law?
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Ch. 1 - INTRODUCTION
WHAT ARE THE
PURPOSES
OF
TORT LAW?
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Ch. 1 - INTRODUCTION
PURPOSES (GOALS)
OF
TORT LAW?
Compare:
* Casebook: Introduction p. 1
* Abraham, Forms & Functions p. 14
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Purposes of Tort Law –(Prosser CB)
• Adjust Disputes (Alternative to Self Help)
• Deter Wrongful Conduct
• Encourage Socially Responsive Behavior
• Restore Injured Parties to Original
Condition by Compensation
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FUNCTIONS OF TORT LAW
(ABRAHAM)
A.
B.
C.
D.
E.
CORRECTIVE JUSTICE
OPTIMAL DETERRENCE
LOSS DISTRIBUTION
COMPENSATION
REDRESS SOCIAL GRIEVANCES
SUMMARY: A MIXED SYSTEM
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DEVELOPMENT OF FAULT LIABILITY
BROWN V. KENDALL (Mass. 1850)
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BROWN VS KENDALL (1850)
Facts: Action for trespass for assault & battery.
Defendant hit and hurt plaintiff’s eye while defendant
was attempting to separate their dogs from fighting.
The blow and the damage was inadvertent.
Procedure: Defendant appeals from a judgment for
plaintiff. The trial court’s instruction to the jury was
that the standard of care was ordinary care if beating
the dogs was a necessary act, but that defendant had
the burden of showing that he used extraordinary
care if the act was only a proper and permissible one.
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BROWN v. KENDALL (1850)
FACTS: Defendant struck & hurt plaintiff with a stick while
separating their fighting dogs.
The Blow
Inadvertent
&
was
&
The Damage
Unintentional
ISSUE #1: Error to instruct that defendant is liable for
unintentional striking with stick unless defendant proves he
acted with extraordinary care?
RULE: Plaintiff must prove fault (i.e. lack of ordinary care) to
recover for harm caused by inadvertent contact with another
person
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BROWN v. KENDALL (1850)
DICTA?
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No action lies if both plaintiff &
defendant act without ordinary
care
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Chapter 1
FAULT PRINCIPLE - No Liability Without Fault
Blameworthiness)
(i.e., intent or negligence)
JUSTIFICATION?
J. Shaw:
None
J. Holmes: [Common Law – McN. Supp. @ p. 1]
Fairness
Unfair - [it violates a “sense of
justice”] to hold a person responsible for
INEVITABLE ACCIDENT:
(one which ordinary care & foresight
is unable to guard against)
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AMBIGUITY?
ACCIDENT?
* What Does It Mean?
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Chapter 1
Negligence
Accident
vs
Non-Negligence
(B vs. K) - Unavoidable injury (pure accident)
Compare: W vs. W – “utterly without fault”
(inevitable & without negligence)
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(B vs. K) – An “Accident”
(“Inevitable Accident”)
• one that could not be avoided
• by using ordinary care
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Ch. 1 –Development of Liability
Based on Fault
•
•
•
•
•
ANONYMOUS (King’s Bench 1466)
WEAVER v. WARD (King’s Bench 1616)
BROWN v. KENDALL (Mass. 1850)
COHEN v. PETTY (D.C. 1933)
SPANO v. PERINI CORP. (N.Y. 1969)
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DEVELOPMENT OF FAULT LIABILITY
Cohen v. Petty (D.C. 1933)
(Negligence)
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PHASES OF A TORT SUIT -
Abraham
A. INITIAL PLEADINGS
• COMPLAINT (DECLARATION)
• ANSWER
B. DISCOVERY
• INTERROGATORIES
• DEPOSITIONS
C. PRE-TRIAL MOTIONS
• MOTION TO DISMISS
• SUMMARY JUDGMENT
D. TRIAL
E. APPEAL
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PHASES OF A TORT SUIT -
Abraham
A. INITIAL PLEADINGS
• COMPLAINT (DECLARATION)
• ANSWER
B. DISCOVERY
• INTERROGATORIES
• DEPOSITIONS
C. PRE-TRIAL MOTIONS
• MOTION TO DISMISS
• SUMMARY JUDGMENT
D. TRIAL
E. APPEAL
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Stages of Litigation – McNichols’
A Walk Through a Tort Suit (Supp. P. 6)
A.
B.
C.
D.
E.
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Pre-Pleading
Pleading
Discovery & Pre-Trial Motions
Trial
Appeal
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DEVELOPMENT OF FAULT LIABILITY
Cohen v. Petty (D.C. 1933
Facts: Action for negligence, alleging negligent
operation and reckless driving. Plaintiff, a
passenger in a car driven by defendant, was
injured when the car suddenly swerved from
the road and struck a culvert.
D’s uncontradicted evidence was that he
fainted just before the crash and had no
warning about his condition until the moment
before he fainted.
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DEVELOPMENT OF FAULT LIABILITY
Cohen v. Petty (D.C. 1933)
Procedure: The t/ct. entered judgment for defendant after
giving binding instruction to the jury. [i. e. directed a
verdict for defendant]
Issue: Was the trial court correct in refusing to allow the
jury to decide the negligence issue because there was
insufficient evidence of negligence by defendant?
Decision: Yes. Judgment for defendant affirmed.
Rule (Holding): Loss a sudden and unforeseeable illness is
not negligence.
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COHEN v. PETTY (D.C. ’33)
•
Cohen is an example of the modern
common law rule: automobile accidents are
decided under a negligence rule (i.e the B
vs. K “fault principle”)
•
Why is a driver’s sudden unforeseeable
heart attack which causes an accident not
negligence?
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COHEN v. PETTY (D.C. ’33)
CB note 5, p.12:
* Do you agree with the result in Cohen?
* Should a driver bear the risk of harm even if a
heart attack was unforeseeable?
* Should an “Anonymous” or a Weaver vs. Ward
type rule be the law for automobile accidents?
* Should this depend upon whether the driver has
liability insurance?
* Should auto accidents be handled by a “no fault”
insurance system?
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DEVELOPMENT OF FAULT LIABILITY
Spano v. Perini Corp. (N.Y. 1969)
(Strict Liability – Dangerous Activities)
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DEVELOPMENT OF FAULT LIABILITY
Spano v. Perini Corp. (N.Y. 1969)
Issue: Does the principle of absolute liability apply
to property damage caused by concussion from
non-negligent blasting, even though no physical
invasion of the property occurs?
Decision: Yes. Remitted to App. Div.
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DEVELOPMENT OF FAULT LIABILITY
Spano v. Perini Corp. (N.Y. 1969)
Rule (Holding):
One who engages in a highly dangerous activity,
[like blasting] in an area where it is likely to
harm neighboring property, should be liable for
resulting property damage, even if the greatest
care is used, and whether of not there is an
accompanying trespass.
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SPANO v. PERINI (N.Y. ’69)
• Spano is an example of a modern class of cases
which is subject to a “strict liability” type rule
(i.e. Strict liability applies to particularly
DANGEROUS ACTIVITIES (“ultra-hazardous”
(Rest. I); “abnormally dangerous” (Rest. II).
• Plaintiff need not prove that defendant was
negligent and defendant’s lack of negligence is
irrelevant.
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Bases of Liability
1. Intent
“Fault”
2. Negligence
vs.
3. Strict Liability
“Non-Fault”
(Absolute Liability)
e.g., Dangerous Activities & Defective Products.
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Tort Damages - Types
• Compensatory
• Economic Loss
• Non-Economic Loss
(General Damages)
e.g., Pain & Suffering
• Punitive
• Nominal
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Chapter II (CB p. 17)
Intentional Interference With
Person and Property
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Prima Facie Case - Intentional Tort
1.
2.
3.
4.
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Act
+
Intent
+
Cause
+
Injury
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Ch. II(1) Intent & II(2) Battery
PROBLEMS:
*
Meaning of INTENT ?
* Necessary & Sufficient
INTENT for BATTERY ?
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INTENT FOR BATTERY?
• GARRATT v. DAILEY (WA. 1955)
• ELLIS v. D’ANGELO (Cal. App. 1953)
• LAMBERTSON v. U.S. (2ND Cir. 1976)
• WALLACE V. ROSEN (Ind. App. 2003)
• VOSBURG v. PUTNEY (Wis. 1891)
• SPIVY v. BATTAGLIA (Fla. 1972)
* Are the cases consistent with each other?
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Ch. II(1), pp.17 - Intent
PROBLEM:
MEANING of INTENT?
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Garratt v. Dailey (Wash. ’55)
(CB pp. 17)
PROBLEM #1:
THE MEANING OF “INTENT” FOR
INTENTIONAL TORT PURPOSES?
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Garratt v. Dailey
FACTS: Defendant (“Little Brian Dailey” - (5yrs/9mo) moved
a chair a few feet to sit on it. “At which time” he
discovered Pl about to sit where the chair had been. He
tried to move the chair back, but could not do so in time.
Pl fell to the ground & fractured her hip.
PROCEDURE: Trial ct. (w/o jury) found that (in moving the
chair) def. did not have any willful or unlawful purpose;
nor any intent to injure plaintiff or to bring about any
unauthorized or offensive contact; nor the purpose, intent
or design to perform a prank or to effect an assault and
battery upon the plaintiff.
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GARRATT v. DAILEY
• ISSUE:
Was the trial court’s finding of lack of intent
error because it did not adequately consider the
rule that a person intends a harmful contact if he or
she knows with substantial certainty that such a
contact will result from his conduct?
• DECISION: Yes. Remand to t/ct to clarify his findings
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GARRATT v. DAILEY
• ISSUE: (alternate statement: w/o procedural
context)
Will evidence that a person knows with
substantial certainty that a harmful contact with
plaintiff is substantially certain to result from his
conduct be sufficient to prove a battery intent,
even if the person had no purpose or desire to
cause a harmful contact with plaintiff?
DECISION: Yes. Remand to t/ct to clarify his findings
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Garratt v. Dailey (Wash. ’55)
Held: The trial court’s findings of lack of intent were inadequate
because it was not clear that the court considered the rule that
intent exists when a person knows that a consequence will
occur even if he or she does not desire it to occur.
Rule Applied: Rest I, § 13
A person intends a harmful or offensive contact if the person
acts
for the purpose of causing such contact, or
knows that such contact is substantially certain to be
produced
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GARRATT v. DAILEY
HOLDING(RULE):
A person intends a harmful or offensive
contact if he or she acts either for the
purpose of causing such contact or knows
with substantial certainty that such
contact will occur. (Rest. I, § 13).
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GARRATT v. DAILEY
REASONING:
A definition of battery, not all inclusive, but
sufficient for this case is the intentional infliction of
a harmful contact upon another.
The trial court’s findings were not clear enough
because they did not specify whether the child
knew with substantial certainty that plaintiff would
attempt to sit where the chair had been. A
sufficient intent can be inferred from such
knowledge. If Brian had such knowledge it would
prove [by inference] that he intended to cause
harmful contact.
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Intent? (Rest.1st, §13, comment a) CB 18
For the PURPOSE of
or
Actor KNOWS with substantial
CERTAINTY consequence
WILL occur.
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86
Intent? (Rest. 1st, §13, comment a) CB 19
Knows with substantial certainty that
consequence
WILL occur
(Intent)
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vs.
Professor McNichols
MIGHT occur
(Negligence)
87
Garratt v. Dailey (Wash. ’55)
• Other Aspects of the Opinion
• Wrongful Act Necessary? - For tort liability of both
adults and minors there must be a wrongful act by
defendant. But here, Brian’s knowledge could be sufficient
to make his act wrongful.
• Liability of Minors for Torts? - In general, minors are
liable for torts committed with force just as is any other
[adult] person. The only relevance of Brian’s age is in
determining what he knew. (His experience, capacity &
understanding are material to this issue.)
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88
Intent?
HYPO:
Suppose that the evidence established
that, when he first moved the chair,
Little Brian Dailey knew with substantial
certainty that Ms. Garrett might sit down
where the chair had been and hurt
herself physically?
Sufficient intent for battery?
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89
Garratt v. Dailey (Wash. ’55)
• In regard to the issue about what is the
necessary
and
sufficient
minimum
needed for the intentional tort of battery:
inten
• Is the Garratt case consistent with Lambertson?
• Garratt consistent with Rest. II?
What is the Washington state law on this issue?
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90
Garratt v. Dailey (Wash. ’55)
• Answer: One cannot tell from the opinion.
* The Court says in the opinion:
“A definition of battery, not all inclusive, but sufficient
for this case is the intentional infliction of a harmful
contact upon another. . .” [CB p. 18]
(the passage omitted in the casebook does not
indicate what the “all inclusive” Washington law is on the
point; i.e. intent to touch – intent to offensively touch, etc.)
*
What difference, if any, might this make on these facts?
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91
INTENT? Rest. (3rd) of Torts: Liability for Physical
Harm (Basic Principles) (Proposed Final Draft # 1, 4/6/2005)
* Ch. 1
INTENT, RECKLESS, AND
NEGLIGENCE: DEFINITIONS
Sec. 1. Intent
A person acts with intent to produce a
consequence if:
(a) the person acts with the purpose of
producing that consequence; or
(b) the person acts knowing that the
consequence is substantially certain to result.
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92
Restatement (3rd) Torts: Liability for
Physical Harm (Basic Principles)
(Proposed Final Draft #1, 4/6/2005)
• Generally follows the Rest. 1st & Rest. 2d on the
meaning of intent (i.e. intent extends to
purpose or knowledge with substantial certainty
that a consequence will result.)
• “Substantial certainty” principle extends as to
general rule to all intentional torts for physical
harm (with limited exceptions).
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93
Spivey v. Battaglia (Fla. ’72)
(CB p. 20)
• MEANING OF INTENT ISSUE?
*
Consistent with Garratt case &
Rest. 2nd & 3rd ?
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94
Spivey v. Battaglia (Fla. ’72)
Facts: Action based on (1) negligence & (2)
battery. Mr. Battaglia gave Ms. Spivey, his coemployee, a “friendly . . . unsolicited hug” at
lunch, to tease her, knowing she was shy. He
then pulled her head toward him. This caused
paralysis.
The trial court granted summary judgment
for defendant on the grounds that the conduct
constituted a battery and was barred by a 2
year statute of limitations.
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95
Spivey v. Battaglia (Fla. ’72)
Issue: (Ct’s statement @ CB 21)
“The question presented . . . is whether
petiitioner’s conduct could be maintained on
the negligence count, or whether respondent’s
conduct amounted to an assault and battery
as matter of law and was barred by the
running of the two year statute of limitations
on assault and battery.
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96
Spivey v. Battaglia (Fla. ’72)
Held:
S.J. reversed. Plaintiff’s action is not barred as a
battery because it was not a battery and there should
be a new trial on a negligence theory of liability.
Defendant’s conduct was not a battery where a
reasonable person would not intend all the “bizarre
consequences” which resulted from his friendly
unsolicited hug.
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97
Spivey v. Battaglia (Fla. ’72)
Rule (Applied):
A person will be held in law to have
intended a particular result if a reasonable
person would be substantially certain that the
particular result will occur.
Knowledge of a particular risk (i.e. that the
risk is foreseeable) is not sufficient to constitute
intent. The action would be one for negligence
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98
Spivey v. Battaglia (Fla. ’72)
Rationale: This was not a battery under the “substantial
certainty” intent rule. The MacDonald case is
distinguishable because here, a reasonable person in
defendant’s position would not believe that [all] the
bizarre results were substantially certain to follow.
Note: The court uses an OBJECTIVE STANDARD (this is,
at best, a very small minority view; the majority and
the Restatement (2d & 3rd PFD) view is that the intent
standard is SUBJECTIVE). What did the actor intend
(i.e. know or want)?
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99
Spivey/Lambertson CB nt. 5,p.23
* Suppose, by mistake, a surgeon operates on
the wrong leg of patient in VA Hospital?
Compare: (two cases with these facts)
* Moos v. U.S., 225 F.2d 705 (8th Cir ’55) (No
action by patient against U.S. – it’s battery)
* Lane v. U.S., 225 F. Supp. 850 (E.D. Va. ’64
(Patient can sue U.S. – its essentially negligent
malpractice; Congress did not intend to extend
FTCA immunity to “technical batteries.)
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100
Ch. II(1) Intent & II(2) Battery
PROBLEM #2:
* Necessary & Sufficient
INTENT for BATTERY ?
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101
NECESSARY & SUFFICIENT
INTENT FOR BATTERY?
• GARRATT v. DAILEY (WA. 1955)
• ELLIS v. D’ANGELO (Cal. App. 1953)
• LAMBERTSON v. U.S. (2ND Cir. 1976)
• WALLACE V. ROSEN (Ind. App. 2003)
• VOSBURG v. PUTNEY (Wis. 1891)
• SPIVY v. BATTAGLIA (Fla. ‘72)
* Are the cases consistent with each other?
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102
Objectives of a “Case Law” Class
• SKILLS TRAINING- Read & Think “Like a Lawyer”
• LEARN THE LAW - from Cases
• Identify - The Issue(s), Rule(s) & Reasoning
• USE THE LAW - in “Legal Reasoning”
• Compare & Distinguish Cases
• Make Legal Arguments
(e.g. By Precedent or Analogy)
• EVALUATE THE LAW
• What policies does the rule (law) further?
• What are the consequences of the rule
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(law)? Professor McNichols
103
AMBIGUITY
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104
INDETERMINANCY
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105
Ch. II(1) Intent (CB 17)
& II(2) Battery (CB 29)
* TWO DISTINCT PROBLEMS:
*
Meaning of INTENT ?
* Necessary & Sufficient
INTENT for BATTERY ?
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106
INTENT FOR BATTERY?
ELLIS v. D’ANGELO (Cal. App. 1953)
(Supp., p. 7)
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107
Ellis v. D’Angelo
Facts: A baby sitter alleged that Sal D’Angelo, the four year
child she was watching, shoved her to the ground and
broke her wrists and arms. He had a habit of violently
attacking people.
She sues the child and his parents, pleading 3 causes
of action:
I. Battery - against the child
II. Negligence - against the child (Sal)
III. Negligence – against the parents (failure to warn)
*
The t/ct dismissed all three counts for failure to
state a cause of action.
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108
D’Angelo
Statute - “A minor . . . is civilly liable for a wrong
done by him”
Interpretation – A minor can be liable for
damages even if not capable of knowing the:
Wrongful character of Act
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109
Ellis vs D’Angelo
Held: An allegation that a 4 year old child “pushed . . .” a
babysitter “violently to the floor” stated a cause of
action for battery against the four year old.
Rule/Rationale:
A child is responsible for an intentional tort if he or
she has the capacity to intend and does intend the
intent which is required for the particular tort. A 4 year
old might be proven to be capable of intending [& of
having intended] the “VIOLENT conduct which is
ESSENTIAL” for battery.
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110
Battery ? – Necessary & Sufficient
Intent for Battery?
AMBIGUITY
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111
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
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112
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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113
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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114
Rest. 2nd §§ 13 & 14 - Ambiguity
• Dobbs. The Law of Torts §30 (West 2000)
“The question is whether the plaintiff shows intent
by showing merely an intent to touch that turned out
to be offensive or harmful, or whether she must
show that the harm or offense was also intended. On
this point the Restatement and some of the
cases are ambiguous.” [emphasis added] . . . .
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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115
Intent for Battery?
(Necessary & Sufficient Intent?)
Possible Positions: INTEND?
z Contact ?
z Contact + Offense?
--------------------------------OTHERS?
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116
NECESSARY & SUFFICIENT
INTENT FOR BATTERY?
• GARRATT v. DAILEY (WA. 1955)
• ELLIS v. D’ANGELO (Cal. App. 1953)
• LAMBERTSON v. U.S. (2ND Cir. 1976)
• WALLACE V. ROSEN (Ind. App. 2003)
• VOSBURG v. PUTNEY (Wis. 1891)
• SPIVY v. BATTAGLIA (Fla. ‘72)
* Are the cases consistent with each other?
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117
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
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118
LAMBERTSON v. U.S.
(2nd Cir. ’76) Supp. p. 13
FACTS: At an Armour Co. meat loading dock, Boslet, a USDA
meat inspector, without warning, jumped on the back of Pl
(an Armour EE) in horseplay without intending to injure him.
Boslet screamed “boo”, pulled P’s wool stocking over his eyes
& road him “piggyback.” Pl. fell forward hitting his face on
some meat hooks which were no more than 6” away. Pl
suffered severe mouth and teeth injuries.
Pl sued the U.S. under the Federal Tort Claims Act,
which waives U.S. tort immunity. T/ct dismissed on grounds
Boslet’s act was a “battery” and thus not within the FTCA
which allows claims only for negligence by its EEs, not
intentional torts.
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119
LAMBERTSON v. U.S. (2ND Cir. 1976)(Supp. p. 13)
Issue:
Did the t/ct. properly dismiss P’s claim
against the U.S. for damages on the grounds that
the U.S. was immune from suit under the FTCA
because P’s conduct was actionable as battery (&
not negligence) where D’s EE jumped on the P’s
back in horseplay & w/o an intent to physically
injure the plaintiff, but where serious injury
occurred when P’s head hit a meat-hook on the
wall 6 “ from his head?
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120
LAMBERTSON v. U.S. (2ND Cir. 1976)(Supp. p. 13)
INTENT SUFFICIENT FOR BATTERY?
Issue:
Was Boslet’s playful jump on
Lambertson’s back a battery (so that the
U.S. was immune from liability under the
doctrine of sovereign immunity?
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121
Lambertson v. U.S.(2ND Cir. 1976)(Supp. p. 13)
Held: The U.S. is immune from liability for intentional torts. No
action was available here because D’s conduct in intentionally
jumping on P’s back was a battery [& not negligence]. [For
purposes of F.T.C.A. governmental immunity waiver?]
Rationale: Intent to contact a person is sufficient intent
for battery. Defendant argues that his complaint sounds in
negligence, but Def. did not accidentally jump on P’s back.
The court is bound to decide based on what Congress
wrote.
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122
LAMBERTSON V. U.S. (1976)
* “It is hornbook law . . . that the intent
which is an essential element of the action
for battery is the intent to make contact not
to do injury” [citing a NY case]
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123
Lambertson v. U.S.
Concurring Opinion:
There is a battery here (Citing Rest II § 16(1) –
(intending “offensive but not harmful contact”).
There is a good argument for interpreting the Act
as excepting only intentionally harmful batteries, but
the weight of authority is that Congress intended to
exclude all batteries, even “technical batteries.”
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124
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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125
Spivey v. Battaglia (Fla. ’72)
(CB p. 20)
* NECESSARY & SUFFICIENT INTENT FOR BATTERY?
*
Is the Spivy (unsolicited hug) case
consistent with Lambertson?
How would the Lambertson court have
decided Spivy?
How would Spivy have been decided in
a state which follows the Rest. 2d of Torts?
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126
INTENT FOR BATTERY?
VOSBURG v. PUTNEY (Wis. 1891)
(Supp. p. 11)
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127
Vosburg v. Putney (Wisc. 1895)
Facts: Action for battery by Vosburg(14 years old) against
Putney (11years old) for damages resulting from a
slight kick given by D to Vosburg in a classroom during
school hours.
Procedure: Prior trial: J for Pl for $2800. On retrial a 2d
jury awarded $2500. The jury found specially that the
kick enflamed a pre-existing injury and was a “exciting
cause” of the P’s injuries & that Def. did not intend to
harm the plaintiff in touching P’s leg. On appeal D
argues that there can be no liability for battry if D did
not intend “any harm” to Pl. in kicking his leg.
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128
Vosburg v. Putney (Wisc. 1895)
Issue: Is an intent to do harm required in an
action for battery for physical harm resulting
from a slight intentional kicking of another
done while performing an unlawful act (i.e.
without consent during class)?
Decision: No. An intent to physically harm is not
required for battery if the act “of kicking” is
unlawful. However, the case is remanded for
because the t/ct. erred in admitting the P’s
expert’s witness about causation.
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129
Vosburg v. Putney (Wisc. 1895)
Rule: For an assault & battery, a plaintiff
must show that “the intention was
unlawful or that the defendant was in
fault. If the intended act is unlawful, the
intention to commit it must necessarily
be unlawful.”
Rationale: “If the kicking of plaintiff by
defendant was an unlawful act the
intention of defendant to kick him was
also unlawful.”
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130
Vosburg v. Putney (Wisc. 1895)
Rationale:
Defendant’s intention to kick the plaintiff will
be unlawful if the act [itself] is unlawful.
Defendant’s act of kicking was unlawful
because it was done
(1) without any implicit license (i.e. consent) from
Pl. and
(2) was in violation of the order and decorum of
the school. This was not like a kick in the
playground which would not be battery
because of the implied license (consent)
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131
Vosburg v. Putney (Wisc. 1895)
Holding # 2 - The t/ct. erroneously admitted the
testimony of P’s expert medical witness on causation
because the form of the question asked was
improper.
Holding #3 - The t/ct. properly refused to instruct that
only damages which can be reasonably contemplated
are recoverable because “the wrongdoer is liable for
all injuries resulting directly from a wrongful act,
whether they could or could not have been
foreseen.” [emphasis added]
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132
Vosburg v. Putney (Wisc. 1895)
* In what sense is defendant’s
act unlawful?
* Is Vosburg consistent with
Lambertson (the meat hook
case)?
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133
Intent for Battery?
(Necessary & Sufficient Intent?)
Possible Positions: INTEND?
z
Contact ?
z
Contact + Offense?
-------------------------------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)
134
Necessary & Sufficient Intent for Battery?
* HYPO:
Suppose that Little Sal D’Angelo moved to
Seattle Washington 1 year after he ran into the
babysitter. He had kicked his habit up a notch
and gotten mechanized. He now runs into
people with the tricycle that he received as a
gift for his 5th birthday.
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135
Necessary & Sufficient Intent for Battery?
* HYPO (cont.):
Suppose that on the day that Little Sal was 5 years,
nine months old, he again found himself with a
babysitter and said to himself as he was making one of
his “bombing runs” in the kitchen: “This is great fun. I
think that I will ride over by the babysitter.” As he got
close he said: “I don’t want to hit and hurt her, but I
know with substantial certainty that if I keep going I
might hit and might hurt her.” He ran into her.
Battery (under Wash. law) ? Sufficient intent?
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136
Necessary & Sufficient Intent for Battery?
• HYPO (cont.) Variation 1:
Suppose that instead, as Sal is riding he
says to himself: “I don’t want to hit her, but I
know with substantial certainty that I will hit
and hurt her.”
Battery? Sufficient intent?
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137
Necessary & Sufficient Intent for Battery?
* HYPO (cont.) – Variation 2:
Suppose that instead, as Sal is riding he says
to himself: “I don’t want to hurt her but I know
with substantial certainty that I might hit her
and make her mad.”
Battery? Sufficient intent?
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138
Necessary & Sufficient Intent for Battery?
* HYPO (cont.) – Variation 3:
Suppose that instead, as Sal is riding he
says to himself: “I don’t want to hurt her but I
know with substantial certainty that I will hit
her and make her mad.”
Battery? Sufficient intent?
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139
Necessary & Sufficient Intent for Battery?
* HYPO (cont.) – Variation 4:
Suppose that instead, as Sal is riding he says
to himself: “I don’t want to hurt her or make
her mad and I don’t think I will, but I know
with substantial certainty that I will hit her.”
Battery? Sufficient intent?
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140
Necessary & Sufficient Intent for Battery?
* HYPO (cont.) – Variation 5:
Suppose that instead, as Sal is riding he
says to himself: “I don’t want to hurt her or
make her mad but I know with substantial
certainty that I might hit her and Mommy has
told me I will get in trouble and that the
babysitter will sue us if I run into her.”
Battery? Sufficient intent?
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141
Intent for Battery?
(Necessary & Sufficient Intent?)
Possible Positions: INTEND?
z
Contact ?
z
Contact + Offense?
z
Contact + Invade a legally protected interest
-------------------------------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)
(Wallace)
(Vosberg?)
(D’Angelo)
(Spivey)
142
Restatement (3rd) Torts: Liability for
Physical Harm (Basic Principles)
(Proposed Final Draft #1, 4/6/2005)
• Battery – Necessary & Sufficient Intent?
* Issue = Beyond the Scope of Rest. 3rd
* The Restatement 3rd deals with the
question of the meaning of intent generally, but does
not reach the issues of what is required as necessary
and sufficient intent for the particular intentional
torts. [That issue is still controlled by the Rest. 2d
provisions].
Transferred Intent? -The Rest 3rd does discuss
the “transferred intent” issue, however.
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143
The Potential Significance of the Line Between
Negligent and Intentionally Wrongful Conduct
•
•
•
•
•
•
•
(Notes after Spivey – CB p. 23, note 4)
Punitive Damages – Availability?
Contributory Negligence Defense?
Liability for Unforeseeable Consequences
Insurance Policy Coverage?
Statute of Limitations
Workers Compensation Immunity
Tort Actions against U.S. (F.T.Claims Act)
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144
AMBIGUITY
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145
INDETERMINANCY
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146
Objectives of a “Case Law” Class
• SKILLS TRAINING- Read & Think “Like a Lawyer”
• LEARN THE LAW - from Cases
• Identify - The Issue(s), Rule(s) & Reasoning
• USE THE LAW - in “Legal Reasoning”
• Compare & Distinguish Cases
• Make Legal Arguments
(e.g. By Precedent or Analogy)
• EVALUATE THE LAW
• What policies does the rule (law) further?
• What are the consequences of the rule
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(law)? Professor McNichols
147
Intent for Battery?
(Necessary & Sufficient Intent?)
Possible Positions: INTEND?
z
Contact ?
z
Contact + Offense?
-------------------------------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)
148
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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149
Chapter II (2) CB
Battery
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150
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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151
INTENT FOR BATTERY?
Wallace vs. Rosen (Ind. App. 2002)
(CB p. 30)
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152
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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153
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.”
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154
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
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155
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]
10/2/2006
Professor McNichols
156
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.]
10/2/2006
Professor McNichols
157
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?)
10/2/2006
Professor McNichols
158
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?
10/2/2006
Professor McNichols
159
Battery - Harmful Contact (Rest. 2d §13)
Torts Casebook p. 33
1.
2.
3.
4.
10/2/2006
Act
+
Intent - “Harmful or Offensive Contact”
+
Cause
+
Injury - Harmful Contact
Professor McNichols
160
Battery - Harmful Contact (Rest. 2d §13)
1.
2.
Act
+
Intent
Harm
contact + intend
+
3.
4.
or
Offense
Cause
+
Injury - Harmful Contact
10/2/2006
Professor McNichols
161
Battery - Harmful Contact (Rest. 2d §13)
1.
2.
Act
+
Intent
Harmful
Contact
(which is)
+
3.
4.
or
Offensive
Cause
+
Injury - Harmful Contact
10/2/2006
Professor McNichols
162
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.”
10/2/2006
Professor McNichols
163
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?
10/2/2006
Professor McNichols
(Lambertson)
(Rest. II)
(Vosberg?)
(D’Angelo)
(Spivey)
164
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]
10/2/2006
Professor McNichols
165
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?
10/2/2006
Professor McNichols
166
Transferred Intent
X
Intent
transfers
Defendant
(Intends Action)
Plaintiff
10/2/2006
Professor McNichols
167
Battery - Harmful or Offensive Contact
(Rest. 2d §13 & 18) CB p. 30
1.
2.
Act
+
Intent +
3.
Cause
4.
+
Injury -
10/2/2006
Harmful or Offensive
Contact
or
Imminent Apprehension
of Contact
with Plaintiff
or with a Third Person
Harmful or Offensive Contact
Professor McNichols
168
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).
10/2/2006
Professor McNichols
169
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.
10/2/2006
Professor McNichols
170
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?
10/2/2006
Professor McNichols
171
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?
10/2/2006
Professor McNichols
172
Keel v. Hainline (OK 1958)
Transferred Intent?
10/2/2006
Professor McNichols
173
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.
10/2/2006
Professor McNichols
174
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.”
10/2/2006
Professor McNichols
175
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?
10/2/2006
Professor McNichols
176
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?
10/2/2006
Professor McNichols
177
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)
10/2/2006
Professor McNichols
178
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)
10/2/2006
Professor McNichols
179
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)
10/2/2006
Professor McNichols
180
Chapter II (2)
Battery
10/2/2006
Professor McNichols
181
Cole v. Turner (1704)
“The least touching in anger is a
battery.”
Modern Law?
“The least [intentional] touching in
anger is a battery.”
10/2/2006
Professor McNichols
182
Chapter II (2)
Battery
(Offensive Contact) – CB 33
10/2/2006
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183
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”
10/2/2006
Professor McNichols
184
Offensive Battery – Rest. 2nd § 19
“A bodily contact is offensive if
it offends a reasonable sense
of dignity.”
10/2/2006
Professor McNichols
185
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?)
10/2/2006
Professor McNichols
186
Fisher v. Carousel Motor Hotel
(Tex. 1967)
OFFENSIVE BATTERY
(The things attached to persons rule)
10/2/2006
Professor McNichols
187
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.
10/2/2006
Professor McNichols
188
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
10/2/2006
Professor McNichols
189
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.”
10/2/2006
Professor McNichols
190
Ch. II (3) - Assault
ASSAULT?
10/2/2006
Professor McNichols
191
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.
10/2/2006
Professor McNichols
192
PFC - Assault (Rest. 2d §21)
1.
Act
+
2. Intent
+
3. Cause
+
4. Injury 10/2/2006
Harmful or Offensive Contact
or
Imminent Apprehension of
Such Contact with Plaintiff
or with a Third Person
Imminent Apprehension of Contact
(with Person)
Professor McNichols
193
Assault
Apprehension
of
Imminent Contact
With the Person
“Imminent apprehension of such contact”
10/2/2006
Professor McNichols
194
ASSAULT - SOME ISSUES
* APPREHENSION OF CONTACT v. FRIGHT?
* IMMINENT v. FUTURE CONTACT?
* CRIME v. TORT?
* REASONABLE? APPREHENSION
* WORDS ALONE?
10/2/2006
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195
Western Union v. Hill
ASSAULT?
10/2/2006
Professor McNichols
196
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
10/2/2006
Professor McNichols
197
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
10/2/2006
Professor McNichols
198
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?
10/2/2006
Professor McNichols
199
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?
10/2/2006
Professor McNichols
200
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.
10/2/2006
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201
Slides for Class – Wed 9/20/06
10/2/2006
Professor McNichols
202
McGUIRE v. ALMY (MASS. ’37)
TORT LIABILITY OF THE INSANE?
TRADITIONAL RULE
vs.
FAULT RULE
10/2/2006
Professor McNichols
203
INSANITY - INTENT
TRADITIONAL (COMMON LAW) POSITION:
*
Insane persons are liable for their torts
*
10/2/2006
(whether or not they are capable of intent)
Policy Reasons?
vs.
Mc Guire v. Almy (Mass ’37)?
Professor McNichols
204
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
10/2/2006
Professor McNichols
205
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
10/2/2006
Professor McNichols
206
False Imprisonment
Restatement 2nd § 35
Intentional
Confinement
Within Boundaries
Fixed by Defendant
10/2/2006
Professor McNichols
207
False Imprisonment - Issues
* Confinement? vs. Exclusion
* Reasonable Escape
10/2/2006
Professor McNichols
208
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
10/2/2006
Professor McNichols
209
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]
10/2/2006
Professor McNichols
210
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?
10/2/2006
Professor McNichols
211
False Imprisonment - Issues
* Confinement? vs. Exclusion
* Reasonable Escape
* Awareness Necessary?
10/2/2006
Professor McNichols
212
Parvi v. City of Kingston (NY ’77)
AWARENESS NECESSARY?
10/2/2006
Professor McNichols
213
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
10/2/2006
Professor McNichols
214
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.”
10/2/2006
Professor McNichols
215
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.
10/2/2006
Professor McNichols
216
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?
10/2/2006
Professor McNichols
217
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
10/2/2006
Professor McNichols
218
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
10/2/2006
Professor McNichols
219
False Imprisonment - Issues
* Confinement? vs. Exclusion
* Reasonable Escape
* Awareness Necessary?
* Restraint of Will?
* Threats of Physical Force?
vs.
* “Mere Moral Force”
*Duty to Release?
10/2/2006
Professor McNichols
220
Hardy vs. LaBelle’s (Mont. ’83)
RESTRAINT AGAINST THE WILL
VS.
CONSENT
10/2/2006
Professor McNichols
221
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.
10/2/2006
Professor McNichols
222
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
10/2/2006
Professor McNichols
223
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.”
10/2/2006
Professor McNichols
224
Enright v. Groves (Col. App. ’77)
False Arrest
vs.
False Imprisonment
10/2/2006
Professor McNichols
225
Enright vs. Groves (Colo. ’83)
Submission to Assertions of Legal
Authority to Restrain (False Arrest)
10/2/2006
Professor McNichols
226
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.
10/2/2006
Professor McNichols
227
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.
10/2/2006
Professor McNichols
228
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?
10/2/2006
Professor McNichols
229
Whittaker vs. Sanford (ME 1912
Restraint Against the Will
vs.
Moral Force
10/2/2006
Professor McNichols
230
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.
10/2/2006
Professor McNichols
231
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.
10/2/2006
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232
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
10/2/2006
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233
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
10/2/2006
Professor McNichols
234
Abraham - False Imprisonment (p. 28)
TENSION
PREDICTIBILITY OF OUTCOME
vs.
FLEXIBILITY OF APPLICTION
10/2/2006
Professor McNichols
235
Abraham – Standards/Rules (pp. 30 -31)
[“Bright Line”]
RULES
vs.
STANDARDS
Predictability ----Flexibility
10/2/2006
Professor McNichols
236
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?
10/2/2006
Professor McNichols
237
Intentional Infliction of Emotional Distress Casebook Cases
Silitznoff (Cal. 1952)
Slocum (Fla. 1958)
Harris (Md. 1977)
Taylor (Cal. 1959)
10/2/2006
Professor McNichols
238
St.Rubbish Collectors vs Silitznof - CA. ‘52
10/2/2006
•
Prior California law?
•
Is intentional infliction of
emotional distress alone a
tort?
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239
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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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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243
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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244
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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245
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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246
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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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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249
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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250
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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252
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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253
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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254
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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255
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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256
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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261
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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263
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.
10/2/2006
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264
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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265
Abraham - False Imprisonment (p. 28)
TENSION
PREDICTIBILITY OF OUTCOME
vs.
FLEXIBILITY OF APPLICTION
10/2/2006
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266
Abraham – Standards/Rules (pp. 28-30)
“Bright Line” RULES
vs.
STANDARDS
Predictability ----Flexibility
10/2/2006
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267
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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268
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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269
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)severe ED. There was
sufficient evidence of “intentional act.”
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270
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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271
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.
10/2/2006
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272
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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273
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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274
Okla. – Intentional Infliction of ED
Kraszewski v. Baptist Med. Cntr. (’97)
Possible Reading #1:
The case is decided under Rest. II, Sec. 46 (2)(a)
(conduct directed at a third person) - even though the
court does not cite this sub-section 46(2) nor suggest that
it or the problem exists.
+
in FN 22 the court says that the “pertinent part of Sec. 46
is Sec. 46(1).
Analysis: if so the case adds an additional limitation to
Oklahoma law – in section 46(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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275
Okla. – Intentional Infliction of ED
Kraszewski v. Baptist Med. Cntr. (’97)
Analysis:
If the case is decided under Sec. 46(2)(a), the case
* adds an additional limitation to Oklahoma law – in
section 46(2)(a) cases the plaintiff must also show in
eyewitness cases that the plaintiff was a “direct victim, “
physically involved in the accident.”
+
* expands the class of plaintiffs who can recover in Sec.
46(2)(a) cases from family to “close personal relationship.”
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276
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 46(1)
* because Defendant’s conduct is directed at both parties &
defendant intends ED to both.
+
* [FN 22 states that “pertinent part of Sec 46 is Sec. 46(1)]
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277
Okla. – Intentional Infliction of ED
Kraszewski v. Baptist Med. Cntr. (’97)
Analysis:
* if the case is decided under sec. 46(1), 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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278
Okla. – Intentional Infliction of ED
Kraszewski v. Baptist Med. Cntr. (’97)
Possible Reading #3: The case is decided under Rest. II, Sec. 46
(2)(b), not 2(a)
* Under Section 46(2)(b) “any other person” may recover if that
person suffers consequent “bodily harm” from the severe ED.
In the text at FN 16 the court says “the husbands injuries were
minor”, & the court also ambiguously refers to physical
injuries in its Conclusion (1st sentence).
* In addition, in distinguishing the OK negl. infliction of ED cases
which rejected a c/a for negl. Infliction of ED, the court says
that ”none of those cases involved circumstances in which
plaintiff was actually injured. Also, the ct. holds in FN1 that Pl
stated a c/a for negligent infliction of ED (which would require
consequent BI).
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279
Okla. – Intentional Infliction of ED
Kraszewski v. Baptist Med. Cntr. (’97)
Analysis:
* if the case is decided under Sec. 46(2)(b), not 2(a), the
case adds a limitation to a Sec. 46(2)(b) case:
* viz: not just anyone, but only those with a “close personal
relationship” can recover for witnessing D’s conduct, even when
theY suffer consequent bodily harm.
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280
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 third party
as is required for Sec. 46(2)
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281
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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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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283
Chapter III
Privileges
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284
Intentional
Tort PFC
Act
+
Intent
+
Cause
+
“Injury”
+
(Lack of Consent?)
Privileges
(Defenses)
1. Consent
2. Non-Consensual e.g.:
- Defense of Person: Self & Others
- Defense of Property:
* Real Property
* Personal Property (‘Chattels)
- Necessity: Public & Private
Privilege = conduct otherwise tortious = not tortious
because defendant acts to further important social interests
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CONSENT
TYPES OF CONSENT
• EXPRESS
• IMPLIED
“Volenti Non Fit Injuria”
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286
O’Brien vs. Cunard S.S. Co. (MA 1891)
IMPLIED CONSENT
Facts: Action for “assault” & negligence for vaccinating Pl
passenger without her consent (to allow her to get
certificate to pass through customs). Directed verdict for
defendant.
Held: Affirmed. D’s conduct was “lawful” because there
was implied consent (as a matter of law). Pl’s conduct
and the surrounding circumstances made it reasonable
for the defendant to conclude that Pl. consented.
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287
O’Brien vs. Cunard S.S. Co. (MA 1891)
IMPLIED CONSENT
* Factors (“circumstances”) court relies upon:
* Pl held up her arm when told she had to be
vaccinated again
* Pl did not protest & took the certificate & used it
* The alternative to vaccination was quarantine
* Def. could presume that Pl. knew this because the
regulation was posted on the ship
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O’Brien vs. Cunard S.S. Co. (MA 1891)
O’Brien illustrates:
*Plaintiff’s conduct can manifest consent
(holding up her arm)
*The surrounding circumstances are
important factors
(the certificate was a “must” & the
regulations were posted).
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CONSENT
CONSENT
* Actual - Consent is willingness in
fact that conduct take place. Need
not be communicated
vs.
* Implied consent
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290
IMPLIED CONSENT
Implied
Consent
Reasonably
Apparent Consent
“under
the circumstances”
- P’s Conduct
- Prior course
- Custom
Would a reasonable person in defendant’s position
believe P had consented to defendant’s conduct?
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SCOPE OF CONSENT
CONDUCT
CONSENT
vs.
CONSEQUENCES
Example: Consent to PUNCH vs. CONSEQUENCES
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EXCEEDING SCOPE OF CONSENT
A & B - CONSENT TO FIST FIGHT
*
*
*
A blackens B’s eye with 1st punch
B knocks out A’s teeth with 2nd punch
A pulls out knife and severely cuts B
LIABILITY?
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EXCEEDING SCOPE OF CONSENT
SOLUTION:
* A - RECOVERS NOTHING FROM B
(CONSENT TO CONDUCT)
* B - RECOVERS FROM A FOR THE CUT
BUT NOT THE BLACK EYE
A = is liable for the harm that exceeds the
scope of the consent
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HACKBART v. CINN. BENGALS (’79)
LIABILITY FOR EXCEEDING
SCOPE OF CONSENT
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295
HACKBART v. CINN. BENGALS
HELD:The conduct exceeded the scope of consent
A tort action for personal injuries suffered in a
violent sport, like NFL football, is available when
the participants engage in conduct that violates
both:
* The rules + the customs of the game that are
designed to protect the players from serious
injury
“All reason is not abandoned in the NFL”
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296
Mohr vs. Williams - Scope of Consent?
“Fix my right ear”
vs.
“Fix my hearing”
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297
Mohr vs. Williams (Minn. 1905)
* Implied Consent - Scope?
* Does consent to right ear operation imply
consent to operation on worse condition in left
ear?
* Incapacity
* Emergency justifies medical procedure
* Someone authorized to consent (family doctor)?
* Wrongful intent?
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Mohr vs. Williams (Minn. 1905)
Held:
#1: Scope of Consent – Rule: a physician has implicit
authority to extend an operation to which plaintiff
has consented, if during the course of the
operation, he discovers an unanticipated condition
which would endanger the life or health of the
patient if not removed [immediately?].
Here, the Dr. did not discover the left ear
problem during the right ear operation. He did an
independent examination, after he discovered that
the authorized operation was unnecessary.
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299
Mohr vs. Williams (Minn. 1905)
Held #2: JQ on emergency
#2 Emergency (Privilege?) - Consent “will be
implied” for medical and surgical treatment if the
condition would result immediately in serious injury
to the patient or if there is some other emergency
which would justify action without [explicit]
consent.
Here the question of whether P’s condition was
so alarming or fatal that it needed surgery
immediately was for the jury to decide.
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Emergency - Conduct Privileged
(Rest. 2d §892D)
If:
z Emergency makes it necessary or
apparently necessary to act to prevent
harm without consent from authorized
person.
+
z Defendant has no reason to believe
Plaintiff would refuse consent.
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301
Mohr vs. Williams (Minn. 1905)
Held #3: P’s Family Doctor had no authority
#1: Consent by Another (Family Doctor) –
Rule: Consent is effective if made by
someone with authority to do so.
Here, Def. argues that P’s doctor
consented because he failed to object. But he
had no authority to act on P’s behalf. He was
present in the operation to allay her fears
about the procedure and the anesthesia.
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Mohr vs. Williams (Minn. 1905)
Held #4: An operation w/o consent is wrongful
#1: Wrongful Intent Issue – Rule: Every unauthorized
touching of another is a battery unless it is
privileged. A person has a right to complete
immunity of his person from physical interference.
Here, Def. argues that there is no battery
because there was no wrongful intent since the
operation was medically necessary, was skillfully
performed & P consented to a like operation on the
other ear. But the act [ & intent?] is wrongful and
unlawful if there is no consent or privilege.
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303
Mohr vs. Williams (Minn. 1905)
Notes after case:
• Nt. 3 - Medical Emergency (privilege to act without
consent– rule. [Compare: Rest. II. Sec. 892D]
• Nt. 5 – Mohr = still good law today – but the problem is covered by
hospital consent forms
• Nts. 4 & 6 to 10 – What if patient says “No.” Can there be a legal privilege
to treat despite the refusal? Does it make a difference that the treatment
is needed to sustain life?
• Nt. 11 - Consent by Minors? – parent consent needed for major surgery –
unless its an emergency.
* “Mature minor” Rule
* Compare: OK minor self consent statute (63 O.S. 2601) S. p. 45.
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SCOPE OF CONSENT
CONDUCT
CONSENT
vs.
CONSEQUENCES
Example: Consent to PUNCH vs. CONSEQUENCES
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305
EXCEEDING SCOPE OF CONSENT
A & B - CONSENT TO FIST FIGHT
*
*
*
A blackens B’s eye with 1st punch
B knocks out A’s teeth with 2nd punch
A pulls out knife and severely cuts B
LIABILITY?
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306
EXCEEDING SCOPE OF CONSENT
SOLUTION:
* A - RECOVERS NOTHING FROM B
(CONSENT TO CONDUCT)
* B - RECOVERS FROM A FOR THE CUT
BUT NOT THE BLACK EYE
A = is liable for the harm that exceeds the
scope of the consent
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HACKBART v. CINN. BENGALS (’79)
LIABILITY FOR EXCEEDING
SCOPE OF CONSENT
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HACKBART v. CINN. BENGALS
HELD:The conduct exceeded the scope of consent
A tort action for personal injuries suffered in a
violent sport, like NFL football, is available when
the participants engage in conduct that violates
both:
* The rules + the customs of the game that are
designed to protect the players from serious
injury
“All reason is not abandoned in the NFL”
[See Lasaroff, Torts in Sports: Participant Liability 7 U.
Miami Entertainment & Sports L. Rev. 191 (1990)]
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“Legally Ineffective” Consent
Problem: There is an express or implied “yes”
– but is it legally effective?
1.
Incapacity (e.g., infants; unconscious, etc).
Emergency Rule (Implied consent vs. Privilege)
2.
3.
Fraud or Duress.
Mistake - Defendant takes advantage vs.
Mutual mistake.
Unlawful Acts (Consent Effective?) vs.
* (Statute/Policy? - intended to protect Pl.).
4.
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Demay vs. Roberts
Fraudulent Consent
vs.
Mistake
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General Rule
Rest. 2d §892(B)
Consent is effective even if Plaintiff is
MISTAKEN
Unless:
1. Defendant is aware of Plaintiff’s
mistake and takes advantage
or
2. Defendant induces the mistake by
misrepresentation.
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Fraudulently Induced Consent
DeMay vs. Roberts (MI 1881)
Complaint alleged:
* Dr. intended to deceive Plaintiff (by
bringing a medically untrained person to
help deliver her baby (“while plaintiff
believed he was and assistant physician.”)
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Fraudulently Induced Consent
DeMay vs. Roberts (MI 1881)
HELD: The evidence sustained complaint:
* Dr. [knowingly?] failed to disclose the true
character of his assistant (Scattergood) (“guilty
of deceit” without “fully disclosing”
Scattergood’s “true character.”)
+
* Plaintiff had no reason to believe the true
character (i.e. that his assistant was not
medically trained)
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Fraudulently Induced Consent
DeMay vs. Roberts (MI 1881)
Suppose:
That Dr. DeMay reasonably thought that plaintiff
knew that Scattergood was not a medical
person?
Answer: The issue then = “Unilateral Mistake”
about the essential nature of the conduct.
Rule =: The consent is good unless the other
knows about P’s mistake and takes advantage
(by failing to disclose, etc.)
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Fraudulently Induced Consent
DeMay vs. Roberts (MI 1881)
Suppose:
That neither Dr. DeMay nor plaintiff knew that
Scattergood was not a medical person?
Answer: The issue then = “Mutual Mistake” about
the essential nature of the conduct.
Rule = the same: The consent is good (i.e. unless
the other knows about P’s mistake and takes
advantage of it (by failing to disclose, etc.)
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Fraudulently Induced Consent
DeMay vs. Roberts (MI 1881)
Consent to “Essential Nature of Conduct”
vs.
Consent to “Collateral Matter”
• Suppose that A consents to sexual intercourse with
B, in return for an agreed sum of money. B pays A
with a counterfeit bill, knowing that A does not
know that the bill is counterfeit.
• Ans: Rest. II, Sec. 892B, illustration 9:
B is not liable to A for battery
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Consent to Unlawful Conduct
Legally Ineffective for Tort Purposes?
Policy Considerations: (CB
p. 102/103, nt. #9)
* State’s Interest - denial of compensation (if conduct = crime)
* Deterrence of Unlawful Conduct – (of Pl, Def, Others)
* Other – e.g. “in pari delicto” [where there’s equal guilt, D wins]
Battery vs. Other Crimes -Consent Effective?
* Battery: Breach of Peace vs. Other Crimes
* Majority: = No - Minority (R. II) = Yes
* Exception:
Legislative Intent to Protect Pl.
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HART v. GEYSEL (294 P 570 Wash. ’30)
CB p. 102; Nt #9 Illegal Activity?
CONSENT TO ILLEGAL ACTS = EFFECTIVE?
Breach of Peace Fight
vs.
Illegal Prize Fight
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HART v. GEYSEL (Wash. ’30)
Facts: Estate of Cartwright sues Geysel who engaged
in a unlawful prize fight with Cartwright in which
Cartwright was killed by a blow. T/ct sustained
demurrer to complaint.
Issue: Was consent to the illegal prize fight legally
effective so that no action for damages lies?
Held: Yes. Judgment affirmed. Consent by those who
engage in illegal prize fights for business or sport is
legally effective. (Court relies on Rest. I & II, Sec. 60)
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HART v. GEYSEL (Wash. ’30)
Rationale:
* The consent of those engaged in the fight is
effective because it is not necessary to reward the
loser in order the enforce the statute which
prohibits prize fights and makes it a crime to
engage in one.
* The court says that it is not necessary for it to
choose between the two competing views on the
effectiveness of mutual consent in breach of the
peace fights – the reason is that there was no
anger and hence no breach of the peace involved
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HART v. GEYSEL (Wash. ’30)
Rationale:
* Breach of the Peace Fights – competing views?
The court discusses this:
• Majority View: Consent is not effective. Each can sue the
other for the injuries received.
• Rationale = This view carries into tort law the general criminal rule that
consent to crime is ineffective.
(however the rule is an exception to two tort principles):
(1) one who consents to an invasion of a legally protected interest has no
right to complain
(2) No one should profit by his own wrong.
(The minority view carries out these two principles)
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HART v. GEYSEL (Wash. ’30)
Rationale: Breach of Peace Fights
* Minority View: Consent is effective. Neither
can sue. [This = Rest. II, Sec. 60]
* Court’s Rationale =
* This view refuses to apply the criminal
rule about consent to a crime being effective
when the issue is the tort question about
whether the combatants in an illegal prize
fight can sue each other for damages.
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Self Defense
Reasonable Force
X
SD
Self Defense: privilege = to protect one’s self by
*
Reasonable Force - if it is
* Reasonably Apparently Necessary
General Rule: Deadly Force = privileged only if
reasonably apparently necessary to protect against
reasonably apparent deadly force.
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DEADLY FORCE?
Deadly Force
=
force calculated to inflict death
or
serious bodily harm
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SELF DEFENSE
• DOES PROVOCATION Justify Self Def.?
* Virtually all courts say: “No” (insults, etc.)
• Retreat?
* Non-deadly force in SD? - all courts agree:
self defender need not retreat
* Deadly force? - Split
* CL & U.S. minority: must “retreat to the wall”
* U.S. majority – Self Defender need not retreat
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DEFENSE OF OTHERS
• More Limits On Privilege than Self Def.?
* Reasonable Mistake = Privileged?
* Two views:
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(1) Yes - like self defense
vs.
(2) No - rescuer privileged only if
apparent victim is privileged
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