2007-08 Torts
APT - English Legal Terminology (Prof. Robert Turk)
Introduction (p.1 of 7); civil actions involving intentional torts (p. 2 of 7); some intentional tort cases (pp. 3-7)
Introduction to the Law of Torts
A useful approach to the law of 'torts' is through the questions posed in the middle boxes in
the 'table' below:
Derivation
From where is the word 'tort' derived? From a Latin word:
'tortus' = twisted
Definition
How can the word 'tort' be defined?
Description How can any 'tort' be described?
''A civil wrong''
''A harms B, BUT
A could have avoided harming B.''
The answers to these three questions, above, help us to understand:
1) the origin of the word 'tort'; from where that word 'originated';
2) what the word 'tort' really means to lawyers, in its simplest meaning; and
3) how we can use and apply the word 'tort' to a variety of practical situations, in the 'real
world around us.
If A harmed B, but A could have avoided harming B, we can imagine that A could have
caused this harm in one of three ways:
-intentionally, because A had intent to cause that result to B;
-negligently, because A failed to do some duty, causing that result to B;
-or because society and its laws say that A is strictly liable to B,
due to some (dangerous) activity by A that resulted in the harm to B.
In whatever way that B has been harmed, ( 'intentionally', 'negligently', or due to 'strict liability' ),
the law of 'torts' seeks to compensate B for the harm he has suffered, through the awarding
of compensatory damages by the judge or jury. That compensatory damage award must be
paid by A to B to compensate B, trying to return B to his original position and make him
'whole again', as much as can be possible through an award of monetary (= money) damages.
Depending on the case and the type of harm suffered by B, the judge or jury could also make
an award of 'punitive (also called 'exemplary') damages' which appears to 'punish' B for
harm he has caused. Such 'punitive or 'exemplary' damages may be perhaps more properly
seen as a preventative step, to specifically deter A from repeating such behavior, and more
generally deter others in society from engaging in that same harmful behavior. Such language
may sound similar to principles in criminal law, and reminds us that the same act (such as a
punch in the nose) can be prosecuted by the State in criminal court AND also be litigated
by an injured plaintiff in civil court. Some torts, but not all torts, may also be crimes.
 Robert Turk 2002-2008
PAGE 1 / 7
A Civil Court Action Involving 'Intentional Torts'
∏ = Plaintiff who brings suit in court against…
∏
Plaintiff's case:
Through testimony and other evidence,
∏ must be able to prove certain elements:
An ACT
∆'s
∆ Defendant's case:
In defense, ∆ could perhaps try to prove:
by ∆
Perhaps some 'contact'
such as a punch in the nose
or being shot with a gun.
INTENT
∆ = defendant
by ∆
'STATE OF MIND' was EITHER
-There was no such act, or
-∆ did not commit such an act
and/or
-∆ did not have the intent that is necessary to
commit this tort…
'PURPOSEFUL'
∆ wanted or desired
the resulting harm,
or
'KNOWING'
∆ knew the resulting harm was
'substantially certain' to happen.
and/or
CAUSATION
-The result was too 'remote'
The result was 'PROXIMATELY CAUSED'
by the ACT
meaning it was 'forseeable', not remote.
DAMAGES to ∏
and/or
-No damage resulted
Damages could include a variety of items,
such as 'medical expenses', 'lost wages', etc.
and/or
ANY affirmative DEFENSES ? Examples:
-'Consent' (∏ had 'agreed to' or
'permitted' ∆'s act)
-'Self-defense'
-'Defense of others'
-'Defense of property'
Plaintiff has the 'burden of proof':
plaintiff must prove each of the (above) four elements
of his case to establish a 'prima facie case'.
If he does, then the burden of proof shifts to defendant.
 Robert Turk 2002-2008
If the 'burden of proof' has shifted to the defendant,
then she must now present some defense (such as the
defenses suggested above), or risk the court granting
'summary judgment' against her in the case.
PAGE 2 / 7
Continental Casualty Co. v. Mirabile
Court of Special Appeals of Maryland, 1982
52 Md. App. 387, 449 A.2d 1176.
Morton, J.
* * * [= This symbol indicates that the original opinion has been edited here, with some text removed.]
The testimony at trial disclosed that Russell Mirabile, [originally, the plaintiff, later ] appellee and crossappellant, had worked nearly five years as a trainee and then a claims representative at the Towson branch of
Continental Casualty Company (hereinafter 'Continental') investigating claims, preparing reports, and
maintaining files. Philip E. Klingler was the Towson office manager who directly supervised Mr. Mirabile's
work. Klingler, in turn, reported to William F. Sheehan, the claims manager of the Silver Spring regional office,
and ultimately to Ronald Lewis, the general manager of that office.
***
Although Mirabile's performance became more acceptable as reflected in the 'competent' ratings for the periods
from July 1 to October 1, 1977; July 7 to October 7, 1977; and July 8, 1977 , to April 28, 1978, he contends
that a pattern of workplace harassment was at this point initiated.
Mirabile testified that his desk was first moved against a blank wall; then he was assigned by Sheehan to various
uncomfortable desks — a desk near a noisy copying machine, a stick desk that was used as a lunch table, the
''wrong side'' of another adjuster's desk. With each move his supervisors would 'smirk' and laugh'. Mirabile also
noticed that he was being sent on distant assignments, files were not being delivered to him from the file room,
his completed work was disappearing from his case files, and his mail was not always delivered. He further
testified that Klingler would often 'direct his hum at me… hum, hum, hum, hum,'' put his face rather close, raise
his eyebrows, chuckle and walk away. Sheehan called him a 'hyena' and on another occasion a 'jackass' in
the presence of co-workers.
There was also evidence that all employees had to share desks due to cramped conditions; that Mirabile himself
would occasionally make bird calls, sing out loud, and make loud sarcastic remarks about the company; and an
expert witness testified that Mirabile showed signs of 'paranoid thinking'.
The culminating incident which prompted Mirabile to stop working and formed the basis of his assault and
battery claims occurred on June 27, 1979, after more than a year of such 'harassment.' The most violent version
of the facts follows. On that day Sheehan, having repeatedly asked Mirabile to sit at a desk by himself rather
than with Ed Hrica, whose desk he had previously been told to share, became annoyed when he saw Mirabile
sitting at Hrica's desk in the morning. He called Mirabile into his office, told him to stay away from Hrica, and
at one point 'swung his hand into' Mirabile. That afternoon when Sheehan saw Mirabile standing at Hrica's
desk making a phone call, Sheehan grabbed the receiver and slammed it down; stood chin to chin with Mirabile,
waving a finger in his face and screaming that he had 15 … 10 seconds to get out of the area; rushed at Mirabile
and started tapping his nose with his finger; repeatedly pushed Mirabile; grabbed Mirabile's arm and pulled him
back, saying he was going to fire him. Mirabile, crying 'worse than a baby' was so upset and 'shocked' that
it took him one-half hour to find his car in the parking lot.
He sought comfort of his priest that night and that of a psychiatrist the next day, who he has continued to see
twice a week. Having suffered what three experts agreed was a disabling psychological injury, Mirabile did not
return to work and a year later he was terminated.
[ Mirabile brought a tort action against Sheehan and Continental for inter alia assault and battery.
The jury returned a verdict of $80,000 compensatory damages against Sheehan and Continental,
with $25,000 punitive damages against Continental and $10,000 punitive damages against Sheehan. ]
 Robert Turk 2002-2008
Case continued on next page…
PAGE 3 / 7
Defendant's motions for a new trial and for a judgment notwithstanding the verdict were denied and
final judgment was entered on the jury's verdicts.
***
[An assault may be defined as an act which results in the threat of a harmful or offensive contact with the
person of another; an act causing apprehension of such a contact.
A battery may be defined as an act resulting in such contact.]
See also Restatement (Second) of Torts §§ 13, 21 (1965); Prosser, Law of Torts, §§ 9, 10 (4th ed. 1971).
Sheehan first asserts that the essential element of threat of a harmful or offensive contact was not present, citing
as support [ citation ], wherein it was held that plaintiff's workplace supervisor did not commit an actionable
assault and battery when he called plaintiff 'sweetheart' and gave him 'pats on the rear.'
While it may be true that 'the law disregards trifles,' [ citation ], we think there was sufficient evidence from
which this jury could have concluded that such a threat existed. Appellants' counsel conceded at trial that the
assault and battery claim, which it characterized as a 'pushing and shoving incident', was an issue of
credibility to be determined by the jury. It cannot now be reviewed on appeal.
***
The rationale is sound and the arguments are strong against allowing a common law action against an employer
for the intentional torts of a supervisory employee who cannot be said to be the employer's alter ego. To do so
would mean that in all tort incidents arising between co-employees, of which there are no doubt a multitude,
the plaintiff need only 'show that the assailant was one notch higher on the totem-pole than the victim' in order
to recover against the employer. … Were it otherwise, there would be a subversion of the very purpose of the
workmen's compensation scheme of spreading the risk of loss for injuries arising out of and in the course of
covered employment, in that an employer would be required not only to provide workmen's compensation but
also to defend tort actions of employees.
***
Judgment as to assault and battery award, reversed as to Continental Casualty Co., and affirmed as to
Willliam F. Sheehan.
QUESTIONS
At the trial level, Mirabile was known as the …=
because he originally filed with the court a document called a(n)…=
which first brought the case to court.
At the trial level, Continental and Mr. Sheehan were both known as …=
having filed in court a document called a(n)…=
Note that at the appellate level, the judge refers to the parties by different terminology,
such as …=
(when referring to Mirabile),
or such as…=
(when referring to Continental and Sheehan).
What is meant by Judge Morton's words 'While it may be true that the law disregards trifles' …?
Explain.=
Why would any of the counsel concede ('admit') at trial that there ever was a 'pushing and shoving incident'
which was an issue of credibility for the jury to decide?=
Remember: There are 'two sides to every story'…What is your opinion of what happened at this workplace?
Explain.=
 Robert Turk 2002-2008
PAGE 4 / 7
National Bond & Investment Co. v. Whithorn
Court of Appeals of Kentucky, 1938
276 Ky. 204, 123 S.W.2d 263.
Fulton, J.
Appellee, William Whithorn, [originally, plaintiff] brought this action for false imprisonment against the
appellant, National Bond and Investment Company, in the Jefferson circuit court and on a trial before a jury
verdict was rendered in his favor for $700 compensatory damages and $900 punitive damages.
Judgment was entered on this verdict and from that judgment this appeal is prosecuted.
The evidence discloses that the appellant had, or at least claimed to have, a conditional sales contract on a car in
possession of appellee, and that payments due under this contract had not been made. Appellant desired to
repossess the car and assigned its employees, O'Brien and Baer, to this task. Baer appears to have been a highpowered repossessor in the employ of appellant in Chicago and was imported to Louisville for some special
work along this line. These employees, after making inquiry from a relative of appellee, and after a little 'fast
work' connected with this inquiry, learned where appellee lived and by so doing managed to find him driving the
car on a street in Louisville. In their car they followed appellee in his car for some distance and hailed him down
for the purpose of making a repossession.
There is considerable conflict in the testimony as to what occurred between appellee and these two employees of
appellant on the occasion of this repossession, but the jury evidently accepted appellee's version of the melee….
…When O'Brien and Baer hailed appellee he thought they were officers and stopped his car, whereupon O'Brien
got out of his car, walked up to appellee's car, and invited him to get out and come back and talk to Baer. This
appellee refused to do, so finally Baer also came to appellee's car and from that time things began to move
rapidly. Appellee was informed that these employees desired to repossess the car and was notified to get out and
take his personal belongings. Appellee demanded evidence of their authority, which they assured him they had,
but their assurance did not satisfy appellee and the argument as to authority continued for some time. The
repossessors became impatient at being balked of their quarry and finally one of them said, 'Don't you move this
machine, I will have an officer here in about two minutes.' … After O'Brien came back he made the statement
that 'the officers will be here any minute…' Shortly after O'Brien returned, a wrecker, which had been called by
O'Brien, pulled up and one of the appellant's employees motioned for the wrecker to pull in front of appellee's
car to hook on, whereupon appellee started the motor in his car for the purpose of driving off, but O'Brien raised
the hood of the car and jerked loose the distributor wire. Appellee, not desiring to see his car put hors du combat,
opened the door of his car and started out after him. When appellee opened the door of his car and started out,
Baer attempted to reach through the window of the car on the other side and get the car key, but appellee sensing
what was in the wind, beat Baer to the key, and this seemed to 'peeve' the repossessors very much. O'Brien then
said, 'He has acted so smart I will have him put in jail,' and got in his machine and left. He came back in a short
while and it does not clearly appear whether or not he called the police officers, but at any rate a police officer
pursuant to a telephone call from someone, showed up a while afterwards.
When O'Brien returned from this second departure Baer directed the driver operating the wrecker to hook to
appellee's car and pull out with it, but in view of appellee's vehement protests the driver of the wrecker hesitated
to act, but after repeated demands by O'Brien finally coupled up with appellee's car and hoisted the front wheels
off the ground. Baer then climbed in appellee's car and the wrecker started pulling the car down the street,
whereupon appellee put on the emergency brake and threw the car into reverse, thereby managing to stall the
wrecker and bring the car to a stop after it had been pulled down the street something like 75 to 100 feet. During
the progress down the street, appellee, who says he tried to prevent Baer from getting in the car with him,
attempted to eject Baer from the car by kicks on the shins, which Baer says in his testimony were rather forcefully administered, but his attempts to dislodge this Chicago repossessor were wholly unavailing.
While all this was occurring numerous cars were passing up and down the street; some of them stopping and
looking and then driving on. In other words, the passing public seemed to realize that a good act was being put
on and did not miss the opportunity to enjoy at least a portion of it. After appellee had managed to bring the
procession to a halt by stalling the wrecker, a policeman came up and inquired as to the meaning of the
controversy, and the contestants on the respective sides stated their case. The policeman says that he refused to
 Robert Turk 2002-2008
Case continued on next page…
PAGE 5 / 7
pass on the merits of the controversy, but he did demand appellee's driver's license, which it appears appellee had
left at home. Appellee seemed to think the policeman was taking sides with the repossessors and became rather
angry, demanding the policeman's badge number and name, whereupon the policeman placed him under arrest.
The drama of the repossession ended with the policeman departing with appellee in tow and O'Brien and Baer
departing with appellee's car in tow, the result being a complete and satisfying repossession, at least in its results
to appellant's employees, O'Brien and Baer, but highly unsatisfactory to appellee.
***
If appellant had a valid conditional sales contract on appellee's car, and he was behind in the payments, appellant
had the right to repossess the car if it could do so peaceably, but, of course, had no right to create a breach of the
peace in doing so, or to put appellee under any kind of restraint, or to use any force directed against him in
making the repossession. [Citation.]
Appellant contends the transaction above recited did not amount to false imprisonment, its theory being that
Whithorn was in no wise restrained or impeded, and that he was perfectly at liberty at any time to go his way…
***
We are unable to agree with appellant's contention * * *. A reading of the evidence we have quoted above
makes it immediately apparent that appellee, in the present case, was placed under restraint by O'Brien and Baer.
They had him in his car under forcible control, being pulled down the street some 75 to 100 feet against his
vehement protest, and we are firmly of the opinion that such conduct on their part was a false imprisonment.
It is true, as [National Bond] argues, that [Whithorn] was at liberty to depart and these employees were not
preventing him from doing so, but the result of his departure would have been an automatic parting with his
automobile, which he did not desire to part with, and which he did not have to part with, and which O'Brien
and Baer had no right to take over his protests. While he was in the car he was in a place he had a legal right to
be, and in which neither O'Brien or Baer had a legal right to be, by force, and when these men hooked the
wrecker on and hoisted the front wheels in the air, forcibily dragging [Whithorn] down the street in his car, this
was unquestionably a restraint imposed upon him and a detention of his person, such as constitutes a false
imprisonment.
***
Wherefore, the judgment is affirmed.
Katko v. Briney
Supreme Court of Iowa, 1971
183 N.W.2d 657.
Moore, C. J.
The primary issue presented here is whether an owner may protect personal property in an unoccupied boardedup farm house against trespassers and thieves by a spring gun capable of inflicting death or serious injury.
We are not here concerned with a man's right to protect his home and members of his family. Defendant's home
was several miles from the scene of the incident to which we refer.
***
Plaintiff's action is for damages resulting from serious injury caused by a shot from a 20-gauge spring shotgun
set by defendants in a bedroom of an old farm house which had been uninhabited for several years. Plaintiff and
his companion, Marvin McDonough, had broken and entered the house to find and steal old bottles and dated
fruit jars which they considered antiques.
… The jury returned a verdict… for plaintiff and against defendants for $20,000 actual and $10,000 punative
damages. [The defendants appealed.]
Most of the facts are not disputed. In 1957 defendant Bertha L. Briney inherited her parents' farm land in
Mahaska and Monroe Counties. Included was an 80-acre tract in southwest Mahaska County where her grandparents and parents had lived. No one occupied the house thereafter. Her husband, Edward, attempted to care
for the land. He kept no farm machinery thereon. The outbuildings became dilapidated.
For about 10 years, 1957 to 1967, there occurred a series of trespassing and house-breaking events with loss of
some household items, the breaking of windows and 'messing up of the property in general.' The latest occurred
June 8, 1967, prior to the event on July 16, 1967, herein involved.
 Robert Turk 2002-2008
Case continued on next page…
PAGE 6 / 7
Defendants through the years boarded up the windows and doors in an attempt to stop the intrusions. They had
posted 'NO TRESPASSING' signs on the land several years before 1967. The nearest one was 35 feet from the
house. On June 11, 1967, defendants set a 'shotgun trap' in the north bedroom. After Mr. Briney cleaned and
oiled his 20-gauge shotgun, the power of which he was well aware, defendants took it to the old house where
they secured it to an iron bed with the barrel pointed at the bedroom door. It was rigged with wire from the door
knob to the gun's trigger so it would fire when the door was opened. Briney first pointed the gun so an intruder
would be hit in the stomach but at Mrs. Briney's suggestion it was lowered to hit the legs. He admitted he did so
'because I was mad and tired of being tormented' but 'he did not intend to injure anyone.' He gave no
explanation of why he used a loaded shell and set it to hit a person already in the house. Tin was nailed over the
bedroom window. The spring gun could not be seen from the outside. No warning of its presence was posted.
Plaintiff lived with his wife and worked regularly as a gasoline station attendant in Eddywille, seven miles from
the old house. He had observed it for years while hunting in the area and considered it as being abandoned. He
knew it had long been uninhabited. In 1967 the area around the house was covered with high weeds. Prior to
July 16, 1967, plaintiff and McDonough had been to the premises and found several old bottles and fruit jars
which they took and added to their collection of antiques. On the latter date about 9:30 p.m. they made a second
trip to the Briney property. They entered the old house by removing a board from a porch window which was
without glass. While McDonough was looking around the kitchen area plaintiff went to another part of the house
As he started to open the north bedroom door the shotgun went off striking him in the right leg above the ankle
bone. Much of his leg, including part of the tibia, was blown away. Only by McDonough's assistance was
plaintiff able to get out of the house and after crawling some distance was put in his vehicle and rushed to a
doctor and then to a hospital. He remained in the hospital 40 days.
Plaintiff's doctor testified he seriously considered amputation but eventually the healing process was successful.
Some weeks after his release from the hospital plaintiff returned to work on crutches. He was required to keep
the injured leg in a cast for approximately a year and wear a special brace for another year. He continued to
suffer pain during this period. There was undenied medical testimony plaintiff had a permanent deformity,
a loss of tissue, and a shortening of the leg.
The record discloses plaintiff to trial time had incurred $710 medical expense, $2,057 for hospital service, $62
for orthopedic service and $750 as loss of earnings. In addition thereto the trial court submitted to the jury the
question of damages for pain and suffering and for future disability. [Figures here 'rounded up' to next dollar.]
***
The main thrust of defendants' defense in the trial court and on this appeal is that ''the law permits use of a
spring gun in a dwelling or warehouse for the purpose of preventing the unlawful entry of a burglar or thief.'' …
***
The overwhelming weight of authority, both textbook and case law, supports the trial court's statement of the
applicable principles of law. Prosser on Torts, Third Edition, pages 116-118, states:
… the law has always placed a higher value upon human safety than upon mere rights in
property, it is the accepted rule that there is no privilege to use any force calculated to
cause death or serious bodily injury to repel the threat to land or chattels, unless there is
also such a threat to the defendant's personal safety as to justify a self-defense. …Spring
guns and other man-killing devices are not justifiable against a mere trespasser, or even
a petty thief. [Such deadly devices] are privileged [and so, allowed to be used] only
against those upon whom the landowner, if he were present, would be free to inflict
injury of the same kind.
Restatement of Torts, section 85 … states: ''The value of human life and limb, not only to the individual
concerned, but also to society, so outweighs the interest of a possessor of land in excluding it from those whom
he is not willing to admit thereto that a possessor of land has, as is stated in § 79, no privilege to use
force intended or likely to cause death or serious harm against another whom the possessor sees about to
enter his premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to the
occupiers or users of the premises. …''
Judgment affirmed.
 Robert Turk 2002-2008
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