Physical act of threatening nature that puts an individual in reasonable fear of bodily harm (Picard)




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[Company Address]

08

Fall

Torts

Outline


  1. Intentional Torts

    1. Assault

        1. Definition: physical act of threatening nature that puts an individual in reasonable fear of bodily harm (Picard)

          1. Restatement:

            1. Acts intending to cause harmful or offensive contact or the apprehension thereof AND

            2. The other is thereby put in such imminent apprehension

          2. Actual intent to threaten or know with substantial certainty that victim will feel threatened




    1. Battery




        1. Definition: An act intended to cause and does cause an unpermitted offensive or harmful contact

        2. Eggshell plaintiff rule

          1. Once battery established, tortfeasor liable for all damages

          2. But battery difficult to establish—must be offensive to reasonably constituted person




        1. Contact

          1. Actual contact (Leichtman—physical contact of smoke particles)

          2. Exame: spitting on shoe (actual contact even though not harmful—just offensive)

          3. Article so closely attached to body as to be part of body for all practical purposes

            1. Camera in Picard

            2. Car?

              1. May depend on context

              2. Difference with camera seems not to depend on risk of harm because contact does not need to be harmful, just offensive

              3. But could cite Brzoska/Neal cases to argue that risk of harm sometimes may define offensiveness (even though those cases involve retroactive refusal to consent)




        1. Offensiveness: context matters

          1. Crowded world analogy (Prosser and Keeton): a shove in a crowded subway is different than unprovoked shove on the street

          2. Would offend a reasonable sense of personal dignity (depends upon prevalent social standards.)

            1. Wishnatsky: door shoved against him (Court: not offensive to a reasonable sense of personal dignity)

          3. Disagreeable or nauseating or painful because of outrage to taste/sensibilities or affronting insultingness (Leichtman)

          4. Four categories of offensiveness:

            1. Reasonably offensive

            2. Not reasonably offensive

            3. Not reasonably offensive in general; but tortfeasor has special knowledge that it would be offensive to someone

              1. (argued in Wishnatsky but not accepted by court; may have influenced outcome in Leichtman—smoke in face of anti-smoking advocate case)

              2. Possibly present in Werth v Taylor (Jehovah’s witness and blood transfusion)

            4. Reasonably offensive in general; but tortfeasor has special knowledge that it would not be (playing a joke—slapping a friend’s back)

              1. Exception: If it causes actual bodily harm (Restatement 2nd §13, comment c), not just offensive, then victim has a battery claim.

          5. Intent

            1. Two theories on intent:

              1. Intent to make contact (whether or not intent was to make harmful/offensive contact) (Keeton)

                1. Garratt v Dailey: Substantial certainty that contact will result (not that harmful/offensive contact will result)

                2. Vosburg v Putney: no intent to injure or even cause offensive contact—but the tap was illegal and it was intended

              2. Intent to make contact that harmful or offensive (Prosser)

              3. Illustration of difference—some goes to slap a friend on the back but actually a stranger, not the friend:

                1. Under Keeton, this would be a battery—intent to make contact and turned out contact was offensive

                2. Under Prosser, not a battery—no offensive or harmful intent

            2. Must be actual intent. Not reckless disregard for consequences of one’s actions (Wallace v Rosen)

            3. Transferred intent: if intended to batter one person and accidentally batter another; still a battery




          1. Consent

            1. Battery cannot take place if consented to.

            2. In cases in which behavior would ordinarily not be offensive/harmful but plaintiff had subjective objection, rejection of consent must be explicit.

              1. Cunard: vaccination on the ship (context demonstrates that doctor was justified in assuming consent)

              2. Werth v Taylor: blood transfusion (Consent must be contemporaneous refusal of treatment by fully informed competent adult patient)

            3. Uninformed consent/refusal to consent

              1. How seriously do we take uninformed consent? May depend on underlying policy rationale

                1. Werth v Taylor—depends on policy argument—effects of forcing doctors to think twice about whether someone consented

                2. Parvi (false imprisonment case): no policy rationale for not forcing police to debate consent

                3. Peterson v Sorlien (false imprisonment): inability to consent (due to mental influence of cult) PLUS eventual consent PLUS policy rationale: parent-child relationship and need to save children from cults

            4. Consent can be vitiated after the fact but only when there was a reasonable chance of harm:

              1. Neal v Neal: No infection test because no way to assess risk—unprotected sex

              2. Brozoska v Olson (HIV): Actual infection test—because risk of transmission from doctor to patient very low




    1. False imprisonment

      1. Definition: Unlawful and unconsented restraint of an individual’s personal liberty or freedom of locomotion

        1. Restraint may be brought about by words or actions or both; through

          1. Actual or apparent physical barriers

          2. Overpowering physical force or submission to physical force

          3. Threats of physical force

          4. Asserted legal authority

          5. “Other duress”

        2. Consciousness requirement: person must be conscious of confinement (Parvi—jury question of whether conscious since plaintiffs were drunk)




      1. Intent?

        1. Actual intent to confine, or just intent to do X and victim reasonably feels confined?

          1. Lopez v Winchell’s Donut House—no intent to confine, but that wasn’t what determined outcome—it was that plaintiff could not reasonably have felt confined

          2. Hypo: person build cardboard prison cell and puts someone in it as a joke thinking that they will know it is fake and person instead thinks it’s real—probably a valid false imprisonment claim

        2. Bright v Ailshie: Bail bondsman arrests person and takes him from Michigan to Missouri on basis of mistaken arrest warrant

          1. No intent to illegally confine

          2. But actually was illegal confinement

          3. So successful claim of false imprisonment




      1. Threat of Future Action?

        1. Lopez v Winchell’s Donut House: NOT false imprisonment: Moral pressure or feeling one is compelled to stay (threat of being fired)—future threat is not a present threat

        2. COMPARE TO: Marcus v Liebman: future threat of physical confinement in mental hospital was a present threat because of context (man already in mental hospital)




      1. Consent




        1. Peterson v Sorlien: inability to consent; retroactive consent; public policy (see above)

        2. Eilers v Coy: the other cult case; here, no consent because no authentic consent ever given (pretended consent does not suffice)

        3. Parvi: uninformed refusal (wanting to get out in an unfamiliar part of town)—Court does not reject this uninformed consent—probably because no public policy reason not to (see above in battery section)




      1. Privilege

        1. Parvi: if act to carry out a legally justified purpose. So if police officers were acting under legal custom to bring drunks outside town where they will not pose risk of injury to others

          1. But in Parvi, evidence shows they were doing this for other non-justified purposes

        2. So privilege is a subjective inquiry.




      1. Necessity

        1. Eilers: no necessity found for confining cult member to deprogram him

          1. Reasonable belief in imminent danger of physical injury to oneself or others

          2. Last only as long as necessary to get person to proper legal authorities

          3. Least restrictive means of preventing harm in question

        2. Coblyn v Kennedy’s (ascot case):

          1. Shoplifting standard: Reasonable use or threat of force to stop shoplifting if not possible to leave task to authorities and considering the value of the item

          2. Reasonably prudent test Would a reasonable shopkeeper think that person was actually shoplifting? (In Coblyn, the answer is no.)

          3. Hypo:

            1. Threat to call police when not reasonable to assume person shoplifting false imprisonment?

              1. Fails reasonably prudent test BUT threat of future action not always sufficient for a false imprisonment claim (Here, though, it would probably fall under “asserted legal authority.”




    1. IIED

      1. Definition: Extreme and outrageous conduct intentionally or recklessly causing severe emotional distress to another

        1. Beyond bounds of all decency in society




    1. Trespass to Chattels

      1. Restatement §217

          1. "intentionally… dispossessing another of the chattel, or using or intermeddling with a chattel in the possession of another

          2. Right to self-help if there has been a trespass

          3. Compare to trespass to land (no intent required)

      2. Restatement §218: Liability for trespass to chattels if




        1. a) he dispossesses the other of the chattel, or

        2. 
(b) the chattel is impaired as to its condition, quality, or value, or

        3. 
(c) the possessor is deprived of the use of the chattel for a substantial time, or


        4. (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.

      1. Glidden v Syzbiak: girl climbs on dog’s back and pulls its ears—not liable for trespass to chattels because no evidence that she damaged the dog (cites §218, not 217)—so hypo: did dog owner have a right to use self-help to get the girl off the dog?)




      1. Difference between CompuServe and Intel cases:

        1. Value of chattel impaired

          1. Compuserve: server actually slower because clogged with e-mails; Compuserve charges customers for time logged on and customers have to spend time deleting these emails to save space

          2. Intel: impairment in value due to loss of employee productivity and money spent on blocking system: but the latter is cost of self-help, not loss in value to email system AND employee productivity loss derives from content of email (no actual harm done to the email system)

  1. Defenses

    1. Consent

      1. See discussion under battery and false imprisonment about consent as necessity to prove battery/ need for explicit refusal of consent in some contexts/ uninformed refusal to consent.

      2. Hart v Geysel

        1. Fights in anger

          1. Majority rule: both sides liable

          2. Minority rule: neither side liable

          3. Question of incentives: Courts enforcing minority rule worried about encouraging illegal act (Someone, when deciding whether or not to fight, would know that he would be compensated if loses—incentive to continue.)

          4. Tort law not typically concerned with motive (only intent—not motive). Fights in anger are an exception. But here, the fight wasn’t in anger so these rules don’t apply.

        2. Prizefighting

          1. Specific question in Hart v Geysel

          2. Relies on general principle that consent is a defense and that no one should profit by wrongdoing

          3. Considers whether establishing liability here is necessary to provide disincentive to behavior: already against criminal law—no further disincentive needed (Connection to airplane crash NIED reasoning).

        3. Sports and consent

          1. Hackbart v. Cincinnati Bengals: plaintiff punched/struck after a play—lower court rules that plaintiff consented by playing such a rough sport. High court reversed, finding that the question is tied to the rulebook/custom of sport.

          2. 3 possibilities:

            1. Act that is penalized and illegal (punching someone)

            2. Act that is penalized but not illegal because still within scope of consent/in the nature of the sport (hit in the back—facemask, etc.)

            3. Act that is neither penalized nor illegal

        4. Scope of consent:

          1. Barbara A v John G: Man tells woman he is sterile; she consents to sex; he gets her pregnant

            1. Court rules that consent is vitiated because pregnancy was beyond scope of consent and because consent obtained by fraud/misrepresentation.

          2. But fraud/misrepresentation alone cannot vitiate consent (hypo: guy lies and says he is a millionaire and someone has sex with him—clearly not a battery)

            1. Scope of consent possibilities:

              1. Implied scope of consent (no fraud): ex. Unprotected sex, pregnancy is not reasonably beyond scope but risk of HIV transmission is.

                1. Protected sex—risk of HIV transmission may not be beyond scope because risk becomes much smaller.

              2. Misrepresentation redefines implied scope because victim bears substantially more risk that aware of.

                1. Barbara A v John G.

                2. But millionaire hypo: no substantial change in risk

              3. (Very) Cheap cost avoider: may add to court deciding an act outside of scope or not.
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