Tort Outline

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Tort Outline ...

    Melinda Scissors Conley

    Torts Outline

    Fall 2002

    General Comments

    A. Goals of the Tort System

    a. Descriptive(explain what has happened in tort law) v Prescriptive (goals the spkr

    thinks should guide tort law)

    b. Inadequacy of ―compensation‖ as a goal (we don’t compensation ―all‖ victims)

    c. Other Aims

    i. Retribution retribution for morally reprehensible conduct so goal to get

    back into moral balance *****

    ii. Distributive Justice resources should be distributed equitably (so

    compensating someone injured does this)

    d. Law and Economics to craft legal rules that efficiently allocate society’s

    resources to achieve ―efficient‖ levels of risk and loss e. Optimal deterrence and loss distribution 2 with torts ****

    i. Can deter conduct or choices that should be deterred (i.e. whose costs

    exceed their benefits)

    ii. Rule of tort liability serves as kind of social insurance for us

    B. How does Tort Law Fit in?

    a. Deals with accidental injury, occupational illness, disease, intentional hurt, mental

    illness generated intentionally or unintentionally on the victim

    b. All dealing to PREVENT AND/OR CUSHION THE BLOW tort is directed at

    preventing accidents and to pay the victim to cushion the blow

    C. Tort is primarily out of state courts common law

    D. The only decision tort law can make is whether someone will pay and who will pay

    a. Deterrence is a key aspect

    b. Compensatory Damages bearing the cost of the injury should be borne by the

    person who did it, rather than the ―innocent‖

    E. Damages 3 types

    a. Nominal suffered no real tangible loss, but rights were violated (several $$)

    b. Compensatory tangible and intangible losses suffered

    i. Medical and rehab

    ii. Lost wages in the past and lost earning capacity in the future

    iii. Non-work disability reducing ability to stuff outside

    iv. Disfigurement scar or amputation

    v. Physical Pain and Suffering

    vi. Mental anguish

    c. Punitive to punish and deter the defendant (ONLY WHEN INTENTIONAL


    d. Eggshell Skull Rule Def is liable for the full damages that result from the tort,

    even if the exact extent of those damages was unforeseeable to the defendant at

    the time of the conduct.


    1. Equity and corrective justice: Tort law developed this way b/c

    when an actor injures another, it makes more sense to make the

    actor pay for the full cost of the result.

    2. Deter from future actperson who acted should bear the loss;

    should deter from doing such acts in the future.


    Melinda Scissors Conley

    Torts Outline

    Fall 2002

    ii. NOTE: There have been cases where it is an ―eggshell mind‖ – mental

    condition was the preexisting condition chronic depression/anxiety….in

    theory, this should still apply, but the courts have had more problem w/

    the preexisting mental condition.

    iii. Caveat: Can only recover damages for the injury caused. If plaintiff has a pre-

    existing disability (say 10%) and defendant’s tortious conduct causes her more

    disability (say 80%) then plaintiff would get compensatory damages for 80%

    disability, but not including any damages attributable solely to the preexisting

    disability of 10%.

    F. Worker’s Compensation v Tort

    a. Work comp was meant to deal with work-related injuries solely

    b. In TX, though, can opt out of work comp and then they would expose themselves

    to litigation


    Melinda Scissors Conley

    Torts Outline

    Fall 2002

    Intentional Torts: Protections of Bodily Integrity

    A. Battery Harmful or offensive contact with another resulting from an intention to cause

    that contact or make someone believe it’s imminent. ?13 subject to liability for HC,

    ?18 subject to liability if OC, ?19 OC is an objective standard

    a. First, have to establish a prima facie case of:

    i. ELEMENTS:

    ii. Actmust be voluntary

    1. Must be some physical contact (can be something in contact with

    the other)

    2. Invasion of bodily autonomy (interferes with personal dignity is


    iii. Intent Requirement Subjective Standard (what that person intended,

    not the reasonable person based on his knowledge, intelligence, backgrd,

    etc)Satisfied with Desire OR knowledge with substantial certainty

    1. Desire to inflict a harmful/offensive contact or imminent

    apprehension of harmful/offensive contact with the P or 3 person



    2. Knowledge with Substantial Certainty that the act will cause a

    harmful/offensive contact or imminent apprehension of

    harmful/offensive contact with the P or 3 person (NOTE:



    3. Does not matter whether intended offensive or harmful and

    regardless of which one actually occurs

    a. Underlying wrong was invasion

    b. Difficult to prove which one was intended

    c. ?16 - even if act did not intend for the HC (only OC) and

    even if intended to be done to someone else still liable

    d. ?20 even if act did not intend OC (actually HC) and OC

    occurs and even if intended to be done to someone else

    still liable

    iv. Harmful or Offensive Contact actually occurs with the P or 3 person

    1. Harm physical impairment of the body (physical illness, disease,

    and death MUST BE DETRIMENTAL (says Restatement 3,

    but not in all jurisdictions must it be detrimental)

    2. Offensive Contactspitting in the face can be considered

    offensive contact

    3. NOT emotional distress


    a. Innocent victim deserves Compensation

    b. Defendant has crossed a line of culpability/wrongdoing

    violated a norm


    Melinda Scissors Conley

    Torts Outline

    Fall 2002

    v. E.g. Caudle v. BettsBetts shocked Caudle with an electric automobile

    condenser causing significant headaches, etc. Battery was proven b/c the

    act was intentional and caused harmful or offensive contact that the actor

    knew would occur.

    vi. Offensive contact: e.g. Brzoska v. Olsonmust actually be exposed to

    HIV for offensive contactapplies policy arguments in deciding case like

    AIDS phobiaTrial court took away from jury b/c they would not have

    applied the law and considered all policy reasons. Offensive contact is an

    objective standard against what the reasonable person would think would

    be objective in a similar situation.court held to have been an offensive

    contact, much have shown that there was some fluid to fluid contact

    B. Assault Threat of the physical contact

    a. Same prima facie case as battery just have to show imminent apprehension

    actually occurred

    b. The imminent apprehension means the perception or anticipation of a blow, rather

    than fright. Objective measure by a reasonable person

    c. Must be:

    i. Immediate in terms of time

    ii. Close in terms of space (not over the phone) (POLICY REASON: law

    cannot protect everyone from everything; future threats leaves the victim

    time to take other steps to prevent the harm (go to police))

    iii. Actual threat v. potential threat

    d. General Ideas

    i. If person is extra sensitive and the defendant knows this then it is assault

    ii. The reason for assault is to protect the person’s mental peace

    iii. Mere words alone cannot constitute an assault unless together with other acts or

    circumstances they put the other in reasonable apprehension

    e. D can commit an assult even if it is impossible to commit a battery; i.e.

    assaulting someone with a toy gun

    C. Intent (RESTATEMENT ?1) A person acts with the intent to produce a consequence if:

    a. Purpose of producing the consequence OR

    b. Knows to a substantial certainty that the consequence will occur

    c. Look at what the D knew given his knowledge, intelligence, background, etc.

    d. Transferred Intent - ind who actually suffers the contact need not be the person

    whom the def intended to harm or offend

    i. Conduct is so blameworthy that it would be inappropriate to allow him to

    escape liability

    ii. KEY: makes the identity of the particular target of intentions irrelevant

    D. False ImprisonmentSee ? 35, 36, 39, 40, 40(a)

    a. Volitional Act

    b. Intend to confine the P or 3rd person within the boundaries fixed by B

    (Remember, intent is still Desire/Purpose or KWSC)

    c. His act directly or indirectly results in such a confinement

    d. The other is conscious of the confinement or is harmed by it


    Melinda Scissors Conley

    Torts Outline

    Fall 2002

    e. Confinement

    i. Must be complete

    ii. Is complete, although there is a reasonable means of escape, unless the

    other knows of it

    iii. Actor does not become liable by intentionally preventing another from

    going in a particular direction in which he has a right or privilege to go

    f. Ways to confine:

    i. By physical forcesufficient that the other is restrained by the force or

    w/out resistance, submits to it

    ii. By Threats of Physical ForceSubmission to a threat to apply force (if

    the person left the area) immediately upon trying to leave

    iii. By Others Duresshas to have enough bite that something would have to

    render consent. Can make consent ineffective.

    1. Could be person says he will kill the child if the parent leaves

    parent stays so now parent is confined

    2. Not enough to say…if you leave this house, sometime/somewhere,

    I’m going to kill you

    E. Intentional Infliction of Emotional DistressD acted in a manner that was intended to

    interfere severely with the Ps peace of mind. -- ? 46

    a. Elements

    i. Intentionally or Recklessly causes (recklesssomething that is highly

    risky) severe emotional distress

    ii. Knowledge with high certainty (not just substantial certainty)

    iii. By an extreme and outrageous manner

    iv. Severe emotional distress results (a threshold level that is a bit higher than

    we see in the other intentional torts)

    v. Resulting physical manifestation is not necessarily required

    b. E.g. State Rubbish Collectors v. Siliznoff c. Concern with this tort:

    i. Make it up (easy to fake)

    ii. All kinds of things cause emotional distress

    iii. What can the tort system do anyway? Can it solve the emotional distress?

    iv. Many jurisdictions do not recognize the negligent infliction of emotional


    d. POLICY REASON for outrageousness

    i. Limits liability to extreme cases

    ii. Reduces chances of fraudulent claims

    F. Intentional TortsProtecting PropertyTrespass to Land? 158, 163, 196 a. Act

    b. Intent

    i. To enter

    ii. To remain

    iii. To fail to remove from it something that you are under duty to remove

    c. No harm is required


    Melinda Scissors Conley

    Torts Outline

    Fall 2002

    d. **A trespass to land may be committed by an intrusion upon the surface of the

    land or beneath or above the surface**

    G. Intentional TortsProtecting PropertyTrespass to Property (Chattel)

    a. Act

    b. Intent

    c. Interference with Ps possessory interest of his possessions

    d. Harm must be there: Diminished value; Damage

    e. E.g. Ebay v. Bidder’s Edgecourt creates new tort of trespass to chattels

    shows by displaying ebay’s possessory interest and looks at things that are

    different and anlyize if okay to slap trespass to chattels on it.

    H. Intentional TortsProtecting PropertyConversion

    a. Basically the D has undertaken the unauthorized transfer of the Ps personal

    property to a 3rd party’s possession.

    I. Intentional Interference with Prospective K

    a. Elements

    i. Intentional

    ii. Improperlymay be independently tortious

    iii. Interferes

    iv. W/performance of a contract

    v. By inducing P or 3rd party not to perform (or on prospective K)

    vi. Liability for pecuniary loss

    b. E.g. Homeowner contracted with landscaper to do the yard. New company

    comes in before commencing work and makes a better deal to homeowner.

    Homeowner says it sounds like a good deal. Homeowner goes to initial person

    and says going to go with the other

    i. 1st landscaperclaims the 2nd landscaper induced the 3rd person not to

    perform the contract. Certainly a likely to be contract and interfered with


    ii. 2nd landscaper would have had to know that there was a prospective

    contract and needs to show something else impropere.g. D tells the

    prospective homeowner that he has 2 known child molesters on the staff

    (even though it’s not ture)—b/c that would satisfy the defamation tort.or

    maybe threatens the homeowner in some way to get the business

    c. E.g. Della Penna case v. Toyota Motoradopted the independently tortious

    portion of the tort (case re: coming out with new Toyota and wanted to limit the

    reseller market and made the list of others who sold and would lose their right to

    cars and this dried up Della Penna’s resale market.—found for Toyota. d. TX did this as well in the WalMart casein TX says that more rights to existing

    contract rather than prospective contract (?? On how much competitive market

    behavior we would prohibit0

    e. Several factors are relevant to determine if an interference was improper:

    i. Nature of the actor’s conduct

    ii. Actor’s motive


    Melinda Scissors Conley

    Torts Outline

    Fall 2002 iii. Interests of the other with which the actor’s conduct interferes iv. Interests sought to be advanced by the actor

    v. Social interests in protecting the freedom of action of the actor and the

    contractual interests of the other

    vi. Proximity or remoteness of the actor’s conduct to the interference vii. Relations b/t the parties

    f. Another exampleZixit v. VisaZixit has a product that is a payment security

    protection for payments over the internet. Visa VP posts 600 msgs over 6 months

    on a Yahoo message board that trashes the product and misstatements of fact re:

    Zixit. Claim is defamationinjurious to reputation which would be measured as

    economic loss in the business setting)Visa sued through vicarious liabilityclaim for tortious interference.would claim that prospective contracts was

    damaged b/c of the independently tortious acts of defamation. (Wouldn’t get anything additional on interference claim than on the defamation claim so they

    ended up dropping the defamation claim in the end to avoid annoying or

    confusing the jury)


    Melinda Scissors Conley

    Torts Outline

    Fall 2002

    J. Defenses (Consensual and Non Consensual)

    a. INSANITYInsanity does not preclude a finding that a D acted intentionally

    even though motives may have been irrational

    i. Where the D loses all capacity for voluntary action, such as where he

    unexpectedly becomes ill, then the D will not be held to be capable of

    forming the requisite intentalthough may still be liable in negligence

    ii. Williams v. Kearbeystill found that the child who killed teacher acted

    on his own volition, had intent to kill, even though his motive was that he

    would be a hero.

    iii. Why make insane people liable:

    1. Public policy requires the enforcement of such liability so that the

    relatives of the insane person shall be led to restrain

    2. Where one of 2 innocent persons must suffer a loss, it should be

    borne by the one who occasioned it

    3. Tort-feasors shall not simulate or pretend insanity to defend their

    wrongful acts causing damage to others

    4. If he weren’t liable, there would be no redress for injuries

    (although we might change our mind re: punitive damages)

    iv. Raises question in modern day

    1. Concern over feigned insanity is no longer warranted due to

    psychiatrists and psychologists can prove/disprove (although there

    is still a fear of introducing this into torts given the confusion in

    criminal law)

    2. Liability should not be imposed on an insane person to encourage

    confinement since public policy does not favor confinement of the

    mentally ill.

    3. Loss should fall upon the Ps rather than himself since he was not

    capable of avoiding his conducttherefore he was not at fault.

    b. CONSENT

    i. Why allow this defense?

    1. Shouldn’t hold one person accountable for the other when they

    consent to the action in the first place

    2. The point of tort is corrective justice and if there were consent,

    there’s nothing to correct—no injustice

    3. 2 avenues for consent for more ways to protect the D

    ii. D can show consent in 2 ways:

    1. Actual ConsentWhat the person really wants, what he says ?


    2. Apparent Consentwords or actions of P that would reasonably

    be understood by D to be consent (past history may help here)

    3. It is not necessary for consent to be verbally communicated

    4. However, action must always be w/in the scope of the consent


    Melinda Scissors Conley

    Torts Outline

    Fall 2002 iii. E.g. of consentHellriegel v. ThrollDicka consented to horseplay

    even though he did not consent to having neck brokenlook at consented

    to conduct, not the consent to the result

    iv. Effect of Consent--? 892A

    1. Must have capacity to consent

    2. Can have conditional consent and boundaries that are established is

    the only conduct that is consented to

    3. Consent can sometimes act as a complete defense to only part of

    the conductunless set boundaries initially to have conditional


    v. Mistakes with Consent--? 892B

    1. If consent by substantial mistake concerning nature of invasion of

    his interests or the extent of harm to be expected from it and the

    mistake is known to the other or is induced by the other’s


    2. Consent given under duressno defense

    3. Consent exceeds scope of consentno defense

    c. Self-Defense/Defense of Othersprivilegeaction taken under circumstances

    that justify or excuse what would otherwise be tortious conduct (Privilege to

    forestall an impending battery, not to retaliate for prior ones)

    i. Analytical Steps:

    1. Determine reasonableness of actor’s belief that he was about to be

    the victim of an intentional bodily harm

    2. Determine reasonableness of actor’s belief that harm was imminent

    3. Determine reasonableness of actor’s belief that the force he

    employed was necessary to repel the imminent danger

    4. Determine if D is justified in using reasonable force in defending


    5. Retreat, if possible (with deadly force)

    6. Note: When there would really be no attackcan avoid liability

    for mistaken belief about the attackIF THAT MISTAKE WAS

    REASONABLE (D would still be liable for excessive force or

    injury caused by the use of unreasonable means)

    7. Note: A subjectively honest, but unreasonable mistake is no


    8. Note: An objectively reasonable and honest mistake does excuse

    what would otherwise be tortious

    ii. Always 2 STEPS TO DETERMINE:

    1. Was it the occasion to use it? Does the person reasonably believe

    that the contact is going to occur?OBJECTIVEwould the

    reasonable person think they were about to be a victim

    2. How reasonable was the extent used? Amount/severity of it?can

    only respond ―in kind‖—proportional

    3. (For DEADLY FORCE ONLY)duty to retreat (except at home)


    Melinda Scissors Conley

    Torts Outline

    Fall 2002

    iii. Self-Defenseby Force Not Threatening Death or Serious Bodily Harm

    1. Person can use reasonable force not intended or likely to cause

    death or serious bodily harm to defend himself against

    unprivileged harmful or offensive or other bodily contact which he

    REASONABLY BELIEVES is about to be intentionally inflicted



    2. Still defense even if actor can

    a. Retreat or

    b. Comply with command with which actor is under no duty

    to comply or actor not privileged to enforce

    3. 2 keys here:

    a. Reasonable belief

    b. Reasonable amount of force

    iv. Self-Defense by Force Threatening Death or Serious Bodily Harm

    1. Can defend against force likely to cause bodily harm if reasonably

    believes that:

    a. The other is about to inflict upon him an intentional contact

    or other bodily harm AND

    b. He is thereby put in peril of death or serious bodily harm or

    ravishment (used to describe rape, but also any form of

    carnal intercourse that is criminallike sodomy) which can

    be prevented ONLY by immediate force.

    2. Can still use deadly force even if reasonably believes that he can

    safely avoid the necessity by:

    a. Retreating if he is attacked w/in his dwelling

    b. Permitting the other to intrude

    c. Abandoning an attempt to effect a lawful arrest

    3. Privilege DOES NOT EXIST if the actor correctly or

    REASONABLY BELIEVES that he can safely avoid the necessity


    a. Retreating in any place other than his dwelling place, OR

    b. Relinquishing the exercise of any right or privilege (other

    than his privilege to prevent intrusion upon or

    dispossession of his dwelling or to effect a lawful arrest)

    v. Self-Defense Against Negligent Conduct

    1. Privileged to use reasonable force not intending to cause death or


    2. Not privileged to defend himself if he knows he can escape the

    necessity of doing so by retreating or giving up the exercise of a

    right or privilege\

    d. Discipline

    In a number of situations, the law gives individuals the privilege to discipline

    others. The prime examples are b/t parent and child (except where this behavior

    rises to child abuse) and teacher/student.


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