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Office Hours: Friday 2-4 PM, Hauser 510

Course Reading Assignments:

➢ January 26th: pp. 1-10 (Vosburg & Notes 1-9); pp 12 (Notes 1 & 2), and pp 14-15 (Note 5)

➢ January 27th: Form & Substance in Private Law Adjudication (website); Consent pp. 16-17 (Intro & Note 1); pp. 19-21 (Notes 4-5); pp. 22-24 (Notes 7-9); pp. 25 (Note 11); pp. 26-27 (Notes 13-14)

➢ January 28th: Trespass pp. 28-36 (Dresnick opinion, Notes 1-5, 7&8), Conversion pp. 41-45 (Intro & Note 1), pp. 46-49 (Notes 3-7), pp. 50-51 (Note 9), pp. 54-55 (Note 12)

➢ February 2nd: Start at Conversion, Supplemental Reading-Restatement, False Imprisonment pp. 56-63 (Rest provisons, Notes 1-6, skip Note 4)

➢ February 3rd: Start with Conversion, Assault pp. 65-66, Rests, pp. 68-70(Notes 2, 4 & 5, start with Note 4), Singer supplemental reading

➢ February 4th: IIED pp. 70-81; Hohfeld's "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning" and Prybyla v Przybyla, 87 Wis.2d 441 (1978)

➢ February 9th: Start at Pemberton, pp. 85-88, pp. 88-94 (Notes 3-8), pp. 94-95 (Note 10)

➢ February 10th: Private Necessity, pp 97-99 (Ploof & Notes 1-2) and pp 100-106 (Vincent & Notes 3-6)

➢ February 11th: Public Necessity, pp 106-107 (Note 1) & pp 108-111 (Notes 3-5) and Discipline pp 111-113 (Notes 1 & 2) & pp 117-120 (Note 6)

➢ February 16th: Reasonable person standard, pp 121-127 (Williams & Notes 1-3), pp 131-132 (Note 7), pp 133-137 (Notes 1-2, Purtle & Note 1), and pp 139-140 (Note 4)

➢ February 17th: Risk and Precautions pp. 140-152 (case and notes 1-7); pp. 155-158 (n. 10-12)

➢ February 18th: Custom and Medical malpractice, pp. 158-168 (case & notes 1-9),

➢ February 23rd: Negligence per se (pp. 169-182, stop after note 12)

➢ February 24th: Res Ipsa Loquitur pp. 190-194 (n. 1- 3), 195-198( n. 5-8)

➢ February 25th: pp. 199–201 (case); pp. 202-206 (N. 3-6); pp. 206-214 (case & N. 1-7)

➢ March 2nd: Strict Liability pp. 394-399 (Behrens & n. 2); pp. 404-408 (case & n. 1-2); pp. 410-413 (n. 7-9). Supplemental Reading by the end of week

➢ March 3rd: Abnormally dangerous activities pp. 414-426 (Rest provisions, case Indiana, n 1-4), pp. 428-431 (n. 9-10)

➢ March 4th: Respondeat superior pp. 431-439(case n. 1-5); pp. 440-446 (n. 7-13); addtl supp reading from Shavell

➢ March 9th: Construction & Duty of care pp. 215-222 (case and notes 1-4); pp. 224-227 (n. 7); pp. 227-231 (case and notes 1-5)

➢ March 10th: pp. 234-236 (n. 1-3); pp. 239-247 (rest, case, n. 1-6)

➢ March 11th: Duties arising from occupation of land, p. 253-4 n. 1, 2. p. 256-262 n.5-7, 1-3, n. 1, p. 264 n. 3, p. 267-68 n. 6, p. 249-250 n. 1

➢ March 16th: Privity and Pure Economic Loss pp. 270-275 (case & notes 1-4) pp. 277-279 (case and n. 1) pp. 281-282 (n. 5) pp. 283-285 (n. 9)

➢ March 17th: pp. 288-295 (Case & notes 1-3) and pages 300-303 (notes 10-14)

➢ March 18th: pp. 307-310 (Grimstad and n 1-2) pp. 312-313 (n. 4), pp. 317-324 (case and n 1); pp. 326-328 (n. 3)

➢ March 30th: pp. 332-335 (summers & n. 1-3), pp. 336-343 (sindell & n. 1-5)

➢ March 31st: Proximate Cause, p. 351-67

➢ April 1st: p. 367-377; p. Palsgraf 377-385

➢ April 6th: Defense p. 565-580

➢ April 7th: pp. 580-590 Express Assumption of Risk.

➢ April 8th: pp. 590-597 (Murphy and notes 1-4: Primary Assumption of Risk

➢ April 13th: pp. 598-603 (n. 1-5)

➢ April 14th: Products Liability-Historical Development of Doctrine pp. 447-463 (3 cases)

➢ April 15th: No new reading

➢ April 20th: Manufacturing Defects pp. 463-468 (Rest and Welge); pp. 471-477 (Notes 4-10)

➢ April 21st: pp. 477-491 (rest, case dawson, notes 1-7)

➢ April 22nd:Failure to Warn pp. 493-508 (probably only the beginning)

➢ April 27th: No new reading

➢ April 28th: Damages, pp. 515-523, online case

➢ April 29th: Review

I. Intentional Torts:

Two Types of Torts:

1) Unintentional: harms generally regarded as accidental

2) Intentional: harms inflicted more or less deliberately

Most of tort law is state by and state and is mostly judge-made rule rather than statutory.

For each intentional tort there is a distinct prima facie case consisting of “elements” of the claim that a plaintiff must allege and prove in order to win a lawsuit.

A. Battery

1. Intent and Volition

Vosburg v. Putney (1891) [pp 1]

➢ Facts: Defendant (12) kicked the Plaintiff (14) in the shin in a schoolroom, after the teacher called the class to order. It was a light kick, but it aggravated a prior injury and caused the Plaintiff’s leg to become lame.

➢ Procedural History: The jury rendered a special verdict finding that the above did occur, but that the defendant did not intend to do the Plaintiff harm. They calculated damages at $2500. Trial court entered judgment for Plaintiff and Defendant appeals.

➢ Ruling: Judgment affirmed.

➢ Rule of Intent: Plaintiff must show that either the intention was unlawful, or that the defendant is in fault. If the intended act is unlawful, the intention to commit it must necessarily be unlawful.

o The defendant’s act of kicking the plaintiff, which was a violation of the rules of the school, was unlawful; therefore, the intention was unlawful.

➢ Rule of Damages: the wrongdoer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him. (Brown v. Railway Co.) This is in contrast to contract law, which holds that one is liable only for damages that are reasonably foreseen.

o The Defendant was responsible for damages for causing the Plaintiff’s leg to become lame although he could not have anticipated such an outcome.

➢ The Eggshell Skull Plaintiff Rule: You take your victim as you find him/her; even if there is no way to anticipate the harm that will befall someone, you are still liable for the damages.

o Derives from the idea of a person’s rights to his/her bodily security. By engaging in an infringement of those rights, the plaintiff becomes liable.

➢ Elements of the Crime:

o Intent

o Some sort of harmful or offensive bodily contact

o Harm that arises from that contact

➢ Torts liability is based on the idea that there shouldn’t be liability without fault. However, it may go against our judgment to punish a 12-yr old boy for kicking someone. At the other end of the spectrum is the idea of two innocents and punishing the less innocent (more guilty) party.

Knight v. Jewett (1990) [pp. 3]

➢ Facts: Knight and Jewett played a game of touch football in which there was one explicit rule: to stop the player with the ball it was necessary to touch the player above the waist. During the game Knight warned Jewett that if he did not stop playing so roughly she was going to leave the game. Later Jewett knocked Knight down and stepped on her little finger. There are conflicting versions, but Knight admitted that Jewett did not intend to step on her hand and did not intend to hurt her. Knight had 3 surgeries and her finger was eventually amputated.

➢ Ruling: In an action against Jewett to recover damages for battery, etc., the Ca S Ct affirmed summary judgment for Jewett stating, “without the requisite intent, Knight cannot state a cause of action for assault and battery.

➢ Differentiation: The initial contact (the push) wasn’t harmful or offensive and he did not intend to step on her finger. Given the context, the contact was not unlawful.

Definition of Battery: intentional bodily contact, which is either harmful or offensive. The intent element is with respect to the contact, rather than a desire to bring about a specific result or injury. [pp. 4]

White v. University of Idaho (1989) [pp. 4]: The piano lesson. A piano teacher walked up behind his student and drummed his fingers on her back to demonstrate the motions of a piano teacher. This contact caused thoracic outlet syndrome, requiring the removal of a rib. The court held that, although he did not intend to cause the harm, White is still liable for the damages.

➢ Subjective Test for “Harmful or Offensive”: Look to the mindset of the person who was touched. This is NOT the majority rule. There is likely a reasonable person standard.

o White said that she was surprised by the teacher’s action and that she would not have permitted it.

The Insanity Defense:

Polmatier v. Russ [pp. 5]: A man suffering from paranoid schizophrenia was convicted for wrongful death for shooting his father-in-law due to his belief that his father was a spy who planned to kill him. The insanity defense was rejected and the defense of involuntary act was rejected. See Restatement example on pp. 6.

➢ The Traditional Rule is against making an allowance for insanity in measuring a defendant’s intent. This is based on public policy: the liability of lunatics for their torts tends to secure a more efficient custody and guardianship of their persons; there is more injustice in denying to the injured party the recovery of damages for the wrong suffered by him, than there is in making the estate pay (as between two innocents), and otherwise there will be an incentive to claim insanity to escape punishment.

➢ Voluntary Acts: “Act” is used to denote an external manifestation of the actor’s will and does not include any of its results. Restatement Second of Torts §2

Laidlaw v. Sage (1896) [pp. 6]: A man threatened with dynamite in his office walks toward one of his unsuspecting employees and places the employee between himself and the carrier of the dynamite. The dynamite explodes; the employee is injured, but the man is not. The employee brings a claim for battery. The NY Ct of Appeals ruled that the trial court gave an improper instruction on involuntary acts.

➢ Self-preservation is the first law of nature. The law presumes that an act or omission done or neglected under the influence of pressing danger was done or neglected involuntarily.

➢ Distinction between Laidlaw and Polmatier: Laidlaw is based upon the idea that we will not punish people who are not at fault. Polmatier is based on the theory of punishing the lesser innocent. The court believes that acting under extreme duress should be treated differently; you cannot deter this type of behavior.

Keel v. Hainline (1958) [pp. 8]: Kids playing in a classroom were throwing blackboard erasers and chalk back and forth across the room. One of the erasers hit a girl sitting in the middle of the room and shattered her glasses causing her to lose an eye. The defendant was convicted although he did not intend to cause her harm. He intended to engage in the wrongful act, so the intent was wrongful. The other students engaging in the “horseplay” were also convicted because they were aiding and encouraging the assault and battery.

➢ Transferred Intent: If A attempts to commit a battery against B but mistakenly hits C instead, C can sue A for battery. A’s intentions toward B are combined with the harmful contact with C to create a battery.

➢ Although the defendant had a defense of consent against the original victim, there was still a prima facie case of battery against the original victim, which was sufficient for transferred intent.

➢ Aiding and abetting: the actions of the group created the situation that caused the harm so the group should be punished.

Garrett v. Daly: A 5-yr old boy pulls a chair out while an elderly woman is about to sit down. The 5 yr-old did not intend for the woman to hit the floor, but she did and she injured her hip. The trial court found the boy not liable because he didn’t have the intent to cause the contact (between the woman and the floor). The appellate court reversed; even without the intent, there was substantial certainty (even for a 5-yr old) that the woman would hit the floor, and that was enough to satisfy the intent requirement.

➢ Rule: It is not necessary to know or intend that the contact will occur. As long as there is a substantial certainty of contact, the intent element is satisfied.

There is no infancy defense.

Parental Liability: The common law does not hold parents liable for their childrens’ tortuous acts. Some state laws have modified this rule (see NC statute, pp. 10).

2. Minimum Requirements-Harmful or Offensive Contact:

Leichtman v. WLW Jacor Communications [pp. 12] held that intentionally blowing tobacco smoke repeatedly in someone’s eyes is sufficient to constitute battery. The contact occurred through the particulate matter. The real harm was the insult; damages would be nominal.

Madden v. DC Transit System [pp. 12] held that the fumes emitting from a bus, which made contact with the plaintiff while he was standing on a traffic island, were not sufficient to constitute battery. The court said that there was an absence of malice, willfulness, or specific wrongful intent.

Distinction: Reasonable expectations as a reason to infer consent. Intent. Offensiveness.

Restatement Second §18 [pp. 14]:

1. Comment c. Meaning of contact: Intentional contact can be inflicted through clothing or anything held or attached to one’s body. If the actor directly or indirectly causes the person to come into contact with a foreign substance that is offensive (i.e. throwing water on him, setting a dog lose on him, or soaking a towel in filth that he knows the person will likely use).

2. Comment d. Knowledge of contact: It is not necessary that the person know of the contact when it is made. Example: A kisses B while asleep but does not waken or harm her. A is subject to liability to B.

3. Comment g. Necessity of Intention: An actor cannot be liable for only offensive contact, which is not harmful, if he did not intend the contact, although his actions may be reckless or negligent.

Restatement Second §19: Offensive Contact [pp. 14]: A contact is offensive if it offends a reasonable sense of personal dignity.

3. Consent and its Limits

Consent can be used as an affirmative defense to battery or render an otherwise offensive contact inoffensive.

Grabowski v. Quigley (1996) [pp. 16]

➢ Facts: Grabowski went to Quigley for surgery. After experiencing complications after the surgery G requested his medical charts and discovered that another doctor performed most of the surgery as Quigley was dealing with another patient across the county. Grabowski brought charges of battery against Quigley and the other doctor.

➢ Procedural History: Trial court gave summary judgment to the defendants.

➢ Rule: Where a patient is physically and mentally able to consult about his condition, in the absence of an emergency . . .an operation without the patient’s consent is a technical assault. The consent goes to the specific person you consented to.

o Rest. §52 Comment b: In many cases a patient may be giving consent to the hospital and not one particular physician.

➢ Ruling: Summary judgment reversed.

Werth v. Taylor (1991) [pp. 19]:

➢ Facts: Cindy Werth was a Jehovah’s Witness and did not believe in blood transfusions. Werth deliverd twins. Her doctor talked with her about her unwillingness to have blood transfusions. She experienced complications and it was determined that she needed a transfusion or she woud die. Another doctor, Taylor, ordered the procedure although he was aware of her beliefs and she had filled out a refusal form.

➢ Procedural History: Werth sued Parsons, Taylor, and the hospital for battery. The trial court gave summary judgment to the defendants.

➢ Rule: Consent is implied where an emergency procedure is required and there is no opportunity to obtain actual consent (i.e. unconscious patient and procedure needed to save patient’s life). Consent is also implied where a patient seeks treatment or otherwise manifests a willingness to submit.

➢ Holding: Court of Appeals affirmed summary judgment for defendants. Her prior refusals had not been made when her life was hanging in the balance or when it appeared that death would result if a transfusion was not given. Her refusals were not informed.

Rest. §892 Meaning of Consent [pp. 20]

➢ Consent is willingness in fact for conduct to occur. It can be manifested through action or inaction.

➢ Apparent consent: when words or conduct would be reasonably understood by another to be intended as consent.

➢ If you wanted the contact, even though this was not communicated, battery did not occur.

Freedman v. Superior Court (1989) [pp. 22]

➢ Facts: Plaintiff was in labor and called her doctor who instructed her to go to the hospital and ask for Pitocin, which would prevent infections. In fact, the drug was meant to induce hard labor contractions.

➢ Procedural History: Plaintiff sued for battery. Trial court granted defendants’ motion to dismiss. Appellate court affirms.

➢ Rule: To negate consent the mistake must extend to the essential character of the act itself (what makes it harmful or offensive) rather than to some collateral matter, which merely acts as an inducement.

o Example: The doctor who delivers your child is a former Nazi war criminal. He lies about this. You are injured in the sense that your baby was delivered by him, but there is no liability.

o Example: A dentist lies about having HIV; there is no liability.

➢ Note: The court views the consent as consent to do what’s necessary to deliver the baby, not as consent to take a specific drug. The plaintiffs later alleged that the doctor gave the plaintiff the drug because he did not want to be in the hospital all day on a Saturday. The court implied that if this claim was alleged in their initial complaint, then the outcome would have been different because the intent would have been a selfish purpose and it would have gone to the “essential character” of the act.

Neal v. Neal [pp. 23]

➢ Facts: Mary Neal’s husband was having an affair. She said that she would not have consented to having sex with him if she knew what he was doing and thus her consent was fraudulently induced and this was battery.

➢ Ruling: She consented to having intimate relations with her faithful husband. Battery did occur according to the appellate court.

o According to the majority rule: Battery did not occur. The fraudulent behavior did not go to the essence of the act.

➢ Causation and something that goes to the essence of the case are not necessarily the same thing.

Rest. §892B Consent under Mistake, Representation, or Duress [pp. 23]

A permits B to stain A’s face with walnut juice, for purposes of masquerade. A is ignorant of the fact that walnut juice leaves a permanent stain and B knows that A does not know it. B is subject to liability to A for battery.

Rest. §57 Fraud or Mistake as to Collateral Matter [pp. 24]

McNeil v. Mullin (1905) [pp. 25]:

➢ Facts: Case of road rage. Two men exchange hostile words. They get out of their horse-drawn buggies and begin fighting.

➢ Procedural History: Plaintiff sues defendant to recover for injuries. Defendant claims plaintiff consented to fight. Trial court finds for the defendant.

➢ Minority Rule: Consent to an illegal act is void.

o The consent to a breach of the peace (a public fight) is void because the state is a party and the law will not listen to an excuse based on the breach of the law.

➢ Majority Rule: Consent to an illegal act is valid consent (see Rest).

➢ Ruling: Kansas S Ct reversed and remanded. Battery did occur.

Rest. §892C Consent to Crime [pp. 26]

➢ Consent is effective to bar recovery even if the conduct consented to is a crime.

o Example: A and B commit adultery (a crime). Neither is liable to the other for those contacts.

➢ Exception: If conduct is criminal to protect a certain group, a person of that group cannot give consent that would bar recovery.

o Example: statutory rape with the consent of the minor

Hollerud v. Malamis (1969) [pp. 27]:

➢ Facts: Hollerud consumed several drinks at defendant’s bar. Hollerud engaged in a friendly wrestling match with the bartender. Hollerud injured his fingers.

➢ Procedural History: Hollerud sues for battery. Trial court grants summary judgment to defendants on the basis of consent. Court of appeals reverses.

➢ Rule: If the plaintiff, owing to his intoxication, was incapable of expressing a rational will and the defendant had knowledge of this, the consent is ineffective.

o In general, being intoxicated is not a defense to battery.

Form & Substance in Private Law Adjudication

The jurisprudence of rules is the body of legal thought that deals with legal form-the choice between rules and standards.

Dimensions of Form:

➢ Formal Realizability: the degree to which a legal directive has a quality of “ruleness.” The two extremes of the spectrum are a definitive rule (such as liability based on age) versus a standard or policy.

o Virtues of Formally Realizable Rules:

1. Restraint of official arbitrariness: use of criteria of decision that are inappropriate in view of the underlying purposes of the rule (i.e. corruption, political bias)

2. Certainty: If private actors can have advance notice of the incidence of official intervention, they will adjust their behavior.

➢ Generality v. Particularity

o A general rule will be more over- and underinclusive than a particular rule.

o The multiplication of particular rules undermines their formal realizability. (Ex: different age of capacity for drinking, voting, etc.)

o A regime of general rules should reduce to a minimum the occasions of judicial lawmaking.

o The application of a standard to a particular fact situation will generate a particular rule much narrower in scope than that standard.

B. Trespass

Definition: to enter upon another’s land without consent

➢ Intentionally enter upon someone else’s land or cause something to enter onto someone else’s land.

➢ Mistake of fact (believing the land is yours) is not a defense to trespass.

Trespass v. Nuisance:

➢ Trespass: interference with the right to exclusive possession of land

➢ Nuisance: interference with the right to the use and enjoyment of land

Desnick v. American Broadcasting Companies (1995) [pp. 28]

➢ Facts: ABC sent employees posing as patients to the Desnick Eye Center to secretly videotape the Desnick employees. The recordings were featured on Primetime Live.

➢ Procedural History: Desnick sues for trespass on the basis that consent would not have been given if their true identities were known. The district court dismissed the trespass complaint.

➢ Rule: Fraud does not automatically invalidate consent. There must be an infringement of the interest that the law of trespass protects (right to exclusive possession). Parallel between battery and trespass.

o Trespass: A stranger enters someone’s house under the guise of being a meter reader. The homeowner does not want strangers in his house unless they have authorized service functions.

o No Trespass: Food critic conceals his identity in a restaurant. The restaurant owner wants customers so no infringement of interests.

➢ Holding: The entry of the ABC employees did not infringe the kind of interest protected by the law of trespass. The offices were open to anyone seeking their services. Dismissal of trespass count affirmed.

➢ Policy Rationale: There are an endless amount of situations where someone can claim trespass, such as a restaurant critic. Some of these situations are activities that we want to allow. In addition, we don’t want to open the floodgates to this type of litigation.

Rest §168 Conditional or Restricted Consent [pp. 31]

Conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with.

➢ Example: A give B permission to drive his cow through Blackacre to B’s pasture, lot X. B enters Blackacre to draw gravel from lot X, or to go to lot Y. Both are trespasses.

Rest §158 Liability for Intentional Intrusions on Land [pp. 32]

You are liable for trespass if you intentionally enter on another’s land, remains on the land, or fails to remove from the land something which you have a duty to remove.

Pegg v. Gray (1954) [pp. 32]

➢ Facts: The defendant and plaintiff owned adjoining farms. During hunting season, the defendant’s dogs would often chase foxes onto plaintiff’s land causing his cattle to stampede and break down the fences.

➢ Rule: If you intentionally cause something to enter onto someone else’s land, you are liable for trespass.

o Without the permission to hunt, an owner is liable for his animals entering another’s land.

➢ Holding: The defendant is liable for trespass. He had actual or constructive knowledge that his dogs would likely enter the plaintiff’s land.

Malouf v. Dallas Athletic Country Club (1992) [pp. 33]

➢ Facts: Plaintiff lived next to the defendant’s golf course. On three occasions golf balls from the course hit the plaintiff’s car. The golf boys went astray at the sixth hole

➢ Holding: No trespass. There was no evidence that the individual golfers intended to hit their balls in that direction or violate the plaintiff’s rights.

Distinction: The certainty that the object will enter someone else’s land is a distinguishing factor regarding the intent element.

Van Alstyne v. Rochester Telephone Corp (1937) [pp. 35]

➢ Facts: Defendants owned a telephone line that ran through plaintiff’s land. After repairing the line, with permission of the landowners, the defendants left behind drops of lead. The plaintiffs’ two dogs subsequently died of lead poisoning.

➢ Rule: If you cast articles or substances upon the premises of another without permission, you are liable for trespass. This includes leaving behind substances that you were responsible for removing. (This case is likely not the right outcome in accordance with the doctrine-the intent element is missing).

o Non-negligence is not a defense because this is private property (castle doctrine).

➢ Holding: The defendants are liable for trespass. Intent does not matter in this case because the defendant’. A defendant is liable even for unforeseeable damages.

C. Conversion

In general, trespass involves real property and conversion involves personal property.

1) Definition: interference with the plaintiff’s personal property to such an extent that the defendant is required to pay its full value. In a conversion action, the plaintiff is seeking damages equaling the value of the converted property.

Elements

1) Intentional exercise of dominion or control

2) that seriously interferes with the rights of the possessor

a. serious interferences are listed in §222A: extent and duration of control, good faith, extent of interference with owner’s right of control, harm done to chattel, inconvenience and expense caused to the other

2) Trespass to chattel: dispossession or use of someone else’s chattel. If you are using or meddling with someone’s chattel, you will only be liable if you diminished the value of the chattel, if you have deprived the person of use for a period of time, or have harmed a person or thing that the person has an interest in. Damages will be equal to the diminished value, not the value of the property.

➢ harm to the personal property, diminution of its quality, condition, or value as a result of the defendant’s use (CompuServe)

3) Replevin: An action where the plaintiff is seeking return of the property, as opposed to damages.

Russell-Vaughn Ford, Inc. v. Rouse (1968) [pp. 44]

➢ Facts: The plaintiff went to a car dealership to discuss trading in his car. He gave his keys to a salesman. Negotiations failed and he asked for his keys back. The salesman claimed they were lost; no one would help him and other salesmen laughed. Once the police arrived, they returned the plaintiff’s keys.

➢ Rule: The refusal, without legal excuse, to deliver a chattel, constitutes a conversion. It is enough that the defendant exercised dominion over the property in exclusion or defiance of the plaintiff’s right; the defendant does not need to appropriate the property to his own use.

➢ Holding: Conversion did occur. The plaintiff receives $5,000 in damages-the value of the car.

➢ The damages award was based on a deterrence goal. It was often the practice of the dealership to play such jokes. The idea is that you will only catch the person one out of every ten times that he has committed such an act, so when you do catch the person the court really wants to punish the person. The counter-argument to this idea is that you are punishing someone for something that they have not been convicted of and that they might not have done, in essence, making an example of the person. Also, you do not want to deter individuals from committing efficient breaches (i.e. borrowing a car for an hour to save your child’s life by driving him to the hospital). On the other hand, if you don’t set the damages amount high enough, this behavior may continue because the damages will be so low that the party may be willing to pay the few times that he/she is caught. High damages are way of bribing people to bring suits, which help accomplish these desirable social outcomes.

Spooner v. Manchester (1882) [pp. 46]

➢ Facts: Defendant rented a horse from plaintiff for a trip from Worcester to Clinton and back. On the way back the plaintiff got lost and was delayed. The horse became lame during this time.

➢ Rule: Whether an act involving temporary use, control or detention of property implies an assertion of a right of dominion depends on the circumstances of the case and the intention of the person.

o The important element in this case is the intent to assert a right of dominion or property, not the intent with respect to the property of another.

➢ If a person wrongfully exercises acts of ownership or of dominion over property under a mistaken view of his rights, the tort may still be a conversion.

➢ Holding: The defendant intended to return the horse at all times. No conversion.

Wiseman v. Schaffer (1989) [pp. 47]

➢ Facts: A tow truck driver towed an unattended vehicle on the basis of information furnished over the phone. The caller was an imposter and the truck was later stolen from the place it was towed.

➢ Holding: No negligence because this is standard practice. The court says this is conversion.

o This is an example of “as between two innocents”-we want the harm to fall on the tow truck driver because he is the party who is better able to protect against this. Tension between the right to security (the car owner) and the right to go about one’s job freely.

O’Keeffe v. Snyder (1980) [pp. 47]:

➢ Facts: O’Keeffe’s paintings were stolen from an art gallery. The paintings were later discovered on display in an art gallery. Snyder claimed to own the paintings; he bought them from Ulrich who inherited them from his father. There was no way to show how Ulrich’s father gained possession of the paintings.

➢ Rule: A thief acquires no title and cannot transfer good title to others regardless of their good faith and ignorance of the theft.

➢ Holding: This was an action for replevin. O’Keeffe was entitled to recover her paintings (if she met the SOL requirements).

Phelps v. McQuade (1917) [pp. 48]

➢ Facts: The plaintiffs, jewelers, gave a man valuable jewelry on the basis of a credit rating of the person the man was posing as. The man sold the jewelry to McQuade.

➢ Procedural History: The plaintiffs sued McQuade to recover the jewelry.

➢ Rule: When the vendor intends to sell goods to the person he’s dealing with, title passes, even if he is deceived as to the person’s identity or responsibility. It is a question of the vendor’s intention.

➢ Holding: The plaintiffs can’t recover. Title passed to the imposter and, therefore, to McQuade through the subsequent sale.

Theft v. Fraud:

➢ Theft: A thief acquires no legal title and cannot transfer title to a purchaser. A purchaser cannot transfer title to a subsequent purchaser. The thief has a “void” title.

o A subsequent purchaser is liable for conversion to the original owner.

➢ Fraud: The fraud obtains “voidable” title. Up until the voiding occurs the fraud has title to the goods and can pass it on to an innocent purchaser.

➢ The reason for the distinction may be based on the idea that fraud is more difficult to ascertain and would make chain of title less certain.

➢ UCC §2-403 [pp. 49]

➢ Restatements (supplements)

Anderson v. Gouldberg (1892) [pp. 50]

➢ Facts: Defendants took logs from the property of Anderson. Anderson sues for replevin. Defendants claim Anderson tortiously acquired the logs by trespassing on the property of a third party.

➢ Rule: To maintain an action for replevin a plaintiff’s possession must have been lawful against the person who deprived him of it; possession is good title against everyone except those having better title.

o Possession creates the presumption of title.

➢ Holding: Anderson can replevy the logs.

CompuServe, Inc. v. Cyber Promotions (1997) [pp. 54]

➢ Facts: CompuServe was an internet service provider. Cyber Promotions was an advertising company that sent spam mail to email accounts held by CompuServe customers. CompuServe prohibited the defendant from using its equipment to process and store its spam, but they continued to do so. CompuServe sued for trespass to chattels.

➢ Rule: An action for trespass to chattels can be sustained on the basis of harm to the personal property, diminution of its quality, condition, or value as a result of the defendant’s use.

o The defendant’s use demand disk space and drain processing power.

o Electronic signals generated and sent by computers can be sufficient to support a trespass cause of action. (The final destination is the place used to determine trespass.)

D. False Imprisonment

Definition: protects the plaintiff’s interest in freedom of movement; when one party confines another without authorization. It can be formal or informal incarceration.

Elements:

1) An act intending to confine someone within fixed boundaries

2) The act directly or indirectly results in confinement

3) Either the person knows they are confined or is harmed by the confinement

Rest §35 False Imprisonment [pp.56]

If the person knows that there is another exit or mode of escape than they are not imprisoned. Rest §36 What Constitutes Confinement [pp. 56]

Hypos:

➢ The police tell you that you are not allowed to leave, but they do not handcuff you. This may or may not be false imprisonment. Although there was an escape, the person doesn’t know that they are able to leave because they believe they are under arrest.

➢ Confinement within a country is not false imprisonment, but confinement within a state or city may be (see Rest §36).

Rest §38 Confinement by Physical Barriers [pp. 56]

➢ Removes a ladder prohibiting B from exiting a well.

➢ Takes away crutches from someone who is cripple.

Peterson v. Sorlien (1980) [pp. 57]

➢ Facts: A college girl joins a religious group and becomes very involved. Her parents believe that she has been brainwashed and they stage an intervention. Her father takes her to a house to be “deprogrammed.” The first couple of days she is distraught and begs to be released but then she becomes happier. After two weeks the plaintiff leaves.

➢ Proc History: Plaintiff sues her parents and the deprogrammers for false imprisonment. Jury finds for the defendants and the Minnesota S Ct affirms.

➢ Rule: To utilize consent as a defense for the entire period or any part, the evidence must demonstrate that the plaintiff voluntarily consented.

➢ Analysis: The jury found that the plaintiff’s voluntary participation after the first three days was a waiver. Due to cult indoctrination, the plaintiff was thought to regain her volitional capacity to consent only after the first 3 days. Society has a compelling interest in intervention.

➢ Holding: When a parent believes his/her child’s judgmental capacity is impaired due to participation in a religious cult, and the child at some point assents to the actions in question, then the limitations upon the child’s mobility do not constitute false imprisonment.

Eilers v. Coy (1984) [pp. 59]

➢ Facts: 24-year old plaintiff joined a religious group. His family arranged to have him abducted and taken to an institution for deprogramming. During the beginning he was kept handcuffed to the bed. Plaintiff tried to escape and failed. He pretended to cooperate and eventually escaped. He sues for false imprisonment.

➢ Holding: Directed verdict for the plaintiff.

➢ Distinguished: The child never consented to the confinement-he continuously tried to escape. Narrow interpretation of the first case. Also, the deprogramming in this case seems more severe than that in Peterson (handcuffs, boarded windows, etc).

Bright v. Ailshie (2002) [pp. 59]

➢ Facts: Vincent Bright was arrested. He gave the police and bail bondsman his brother’s name and information. Vincent jumped bail and the bond company hired a bounty hunter. They apprehended Dennis Bright, the brother, and brought him from Detroit to Missouri. He was released after the mistake was discovered.

➢ Analysis: According to Michigan law, a private person may arrest a person who has committed a felony. There is no probable cause qualification.

o Although the bounty hunter had probable cause to believe Dennis Bright committed a felony, he is still liable for false imprisonment.

➢ Holding: Michigan S Ct finds for plaintiff. Probable cause does not vitiate the lack of commission of a felony. This is viewed in the lens of strict liability.

➢ California Rule: if you have a reasonable belief that the person committed the felony in question, then you are not liable for false imprisonment; closer to a negligence standard.

Shoplifters: Most states have passed laws allowing shopkeepers to detain suspected shoplifters in a reasonable manner and for a reasonable time, without liability even if their suspicions are wrong.

Baggett v. National Bank & Trust Co (1985) [pp. 62]

➢ Facts: A man goes to a bank to deposit a check. He picks up a deposit slip at the bank and hands it to the teller. The slip has the words “this is a stek up” written on the back. The man is arrested and detained for 3 hours. Evidence showed that there were a number of similar deposit slips at the bank and that the man’s handwriting did not match, but he was still taken to the police station and questioned.

➢ Proc History: He sues the bank for false imprisonment. Trial court grants SJ to bank. Ct of Appeals affirms. ‘

➢ Analysis: The decision to arrest Baggett was made by the police and the evidence provided by the bank was accurate. The bank was not liable.

o There is an implication that if the bank employees provided inaccurate information, which led to the arrest, then they would be liable.

o If the employees demanded that the officers arrest Baggett, then they may be liable for false imprisonment. The more assertions you make as opposed to just recounting the facts, the more the actions approach the realm of false imprisonment

E. Assault

Definition: intending to cause harmful or offensive contact, or creating the imminent apprehension of such contact

1) An act intending to cause harmful or offensive contact OR an act intending cause apprehension of harmful or offensive contact

2) And the person actually has imminent apprehension of such contact

Hypo

§24: A scrawny individual attempts to swing at a heavyweight champion. Although the heavyweight may not be scared of injury, this is still assault. On the other hand, if the heavyweight takes a swing at the scrawny man, but the scrawny man’s back is turned and he doesn’t see the swing, this is not assault.

Tuberville v. Savage (1669) [pp. 70]

➢ Facts: The plaintiff put his hands on his sword saying that if the judge was not in town, I would not take such language from you. The defendant attacked the plaintiff on the basis of this.

➢ Proc History: the plaintiff sues the defendant for battery and the defendant uses assault/provocation as a defense.

➢ Holding: This was not assault because there was no imminent apprehension of harm. The defendant knew that the plaintiff would not strike then.

Bennight v. Western Auto Supply Co (1984) [pp. 68]

➢ Facts: Bennight worked in a retail store owned by the defendant. There was a warehouse in back that he knew to be infested by bats. Against her protests her boss ordered her to go into the warehouse. She was bitten; she responded poorly to treatment and became blind.

➢ Proc History: Bennight’s husband sues on the basis of assault

➢ Holding: The manager’s intent to place Bennight in imminent apprehension of harm (she was afraid of the bats) by making her enter an unsafe situation is sufficient to establish the intent for assault. It is not necessary for him to intend that the harm actually befall her.

Newell v. Whitcher (1880) [pp. 70]

➢ Facts: Newell, a blind woman, spent the night in the defendant’s home. She was a music instructor for the defendant’s children. The defendant entered her room and made repeated sexual advances. She spent the rest of the night awake.

➢ Proc History: Newell sues for battery. Trial court gives a directed verdict for Newell. Defendant appeals.

➢ Ruling: The court finds that assault did occur. Note that this case was in 1880, and the court references the virtue of the poor girl, etc . . .

➢ There is clearly a causal link between the defendant’s actions and the fear or harm experienced by the plaintiff. The issue lies in the imminent apprehension element-if the defendant framed these sexual advances as simply requests than, objectively, the plaintiff was in no danger. The intent element is also may be lacking; it is not clear that the defendant intended the contact or the apprehension to occur. The outcome of this case depends a lot on the actual words that were used and how insistent the defendant was.

The Legal Rights Debate, Singer

➢ Damnum Absque Injuria: literally “damage without legal wrong;” damage for which the legal system provides no remedy.

➢ The best examples are economic activities (firing employees, taking away another business’s customers, etc.)

F. Outrage-Intentional Infliction of Emotional Distress

Elements

1) Extreme or outrageous conduct

2) That intentionally or recklessly causes severe emotional distress

Damages include compensation for the emotional distress and bodily harm that results.

➢ The relationship between the parties plays a part in a finding of IIED (doctor-patient relationship, psychologist-patient). Consider Roberts where the doctor is not the plaintiff’s doctor and the court finds no IIED and Greer where the doctor was the plaintiff’s doctor and IIED did occur.

➢ The character of the victim matters (“rough and tumble” union organizer)

➢ Truthfulness may play a part

➢ A different standard for public officials-actual malice

➢ Consider the theories of punishment-rights, deterrence

Roberts v. Saylor (1981) [pp. 74]

➢ Facts: The plaintiff undergoes 3 surgeries at a hospital. The plaintiff attempts to bring a malpractice suit against the 1st surgeon and asks the second surgeon to help her. He refuses and states that he despises people like her. Plaintiff undergoes a 3rd unrelated surgery and right before entering the operating room the 2nd surgeon tells her he doesn’t like her. Plaintiff is frightened but suffers no bodily harm.

➢ Holding: The plaintiff cannot sustain an action for IIED. The conduct must be outrageous meaning it goes beyond the bounds of decency.

Greer v. Medders (1985) [pp. 75]

➢ Facts: Plaintiff was recovering in the hospital after surgery. His surgeon left him under the care of Medders. After not seeing Medders for several days, Greer phoned his secretary. Medders visited Greer and ranted at him and insulted his wife. Greer’s wife began to cry and Greer experienced episodes of uncontrollable shaking, for which he received psychiatric treatment.

➢ Proc History: The trial ct grants SJ to Medders. Appellate court reverse SJ on the basis that Medders’ conduct may qualify as outrageous because his statements were made to a post-operative patient under his care and his wife while the patient was still recovering.

Muratore v. M/S Scotia Prince (1988) [pp. 76]

➢ Facts: The plaintiff was a passenger on a cruise ship who did not want her picture taken. The photographers continued to harass her. They took a picture of her backside and displayed it with a gorilla’s head superimposed where her head should be. On one occasion the photographer made the comment “Take her from the back-she likes things from the back.”

➢ Proc History: Plaintiff sues for IIED. Trial ct finds in her favor and ct of appeals affirmed.

Pemberton v. Bethlehem Steel Corp (1986) [pp. 77]

➢ Facts: Plaintiff was a union official for Bethlehem’s employees and Bethlehem was unhappy with his activities. Bethlehem allegedly hired a Private Investigator and sent evidence of Pemberton’s extramarital affair to his wife (causing a divorce), as well as circulated mug shots from a prior arrest.

➢ Pemberton sues for IIED. SJ was granted to Bethlehem.

➢ Rule: When deciding whether conduct is outrageous, the court should consider the personality of the individual to whom the misconduct is directed.

o The plaintiff was described as a “rough and tumble” union man.

➢ The information regarding the affair and conviction were true. This is not outrageous conduct.

➢ The emotional distress must be something “that no reasonable person could be expected to endure it.”

➢ Distinction: The character of the Plaintiff matters as well as the context of the incident (a labor dispute is expected to be rough).

Figueiredo-Torres v. Nickel (1991) [pp. 78]

➢ Facts: Defendant was the marriage counselor for the plaintiff and his wife. The defendant engaged in an affair with plaintiff’s wife then counseled plaintiff to seek a separation.

➢ Proc History: Pl sues for professional negligence and IIED.

➢ Rule: Outrageous conduct may arise from abuse of a position or relationship with another person that gives him power to affect that person’s interest. In cases where the defendant is in a peculiar position to cause emotional distress to the plaintiff, his conduct will be carefully scrutinized.

o Psychologist-patient relationship falls into this realm.

o The use of his position to sabotage the relationship is evidence of malice (insulting him, damaging his self-esteem). If the psychologist only had an affair and did not engage in the additional behavior, the court may not have found that IIED occurred.

➢ Holding: Defendant’s behavior constituted IIED.

Hustler Magazine v. Falwell (1988) [pp. 80]

➢ Facts: the magazine featured a parody a liquor campaign describing the “first time.” The parody featured Jerry Falwell stating that his “first time” was during a drunken rendezvous with his mother.

➢ Proc History: Falwell sues for libel and IIED. Trial court found that libel did not occur but ruled in favor of Falwell on the IIED claim. The US S Ct reversed as unconstitutional.

➢ Holding: Public officials cannot recover on IIED claims such as this unless the publication contained a false statement of fact made with actual malice or with reckless disregard for the truth.

Objections to IIED Tort:

➢ Constrains personal liberty (“I should be able to say what I want”)

➢ It’s a standard so it’s difficult for people to conform their behavior and provides too much judicial discretion

o There are narrow rules imposed in addition to the standards to protect against this (public official exception, Falwell)

Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, Hohfeld

➢ Rights and duties (correlatives)

o Right: give you the power to call upon the authority of the state to get someone to take a particular course of action or refrain from doing so, or to get liability (opposite of no rights)

o Duty: an obligation to take a particular course of action or not take a particular course of action

➢ No rights and privileges (correlatives)

o No right:

o Privilege: no one else can call upon the authority of the state to either prevent you or make you take a particular course of action (opposite of duty)

➢ Example: If you have a privilege to eat shrimp salad no one else can call upon the law to stop you. However, if someone else is trying to eat the shrimp salad as well you can’t call upon the authority of the state to stop them from doing so. You don’t have a right to the salad.

Przybyla v Przybyla, 87 Wis.2d 441 (1978)

Plaintiff is suing his wife for IIED for having an abortion against his wishes and depriving him of the joy of fatherhood as well as misleading him about her intentions to have an abortion.

➢ Rule: The court holds that abortion cannot be the grounds for IIED because it is the right of a woman to do so without the consent of her spouse and, therefore, is not outrageous conduct.

o Mrs. Prybyla has a privilege to get an abortion vis a vis the state and the husband has no right to interfere.

II. Intentional Torts: Privileges

A. Defense of Person and Property

Katko v. Briney (1971) [pp. 85]

➢ Facts: The Briney’s owned a house used mostly for storage. There were repeated break-ins. Mr. Briney set a trap in the bedroom so that a shotgun would fire at a person’s legs if he tried to enter the room. The gun was not visible from the outside and there was no sign posted. The plaintiff broke into he house and set off the gun; most of his right leg was removed.

➢ Proc History: The plaintiff was convicted of petty larceny and fined $50 and paroled from a 60-day jail sentence. He brought suit against the Brineys and was given a verdict of $20,000 in actual damages and $10,000 in petty damages. Brineys appeal.

➢ Policy: The societal value on human life and limb is greater than the interest in securing one’s land. Rest §85

➢ Rule: There is NO privilege to use force calculated to cause death or serious bodily injury to repel threats to property, unless there is also a threat to the defendant’s personal safety. Rest §79

➢ Rule: A property owner cannot do indirectly and by a mechanical device what he is not allowed to do in person.

➢ Holding: The use of a mechanical device to inflict serious bodily injury on a trespasser is prohibited. Decision affirmed.

➢ Dissent: Better rule is that owners should be able to use mechanical devices intended to repeal but not seriously injure intruders. The question of the owner’s intent should be put to the jury.

Crabtree v. Dawson (1904) [pp. 89]

➢ Dawson owned a building in which a dance and a party were being held. An intoxicated man, Noble, attempted to enter the dance without paying and Dawson escorted him outside. After returning to the dance Dawson heard someone say “he is getting some bricks” and heard footsteps n the stairs. Believing it was Noble returning, he yelled “don’t come up here.” The person didn’t stop. As he came through the doorway Dawson hit him in the face with the butt of the musket.

➢ Proc History: Crabtree sued for battery. Trial court found for Dawson.

➢ Rule: If the defendant believed, reasonably so, that the plaintiff was another and that he believed it was necessary to strike this other person in order to defend against a threatened attack, and he used no more force than necessary, then he is excused on the grounds of self-defense and apparent necessity.

o Defendant must exercise the highest degree of care practicable.

o Even if the defendant is mistaken, the defense holds as long as it was reasonable.

➢ Holding: Court of appeals reversed but said that Dawson might yet be found free from liability.

Wright v. Haffke (1972) [pp. 89]

➢ Facts: Plaintiff enters a grocery store with another. One of them knocks the owner down and they reach into the register. Haffke shoots the plaintiff.

➢ Ruling: Verdict for the defendant; no liability.

➢ Rule: A firearm can be used to prevent the commission of a felony. The force used must be within permissible limits (question for the jury).

o Firearm use not justified to prevent minor thefts; may be justified to prevent felonies.

o Haffke was actually attacked.

Woodbridge v. Marks (1897) [pp. 90]

➢ Facts: Defendants had two vicious watchdogs chained on his property. The chains allowed the dogs to protect the ice-house and chicken coop, but not the walkway or house. Plaintiff entered property at night in search of a man at work in the barn. Plaintiff left the walkway because he couldn’t see it in the dark and was injured by one of the dogs.

➢ Proc History: Trial court ruled for the plaintiff and appellate court reversed.

➢ Holding: The dog was properly confined so the owner should not be liable. If liability were to arise it would be almost impossible to keep a watchdog to guard against trespassers.

➢ Distinction between Woodbridge and Katko: the primary function of the spring gun is to punish trespassers, the gun is silent, no warning; the primary function of a guard dog is to deter trespassers and thieves, people will usually be aware of dogs.

Hull v. Scruggs (1941) [pp. 91]

➢ Facts: Plaintiff’s dog continuously came onto defendant’s property and sucked the eggs laid by defendant’s turkeys and hens. Defendant shot the dog, although not while the dog was in the act.

➢ Proc History: Pl sues for value of dog. Trial ct finds for the plaintiff. Mississippi S Ct reverses.

➢ There are certain steps that must be taken to deal with the dog. After the necessary steps have been taken and the behavior continues for a period, the owner is justified in killing the dog.

***There is a rule that when valuable livestock trespasses on your land that you are supposed to detain the animal. The rules for livestock in general are very specific by state.

Kershaw v. McKown (1916) [pp. 92]

➢ Facts: Plaintiff’s dog had been attacking defendant’s goat. Defendant killed the dog.

➢ When determining reasonableness of the defense, one can consider: the consequences of the proposed act to the aggressor in connection with the consequences of non-action to the defender.

o The relative value of the animals was an appropriate consideration.

➢ Ruling: Verdict for defendant.

➢ Difference between instructions:

o Instruction given: If the animals were not greatly disproportionate than no liability exists.

o Proposed instruction by Plaintiff: If the animals were not greatly disproportionate than liability does exist.

Bamford v. Turnley (1860) [pp. 94]

Bramwell’s argument: In deciding whether a defendant has acted wrongfully, ask how the situation would have been handled by a single owner who was responsible both for the source of the threat and the property being threatened.

Policy: The main policy behind these rules is public safety. We want to minimize the chance that an unintended party will be hurt (e.g. ban on spring guns); however, the state still recognizes the need of property owners to protect themselves (e.g. allowance of guard dogs).

B. Private Necessity

Ploof v. Putnam (1908) [pp. 97]

➢ Facts: The defendant owned an island and a dock, which were attended to by his servant. The plaintiff was out sailing with his family. A storm suddenly came upon them and to save his boat and family the Pl tied his boat to the Def’s dock. The servant unmoored the boat and it was driven onto the shore by the storm and destroyed. The Pl and his family were thrown into the lake and injured.

➢ Proc Hist: Pl sues defendant for trespass (unmooring the boat) and negligence and carelessness by ignoring duty.

o A necessity defense can sometimes be a cause of action or its own separate tort.

➢ Rule: One may sacrifice or intrude upon the personal property of another to save his life or the lives of others.

o Actions of plaintiffs were justified because the storm threatened his life and the lives of his family.

o Defendant attempts to prove that necessity did not exist by stating that there were natural objects to which the plaintiff could have moored his boat. Rejected.

o Human life is more valuable than property rights.

➢ Holding: Judgment for plaintiff affirmed.

➢ Examples of Necessity:

o A traveler on a highway that finds it suddenly obstructed can pass upon adjoining land

o Entering land to save goods in danger of being destroyed by water or fire

Rossi v. DelDuca (1962) [pp. 99]

➢ Facts: Plaintiff was chased by dog. Escaped into defendant’s field. Defendant’s guard dog bit plaintiff.

➢ Proc History: Plaintiff sues for damages. Defendant moves for a directed verdict on the ground that the plaintiff was a trespasser. Trial court and appellate court deny motion.

➢ Rule: One is privileged to enter land when necessary to prevent serious harm to yourself or property. The intruder is not liable for trespass and the possessor no longer has immunity from liability in resisting the intrusion.

The court looks at whether the property owner “scared” the privileged trespasser away from the land. A fence is allowable; however, a dog that bites the trespasser may still cause liability because it causes damages and resembles an intentional tort.

Vincent v. Lake Erie Transportation Co. (1910) [pp. 100]

➢ Facts: The ship the Reynolds was unloading cargo while moored to the plaintiff’s dock. During this time a storm grew and continued throughout the night. Navigation was suspended until the storm abated. The ship remained moored to the dock and caused $500 in damage from being thrown against the dock.

➢ The defendants were not at fault in remaining moored to the dock. The exercised ordinary prudence and care.

➢ The defendants are liable for the damages that resulted from their ship remaining moored to the dock.

o The defendants deliberately and by their direct efforts held the boat in such a position that the damage to the dock resulted. (They kept the ship moored at the dock and continued to replace the lines holding the ship in place.)

➢ There is a distinction between acts attributed to God and the intervention of some act by the one sought to be held liable.

o If the ship entered the harbor during the storm and became disabled and been thrown against the plaintiff’s dock, then no liability would result.

o If the lines holding the ship to the dock had broken and the ship struck another vessel in the harbor, the no liability would result.

➢ Holding: The defendants must compensate plaintiffs for damage.

A Theory of Strict Liability, Epstein:

If the Transportation Co had owned both the boat and dock, it would have sacrificed the dock for the preservation of the boat. The action in tort in effect enables the inured party to require the defendant to treat the loss he has inflicted on another as though it were his own. If the Transportation Co would bear the costs in cases in which it damages its own property, it should bear those costs when it damages the property of another.

Texas Midland Ry. Co. v. Geraldon (1910) [pp. 103]

➢ Facts: Plaintiff and his family went to a railroad station. They missed their train and decided to wait for the next one, which would arrive at 5 the next morning. At 10:00 pm the family was forced to leave the station despite the fact that it was raining and the wife was vulnerable to illness, which was made known to the agent of the railroad. The family went to a boarding house 150 to 300 yards away and the wife’s clothing was soaked and she became ill. (She had no change of clothes because they were left in boxes nailed shut at the station ready to be loaded onto the train.)

➢ Pl sued the railway company. Trial ct found for Pl and TX S Ct affirmed.

➢ Holding: It was not lawful for the agent of the railway company to force Mrs. Geraldon outside into the rain knowing that injury to her health might result.

London Borough of Southwark v. Williams (1971) [pp. 104]

➢ Facts: A homeless family became squatters on land owned by the Boroughs. The Boroughs brought an action to evict them and the Williams claimed necessity as a defense.

➢ Allowing a necessity defense for homelessness or hunger would promote lawlessness.

➢ Holding: Necessity is not allowable as a defense to trespass in the case of homelessness.

➢ Distinguished from Texas Midland: allowances for acute necessity as opposed to chronic necessity. Allowing necessity defenses for chronic necessity (i.e. homelessness, hunger) would create a utilitarian disruption.

Transaction Costs [pp.105]

Economists argue that the law treats rights as more flexible and less absolute where it is hard to enter into voluntary transactions over them. When transaction costs are too high as a practical matter, the law allows people to take each other’s entitlements and pay damages; by awarding damages, the law makes the deal for the parties that they might have made for themselves if bargaining had been feasible. Example: In Ploof, Putnam could have demanded any price from Ploof for the use of his dock because there was no time to bargain.

C. Public Necessity

Mouse’s Case (1609) [pp. 106]

➢ Facts: There were forty-seven passengers on a barge. A storm came upon them and it was decided that they needed to throw cargo overboard or else they would drown. The ferryman threw Mouse’s casket overboard.

➢ Holding: To prevent a public disaster, it is allowable to damage private property and no liability accrues.

o If the ferryman overloaded the boat, then he would be responsible for the lost/damaged property.

➢ Distinction between Mouse and Lake Erie Transportation: The danger was to life as opposed to property.

Struve v. Droge (1881) [pp. 108]

➢ Facts: The landlord saw smoke outside the window of his tenant’s building. The tenant was not home so he broke into the apartment to stop the fire, but found that there was no fire.

➢ Proc History: The tenant sues for damages to his property. The trial court rules in favor of the defendant finding that his belief was reasonable and his actions justified. The court of appeals reversed.

➢ Holding: If, in fact, a public necessity does not exist, a person who commits destruction is responsible for damages.

➢ The court may be taking into account the fact that the landlord’s interest was in protecting his private property rather than a public necessity.

Rest §262 Privilege Created by Public Necessity [pp. 109]

You have the privilege of committing an act that is considered a trespass or conversion if the act is [reasonably believed to be] necessary to avoid a public disaster.

Government Use of Public Necessity Defense

The Fifth Amendment provides “nor shall private property be taken for public use, without just compensation.” Courts disagree about the application of similar state provisions in cases involving police action. Two alternative approaches:

1. Wegner v. Milwaukee Mutual Ins. Co. (1992) [pp. 110]

➢ Facts: A violent suspect entered a private home. A SWAT team threw tear gas and grenades through the windows causing $70k in damages.

➢ Holding: The court ruled that the city must compensate the innocent third party.

➢ Policy considerations: The risk of loss should be allocated to the municipality, rather than on innocent citizens.

2. Customer Company v. City of Sacramento (1995) [pp. 111]

➢ Facts: A SWAT team fired tear gas inside the plaintiff’s building. The plaintiff sought damages on the basis of the eminent domain provision of CA’s constitution requiring the government to provide just compensation.

➢ Holding: The city does not have to compensate the plaintiff; the actions were an exercise of the state’s “police power” and not eminent domain.

D. Discipline

Certain defendants have the limited privilege to use reasonable force to maintain order (i.e. parents, teachers, etc.)

Forbes v. Parsons (1839) [pp. 111]

➢ Facts: Forbes served as a cook aboard a ship. The crew alleged that Forbes kept the galley in an unclean state and provided them with poorly cooked food. The captain, Parsons, beat him with a rope and frying pan.

➢ Proc History: Forbes brought suit for battery. Parsons claimed he was justified by a privilege to maintain order on the ship.

➢ Holding: The court found in favor of Parsons. There is a different standard of conduct aboard a ship. The punishments were not overly severe. The crew was dissatisfied and the captain had a need to maintain order.

Elements of Unintentional Torts

1. Duty of care

2. Negligence

3. Causation

4. Damages

III. The Negligence Standard

In a suit for negligence ask:

1) Did the defendant owe the plaintiff a duty?

a. Often, the duty is taken for granted because a defendant’s obligation is obvious because of the risks the activity creates (i.e. driving)

2) Did the defendant breach that duty by failing to use reasonable care?

a. Did the defendant take reasonable precautions against the harm that occurred?

A. The Reasonable Person

Rest §238 [pp. 122]: The standard of care is that of a reasonable man in similar circumstances. There is an exception for children.

1. Mental Ability and Mental States

Williams v. Hays (1899) [pp. 122]

➢ Facts: The defendant was the captain of a ship that was caught in a storm at sea. After 2 days the storm subsided and the captain retired to his cabin for the first time since the storm began. He took a malaria and fever remedy. The crew began having trouble steering. Two tugboats passed the ship and informed the crew that their rudder was broken. They offered to tug the boat to shore, but the captain declined. He was stumbling around in a daze. The ship crashed on shore and a life-saving boat arrived. The captain has no recollection of the events.

➢ Proc History: The plaintiff, as a representative of the ship’s owners, brought a suit for negligence. Defendant claims that he was unaware of his actions and insane so not responsible. Trial court found for the defendant. Plaintiff appealed. Ct of Appeals reversed and demanded. Trial court found for the plaintiff. Defendant appealed. Ct of Appeals reversed and remanded.

➢ Issue: Is insanity a defense to the plaintiff’s claim?

➢ Holding: Insanity is not a defense to negligence with certain qualifications.

Opinion 1

➢ Rule: An insane person is just as responsible for his torts as a sane person, except for those torts where malice or intention is a necessary element.

o Based upon the theory of as between two innocents; the innocent who caused the act must bear the loss.

o Encourages relatives of the insane to maintain control and discourages imposters.

➢ Rule: If in your efforts to uphold a duty of care, you become insane then liability does not fall on you.

o Would not apply in the case of a doctor or lawyer. In the case at and, there was no way for the captain to avoid these duties. A doctor or lawyer can prevent any chance of insanity by going to sleep.

➢ If the defendant had become insane during the course of his efforts to save the vessel, there would have been a different case.

Opinion 2

➢ Rule: Insanity is not a defense to negligence.

➢ Qualifications: The law intends what is agreeable to reason. Impossibility is an excuse in law, and there is no obligation to perform impossible things.

o The captain spent 3 days on duty and 48 hours on deck during the storm. There is a limit to physical and mental endurance.

Vaughan v. Menlove (1837) [pp. 125]

➢ Facts: Defendant built a haystack. Plaintiff, his neighbor, warned that this was a fire hazard. The defendant built a chimney through the haystack. The stack burst into flames and the fire spread to the defendant’s barn and stables and the plaintiff’s cottages.

➢ Proc History: Plaintiff sues for negligence. Trial court finds for plaintiff. Defendant appeals on the basis of an incorrect jury instruction (the defendant had to use reasonable caution as a prudent person would have exercised). He states that he should not be punished for not being the smartest man.

➢ Holding: The trial court instructed the jury correctly. Reasonable Person Standard: the standard is the caution a man of ordinary prudence would observe. The jury should not account for the judgment of each individual.

Lynch v. Rosenthal (1965) [pp. 126]

➢ Facts: Lynch was a man with the mental capacity of a ten year-old. He lived on the defendant’s farm and was treated as part of the family. Lynch was asked to help the defendant with the corn picking. Lynch stumbled into the picker and his right arm was seriously injured.

➢ Proc History: Lynch brought a suit for negligence in the failure to warn him of the danger of coming too close to the picker. The defendant claims contributory negligence because the danger was obvious.

➢ Analysis: An expert testified that Lynch did not have the mental capacity to appreciate the danger of moving machinery, but could have understood a clear warning or direction to stay away. Trial ct found for Lynch. Def appealed.

➢ Holding: The plaintiff was not contributorily negligent. The defendant knew about the plaintiff’s mental capacity and failed to give a warning. The basis of the negligence claim was that the person was mentally impaired. To recognize a contributory negligence defense on the reasonable person basis would be unjust. This applies specifically because the plaintiff is being accused of contributory negligence.

Contributory Negligence (Defense)

The doctrine states that a plaintiff’s whose own carelessness contributed to their injuries can collect nothing from a defendant. This applies even if the defendant’s negligence was clear and the plaintiff was only slightly at fault.

➢ Last Clear Chance Doctrine: A plaintiff was not barred from recovery by his own negligence if the defendant had the last good opportunity to avoid the accident through the use of due care and failed to do so.

o Usually applies where the plaintiff was helpless or inattentive and the defendant became aware of the danger, but did not prevent it.

➢ Comparative Negligence: The doctrine reduces recoveries by negligent plaintiffs in proportion to their fault, but does not prevent them from recovering altogether. Adopted in most states.

o Modified: Plaintiffs can only collect if they are not more than 50% responsible.

o Pure: Plaintiffs who are 90% to blame can still bring suit to collect the remaining 10%.

2. Physical Infirmities

Kerr v. Connecticut Co. (1928) [pp. 133]

➢ Facts: William Kerr was a man with poor hearing. He was walking home on a road alongside which ran a trolley line. The trolley driver saw Kerr and sounded the gong, but Kerr did not heed. The driver applied his brakes, but it was too late. Kerr died from injuries.

➢ Proc History: Kerr’s administratrix sued the trolley company. Trial court found no negligence on the part of the trolley company. Plaintiff appealed and CT S CT affirmed.

➢ Holding: The plaintiff was contributorily negligent. The law required the decedent to exercise the care for his safety that a reasonably prudent man would exercise under similar circumstances. He had to take precautions that a reasonably prudent deaf man would exercise.

Davis v. Feinstein (1952) [pp. 134]

➢ Facts: A blind man was walking down the street using a cane to touch the ground in front of him. He fell through an open cellar door in front of defendant’s furniture shop.

➢ Holding: He was not contributorily negligent. A blind man is bound to use due care under the circumstances, which he did by using the cane. He is not to discover everything that a person of normal vision would discover. The court holds him to the standard of a reasonable blind man.

The reasonable person standard makes an exception for physical impairments, where it will not make an exception for mental impairments. The standard then becomes the reasonable person with this physical impairment.

➢ A person with a physical impairment can compensate by taking certain precautions.

➢ There is a clear idea of the capacity of a person with a physical impairment, whereas, no such clear idea or standard exists for a person with a mental impairment.

➢ Proving a physical impairment is easier than proving most mental impairments.

3. Age

Purtle v. Shelton (1971) [pp. 134]

➢ Facts: Plaintiff (16) and defendant (17) were hunting companions. Defendant accidentally shot plaintiff.

➢ Proc History: Plaintiff found to be contributorily negligent. Plaintiff appeals. Plaintiff contends that the jury should have been instructed that the defendant was required to use the degree of care of an adult, rather than a minor of his age and intelligence.

➢ Rule: If a minor is to be held to an adult standard of care he must be engaging in an activity that is (a) dangerous to others and (b) normally engaged in only by adults. (Rest)

o This rule applies to driving.

➢ Holding: Deer hunting is not an activity that is normally engaged in by adults only. Therefore, a minor should not be held to an adult standard of care.

➢ Burden is placed on society to take extra precautions to protect children.

➢ It is difficult to deter children from making poor decisions; it would be wrong to punish them for engaging in behavior that is characteristic of children.

Roberts v. Ring (1919) [pp. 137]

➢ Facts: The plaintiff’s 7 year-old son ran across a street and was hit by a car driven by a 77 year-old man with defective sight and hearing. The defendant was traveling at four or five miles per hour and did not see the boy until he was 5 feet away; he could not stop.

➢ Proc History: Trial ct found for the defendant. Plaintiff appealed.

➢ Holding: Jury was improperly instructed. The court was correct in instructing the jury to make allowances for the youth of the boy. However, the court was incorrect in allowing the jury to take into account defendant’s age and infirmities.

➢ Exceptions for youth, but not for age infirmities.

Dunn v. Teti (1979) [pp. 139]

➢ Facts: Defendant swung a stick negligently and injured plaintiff. Both were 6 years old.

➢ Proc History: Trial court gave SJ to the defendant and ct of appeals affirmed.

➢ Rule: A child is held to the standard of care that other minors of like age, experience, capacity, and development would exercise under similar circumstances.

1) Minors under the age of 7 are presumed incapable of negligence.

2) Minors between 7 and 14 are presumed incapable of negligence, but this presumption is rebuttable and weakens as the child grows older.

3) Minors over 14 are presumed capable of negligence; the burden to prove incapacity is on the minor.

B. Risks and Precautions

United States v. Carroll Towing Co (1947) [pp. 140]

➢ Facts: The Pennsylvania Railroad Co chartered a barge, the Anna C, and a bargee from the Conners Co for one day. The Anna C was loaded with flour. The Grace Line Co sent the Carroll to pick up another barge and the crew untied the Anna C’s lines and failed to retie them. The Anna C broke away from the pier and bumped into a tanker who punched a hole in the Anna. The ship eventually sank. No one was aboard to discover the leak.

➢ Proc Hist: Conners sued Carroll C and Grace Line. The court determined that Grace Line was negligent and partially responsible.

➢ Issue: Was the Conners Co negligent because its bargee was not aboard the Anna C at the critical moment? If Conners was also negligent then they will have to cover a third of the damages.

➢ The owner’s duty to provide against resulting injuries is based upon: (1) probability the boat will break away-P, (2) the gravity of the injury-L, (3) the burden of adequate precautions-B.

o Liability depends on if B ................
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