torts outline - NYU Law

Torts Outline I. Tort Law 1) TORT: To commit a tort is to act in a manner that is wrongful and
injurious toward another. Tort law articulates the legal responsibilities
or duties that persons owe one another, and provides victims of conduct
breaching those duties with redress.
a) 3 kinds of torts:
i) Intentional Torts: Intentional invasion of person or property.
Fault + intent.
ii) Nonintentional Torts:
1) Negligence: Fault.
2) Strict Liability: No fault.
2) FRAMEWORK
a) Prima facie case: Has a prima facie case been made for the tort?
i) BATTERY
1) CONTACT: Volitional act
2) INTENTION: Intending to cause harmful or offensive contact
3) CONSENT: Contact was non-consensual.
4) CAUSATION: The act actually and proximately causes the contact
ii) ASSAULT
1) ACT
2) INTENTION: Intending to cause another the apprehension of
imminent harmful or offensive contact
3) CAUSATION: The act reasonably causes this apprehension in
another
iii) NEGLIGENCE
1) INJURY
2) DUTY
3) BREACH
4) CAUSATION
iv) STRICT LIABILITY
v) PRODUCTS LIABILITY
1) P must suffer an injury.
2) D must be selling a product. (NOT sale of services)
3) D must be a commercial seller.
4) When D sold the product, the product must have been defective.
5) The defect must have been the actual and proximate cause of P's
injury.
b) (If negligence) Defenses: What defenses & justifications can D raise?
i) COMPARATIVE RESPONSIBILITY
ii) ASSUMPTION OF RISK
c) Damages: What damages are applicable?
i) NOMINAL
ii) COMPENSATORY
iii) PUNITIVE II. Intentional Torts 1) BATTERY: Intentional infliction of harmful bodily contact upon another.
|Elements of Battery (Prima facie case)|
|Volitional act |
|INTENTION: Intending to cause |
|Harmful or offensive contact |
|CONSENT: Contact was non-consensual. |
|CAUSATION: The act actually and |
|proximately causes the contact | a) Harmful or offensive contact
i) RS(2) 13. Battery: Harmful Contact. An actor is subject to
liability to another for battery if
1) he acts intending to cause a harmful or offensive contact with
the person of the other or a third person, or an imminent
apprehension of such a contact, and
2) a harmful contact with the person of the other directly or
indirectly results.
ii) RS(2) 18. Battery: Offensive Contact. An actor is subject to
liability to another for battery if
1) he acts intending to cause a harmful or offensive contact with
the person of the other or a third person, or an imminent
apprehension of such a contact, and
2) an offensive contact with the person of the other directly or
indirectly results.
3) An act which is not done with the intention stated in Subsection
(1, a) does not make the actor liable to the other for a mere
offensive contact with the other's person although the act
involves an unreasonable risk of inflicting it and, therefore,
would be negligent or reckless if the risk threatened bodily
harm.
iii) RS(2) 19. What Constitutes Offensive Contact.?
1) A bodily contact is offensive if it offends a reasonable sense
of personal dignity.
iv) Standard for "offensive"/"harmful" contact = Reasonable person
1) Actors are assumed to know the prevailing standards and may be
liable even if they meant no offense. Does not matter if P was
offended, but whether a reasonable person (not overly sensitive)
would be offended by D's conduct
2) Exception: If D has reason to know of P's particular
sensitivity, he may be liable even if the touching would not
normally be offensive.
v) Contact defined: Tobacco smoke, a bullet or a rock are extensions
of the person blowing smoke, pulling the trigger or holding the
rock.
1) Leichtman v. WLW Jacor Communications, Inc.: An anti-smoking
advocate brought suit for battery against a radio talk-show host
when the host intentionally blew cigar smoke into his face.
HOLDING: Contact which is offensive to a reasonable sense of
personal dignity is offensive contact. The smoke particles were
an extension of Furman, and were therefore capable of being used
to commit a battery.
2) Madden v. D.C. Transit System, Inc.: While standing in traffic,
P alleged that he was assaulted by fumes and offensive oily
substances which D allowed to spew from 2 of its buses.
HOLDING: Court held that assault claim was successful with
regards to offensive contact but deficient re: the requisite
intent for battery. The fact that the bus company knew that the
byproducts complained of were regularly discharged from the
buses does not satisfy the requisite intentionality because the
bus company did not have substantial certainty that harm would
occur to particular/identifiable person.
b) Intent
i) When a person has knowledge to a substantial certainty that harmful
or offensive contact will result from a certain action, a battery
occurs if that action is taken, even if there is no intent to cause
harm to another. "If the actor knows that the consequences are
substantially certain to result from his act, and still goes ahead,
he is treated by the law as if he had in fact desired to produce
the result." (Contrast to negligence!)
1) Vosburg v. Putney: Schoolboy kicks friend in shin in classroom.
Due to prior injury, P left w/ even more serious injury. D
found liable. The wrongdoer is liable for all injuries
resulting directly from the wrongful act, whether they could or
could not have been foreseen by him. (Eggshell skull rule.)
Court also notes that kicking would have been acceptable in the
playground, but in the present case, order had been called by
the teacher. Under those circumstances, no implied license to
do the act complained of existed, and such act was a violation
of the order and decorum of the school, and necessarily
unlawful.
2) Garratt v. Dailey: A woman brought suit against her 5 year-old
nephew, Brian Dailey, when she was injured in a fall that
resulted from his pulling a chair out from beneath her. The
Supreme Court ultimately held that Brian was "substantially
certain" that his aunt would fall as a result of his moving the
chair, and therefore imposed liability.
3) White v. University of Idaho: Piano professor touched White's
back and unintentionally caused her harmful injuries. HOLDING:
Court held that D committed battery despite lack of intent to
bruise P. The intent element of the tort of battery does not
require a desire or purpose to bring about a specific result or
injury; it is satisfied if the actor's affirmative act causes an
intended contact which is not permitted and harmful or
offensive.
4) Keel v. Hainline: D threw an eraser at a fellow student and
unintentionally hit her in the eye, causing her to become
partially blind in that eye. HOLDING: The fact that an act was
done with a good intention, or without any unlawful intention,
cannot change that which, by reason of its unlawfulness, is
essentially an assault and battery into a lawful act, thereby
releasing the aggressor from liability.
ii) Transferred intent
1) Ex: A intends to punch B, but instead punches C ( still liable.
2) Ex: If you intend to commit frighten A by shooting near her
(assault) but accidentally shoot C standing nearby ( have
committed battery on C
iii) Not necessary that P knows of contact at the time: if D kisses P
while asleep, but does not wake or harm her, D can still be held
liable.
iv) An act or omission done or neglected under the influence of
pressing danger is considered involuntary.
1) Laidlaw v. Sage: P claimed that D's action of shifting their
positions relative to each other before a criminal explosion
constituted battery, despite the fact that Ds action did not
contribute to any part of the injury which P suffered by reason
of the explosion. HOLDING: D did not voluntarily interfere with
the person of the plaintiff.
c) Causation
i) Act does not need to be the single cause of a harm, merely a but-
for cause of the harm.
d) Consent: A battery consists of a touching of a substantially different
nature and character than that which the patient consented.
i) Grabowski v. Quigley: P injured his lower back, sought treatment
from D (doctor), was operated on but continued to have back pain
and developed a "drag" foot as a result of the surgery. P later
discovered that a different doctor had conducted a significant
portion of his surgery and charged D with battery, for his never
consented to the surgery performed by another doctor. HOLDING: In
favor of P. The consent of the patient is a prerequisite to a
surgical operation by his doctor and an operation without the
patient's consent i