Torts: Majority Rule Cases

Edition

Preface

This casebook is designed for use in a first year law school Torts course. As with other casebooks, the cases in this book were selected because they are interesting and pedagogically useful. But unlike most other casebooks, these cases were selected with an eye to the law that students are likely to encounter on the Multistate Bar Examination®. The bar examiners select rules of law through a rigorous process, generally resulting in questions derived from the tort law used in a majority of states. This casebook’s approach eliminates case law followed in only one or a handful of states—cases that appear in other casebooks. In addition to preparing students for the Multistate Bar Examination®, which is worthwhile in itself for a professional school, a single rule of law approach allows the faculty member to focus on teaching fundamental analytical skills—the hallmark of what we mean by the phrase thinking like a lawyer. Another advantage of this approach is that students are unlikely to be confused on an exam, unsure as to what rule of law the professor wants spotted and analyzed. After all, in the actual practice of law, almost every lawyer only needs to find the rule of law in their jurisdiction. While comparing, contrasting, and synthesizing the laws from two or more jurisdictions is an important skill, especially for judges and appellate attorneys, it is not necessarily a skill that should be taught extensively throughout a first year Torts course. That being said, there are a few cases where minority approaches are included to help a faculty member introduce that skill. Also, several tort classics are retained, such as United States v. Carroll Towing and Brown v. Kendall.

A second characteristic of this casebook is that it is designed for students, not scholars. Internal citations have been removed, punctuation changed, quotations marks eliminated, archaic words modernized, sentence structure altered, paragraphs relocated, most author names deleted, and other changes to make the cases more accessible to students. The goal is to create a case that reads like a story, which will help increase student learning. For those that want to read the unaltered cases, a case citation is provided after each case name to allow access to the original.

Finally, this casebook does not contain explanations, notes, or problems, which is reminiscent of the approach taken by Christopher Columbus Langdell in the first casebook ever published. This casebook should be supplemented with problems, and because it uses a majority rule approach, works well when assigned along with a concise hornbook. As Langdell noted in his landmark 1871 casebook, Selection of Cases on the Law of Contracts: Law, considered as a science, consists of certain principles or doctrines. To have such a mastery of these as to be able to apply them with constant facility constitutes a true lawyer; and hence to acquire that mastery should be the business of every earnest student of law.

H. Beau Baez, III

Intentional Torts

Snyder v. Turk

Court of Appeals of Ohio, Second District (1993)

The facts in this case occurred during a gall bladder removal operation. The operation took approximately one and one-half hours. The operating surgeon was the defendant-appellee, Dr. Robert Turk. The plaintiff-appellant, Barbara Ann Snyder, was the scrub nurse. Snyder filed a complaint seeking damages from Dr. Turk based upon allegation of civil battery.

The plaintiff has appealed after the trial court removed all issues from jury consideration by granting the defendant a directed verdict at the close of the plaintiff’s case.

Dr. Turk began to perform a laparoscopic cholecystectomy. Dr. Turk testified that I had reached a level of frustration both by the difficulty of the procedure and the difficult exposure and with the instruments. He was also not happy with Snyder’s performance.

The plaintiff testified:

Q. Any conversation at this time between you and the defendant?

A. Dr. Turk looked at Dr. Clark at that point and said, ‘She’s already made three mistakes.’

Q. Did you respond?

A. I said, what have I done Dr. Turk? And he ignored me.

Q. Did there come a time when the defendant asked for a right angle?

A. Yes.

Q. And what did he say?

A. Right angle please.

Q. Did he specify length?

A. No.

Q. What did you hand him?

A. A right angle.

Q. When you hand the right angle to the defendant, what happens?

A. He takes the clamp from me and then he looks at it like he was going to use it and he throws it back at me.

Q. What happens next?

A. That’s when I’m standing there and when he reached up and grabbed my shoulder and my gown and pulled me down from a standing position instantly down to the surgical wound and started screaming, can’t you see where I’m working? I’m working in a hole. I need long instruments. I need long right angles now.

Q. What part of Dr. Turk’s body was in contact with yours?

A. His hand.

Q. And when, you know, right after he makes contact with you, what happens?

A. I’m pulled from a standing position immediately down to like a 90 degree angle, right down onto the surgical field.

Q. Where is your face in the end in relation to the patient there on the table?

A. Looking right down into the surgical wound.

Q. And how far is your face from the wound?

A. Maybe 12 inches.

The plaintiff also testified that she did not suffer any physical injury from her contact with Dr. Turk.

The parties agree that a battery is defined as an intentional, unconsented-to contact with another. The appellee contends that there is no liability for the commission of a battery absent proof of an intent to inflict personal injury. Dr. Turk further contends that the directed verdict was properly granted on the battery liability issue because of the absence of evidence that he intended to inflict personal injury.

We believe that reasonable minds could conclude that Dr. Turk intended to commit an offensive contact. We reverse and remand for further proceedings consistent with the opinion.

Cohen v. Smith

Appellate Court of Illinois (1995)

Patricia Cohen was admitted to St. Joseph Memorial Hospital (Hospital) to deliver her baby. After an examination, Cohen was informed that it would be necessary for her to have a cesarean section. Cohen and her husband allegedly informed her physician, who in turn advised the Hospital staff, that the couple’s religious beliefs prohibited Cohen from being seen unclothed by a male. Cohen’s doctor assured her husband that their religious convictions would be respected.

During Cohen’s cesarean section, Roger Smith, a male nurse on staff at the Hospital, allegedly observed and touched Cohen’s naked body. Cohen and her husband filed suit against Nurse Smith and the Hospital. The trial court allowed defendants’ motions to dismiss. We reverse.

Historically, battery was first and foremost a systematic substitution for private retribution. Protecting personal integrity has always been viewed as an important basis for battery. Consequently, the defendant is liable not only for contacts which do actual physical harm, but also for those relatively trivial ones which are merely offensive and insulting. This application of battery to remedy offensive and insulting conduct is deeply ingrained in our legal history. As early as 1784, a Pennsylvania defendant was prosecuted for striking the cane of a French ambassador. The court furthered the distinction between harmful offensive batteries and nonharmful offensive batteries:

As to the assault, this is, perhaps, one of that kind, in which the insult is more to be considered than the actual damage; for, though no great bodily pain is suffered by a blow on the palm of the hand, or the skirt of the coat, yet these are clearly within the definition of assault and battery, and among gentlemen too often induce dueling and terminate in murder. Respublica v. De Longchamps (Pa.1784).

Causing actual physical harm is not an element of battery. A plaintiff is entitled to demand that the defendant refrain from the offensive touching, although the contact results in no visible injury.

CAUSE OF ACTION

According to the complaint, despite being informed of Cohen’s religious beliefs, Nurse Smith, an agent and employee of the Hospital, intentionally saw and touched Cohen’s naked body.

The allegation that both Nurse Smith and the Hospital were informed in advance of plaintiffs’ religious beliefs is important in this case, because the religious convictions of plaintiffs might not be those of most people who enter the hospital to give birth. As a matter of fact, plaintiffs’ counsel candidly conceded that there would be no cause of action for battery if Patricia Cohen had been placed in Nurse Smith’s and the Hospital’s care in an emergency situation in which Patricia had been unable to inform the Hospital or its agents of her beliefs. Plaintiffs’ attorney acknowledged that his clients’ moral and religious views are not widely held in the community and, because of this, plaintiffs could state a claim against defendants only if the plaintiffs plead that the defendants had knowledge of those beliefs. Specifically, plaintiffs contend that defendants’ knowledge is clearly illustrated by an allegation in the plaintiffs’ amended complaint that Nurse Smith requested the presence of the Murphysboro City Police at the Hospital to prevent Mr. Cohen from objecting to Nurse Smith’s presence in the operating room while Mrs. Cohen was naked, and to physically restrain Mr. Cohen if necessary.

The fact that the plaintiffs hold deeply ingrained religious beliefs which are not shared by the majority of society does not mean that those beliefs deserve less protection than more mainstream religious beliefs. The plaintiffs were not trying to force their religion on other people; they were only insisting that their beliefs be respected by the Hospital and the Hospital staff.

When she informed the Hospital of her moral and religious beliefs against being viewed and touched by males, the Hospital was free to refuse to accede to those demands. But, according to her complaint, when Cohen made her wishes known to the Hospital, it, at least implicitly, agreed to provide her with treatment within the restrictions placed by her beliefs.

Although most people in modern society have come to accept the necessity of being seen unclothed and being touched by members of the opposite sex during medical treatment, the plaintiffs had not accepted these procedures and, according to their complaint, had informed defendants of their convictions. This case is similar to cases involving Jehovah’s Witnesses who were unwilling to accept blood transfusions because of religious convictions. Although most people do not share the Jehovah’s Witnesses’ beliefs about blood transfusions, our society, and our courts, accept their right to have that belief. Similarly, the courts have consistently recognized individuals’ rights to refuse medical treatment even if such a refusal would result in an increased likelihood of the individual’s death.

A person’s right to refuse or accept medical care is not one to be interfered with lightly. As Justice Cardozo stated, Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.

Knowing interference with the right of determination is battery. Accepting as true the plaintiffs allegations that they informed defendants of their religious beliefs and that defendants persisted in treating Patricia Cohen as they would have treated a patient without those beliefs, we conclude that the trial court erred in dismissing the battery count.

Garratt v. Dailey

Supreme Court of Washington (1955)

Brian Dailey (age five years, nine months) was visiting with Naomi Garratt, an adult and a sister of the plaintiff, Ruth Garratt, likewise an adult, in the back yard of the plaintiff’s home, on July 16, 1951. It is plaintiff’s contention that she came out into the back yard to talk with Naomi and that, as she started to sit down in a wood and canvas lawn chair, Brian deliberately pulled it out from under her. The only one of the three persons present so testifying was Naomi Garratt. (Ruth Garratt, the plaintiff, did not testify as to how or why she fell.) The trial court, unwilling to accept this testimony, adopted instead Brian Dailey’s version of what happened, and made the following findings: that while Naomi Garratt and Brian Dailey were in the back yard the plaintiff, Ruth Garratt, came out of her house into the back yard. Sometime subsequent thereto defendant, Brian Dailey, picked up a lightly built wood and canvas lawn chair which was then and there located in the back yard of the above described premises, moved it sideways a few feet and seated himself therein, at which time he discovered the plaintiff, Ruth Garratt, about to sit down at the place where the lawn chair had formerly been, at which time he hurriedly got up from the chair and attempted to move it toward Ruth Garratt to aid her in sitting down in the chair; that due to the defendant’s small size and lack of dexterity he was unable to get the lawn chair under the plaintiff in time to prevent her from falling to the ground. That plaintiff fell to the ground and sustained a fracture of her hip, and other injuries and damages as hereinafter set forth.

That the preponderance of the evidence in this case establishes that when the defendant, Brian Dailey, moved the chair in question he did not have any willful or unlawful purpose in doing so; that he did not have any intent to injure the plaintiff, or any intent to bring about any unauthorized or offensive contact with her person or any objects appurtenant thereto; that the circumstances which immediately preceded the fall of the plaintiff established that the defendant, Brian Dailey, did not have purpose, intent or design to perform a prank or to effect an assault and battery upon the person of the plaintiff.

In our analysis of the applicable law, we start with the basic premise that Brian, whether five or fifty-five, must have committed some wrongful act before he could be liable for appellant’s injuries. It is urged that Brian’s action in moving the chair constituted a battery.

A definition (not all-inclusive but sufficient for our purpose) of a battery is the intentional infliction of a harmful bodily contact upon another. In order that an act may be done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to a particular person, either the other or a third person, the act must be done for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced.

We have here the conceded volitional act of Brian, i.e., the moving of a chair. Had the plaintiff proved to the satisfaction of the trial court that Brian moved the chair while she was in the act of sitting down, Brian’s action would patently have been for the purpose or with the intent of causing the plaintiff’s bodily contact with the ground, and she would be entitled to a judgment against him for the resulting damages

A battery would be established if, in addition to plaintiff’s fall, it was proved that, when Brian moved the chair, he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been. Without such knowledge, there would be nothing wrongful about Brian’s act in moving the chair and, there being no wrongful act, there would be no liability.

While a finding that Brian had no such knowledge can be inferred from the findings made, we believe that before the plaintiff’s action in such a case should be dismissed there should be no question but that the trial court had passed upon that issue; hence, the case should be remanded for clarification of the findings to specifically cover the question of Brian’s knowledge, because intent could be inferred therefrom. If the court finds that he had such knowledge the necessary intent will be established and the plaintiff will be entitled to recover, even though there was no purpose to injure or embarrass the plaintiff. If Brian did not have such knowledge, there was no wrongful act by him and the basic premise of liability on the theory of a battery was not established.

Remanded for clarification.

Baska v. Scherzer

Supreme Court of Kansas (2007)

Baska had given her daughter Ashley, a high school senior, permission to organize a scavenger hunt with some friends. When people returned, a number of them remained at the Baskas’ home for a party. Scherzer and Madrigal were both at the party. Around midnight, an altercation broke out between Scherzer and Madrigal. Madrigal approached Scherzer from behind, and the two boys began to push each other and throw punches at one another. Upon being informed of the fight by one of her daughter’s friends, Baska yelled at the boys to stop in order to break up the fight. When they continued to fight, Baska placed herself between the boys and was punched in the face, losing several teeth and receiving injuries to her neck and jaw. Baska is certain that Scherzer hit her in the face; she also believes that Madrigal punched her in the back of the head.

The Restatement (Second) of Torts and this court’s decisions discuss this situation as being contemplated by the long-standing doctrine of transferred intent. The Restatement explains that the term intent, as it is used in the law of torts, denotes that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it. Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or 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. However, an action need not be directed at the plaintiff in order to give rise to liability for intentional torts. Rather, the doctrine of transferred intent states that the tort of battery may be committed, although the person struck or hit by the defendant is not the one whom he intended to strike or hit. It is enough that the actor intends to produce such an effect upon some other person and that his act so intended is the legal cause of a harmful contact to the other. It is not necessary that the actor know or have reason even to suspect that the other is in the vicinity of the third person whom the actor intends to affect and, therefore, that he should recognize that his act, though directed against the third person, involves a risk of causing bodily harm to the other so that the act would be negligent toward him.

Defendants Madrigal and Scherzer intended to punch someone (the other defendant) and did punch someone (the plaintiff). Although their actions were not specifically directed at the plaintiff, their punches were intentional acts and did injure Baska. If defendant unlawfully aims at one person and hits another, under the doctrine of transferred intent he is guilty of battery on the person hit, the injury being the direct, natural, and probable consequence of the wrongful act. So, if one of two persons fighting unintentionally strikes a third, the person so striking is liable in an action by the third person for a battery.

Polmatier v. Russ

Supreme Court of Connecticut (1988)

The defendant and his two month old daughter visited the home of Arthur Polmatier, his father-in-law. Polmatier lived in East Windsor with his wife, Dorothy, the plaintiff, and their eleven year old son, Robert. During the early evening Robert noticed a disturbance in the living room where he saw the defendant astride Polmatier on a couch beating him on the head with a beer bottle. The defendant then went into Robert’s bedroom where he took a 30-30 caliber Winchester rifle from the closet. He then returned to the living room and shot Polmatier twice, causing his death.

The defendant was charged with the crime of murder but was found not guilty by reason of insanity. Dr. Walter Borden, a psychiatrist, testified at both the criminal and this civil proceeding regarding the defendant’s sanity. He concluded that the defendant was legally insane and could not form a rational choice but that he could make a schizophrenic or crazy choice.

Connecticut has never directly addressed the issue of whether an insane person is civilly liable for an intentional tort. The majority of jurisdictions that have considered this issue have held insane persons liable for their intentional torts. This liability has been based on a number of grounds, one that where one of two innocent persons must suffer a loss, it should be borne by the one who occasioned it. Another, that public policy requires the enforcement of such liability in order that relatives of the insane person shall be led to restrain him and that tortfeasors shall not simulate or pretend insanity to defend their wrongful acts causing damage to others, and that if he was not liable there would be no redress for injuries, and we might have the anomaly of an insane person having abundant wealth depriving another of his rights without compensation.

Our adoption of the majority rule holding insane persons civilly liable, in appropriate circumstances, for their intentional torts finds support in other Connecticut case law. We have elsewhere recognized the vitality of the common law principle that where one of two innocent persons must suffer loss from an act done, it is just that it should fall on the one who caused the loss rather than upon the other who had no agency in producing it and could not by any means have avoided it.

The issue is whether the defendant intended the act that produced the injury. The defendant argues that for an act to be done with the requisite intent, the act must be an external manifestation of the actor’s will. Although the trial court found that the defendant could not form a rational choice, it did find that he could make a schizophrenic or crazy choice. Moreover, a rational choice is not required since an insane person may have an intent to invade the interests of another, even though his reasons and motives for forming that intention may be entirely irrational. The following example is given in the Restatement: A, who is insane believes that he is Napoleon Bonaparte, and that B, his nurse, who confines him in his room, is an agent of the Duke of Wellington, who is endeavoring to prevent his arrival on the field of Waterloo in time to win the battle. Seeking to escape, he breaks off the leg of a chair, attacks B with it and fractures her skull. A is subject to liability to B for battery.

We recognize that the defendant made conflicting statements about the incident when discussing the homicide. At the hospital on the evening of the homicide the defendant told a police officer that his father-in-law was a heavy drinker and that he used the beer bottle for that reason. He stated he wanted to make his father-in-law suffer for his bad habits and so that he would realize the wrong that he had done. He also told the police officer that he was a supreme being and had the power to rule the destiny of the world and could make his bed fly out of the window. When interviewed by Dr. Borden, the defendant stated that he believed that his father-in-law was a spy for the red Chinese and that he believed his father-in-law was not only going to kill him, but going to harm his infant child so that he killed his father-in-law in self-defense.

Under these circumstances we are persuaded that the defendant’s behavior at the time of the beating and shooting of Polmatier constituted an act.

White v. Muniz

Supreme Court of Colorado (2000)

Barbara White placed her eighty-three year-old grandmother, Helen Everly, in an assisted living facility. The caregiver in charge of Everly’s wing asked Sherry Lynn Muniz, a shift supervisor, to change Everly’s adult diaper. The caregiver informed Muniz that Everly was not cooperating in that effort. This did not surprise Muniz because she knew that Everly sometimes acted obstinately. Indeed, initially Everly refused to allow Muniz to change her diaper, but eventually Muniz thought that Everly relented. However, as Muniz reached toward the diaper, Everly struck Muniz on the jaw and ordered her out of the room.

The next day, Dr. Haven Howell, M.D. examined Everly. Dr. Howell deduced that she had a progressive dementia with characteristic gradual loss of function, loss of higher cortical function including immediate and short term memory, impulse control and judgment. She diagnosed Everly with primary degenerative dementia of the Alzheimer type, senile onset, with depression.

The question we here address is whether an intentional tort requires some proof that the tortfeasor not only intended to contact another person, but also intended that the contact be harmful or offensive to the other person.

Juries may find it difficult to determine the mental state of an actor, but they may rely on circumstantial evidence in reaching their conclusion. No person can pinpoint the thoughts in the mind of another, but a jury can examine the facts to conclude what another must have been thinking. For example, a person of reasonable intelligence knows with substantial certainty that a stone thrown into a crowd will strike someone and result in an offensive or harmful contact to that person. Hence, if an actor of average intelligence performs such an act, the jury can determine that the actor had the requisite intent to cause a harmful or offensive contact, even though the actor denies having such thoughts.

Some courts around the nation have abandoned this dual intent requirement in an intentional tort setting, that being an intent to contact and an intent that the contact be harmful or offensive, and have required only that the tortfeasor intend a contact with another that results in a harmful or offensive touching. Under this view, a victim need only prove that a voluntary movement by the tortfeasor resulted in a contact which a reasonable person would find offensive or to which the victim did not consent. These courts would find intent in contact to the back of a friend that results in a severe, unexpected injury even though the actor did not intend the contact to be harmful or offensive. The actor thus could be held liable for battery because a reasonable person would find an injury offensive or harmful, irrespective of the intent of the actor to harm or offend.

Courts occasionally have intertwined these two distinct understandings of the requisite intent. In most instances when the defendant is a mentally alert adult, this commingling of definitions prejudices neither the plaintiff nor the defendant. However, when evaluating the culpability of particular classes of defendants, such as the very young and the mentally disabled, the intent required by a jurisdiction becomes critical.

In this case, we have the opportunity to examine intent in the context of an injury inflicted by a mentally deficient, Alzheimer’s patient. We find that the law of Colorado requires the jury to conclude that the defendant both intended the contact and intended it to be harmful or offensive.

Operating in accordance with this rule, the jury had to find that Everly appreciated the offensiveness of her conduct in order to be liable for the intentional tort of battery. It necessarily had to consider her mental capabilities in making such a finding, including her age, infirmity, education, skill, or any other characteristic as to which the jury had evidence. We presume that the jury looked into the mind of Everly, and reasoned that Everly did not possess the necessary intent to commit an assault or a battery.

A jury can, of course, find a mentally deficient person liable for an intentional tort, but in order to do so, the jury must find that the actor intended offensive or harmful consequences. As a result, insanity is not a defense to an intentional tort according to the ordinary use of that term, but is a characteristic, like infancy, that may make it more difficult to prove the intent element of battery. Our decision today does not create a special rule for the elderly, but applies Colorado’s intent requirement in the context of a woman suffering the effects of Alzheimer’s.

Cullison v. Medley

Supreme Court of Indiana (1991)

According to Cullison’s deposition testimony, he encountered Sandy, the 16 year old daughter of Ernest, in a grocery store parking lot. They exchanged pleasantries and Cullison, who was thirty-four years old, invited her to have a Coke with him and to come to his home to talk further. A few hours later, someone knocked on the door of his mobile home. Cullison got out of bed and answered the door. He testified that he saw a person standing in the darkness who said that she wanted to talk to him. Cullison answered that he would have to get dressed because he had been in bed. Cullison went back to his bedroom, dressed, and returned to the darkened living room of his trailer. When he entered the living room and turned the lights on, he was confronted by Sandy Medley, as well as by father Ernest, brother Ron, mother Doris, and brother-in-law Terry Simmons. Ernest was on crutches due to knee surgery and had a revolver in a holster strapped to his thigh. Cullison testified that Sandy called him a pervert and told him he was sick, mother Doris berated him while keeping her hand in her pocket, convincing Cullison that she also was carrying a pistol. Ron and Terry said nothing to Cullison, but their presence in his trailer home further intimidated