1.

Intentional Torts
INTENT: 1. The person acts w/ purpose of producing consequence (subjective)
or 2. Person act knowing that consequence is substantia! certain to resut.
o "#: $arret v. %aie!: &f ' co((itted act with substantia certaint! that
har( woud occur) then it was intentiona even if he did not intend har(.
a. *ssaut
i. +estate(ent , 21:
1. *ctor intending to cause a har(fu or o-ensive contact with the person
or a third person) or an i((inent apprehension of such a contact) and
2. The other is thereb! put in such i((inent apprehension.
ii. "e(ents of assaut:
1. %efendant acted an
2. .e intended to cause either
a. .ar(fu or o-ensive contact or
b. &((inent apprehension of such contact
/. 0ith
a. The person of the other or
b. * third person
1. *nd the other is thereb! put in i((inent apprehension
iii. 2oncept: atte(pted but inco(pete batter! and threatened batter!
1. 3ere words are insu4cient to estabish an assaut.
2. Poic! +easons: threats are not as har(fu as i((inent contact5 the
recipient of threats shoud toughen up5 courts fear that opening up torts
to conditiona threats woud 6ood the courts with suits5 (! word against
!our word5 Protection of speech) 1st a(end(ent.
iv. "7: Picard v. 8uick: 9 proved assaut through photo of ' approaching her
and i((inent fear.
b. 8atter!
i. batter!: a) intending to cause a har(fu or o-ensive contract with the
person of the other or a third person) or an i((inent apprehension of such
a contact) and b) an o-ensive contact with the person of the other direct!
or indirect! resuts.
1. :-ensive contact: o-ends reasonabe sense of dignit! of the ordinar!
person) and is unwarranted w/in conte#t.
ii. Two for(s of batter!: 1) har(fu batter!: ph!sica injur!) 2) o-ensive
batter!: persona dignit!) o-ensive but not necessari! injurious.
iii. "#: Picard ;. 8uick: ca(era was an e#tension of her bod! and ' touching it
caused an injur! that resuted.
iv. "#: 0ishnatsk! v. .ue!: cosing the door on 9 did not constitute batter! b/c
is was done without intention and did not cause har(. (baance unwanted
contact with the reait! of a crowded word).
v. Think Skull Rule: ' sti iabe for injur! the occurs when there is
e#traordinar! har( due to previous condition of 9.
1. "#: Vosburg v. Putney< bo! kicked another bo!) e#acerbated e#isting
injur!.
c. =ase &(prison(ent
i. "e(ents
1. Words or acts by defendant intended to confne plaintif,
2. ctual confne!ent,
1
/. nd a"areness by plaintif that he or she is being confned or plaintif
is har!ed #so!e $urisdictions%.
1. &onfne!ent'
a. *ctua or apparent ph!sica barrier
b. :verpowering ph!sica force or sub(ission to ph!sica force
c. Threats to ph!sica force
d. :ther duress
e. *sserted ega authorit!
f. 2ourts add: present threat) w/out consent) invountar! (not (ora
pressure)
ii. "#: >ope? v. 0inche %onut house: no fase i(prison(ent b/c 9 re(ained
vountari! to cear her na(e and no threats) she eft when she wanted. (no
other ee(ents were (et).
iii. @pecia 2ase: shop ifting
1. Asua! private citi?en who detains.
2. +etaiers ose a ot of (one!.
/. @tatutes introduce shopkeeper priviege (reasonabe grounds to detain)
d. &ntentiona &n6iction of "(otiona %istress
i. +estate(ent , 1B: C:ne who b! e#tre(e and outrageous conduct
intentiona! or reckess! causes severe e(otiona distress to another is
subject to iabiit! for such e(otiona distress) and if bodi! har( to the
other resuts fro( it) for such bodi! har(.D
ii. "e(ents:
1. "ngages in e#tre(e and outrageous conduct.
2. *E% intentiona!/ reckess! causes.
/. @evere e(otiona distress to 9.
a. :utrageous: CintoerabeFit o-ends against the genera!
accepted standards of decenc! and (orait!.D G fro( Wo!ack
b. &ntentiona and reckess: @peciHc purpose and substantia! certain
distress or har( woud resut.
c. @evere: proof of e(otiona distressF(ore than tri6ing) (ere
upset) or hurt feeingsD genera! is required. G +estate(ent , 1B
co((ent.
1. P:>&2I: strong require(ent to prevent frivoous awsuits being brought
for hurt feeings (0o(ack)5 aow &&"% b/c ppJs peace of (ind shoud be
protected.
iii. "#: 0o(ack v. "dridge: P& took photo of 0o(ack and introduced it to chid
(oestor case. K had to attend trias) was associated with tria even though
' had known he was not guit! or invoved. :utside nor(a standards.
iv. "#ception/ addition: T&T>" ;&& < @tate/ =edera statutor! deveop(ent to
protect against harassing behavior) not necessari! to &&"% eve) but
especia! in the workpace for protected categories (race) se#) age) se#ua
orientation) disabiit!). %onJt need to show &&"% eve of e#tre(e and
outrageous in these cases.
e. %efenses:
i. 2onsent
1. "#press consent refers to an objective (anifestation of an actorJs desire
2. &(pied consent is a judicia!<deter(ined Hnding that persons acted in
a (anner which warrants a Hnding the! CconsentedD to a particuar
invasion of their interests
2
/. "7: .art v. $e!se: 2 (en consented to pri?e Hght) one died) no iabiit!.
1. Poic!:
a. Eo proHt fro( iega activit!.
b. &f pp consent to tort the! canJt use aw to defend after injur!.
ii. @ef<defense
1. "e(ents:
a. .onest action (threat)
b. =ear reasonabe under circu(stances
c. *ctions proportiona to perceived threat.
2. "#: 2ourvoisier v. +a!(ond: 9 ca(e out of dark fro( (ob that was
threatening '. Lur! deter(ine reasonabe factor.
iii. Protection of Propert!
1. Eo priviege cause death or serious bodi! injur!.
2. "#: Matko v. 8rine!: use of spring gun in an uninhabited house dee(ed
unreasonab! in face of threat
/. Poic!: Prosser on Torts G aw paces a higher vaue on hu(an safet!
than propert!. (reasonabeness test fro( econo(ics)
iv. Eecessit!
1. To trigger the priviege of necessit!:
a. %efendant (ust face a necessit!.
b. The vaue of the thing preserved (ust be greater than the vaue of
the har( caused.
2. "#: Poof v. Putna(: necessit! to tie to dock to sta! safe fro( stor()
when owner cut rope he beca(e iabe for ives and propert! on ship.
/. "#: ;incent v. >ake "erie Transportation: ' was iabe for da(ages to
dock. .is necessit! outweighed the da(ages) but he is sti iabe for
the da(ages to the dock.
2. Negligence
a. +estate(ent , 2N2: negigence is conduct which fas beow the standard
estabished b! aw for the protection of others against unreasonabe risk of
har(.
b. %ut!: ' owes a genera dut! to act with reasonabe care to ever!one in societ!
not to create unreasonabe risks of har( to others.
c. 8reach of %ut!: ' breaches dut! when co(pared to +PP he fais to act with
reasonabe care in creating an unreasonabe risk of har( to another.
i. .o(es: 2orrective justice approach of tort aw.
1. >aw shoud provide ho(e rectiHcation for invasion of ega right to
preserve fairness.
2. 3aintain baance) donJt i(pose iabiit! when there is no faut.
/. &t there is no cupabe behavior) et the osses ie where the! fa.
1. *gainst s/ b/c it woud a! da(ages where there is no cupabiit! and it
woud deter pp fro( engaging gin activities that (ight ead to s/.
ii. PosnerJs econo(ic theor!
1. 3a#i(i?e e4cienc! and aocation of resources
2. *d(inistrabiit!
/. >ess itigious
1. 2ost beneHt ana!sis
iii. "7: ha!!ontree v. $enner' ' not hed iabe b/c he had an epieptic sei?ure
whie driving5 drivers who su-er sudden onset of iness cannot be hed
/
iabe b/c it woud suppress beneHcia activit! if we i(posed strict iabiit! in
auto(obie accidents.
d. Breach of Duty (general duty)
i. ;iacarious >iabiit!
1. $enera +ue: +espondeat @uperior
a. "(po!ers are hed vicarious! iabe for torts co((itted b!
e(po!ees whie acting within the scope of their e(po!(ent.
b. @cope of "(po!(ent: 8irkner criteria
i. Those acts which are so cose! connected with what the
servant is e(po!ed to do
ii. The! (a! be regarded as (ethods of carr!ing out the
objectives of e(po!(ent.
1. 2onduct (ust be genera kind e(po!ee is hired to
perfor(.
2. 2onduct (ust occur within the hours and ordinar!
spatia boundaries of e(po!(ent.
/. 2onduct (ust be (otivated b! purpose of serving
e(po!erJs interest.
iii. P:>&2I: incentive to hire shrewd!) incentive to discipine
(re(ove and deter)) incentive to consider aternatives to
e(po!ees e-orts.
iv. "# 2ase: 2hristenson v. @wenson: appied birkner test to
evauate whether going to cafO was within scope of
e(po!(ent.
1. &ntentiona torts w/in scope of e(po!(ent do not
usua! trigger vicarious iabiit!.
2. *pparent *genc!: *uthorit! which a principa knowing! toerates or
per(its) or which the principa b! its actions or words hods the agent
out as possessing.
a. "e(ents:
i. representation b! the purported principa5
ii. reiance on that representation b! a third part!5 and
iii. change in position b! the third part! in reiance on the
representation.
b. "#: Roessler v. (ovak: patient sued contracted radioogist5
principa agent (a! be hed iabe for acts of its agent w/in course
and scope of agenc!.
c. P:>&2I: hospitas Penterprises that are engaged in risk! activities)
the! shoud internai?e costs of those risks5 have (ore resources
to screen agents than patients.
ii. @tandard of 2are:
1. Traditiona! there were 2 re(edies:
a. @ituation where actor direct! injured another
b. *ctor indirect! injures another.
2. @tandard of negigence: reasonabe: doing so(ething which a
reasonab! prudent person woud not do) or the faiure to do so(ething
a reasonabe person woud) under circu(stances si(iar
a. )ro"n v. *endall' dogs Hghting) stick hit e!e of dog owner. Eot
negigence b/c actor was within ega scope of his dut!.
1
b. da!s v. )ullock' +easonabe care standard: troe! co(pan! not
iabe for bo!sJs burns b/c the accident was unforeseeabe) socia
utiit! of troe!) not econo(ica! feasibe to have aternative
(rationa basis)
c. +S v &arroll to"ing' appied >earned .and for(ua (b Q P> P
negigent5 8R P> P reasonabe care) to deter(ine bargee was
contributori! negigent5 aso considered foreseeabiit! of har()
(agnitude of har() socia utiit! of 'Js behavior. "tc.
d. P:>&2I: .o(es: canJt put vaue on ppJs ives) so(eti(es
econo(ic e4cienc! encourages negigence b/c the cheapest
option is to do nothing and pa! da(ages) but pp sti get hurt.
iii. +easonab! Prudent Person:
1. +estate(ent , 2N/: person who e#ercises those quaities of attention)
knowedge) inteigence) and judg(ent which societ! requires of its
(e(bers for the protection of their own interest and interests of others.
a. Poic!: ad(inistrative ease) deterrence) nor(s justiHcation
b. "#: )ethel v. (,& Transit uthority' wheechair ra(p broke and
injured 9) bus co(pan! not hed to a higher standard of care b/c
the reasonabe person test aows 6e#ibiit! for co((on carrier
circu(stances to be appied. (P:>&2I: ad(inistrative e4cienc!
with abiit! to adapt).
2. 3odiHed standards:
a. Mental incapacity: not genera! (odiHed b/c caretaker shoud
prevent ' fro( engaging in risk! activities) 9 shoud not iabe for
'Js actions) di4cut! of drawing ine of (enta capacit!) uncear
evidence as to (enta capacities.
i. "#: Roberts v. Ra!sbotto!' if the driver retains so(e contro
of his facuties (after stroke) and is aware enough to drive) he
is iabe for injuries resuting fro( it.
ii. "#: bashi v. Wodar-' wo(an cai(ed Cwhigging outD as reason
she crashed G uness an actor is a chid) his insanit! or other
(enta deHcienc! does not reieve the actor fro( iabiit! for
conduct which does not confor( to the +PP standard.
b. Eergency !ituations: a person confronted with a sudden
unforeseeabe occurrence) short ti(e to react) shoud not be hed
to sa(e standard of care as so(eone confronted with foreseeabe
risk.
c. "hildren: when chidren engage in adut activities the! are not
entited to a (odiHed standard of conduct b/c other peope cannot
adjust their behavior according to chid status if the! e#pect and
adut to be acting.
d. #hysically disa$led: bind person is hed to reasonab! bind
person standard b/c ph!sica disabiit! is easi! deHnabe and
ad(inistrative ease.
iv. Ludges and Luries: reasonabe (inds coud disagree P question for jur!.
1. .o(es genera rue: courts shoud ook for opportunities to a! down
deHnite rues or standards when deaing with a standard of conduct that
is cear and obvious. (P:>&2I: predictabiit!) ad(inistrative e4cienc!)
re(ove jur! s!(path!)
S
a. )alti!ore .hio Railroad &o. v. /ood!an' estabished narrow rue
that during da!ight crossings) (otorists shoud stop car and get
out if necessar! to see if a train is co(ing) otherwise driver is
negigent.
2. 2ardo?o: .o(es went too far and judges shoud be carefu of a!ing
down standards pre(ature!.
a. Pokora v. Wanash Rail"ay &o.' .o(esJs rue fro( $ood(an is too
restrictive. Pokora coudnJt safe! or reasonab! gotten out of
vehice to check) woud have (ade it (ore dangerous. 0hen there
is not cear evidence that it is custo(ar! to do otherwise) what is
ordinar! dut! is for the jur! to decide.
b. 0hen there is a question of industr! standard the jur! shoud
decide the reasonabeness of the dut! perfor(ed.
i. ndre"s v +nited irlines' 9 showed that there were
aternative to how ' was operating) therefore their verba
warning (a! not have been industr! standard.
v. 2usto(: used to (ore cear! estabish standard of care. (awa!s regarding
safet! custo(s)
1. w/in standard: shied of co(piance.
2. 8e!ond standard: sword to show negigence.
/. &f industr! standard is unreasonabe or beow standard of care)
co(piance wi not shied ' fro( iabiit!.
1. "#: Tri!arco V. *lein' 3an cut hi(sef on shower gass. &ndustr! custo(
can be presented as evidence when 1) it re6ects judg(ent) e#perience)
and conduct of (an! b/c it shows an accepted standard and 2)
de(onstrates practicait! of that (easure/ custo( in avoiding injur!.
a. Lust b/c itJs w/in custo( does not (ean it wi be w/in reasonabe
care) jur! sti decides.
b. Eeed to evauate the custo(Js purpose as we: 0evine v. Russell,
wh! was s(ooth rope industr! custo( G to prevent injur! or to
(ake rope ast ongerT
vi. @tatutes: e#ception that negigence shoud be deter(ined as a (atter of
aw.
1. Eegigence per se:
a. +estate(ent , 11: actor is negigent if) w/out e#cuse) the actor
vioates a statute that is designed to protect against the t!pe of
accident the actorJs conduct causes and if the accident victi( is
w/in the intended protected cass.
b. *n actor is negigent if:
i. Eo e#cuse. (atte(pt/ inabiit! to co(p!)
ii. The actor vioates a statute.
iii. That statute was designed to protect against the t!pe of
accident the actorJs conduct causes) and
iv. The accident victi( is w/in the protected cass of persons.
c. 1artin v. 2er-og' (an was driving w/out his ight on and had head
on coision and died. =ound that jur! cannot deter(ine negigence
whenever a statute prescribes that negigence when it is for the
safet! of a.
B
d. The courts are the Hna arbiterJs of what is the standardF if a
statute is e#picit to civi then it contros) but if sient court
decides.
2. "#ceptions:
a. ;ioation is safer: Tedla v. 3ll!an 4 waking down wrong side of
street because there was heav! tra4c on other side. 2ourt
deter(ines not EP@ b/c it was safer for the( to wak on that side
and egisature did not intend pp to enter to greater har( to
foow statute.
i. Eo negigence as a (atter of aw when vioating a statute in
order to avoid the har( that it is the statuteJs purpose to
prevent.
b. Eot @tatuteJs Purpose: 5i Pon-io v. Riordan' not eaving car on
statute (eant to prevent Hres/ e#posions) not roing and pinning
person. Eo EP@.
i. /orri v. Scott' sheep on ship) pens statute (eant to prevent
sickness) not sheep faing o- ship) so not EP@.
c. >icenses: not having a icense does not (ake EP@. >icenses are
(eant to protect pubic fro( actions perfor(ed b! unskied
persons) not set a standard.
d. 2o(piance does not protect fro( EP@:
i. Eot enough to (eet statuteJs intention if !ou are confor(ing
but sti causing har(.
ii. +ue doesnJt aow for 6e#ibiit!.
iii. Anfair to victi(
iv. @tatutes can be wrong or not enough.
v. &ndustr! (a! be in6uenced b! obb!istJs (one! and purpose
so standard (a! be sef interest.
vii. Proving 8reach
1. 2ircu(stantia evidence: indirect facts that are presented to persuade
fact Hnders to infer other facts/ concusion
a. Eegri: constructive notice fro( dirt!/ (ess! bab! food jars.
b. $ordon v. (useu(: no notice b/c no evidence of ti(e/ dirt!/ (ess!
2. +es &psa >oquitor G shifts burden to disprove negigence to '
a. "e(ents:
i. *ccident (ust be of kind that does not occur in the absence
of negigence
ii. &nstru(entait! that caused har( was w/in e#cusive contro of
the '5 and
iii. *ccident not due to an! vountar! action or contribution on
part of 9.
b. "#: 8r!ne v. 8oade: 6our out of window P +&>
c. "#: 3c%ougad v. Perr!: tire bouncing up fro( under truck P +&>
d. 3ajorit!: per(issibe inference
e. 3inorit!: rebuttabe presu(ption G jur! (ust presu(e and ' (ust
rebut with su4cient evidence.
f. 3edica: ,barra: found +&> can e#tend to a (e(bers who had
contro over bod!/ instru(entait! despite proof of e#cusivit!
(shared responsibiit!)
e. 3edica 3apractice: @pecia cases
U
i. 3edica Eegigence
1. Pri(a =acie "e(ents
a. K (ust affir(ative! prove breach of recogni?ed standard of care.
b. Prove ' departed fro( standard
c. Present e#pert testi(on! to support proof.
i. @hee! v. 3e(oria: e#pert not restricted to ocait!) sa(e
cass b! tite< cass b! procedure.
2. =actors
a. .igher standard of care
b. 2usto( deter(ines the standard
c. "#perts estabish custo(
d. "#perts (a! estabish +&>
i. "#: @tates v. >ourdes: use e#pert testi(on! when probabiit!
of incident occurring w/out negigence is be!ond jur!Js
co((on knowedge (e#pert P statistics)
ii. &nfor(ed consent
1. 2ause of action based on faiure to obtain patientJs infor(ed consent.
2. 3% has dut! to e#pain a reasonab! (edica aternatives) their risks
and beneHts) even if the 3% doesnJt reco((end5
/. Test set to what reasonabe patient woud do to prevent hindsight
f. D%T&: generally there is no a'rati(e duty to act or )arn*
$ut there are soe e+ceptions:
i. *4r(ative dut! to act
1. %ut! to rescue/ warn
a. @pecia reationship
i. .arper: co((on carrier) innkeepers) possessors of and open
to pubic5
ii. Person who have custod! of another) preventing sef
protection
iii. +eationship of dependenc!
iv. @ocia co(panionship on joint venture (=arwe v. Meaton)
b. ;ountar! assu(ption of assistance
i. 2o((enced rescue (farwe v. Meaton)
1. 8egin rescue) dut! to continue.
2. %ut! to not (ake the situation worse.
c. +owand test (+andi) dut! occurs when
i. =oreseeabiit! of har( to 9
ii. %egree of certaint! that 9 suffer injur!
iii. 2oseness of connection btn 'Js conduct and injur! su-ered
iv. 3ora ba(e
v. Poic! of preventing future har(
vi. 8urden to ' and consequences to co((unit! of i(posing
dut!
vii. *vaiabiit!) cost and prevaence of insurance
d. Eon negigent injur! (caused har( innocent!)
e. Eon negigent creation of risk (caused situation that coud cause
har( innocent!)
f. %ut! to /
rd
persons:
i. 2anJt (isrepresent facts if it woud create a substantia)
foreseeabe risk of ph!sica injur! to the third person. (+andi)
N
ii. Taraso-: %ut! to warn or contro tortfeasorJs conduct when:
1. @erious risk
2. &dentiHabe victi(
/. "#tended to:
a. 2hidren/ fa(i! of patient/ tortfeasor
b. 0hen ' created risk (3% didnJt te of .&; e#posure)
iii. Eo dut! to /
rd
persons when:
1. @tranger
2. &njur! sef in6icted or propert! da(age
/. Eo reiance on '
2. Poic! can override %ut!:
a. 2ontractua duties:
i. Strauss v. belle Realty' a dut! for a (ass tort does not e#ist
when that tort (a! ead to crushing iabiit! that woud negate
a socia beneHt) ike providing eectricit!.
b. @ocia hosts:
i. Reynolds v. hicks' socia hosts cannot be hed iabe to third
parties injured b! into#icated (inors.
1. %i-erence between co((ercia vendors and socia
hosts.
a. *biit! to contro.
b. Proprietar! interest/ proHt (otive.
c. @(a cass) whereas socia hosts are potentia!
ever!one.
c. Eegigent "ntrust(ent
i. $enera rue: so(eone who suppies chatte that he can
reasonab! foresee the risk because of the entrusteeJs !outh)
e#perience) or otherwise to hi(sef or others) is iabe for
ph!sica har( resuting.
1. Vince v. Wilson: e#tended rue to grandaunt and car
agenc! who provided (one! to nephew who didnJt have
icense and had drug/ acoho probe(s.
6. .ther e7tensions
a. "(po!ers: negigent! hiring) retaining) or
supervising an e(po!ee who co((its vioent tort.
b. Truck %river who eft truck with ke!s for 1) bad
neighborhood) 2) si?e of truck (akes it ver!
dangerous instru(ent) and /) (ost peope donJt
know how to drive a truck.
8. (ot e7tensions'
a. 2o<signer
b. +enta car co(pan! when person has vaid icense.
c. Peope who eave ke!s in ignition b/c it is for
preventing theft not negigent driving.
d. $un (anufacturers or seers.
/.
V