AudioLearn Law Series Presents Tort Law - A Course Outline Written by AudioLearn’s Content Team and Narrated by (your name)
Welcome to Tort Law AudioLearn - A course outline!
In this outline, we’ll review the following:
• Intentional Torts
• Negligence
• Strict Liability
• Products Liability
• and Other Torts
TORTS
Many of you will find the concepts discussed under the subject of tort law to be fascinating. The famous McDonald's hot coffee case was decided primarily on claims stemming from tort law. The famous snail in ginger beer that led a woman to experience
severe emotional distress also came from tort law.
Tort law redresses civil wrongs, as opposed to criminal wrongs, where an individual, whether intentionally or unintentionally, violates another’s personal or property rights. In this lecture, we will look at a variety of torts ranging from intentional torts to unintentional torts, and finally, end our discussion with a look at strict liability and miscellaneous torts. Pause. In this section, we will discuss intentional torts. In order to understand intentional torts, we must look at a few general propositions regarding intentional torts. First, there are no incapacity defenses, which means, even if an individual lacks capacity in a different area of law, for tort liability purposes, they are still able to commit torts. For example, an individual deemed legally insane, drunk, drugged, or a minor may all still commit intentional torts. Secondly, all intentional torts require proof of intent as an element. Without intent, there is no intentional tort….duh! In situations where the defendant intends to commit an intentional tort against the victim, the defendant will still be held liable even if a different torts results or a different victim is hurt. This is known as the doctrine of transferred intent and is an important concept to remember.
Pause.
I. INTENTIONAL TORTS
A. GENERALLY
A prima facie case for an intentional tort must include proof of an act, intent, and causation.
1. Act
The act must be voluntary, meaning the defendant must have the state of mind that directed the physical muscular movement. Failure to act when there is a duty to do so also fulfills this element. For example, if the defendant hits the victim while sleepwalking, this may not be a voluntary act. If the defendant was supposed to assist an individual in a wheel chair and forgets to move him resulting in a third party hitting the victim, the defendant may be held liable for failing to perform his duty when he was supposed to do so. This is also known as an
omission.
2. Intent
An act is performed intentionally if it is done deliberately and purposefully; that is, the actor desires to cause the consequences of his act or knows with substantial certainty that the conduct will result in the ensuing consequences. Thus, even where a defendant did not intend to injure an individual, the defendant is aware that if he hits someone, even, softly, there could be resulting injuries because any amount of force used on another individual has consequences. Remember: If you intend to bring about a battery, it is not necessary to intend the severity of the consequences in order to be liable. One’s motive is also irrelevant.
CASE APPLICATION
In Vosburg v. Putney, Putney kicked Vosburg during school. Putney did not intend to harm Vosburg and only kicked him “slightly.” Although the kick was only slight, the plaintiff lost the use of his limb because the defendant’s kick revived a previous injury. In this case, the court held that defendant was liable for all injuries resulting directly from the wrongful act, that is his slight kick, even where the defendant did not know that the plaintiff was suffering from a previous injury.
Pause. Transferred intent exists when a person intends to commit an intentional tort against one person, but instead commits: i) A different intentional tort against that person; ii) The intended tort against a different person; or iii) A different intentional tort against a different person.
Example 1: A intends to frighten B by shaking his fist at her (assault) but accidentally strikes B instead (battery). A’s intent to commit assault is transferred to the ensuing battery. Example 2: A intends to harm B by shooting him with a gun, but A’s aim is poor and he shoots C, who is standing nearby. A’s intent to commit battery is transferred from the intended party (B) to the injured party (C), even though A had no intent to harm C.
Example 3: A intends to frighten B by throwing a book at her but does not intend to hit B with the book (assault). A’s aim is quite poor and he instead hits C with the book
(battery). A’s intent to assault B is transferred to the subsequent battery upon C. NOTE that transferred intent applies only when the intended tort and the resulting tort are among the following: assault, battery, false imprisonment, trespass to land, or trespass to chattels.
3. Causation
Causation exists when the resulting harm was legally caused by a defendant’s act. Causation is also established when the defendant’s conduct is a substantial factor in creating the harm. Pause. In this section, we will look at different types of intentional torts, assessing different factors and elements for each tort. First, we will look at battery.
B. HARMS TO THE PERSON
1. Battery
A battery is a harmful or offensive contact with a plaintiff’s person caused by the defendant’s intentional act. The act must be volitional and must be intended to cause a harmful or offensive contact with someone. The plaintiff need not be aware of the contact when it occurs in order to recover.
a. Harmful or offensive contact
A contact is “harmful or offensive” when a reasonable person (objective test) would find the contact harmful or offensive. For example, an act that makes one bleed, breaks their bones, sends one to a hospital, or kills them.
Offensive contact is a bit different in the sense that we look at whether or not the touching would violate a reasonable sense of dignity. Therefore, the question becomes would this type of contact be permitted by a reasonable person? This is better understood by the next paragraph where we describe situations that are not considered offensive or harmful. An act is not harmful or offensive if the plaintiff consented to the act, either expressly or by virtue of participating in a particular event or situation (such as being bumped on a crowded subway or playing in a football game).
With the crowded subway example, one should bear in mind that the plaintiff is aware and certain that routine touching will occur given that people are walking rather hastily at a subway platform. However, in this example, if someone purposely rams into another because he or she doesn’t like the person, battery still occurs.
NOTE that a defendant may be liable if he is aware that the victim is hypersensitive but proceeds to act nonetheless. In such a case, the fact that a reasonable person would not object to the contact is not a defense.
For example, tapping a person on the shoulder may not be considered offensive. However, let’s assume Lady Mary is studying at her local college library when Mark enters the library and sits down next to her. He begins to make small talk with Lady Mary. Lady Mary politely asks Mark to leave and screams, “I don’t want to talk to you.” Mark leans forward and begins smelling her hair exclaiming, “your hair is wonderful!” This would offend one’s dignity and if Lady Mary sues Mark, she would win for offensive touching. On an exam question, consider any touching that is not consented to as satisfying the harmful touching requirement.
b. Plaintiff’s person
Contact with anything connected to the plaintiff’s person qualifies as contact with the plaintiff’s person for the purposes of battery (for example, a person’s clothing, a pet held on a leash, a bicycle ridden by the plaintiff). Thus, if the defendant snatches the plaintiff’s purse, the defendant is in contact with the plaintiff through the purse.
Remember the object has to be connected to the person. For example, if Lady Mary has an artificial limb and Mark strokes the artificial limb, this is an offensive battery. However, if Lady Mary has removed her artificial limb and left it on the table, and someone touches it, there is no battery. If someone takes the limb and runs away, there could be grounds for theft, but no tort for battery here.
c. Causation
The act must result in contact of a harmful or offensive nature. A defendant who sets in motion a chain of events that causes contact with a plaintiff, whether the contact is direct or indirect (for example, a trip wire set by the defendant that causes the plaintiff to fall), is liable.
Also, instantaneous contact is not necessary. There can be a delay. For example, if the defendant adds poison to the defendant’s sandwich, and the defendant feels the effect of the poison several hours later, there is still a battery because the defendant caused a harmful bodily contact resulting in battery.
d. Intent
A defendant intentionally causes contact if he acts with the desire to bring about the harm or engages in action knowing that the harm is substantially certain to occur. The doctrine of transferred intent applies to battery.
e. Damages
No proof of harm is required; a plaintiff may recover nominal damages even though no actual damage occurred (to vindicate a plaintiff’s right to physical autonomy). Many states allow recovery of punitive damages if a defendant acted with malice (that is, a wrongful motive, or a conscious or deliberate disregard of a high probability of harm). Pause. In this section, we will look at assault, a sister to battery.
2. Assault
An assault occurs when a defendant’s intentional overt act causes the plaintiff to experience reasonable apprehension of an imminent battery.
a. Intent
The act must be volitional and performed with intent to place someone in apprehension of imminent harm or offensive contact. The doctrine of transferred intent applies to assault.
b.
Overt act
Words alone are usually not enough to constitute an overt act, but words coupled with conduct or other circumstances may be sufficient. For example, someone stands behind the plaintiff’s back with a gun and says, “I could pistol-whip you right now.” These words, by themselves, aren’t enough but the inclusion of a gun, makes them an overt act.
c. Reasonable apprehension
The plaintiff’s apprehension must generally be reasonable, unless the defendant is aware of the plaintiff’s uncommon sensitivities and acts with the intent to cause apprehension based on those sensitivities. The plaintiff must be aware or have knowledge of the defendant’s act. The defendant’s apparent ability to cause harm (for example, a toy gun) can be sufficient to place the plaintiff in apprehension of harm.
Thus, apprehension means knowledge. The plaintiff does not have to be in actual fear to win an assault claim. For example, if a skinny, petite guy threatens a big buff jock, it is still assault even if the jock isn’t afraid because all that is required is the knowledge that the little guy intends to cause an immediate battery.
Let’s compare this example with another. Let’s assume that the defendant makes a threat but is really only bluffing about his threat. That is, he is threatening to batter another person, but will not come through on the threat. In this case, we must assess a few things.
If the defendant uses an unloaded gun against the plaintiff, claiming, “I will harm you if you don’t leave the room right now,” then we must assess whether or not the plaintiff knows that the defendant is lying. If the plaintiff is aware that the gun is unloaded, then there is no recovery for assault. However, if the plaintiff isn’t aware of the unloaded gun, he can still recover for assault because there is “an apparent ability to harm” which triggers an apprehension of battery.
d. Immediacy
The threat of harmful or offensive contact must be imminent without significant delay. Threats of future harm are insufficient, as are threats made by a defendant too far away to inflict any harm.
Words alone lack immediacy. For example, “In the next two minutes, I am going to punch you” is not enough because the threat isn’t immediate enough. However, this could change, if say, the defendant places a knife on the table in clear sight of the plaintiff and says, “you have two minutes to get out of my face, or else…”
Similarly, threatening conduct supported by less threatening words can negate immediacy. For example, “if you weren’t my favorite teacher, I would hit you right now.” There is no apprehension of immediate battery. Similarly, “just wait till tomorrow, I will hunt you down and beat you.” There is no battery here.
e. Damages
No proof of harm is required. As with battery, nominal damages are available, and in many states punitive damages may be imposed if a defendant acted with malice. Remember to discuss damages even if there is no harm. Pause. In this section, we will discuss the third type of intentional tort, false imprisonment.
3. False Imprisonment
False imprisonment results when a person acts: i) Intending to confine or restrain; ii) Another person; iii) To a bounded area; and i. iv) Those actions directly or indirectly result in such confinement. a. Intent The doctrine of transferred intent applies to false imprisonment. b. Confine or restrain
1) Methods a) Sufficient
A defendant may confine or restrain a plaintiff by the use of physical barriers; physical force; direct or indirect threats to the plaintiff, a third party, or the plaintiff’s property; failure to provide a means of escape; or invalid use of legal authority. Remember here that threats alone are sufficient. For example, “if you try to leave this room, I will hurt you,” is an act of restraint.
Non explicit threats, that is, coercion or duress is also sufficient. For example, if the defendant takes the plaintiff’s purse, which has her keys, asthma medicine, etc. and says, “if you leave, I won’t give you this purse back.” is a threat. Further, an omission or failure to act by the defendant can be an act of restraint if defendant had a preexisting duty.
For example, let’s say on a Pan AM flight, there are three handicapped passengers that need crew assistance. Let’s also assume that the crew forgets about them and they are stuck on the plan for five hours. In this case, because the crew ignored them when they had a duty to help them, there is false imprisonment.
An important exception to false imprisonment is the famous, “shopkeeper’s privilege.”
Many of you are probably aware of shopkeeper’s privilege. Hopefully, none of you have had to endure it! A shopkeeper’s privilege permits a shopkeeper to detain an individual suspected of shoplifting for a reasonable period of time without the threat of
a false imprisonment claim.
A shopkeeper’s reasonable (in both duration and manner) detention of a suspected shoplifter is a valid use of authority, and hence is not a false imprisonment. However, it is important that the shopkeeper only detain an individual for a reasonable period of time, no more than necessary, to ask basic questions about the alleged shoplifting, as well as, enough to assess whether or not shoplifting occurred so as to seek police help.
b) Insufficient
A defendant’s use of moral pressure or future threats does not constitute confinement or restraint. A plaintiff is not imprisoned if she submitted willingly to confinement. Similar to assault, future threats are not enough. If the defendant threatens to lock the plaintiff up in a room in a week, there is no false imprisonment.
2) Time
The length of time of the confinement or restraint is immaterial (except so as to determine the extent of damages).
3) Awareness
A plaintiff must be conscious of the confinement. Alternatively, under the Restatement approach, a plaintiff who is unaware of the confinement must suffer actual harm.
An act of restraint only counts if plaintiff knows of it at the time or suffers some harm as a result. Thus, if an individual is sleeping in a locked room, unaware that the room was locked, there is no false imprisonment here.
Beware of fact patterns with unconscious plaintiffs. The only situation in which harm may result when an individual is unconscious is perhaps when the confinement prevents medical treatment. However, these are odd cases and discussion of this possibility should be couched in these terms.
c. Bounded area A bounded area is one within which a plaintiff’s freedom of movement in all directions is limited. An area is not bounded if there is a reasonable means of safe escape. Thus, an area is not considered bounded if there is a reasonable means of escape that the plaintiff can reasonably discover. That is, you are not false imprisoned, if there is a way to get out. Further, if plaintiff is confined in an area that has a means of escape, if that means of escape is dangerous, humiliation, disgusting, or hidden, then these means of escape are not reasonable.
For example, if the plaintiff was locked in a basement, and the only way out was through laser protected doorway, the means of escape is not reasonable given how dangerous it is.
d. Damages
It is not necessary to prove actual damages (except when a plaintiff is unaware of the confinement). Punitive damages may be imposed if a defendant acted with malice. Pause. Next, we will look at the fourth intentional tort, intentional infliction of emotional distress.
4. Intentional Infliction of Emotional Distress
A defendant is liable for intentionally or recklessly acting with extreme or outrageous conduct when that conduct causes the plaintiff severe emotional distress. a. Intent