Torts Outline

Torts Outline – University of Virginia School of Law

1. Intentional Torts

   1. Intent: in general

      1. Always goes to the act, not to the consequences

      2. 2 ways to Satisfy:

         1. Desired to bring about contact

         2. Knew that contact would be the result of actions (e.g. running up stairs with a bat sideways, you could want people to get out of the way, but it’s certain you would hit them)

      3. Evidence: intent must be inferred from the situation

      4. Non-excuses:

         1. I meant this result, not that one

         2. I meant to do the conduct, but the result was an accident

      5. Transferable: If you intended to tort A but instead torted B, the intent transfers to B

   2. Battery

      1. Elements

         1. Intent to commit an act that will cause harm

         2. Harmful or offensive contact

            1. Contact doesn’t have to be direct, just the result of the tortfeasor’s action

            2. There are situations where touching, even harmful touching is expected (see below)

      2. Protects right to physical person

      3. Ex:

         1. Vosburg v. Putney – Eggshell Plaintiff

            1. Facts: Assault and battery. Kid lightly kicks other kid under the table, causes infection and amputation due to preexisting condition.

            2. Rule: eggshell plaintiff - Take your victim as you find them. The act itself--the kick--was unlawful, and therefore the actor was liable for any consequences of that act

            3. Rule2: circumstances make a difference (e.g. playground vs. classroom)

         2. Garratt v. Dailey – Substantial Certainty

            1. Facts: boy pulled chair out from under lady, she fell to ground, was hurt

            2. Rule: There must be substantial certainty that a harm will occur, must act with purpose to cause contact

            3. Holding: there was substantial certainty upon remand

   3. Assault

      1. Elements

         1. Intentional act

            1. Sometimes it was intended as assault

            2. Sometimes it is a missed battery

            3. Look to outward action of D, not his secret intentions

         2. Definite Action that places victim in imminent apprehension of bodily harm

            1. Can be verbal or physically

         3. Victim Reasonably Believes there is imminent bodily harm

            1. Apprehension is not the same as fear, it adjusts for lack of genuine fear

            2. Unusual sensitivity does not make for an assault unless D knows of this

            3. I.e. take an objective view, works both ways though (more or less afraid)

      2. Protects security/integrity of the mind

      3. I. de S. and Wife v. W. de S. – reasonable apprehension

         1. Facts: Drunk comes to tavern and wants a drink, wench says no. He swings an axe at the door

         2. Rule: If victim reasonably infers an imminent apprehension of harm, this is assault.

      4. Tuberville v. Savage – Impossibility and Imminence

         1. Facts: Defendant, hand on his sword’s hilt, said to plaintiff that he would “not take such language” from plaintiff if it were not assize time.

         2. Rule: Language and actions can show intent or lack thereof, as well as eliminate imminence.

         3. Reasoning: Impossibility: a threat does not amount to assault if it is impossible for it to occur

      5. Allen v. Hannaford

         1. Rule: “whether there is an assault in a given case depends more upon what may be the secret intentions of the person committing the assault” (i.e. knowing the gun is loaded is irrelevant)

   4. Trespass

      1. Elements

         1. Intent to enter land

            1. If entry was involuntary then it is not trespass

            2. Ignorance of entry is no excuse (no better treatment for ignorance)

         2. Physical entry

      2. Ex:

         1. Dougherty v. Stepp – harmless entry is still trespass

            1. Facts: Defendant entered plaintiff’s land without permission, but left the land otherwise undisturbed.

            2. Rule: Every unauthorized entry onto private property is trespass – strict liability

            3. Reasoning: Defendant was liable for any consequences of trespass, whether it was unintentional or not

         2. Cleveland Park Club v. Perry – unexpected consequences, eggshell property

            1. Facts: Trespass. Defendant, a 9 year old boy, lodged a rubber ball in a pool’s pipes at a private club, causing “excessive damage” to the pipes.

            2. Rule: “The intent controlling is the intent to complete the physical act and not the intent to cause injurious consequences.”

            3. Reasoning: Where do we allocate the harm? Who can best insure against it? We can’t have unintended consequences be an excuse

         3. Guille v. Swan – Extent of (strict) Liability – Foreseeability

            1. Facts: balloon crashed causing damage to crops, operator called for help, people coming to his rescue caused more damage

            2. Rule: All that he ought to have foreseen he must be responsible for. Here the rescue was foreseeable, especially given calling for help

1. Public Service of Colorado v. Van Wyk – Intangible/Abstract Trespass

   1. Facts: Electromagnetic fields, noise, radiation was emitted from a public utility. Neighbor sued for trespass.

   2. Rule: For instances of intangible trespasses, onus is on victim to concretely demonstrate physical harm caused.

2. The Case of Thorns (Hull v. Orange) – strict liability for damages in trespass

   1. Facts: Guy cuts down thorns and goes on another’s property to get them.

   2. Rule: You are strictly liable for damages caused in trespass, even if it’s minor

   3. Reasoning: This is the regular basis for liability in trespass.

   4. Shift to allowing recovery for non-illegal things

   5. See also the fact that the thorns landed there unlawfully, therefore he had no excuse in going to get them

   6. Move to negligence?

   1. Privileges/Defenses/Justifications

      1. Consent

         1. Mohr v. Williams – Breadth of Consent & Autonomy in Medical Cases

            1. Facts: P consented to right ear operation. D operated on left ear instead after re-examining and consulting P’s other doctor while P under anesthesia. No negligence during surgery, but P claimed harm.

            2. Rule: Patient has autonomy, must consent to all procedures

            3. Exception: emergency or implied consent

            4. Reasoning: Good Decision Theory: who can make the best decision

         2. Hoofnel v. Segal – General Consent Forms

            1. Rule: signing a waiver allowing anything that is medically necessary allows for discretion even when statements made afterward say otherwise for the un-agreed to procedure

         3. O’Brien v. Cunard Steamship Co. – Non-verbal consent

            1. Rule: consent can be non-verbal if the action and...

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