Torts Outline

1. INTENTIONAL TORTS

   1. Intent

      1. Applies to conduct, not the consequence

         1. Vosburg v. Putney: D kicked P’s knee. Liable for all harm done because he intended to do a degree of harm.

      2. Strict liability for all intent

         1. Lack of knowledge does not mitigate

         2. Intent only needs to be to do the action, not to do it to a specific P

         3. Cannot use “I meant X, not Y” as a defense.

         4. Policy: An accident is a side effect; direct result of something actor meant to do.

      3. Substantial Certainty

         1. If harm is substantially certain to result from D’s actions, the harm is treated as D’s intent even if it was not his goal.

      4. Transferred Intent

         1. If you intent to tort A but tort B instead, your tort on B is intentional.

   2. Battery

      1. Intentional harmful of offensive contact that does actual harm to P

      2. Contact results, directly or indirectly, from D’s actions

      3. Must go beyond incidental, harmless, and inoffensive touching

         1. Vosburg: D’s kick was intentional and significant enough to constitute battery

      4. Strict liability: D liable for all results of intended battery

   3. Assault

      1. Elements

         1. Intentional act

         2. Imminent threat to person

            1. Tuberville v. Savage: “If it were not assis-time I would beat you” is not an assault because if it is assis-time, the threat is not imminent.

            2. Timing of imminence is fuzzy; jury question.

         3. Places P in reasonable apprehension of bodily harm

            1. Not necessarily fear (whether the P is subjectively afraid is immaterial)

            2. Emotional preparation to respond to imminent threat

            3. P can be apprehensive and also reasonable believe that no real harm will come his way (bigger stick scenario)

            4. Apprehension can be subjective; a person can be in apprehension of an unloaded gun they believe to be loaded (Allen v. Hannaford)

      2. Does not require physical contact

         1. Protects intangible interest in bodily integrity—emotions, security of the mind

         2. Injury done is apprehension, an emotional harm

   4. Trespass

      1. Intent to enter real property

         1. Dougherty v. Stepp: Intent element goes toward entering the land, not toward knowing it was private property.

         2. Intent does not go toward it being someone else’s land; ignorance of ownership is no excuse. Just coming onto the land voluntarily is sufficient.

      2. Strict liability for all damages caused by entry.

         1. Property is subject to Eggshell Plaintiff

      3. Intangible trespass: requirement is on P to show harm (not required for other types of trespass.)

         1. E.g. harm from electric fields.

      4. Policy: Trespass suits are often brought to get court ruling on where a party’s property line is.

   5. Affirmative Defenses

      1. Consent

         1. Mohr v. Williams: D operated on P’s other ear and P claimed battery. Patient has autonomy unless there is an emergency or expressly implied consent.

            1. Policy: Autonomy trumps best interests except in emergency cases

            2. Good decision theory: Let the party (usually the person himself) in the best position make the decision.

         2. General consent form: once you sign it, you turn over your autonomy to the doctor. Enables the doctor to make the best decisions for the patient without fear of malpractice.

         3. Nonverbal Consent: Consent need not be spoken or written. Per custom, a person’s actions can be reasonably interpreted as giving consent.

         4. Implicit consent: Sports

            1. Combatants in sports consent to violence that occurs within normal boundaries of the sport, but not gratuitous violence. Hackbert v. Cincinnati Bengals

               1. “Deliberate, willfull, or reckless disregard for safety”

            2. Violent non fit injuria—the willing suffer no injury

            3. Exception: Illegal Acts

               1. Hudson: Cannot consent to an illegal prizefight; tort liability for battery done on the promoter.

               2. Rule: No one can consent to participation in illegal activity

         5. Consent is a common-law principle that can be superseded by statute

            1. Cannot consent to unlawful activity

            2. Torts adjust to fit criminal law

         6. Safe Harbor

            1. Sufficient but not necessary condition for preferential treatment

            2. Localized rules establish consent for certain actions

               1. E.g. the rules of football are a safe harbor for most batteries.

      2. Necessity

         1. When life or limb is threatened, normal rules of trespass do not apply.

            1. Cuts back on rights of property owner.

            2. Society values P’s life over D’s property rights

         2. Threat must be serious, necessity action must be reasonable.

         3. Self-help

            1. OK to do things that would otherwise be torts if you interests have been invaded

            2. Excessive self-help is a tort

            3. Much harder to claim self-help when the harm is done to a person than to property.

         4. Holdouts

            1. Occurs when a bilateral monopoly exists

            2. Deal in both parties’ interests is much more valuable to the party in need than the holder.

         5. Damages

            1. Owner can recover compensatory damages in necessity cases, but not punitive ones

            2. Excessive self-help triggers punitive damages

            3. Incentivizes P to only engage in self-help if there is true necessity—person in true need won’t consider costs.

         6. Also a defense to CN. See Raimondo.

2. EMERGENCE OF NEGLIGENCE

   1. Forms of Action

      1. Trespass: Direct harm done

         1. Scott v. Shepard

            1. Lighted squib caused game of hot potato

            2. Rule: Removing self from danger justifiable; blame on initial trespasser.

         2. Guille v. Swan: Intent does not matter for trespass; strict liability for all injurt (balloon over NYC case).

         3. Foundations for strict liability

      2. Case (“trespass on the case”): Harm resulting from earlier actions

         1. Foundation for negligence: creation of dangerous situation that ends up harming.

      3. Problems

         1. Wrong form of action resulted in dismissal

         2. Interested parties could not testify

   2. Introduction of Due Care

      1. Brown v. Kendall (MA SJC, Shaw, landmark negligence case)

         1. D accidently hit P with stick while trying to separate fighting dogs

            1. Old trespass system: SL

            2. Negligence: P had burden to show D was acting unreasonably

         2. Old system required P to merely show causation

         3. New rule: causation plus unreasonable want of due care

      2. Brown v. Collins

         1. D exercised reasonable care over horses, but they did damage anyway

         2. P couldn’t show negligence and lost.

      3. Duty to exercise...

Buy the full version of these notes or essay plans and more in our Torts Outlines.