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The Modern Law of Torts The Modern Law of Torts Donoho_6pp.indb 1 6/9/20 8:41 AM Donoho_6pp.indb 2 6/9/20 8:41 AM The Modern Law of Torts A Contemporary Approach Douglas Lee Donoho Professor of Law Nova Southeastern University Shepard Broad College of Law Carolina Academic Press Durham, North Carolina Donoho_6pp.indb 3 6/9/20 8:41 AM Copyright © 2020 Douglas Lee Donoho All Rights Reserved ISBN 978-1-5310-1294-6 e-ISBN 978-1-5310-1295-3 LCCN 2020933840 Carolina Academic Press 700 Kent Street Durham, NC 27701 Telephone (919) 489-7486 Fax (919) 493-5668 www . caplaw . com Printed in the United States of Amer i ca Donoho_6pp.indb 4 6/9/20 8:41 AM To Melissa and our amazing progeny, Madison, Quinn and Ailish. You make me happy and keep me in the real world. You are, in fact, the best. Thank you. Donoho_6pp.indb 5 6/9/20 8:41 AM Donoho_6pp.indb 6 6/9/20 8:41 AM Contents Table of Cases xxix About This Book and How to Use It xxxiii Chapter 1 • Introduction to Tort Law 3 A. General Background: What Is a Tort? 3 B. Elements, Causes of Action and Legal Method 6 Assignment 1.1 8 C. Introduction to Practice and Procedure 8 D. Context: The Policy Backdrop 10 PART ONE • INTENTIONAL TORTS Chapter 2 • The Intent Element 19 I. Black Letter Foundations 19 A. Introduction and Overview 19 B. Basic Definition of Intent 20 Assignment 2.1 23 C. Simple Applications of the Intent Definition 23 D. Case Law Illustrations 24 1. Garratt v. Dailey, 46 Wash. 2d 197, 279 P.2d 1091 (1955) 24 2. Spivey v. Battaglia, 258 So. 2d 815 (Fla. 1972) 26 II. Nuances and Ambiguities — Specialized Applications of Intent Including Transferred Intent, Pre-Existing Conditions, Mistakes, and Mental Disability 28 A. Introduction and Overview 28 Assignment 2.2 28 1. Transferred Intent 29 Problem 2.a: Wrong Guy, Wrong Tort 29 Assignment 2.3 29 a. Baska v. Scherzer, 283 Kan. 750 (2007) 29 b. Hendrix v. Burns, 205 Md. App. 1 (Md. Ct. Spec. App. 2010) 32 Assignment 2.4 37 2. Pre-Existing Conditions and the Eggshell Plaintiff 38 vii Donoho_6pp.indb 7 6/9/20 8:41 AM viii Contents a. Vosburg v. Putney, 78 Wis. 84, 47 N.W. 99 (1890) 38 3. Mistakes of Fact 39 a. Ranson v. Kitner, 31 Ill. App. 241 (Ill. App. Ct. 1889) 39 III. Challenging Applications: Mental Disabilities and Intent 41 A. Introduction and Overview 41 Assignment 2.5 41 Problem 2.b: A Pretty Bad Batman 41 1. Anicet v. Gant, 580 So. 2d 273 (Fla. Dist. Ct. App. 1991) 42 2. White v. Muniz, 999 P.2d 814 (Colo. 2000) 45 3. Wagner v. Utah Department of Human Servs., 122 P.3d 599, 2005 UT 54 (2005) 49 IV. Assessment and Feedback 54 Chapter 3 • Intentional Torts Against the Person 61 A. Introduction and Overview 61 Part One: The Independent but Related Torts of Assault, and Battery 62 I. Black Letter Foundations: Prima Facie Elements of Battery and Assault 62 A. Battery 62 1. Harmful or Offensive Contact 62 2. What Is the “Person” for Purposes of Battery? 64 a. Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967) 65 B. Assault 66 1. Well Founded Apprehension of Imminent Battery 67 II. Applications of the Prima Facie Elements 69 Assignment 3.1 69 Problem 3.a: Late Night with Cherry Garcia 69 A. Hughes v. Metropolitan Government of Nashville and Davidson County, 340 S.W.3d 352 (Tenn. 2011) 70 Assignment 3.2 74 B. Review Questions — Assault and Battery 74 Assignment 3.3 74 Part Two: False Imprisonment 75 I. Black Letter Foundations: Prima Facie Elements of False Imprisonment 75 A. Overview 75 B. Confinement: Escape, Threats to Protected Interests and “Against the Will” 77 II. Nuances in Application of False Imprisonment 79 Problem 3.b: The Lazy Librarian 79 Assignment 3.4 79 Donoho_6pp.indb 8 6/9/20 8:41 AM Contents ix A. False Imprisonment Applied 80 1. Parvi v. City of Kingston, 41 N.Y.2d 553 (N.Y. Ct. App. 1977) 80 2. Montejo v. Martin Memorial Medical Center, 935 So. 2d 1266 (Fla. Dist. Ct. App. 2006) 83 III. Challenges in Application: Intentional Torts Against the Person 85 A. The Shop Keeper’s Dilemma — False Imprisonment, Shop-Lifting, Legal Authority and Reasonable Restraint 85 Assignment 3.5 86 Problem 3.c: Rivers at Dillard’s 86 1. Florida Statutes Annotated § 812.015. Retail and farm theft 87 B. Practicum: Pleading the Prima Facie Case in a Complaint 89 Problem 3.d: Road Rage, South Florida Style 89 Assignment 3.6 89 1. Legal Standards for Pleading 89 2. Model Pleadings 90 IV. Assessment and Feedback 90 Chapter 4 • Intentional Torts Against Property Interests 97 A. Introduction and Overview 97 Part One: Trespass to Land and Nuisance 98 I. Black Letter Foundations: The Prima Facie Elements 98 A. Introduction and Overview 98 B. Prima Facie Elements of Trespass to Land 99 C. Prima Facie Elements for Nuisance 99 Assignment 4.1 101 II. Applications and Nuances Involving Trespass and Nuisance 101 A. Intentional Versus Mistaken or Negligent Entry 102 Assignment 4.2 103 Problem 4.a: All Good Muskrats Go to Heaven 103 B. Authorized Entry 104 Assignment 4.3 105 Problem 4.b: Take Your Things and Go 105 C. Distinguishing Recoverable Damages for Trespass 106 Problem 4.c: A Broken Step 106 Assignment 4.4 106 1. Connolley v. Omaha Public Power Dist., 185 Neb. 501, 177 N.W.2d 492 (1970) 107 D. What Constitutes a Nuisance: Substantial and Unreasonable Interference 109 Assignment 4.5 109 Donoho_6pp.indb 9 6/9/20 8:41 AM x Contents Problem 4.d: Shadow Flicker 109 1. Myrick v. Peck Electric Company, 2017 VT 4, 204 Vt. 128, 164 A.3d 658 (Vt. 2017) 110 III. Trespass and Nuisance Challenge: Physical Invasion by Tangible Objects and the Environmental Tort Dilemma 112 Assignment 4.6 113 A. Johnson v. Paynesville Farmers Union Cooperative, Oil Co., 817 N.W.2d 693 (Minn. 2012) 113 Part Two: Intentional Interference with Personal Property — Trespass to Chattel and Conversion 120 I. Black Letter Foundations 120 A. Introduction and Overview 120 B. The Prima Facie Elements 121 1. Trespass to Chattels 121 2. Conversion 121 California Civil Jury Instructions (CACI) (2017) 122 II. Applications of the Prima Facie Case 123 Starter Problem 4.e: Don’t Touch My Bike 123 Assignment 4.7 123 A. The “Tangible Object” and “Dispossession” Nuances 123 1. Introduction and Overview 123 2. Kremen v. Cohen, 337 F.3d 1024 (9th Cir. 2003) 125 3. The Special Case of Dispossession 130 III. Trespass to Chattel and Conversion Challenge: Common Law Cyberwars 131 Assignment 4.8 131 Problem 4.f: The Cookie Monster 131 A. Intel Corporation v. Hamidi, 30 Cal. 4th 1342, 71 P.3d 296 (Cal. 2003) 132 IV. Assessment and Feedback 140 Chapter 5 • Intentional or Reckless Infliction of Severe Emotional Distress 143 I. Black Letter Foundations: Intentionally Inflicted Emotional Distress 143 A. Overview 143 B. The Prima Facie Elements of IIED 144 Assignment 5.1 145 1. Intent or Recklessness 145 Assignment 5.2 146 2. Extreme and Outrageous Conduct — They’ll Know It When They See It 147 3. Causation 148 4. Severe Emotional Distress 149 5. Transferred Intent and Bystanders 150 Donoho_6pp.indb 10 6/9/20 8:41 AM Contents xi Problem 5.a: The Sick Vet 151 Assignment 5.3 151 II. Application of the Elements of IIED: Nuances from the Employment Context 152 A. Overview 152 Assignment 5.4 152 Problem 5.b: Way Too Crass 152 1. Williams v. Worldwide Flight Svcs. Inc., 877 So. 2d 869 (Fla. Dist. Ct. App. 2004) 153 2. Thigpen v. Johnson, 788 So. 2d 410 (Fla. Dist. Ct. App. 2001) 155 III. The Challenge of Bystander Recovery for Conduct Directed at Another Person 157 A. John DOE 1 ex rel. Jane DOE 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22 (Tenn. 2005) 157 IV. Assessment & Feedback 163 Chapter 6 • Defenses to Intentional Torts 167 A. Introduction and Overview 167 Part One: Consent 169 I. Black Letter Foundations: The Basic Rules for Consent 169 II. Applications of the Consent Defense and Its Nuances 173 Assignment 6.1 173 A. Duncan v. Scottsdale Medical Imaging, LTD., 205 Ariz. 306 (2003) 173 B. Saucier ex rel. Mallory v. McDonald’s Restaurants of Mont., Inc., 342 Mont. 291, 79 P.3d 481 (2008) 176 Problem 6.a: Coaching, With Emphasis 179 Assignment 6.2 180 C. Johnson v. Jones, 269 Or. App. 12 (2015) 180 Problem 6.b: The Unfaithful Batterer 183 Part Two: Privileges Relating to Property 184 I. Black Letter Foundations: Privileges to Protect Property and Recover Chattels 184 II. Applications of the Privileges to Defend and Recapture Property 186 A. Use of Force in Defending Property 186 Assignment 6.3 186 State of Nova Pattern Jury Instructions 186 Problem 6.c: Tired of Being Tormented 186 III. Challenge: The Shop Keeper’s Dilemma and the Privilege to Recover Chattels 187 Assignment 6.4 189 Donoho_6pp.indb 11 6/9/20 8:41 AM xii Contents Problem 6.d: Ripping Off Some Vapor 189 Part Three: Self-Defense and Defense of Others 190 I. Black Letter Foundations 190 II. Application of Self-Defense and Its Nuances 192 Assignment 6.5 192 III. Challenge: Application of Self-Defense in a Stand Your Ground State 194 Assignment 6.6 196 Problem 6.e: Don’t Park So Close to Me 196 Part Four: Necessity and Other Justification Defenses 197 I.
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