Torts INTENTIONAL TORTS Intent ‐act intending to produce the harm OR ‐know that harm is substantially certain to result Battery ‐requires dual intent: 1) Act intending to cause harm or offensive contact with person (what is offensive?) 2) harmful contact directly or indirectly results *Vosburg rule used to be only need to intend contact *doesn’t have to know the full extent of the possible harm, just know that it is likely to cause harm *can be liable for any damages, unforeseen or not *thin shin rule *Transferred intent ‐ need not be person who def intended to harm ‐criminal negligence vs. tort negligence ‐small unjustifiable risk vs. big risk, gross deviation from std of care Intentional Infliction of Emotional Distress 1) Intent to harm (can be imputed from facts) Wilkinson v. Downton (93) o Practical joke where guy tells woman her husband badly injured. o Rule: Such a statement, made suddenly and with apparent seriousness, could fail to produce grave effects under the circumstance upon any but an exceptionally indifferent person, and therefore an intent to produce such an effect must be imputed. 2) Outrageous Conduct RESTATEMENT 2 ‐ 46 ‐ outrageous conduct causing severe emotional distress ‐extreme or outrageous conduct ‐ who is deciding? JURY ‐intentionally or recklessly causes severe emotional distress ‐liable for emotional distress and/or bodily harm ‐liable to family members who are present regardless of bodily harm ‐liable to third parties present (not family) IF distress results in bodily harm ‐really does have to be OUTRAGEOUS‐ beyond all decency (Jury decides) ‐expansion from battery to IIED shows expansion of tort law ‐serious threats to physical well‐being are outrageous -The extreme and outrageous character might arise from knowledge that the other is peculiarly susceptible to ED by reason of a physical or mental condition or peculiarity (Amish guy). -Parasitic damages: Though mere mental disturbance of itself cannot be a cause of action, fright and mental anguish are competent elements of damage if they arise out of a trespass upon the plaintiff’s person or possession. ASSAULT ‐ intending either to cause battery or threaten someone puts another in fear of an imminent harmful or offensive contact ‐not just mere words alone ‐do not need fear, just anticipation of battery ‐must be immediate, close (not over telephone), and actual (not potential) IMMINENT ‐must know of heightened sensitivity to be liable where threat wouldn’t be assault to normal person ‐not enough to just have fear of future harm FALSE IMPRISONMENT Restriction of freedom of movement ‐must be total confinement ‐plaintiff must have conscious awareness ‐must be intentional ‐good example of limiting a tort MYSPACE case ‐ less outrageous conduct and more like jury acting as a safety net for social norms DAMAGES CONSIDERATIONS FOR INTENTIONAL TORTS ‐same calculation of damages for negligence/strict liability as opposed to intentional torts (former are fallbacks in case intent is lacking) BUT ‐ intent triggers punitive damages ‐jury is more likely to ratchet up damages if act was intentional ‐child can’t be negligent for certain acts, but CAN do intentional torts ‐when comparing responsibility and negligence, intentional torts can trump ‐judgment proof ‐ makes intentional torts are less significant DUTY Negligence is the neglect of a legal duty. No negligence if no duty. General duty of all to all, but default is that you owe no duty except not to act with intent to harm and not to act negligently. General duty to use due care and take reasonable precautions. o Duty not to affirmatively cause harm. Misfeasance v. nonfeasance o Misfeasance – active misconduct working positive injury. Duty to not do this. o Nonfeasance – passive inaction. A failure to take positive action to benefit others. Omission. No duty against misfeasance. No duty to protect against harm unless a special relationship. Generally, if you do something to stand out from the crowd, some kind of act that makes the situation worse, that creates a duty. o Create a risk o Make a gratuitous promise or rescue A. Duty to Act or Rescue? No affirmative duty to act to help someone else. Buch v. Amory Manufacturing (565) o Kid trespasses into factory. Gets his hand crushed in a machine. o No duty to protect/rescue trespasser against hidden or secret dangers or protect from injuries that arise from his own acts. Hurley v. Eddingfield (568) o doctor cannot be held liable for decedent’s death because he did not choose to treat him ‐ cannot force him into contractual arrangement ‐even if he is licensed doctor o hostility toward creating affirmative duties o Possible ways to create a duty? . Reliance . Private contract Yania v. Bigan (568) o Yania visiting Bigan’s land. Bigan taunts him into jumping into dangerous water. o No duty not to dare. did not physically impact his person, cannot be held liable for mentally impacting unless child, retard o No duty not to warn. strip mine operator, should have been well-aware o No duty to rescue. unless he was responsible for putting him in that position Arguments AGAINST finding legal obligation court cannot create a social contract that does not exist yet don’t want general duty to act for everybody ‐ but want particular rescue in certain cases judicial economy ‐ slippery slopes worried about generality Risk Creation Can create a duty using common law. If negligently created risk, that creates duty to others because duty to act reasonably RS3 §39 ‐ If non‐negligently create risk, duty to mitigate that risk. Montgomery v. National Convoy (579) o Two trucks that stall at bottom of hill. They put up flares. o Problem is that they only put flares on one side so that by the time you see flares, can’t stop on the icy hill. o Not negligent in creating the risk, so not liable for stalling, but the nonnegligent risk created creates a duty to mitigate that risk. Newton (580) o Digging a hole in highway. Duty to minimize by putting signs up. TAKEAWAYS ‐role of incentives and disincentives ‐ expressive function of law ‐lots of tools for creating duties ‐ but as generality ‐ no duty to rescue ‐even reasonable risks carry duties to take precautions B. Duties to Third Parties Restatement 2 Section 315 ‐no duty to control conduct of third person unless: 1) special relationship b/w actor and third person 2) special relation exists between actor and other which mandates protection Look at policy, foreseeability of harm to plaintiff, closeness of connection between defendant’s conduct and injury, moral blame, policy of preventing future harm ,extent of burden on defendant and consequences of imposing duty, avail insurance WEIRUM v. RKO p623 ‐MISFEASANCE renders restatement §315 inapplicable ‐radio station sent DJ around and first person to get there won contest, two teenagers racing to get there, one died ‐ plaintiff gets judgment ‐SC reinstated complaint saying it wouldn’t open a pandora’s box to other litigation e.g. on sale while supplies last liability for Wal‐Mart ‐here they created the conditions for unreasonable risk of harm = MISFEASANCE, riskiness makes conduct in itself tortuous ‐also because risk was FORESEEABLE ‐Here, less about special relationship and more about the increased risk. An intervening actor can be just an instrument of increased risk created. Tarasoff (635) ‐Poddar killed Tarasoff. Doctors knew that Poddar had threatened to kill. Had him committed but police didn’t do anything and then Docs didn’t pursue and didn’t warn Tarasoff. ‐Special relationship between Poddar and Doctor. ‐This doesn’t fit either of the two traditional ways of creating a duty (creating unreasonable risk or creating reasonable risk but duty to mitigate) Factors to take into account whether duty should exist: ‐foreseeability of harm ‐degree of certainty that plaintiff suffered injury ‐closeness of the connection b/w defs conduct and injury ‐policy of preventing future harm ‐burden to def and community consequences of imposing that duty with resulting liability ‐cost, availability, prevalence of insurance for risk involved Court only usually imposed liability in cases involving the controlling of the conduct of another or warning of conduct when there is SPECIAL RELATIONSHIP b/w def and dangerous person or victim ‐def doesn’t have to have BOTH relationships ‐therapist‐patient is such a special relationship demanding duty to care to minimize harm to others ‐duty for doctor to notify others/patient of patients potentially dangerous disease Def: it is too hard to accurately predict who will actually be violent ‐Ct: only asking for reasonable care, possessed by avg. therapist in similar circumstances ‐here they did predict killing, negligent in failing to warn ‐false warnings are OK compared to deaths ‐reflected in exceptions to dr‐patient privilege NOTES ‐kid threatened to kill young child upon release ‐ no duty, threat was not against “reasonably identifiable victim” ‐no duty for private rehab center to inform others ‐liability when psychiatrist helps def get guns ‐liability when psychiatrist fails to make previously promised phone call upon abusive patient’s release Why shouldn’t police have a duty to warn, if not a duty to detain?? ‐dr. is more proximate to the threat‐ police don’t know the details fully ‐ no direct relationship ‐could argue that the police have a more direct relationship with tarasoff ‐ duty to protect the public TARASOFF I vs. TARASOFF II discussion ‐Tarasoff I ‐ imposes a duty to warn ‐ once there is a danger, the duty to warn is automatic ‐Tarasoff II ‐ duty to use reasonable skill in deciding whether to warn or not ‐ more general ‐ could go either way ‐ more leeway ‐ whether there is a danger, using skill with latitude about who to warn ‐ professional judgment call about whether to warn Law and society point ‐ therapists get the more broad rule but mostly follow in practice the automatic warning rule ‐ prob want to avoid the murky line by overprotecting themselves BUT ‐ there is risk of not respecting patients privacy rights Hindsight bias ‐ proof that the judgment was wrong is not sufficient to prove negligence ‐when you have a more flexible standard ‐ second guessing reasonableness becomes easier ‐also less clarity Rule vs.