Torts – Fall 1999, U of Iowa – Prof. Love
I.
Strategic Considerations for
Showing Intent
A.
Punitive Damages -
1.
Purpose
a)
Knowledge, or
b)
Transfer (Alteiri v. Colasso - Assault intended
towards third party results in liability for battery when defendant is contacted
in harmful way)
(1)
Intent to offend can be transferred to harm when
harm results.
(2)
Applies only to common law intentional torts
2.
Recklessness, if subjective
a)
Drunk driving may be considered malicious behavior
subject to punitive damages (Cabe v. Lunich)
B.
Bankruptcy
1.
Purpose,
2.
Knowledge, or
3.
Transfer (Davis v. White - bystander shot instead of intended target
may claim damages from a bankrupt defendant)
4.
Damages resulting from injuries not intended to result from reckless
medical malpractice are exempt from bankruptcy (Kawaahua v. Geiger)
C.
Vicarious Liability
1.
Purpose,
2.
Knowledge? (Walker v. Kelly:
Parents not liable for actions of daughter who threw stone at boy
because neither purpose or knowledge could be proven)
3.
Reckless/Negligent acts tend not to apply to vicarious liablility for
parents.
4.
Vicarious Liability for employers
a)
Tortfeasor in master/servant relationship w/employer
and tort occurs w/i the scope of employment.
(1)
“scope of employment” subject to wide interpretaion
(e.g. Lisa M. v. Henry Mayo Mem. Hospital - hospital not liable for sexual
assualt commited by worker administering ultrasound because his acts were not
motivated by his job or the relationship it gave him with the victim).
(2)
As a general rule, no vicarious liability exists
for acts of independant contractors.
Exception is cases falling under non-delagable duty doctrine (work
inherently dangerous. e.g, crop dusting)
b)
Courts may generally do not want to make insurers out
of employers.
c)
Governments held liable for intentional torts of
law-enforcement employees acting w/i scope of employment.
d)
Direct liability for negligent hiring is an
alternative to vicarious liablility.
D.
Worker’s Compensation Exemption
1.
Purpose. It would be bizarre
for employer to purposely injure an employee.
2.
Knowledge, in some jurisdictions (Bercaw v. Dominos - employer not
liable for death of employee delivering pizza to suspect location). (Caudle v. Betts - Employer liable for
unforeseeable injuries resulting from practical joke intended to harm or
offend).
E.
Liability Insurance
1.
Intentional injuries usually not covered, except for transfered intent
cases (e.g. Grange Mutual v. Thomas -
insurance company liable for shooting injuries inflicted by policyholder on
bystander).
2.
Many jurisdictions allow insurance to cover reckless acts.
3.
Insurance will cover injuries which result from act intended to commit
harm if those injuries cannot be within the scope of harm intended (Breland v.
Schilling - severe injuries that could not have been foreseen by policyholder
who attacked plaintiff were found to be a liability for the insurance company)
4.
If an insured’s state of mind and knowledge of circumstances
surrounding event in question has not been determined, then exemption for
intentional injuries may not be applied until intent for injuries caused can be
determined (Quincy Mutual v. Abernathy - insured threw large rock at car, court
found injuries not necessarily intended)
II.
Intentional Torts
A.
Battery
1.
Elements of Battery
a)
Act by Defendant
b)
Intended to cause harmful or offensive contact
(1)
If harm is claimed, P does not have to be aware of
harm at time of contact.
(2)
If offense is claimed, P must know contact is
offensive at time of contact.
c)
cause in fact of harmful or offensive contact
d)
(if seeking compensatory damages) cause in fact and
proximate cause of injury to Plaintiff (difficult to prove)
e)
Intent required for battery - some form of fault is
required (Van Camp v. McAfoos - five year old child is not strictly liable for
damages caused by tricycle crash into plaintiff)
B.
Assault
1.
Elements of Assault (to seek nominal + punitive damages)
a)
Act by Defendant
b)
Intended
(Purpose, Knowledge, or Transfer) to place plaintiff in apprehension of
harmful or offensive contact
c)
Cause in fact of apprehension of harmful or offensive
contact
d)
(if seeking compensatory damages) cause in fact and
proximate cause of injury to plaintiff.
2.
Apprehension on part of plaintiff an absolute must (McCraney v.
Flanagan - plaintiff has no assualt claim if she cannot remember events)
3.
Apprehension must be of imminent contact (Dickens v. Puryear - threat
to kill plaintiff if he did not leave city was not an assault, but intentional
infliction of emotional distress).
4.
Grossly negligent or reckless actions do not provide sufficient intent
(Gray v. Morley - defendant’s erratic driving which caused plaintiff to be
thrown from truck was not subject to intentional tort liability)
C.
Intentional Infliction of Emotional Distress (IIED)
1.
Elements of IIED (to seek compensatory and nominal damages, or
equitable injunction)
a)
Act or ommission by D
b)
Intent (Purpose, Knowledge, NOT transfer) to inflict
emotional distress
c)
Extreme and outrageous conduct (determined by culture
of jurisdiction)
d)
Cause in fact of severe emotional distress
(1)
Distress must be such that a reasonable person
could experience it given circumstances.
e)
Family member who is present at time of act may also
claim IIED (presence not required in kidnapping)
f)
Non-family member who is present and receives bodily
harm may also claim IIED.
2.
Positional relationship of parties may provide cause of action for IIED
even where conduct not otherwise extreme and outrageous (e.g. Swenson v.
Northern Crop - employee able to sue for IIED resulting from sexism). This may aid male plaintiffs.
3.
“Egg Shell Plaintiff” - If D knows P is particuarly susceptible to
emotional distress, otherwise unqualified behavior may become extreme and
outrageous (e.g. LaBrier v. Anheuser Ford - Ds liable for distress of P who
they knew had fragile emotional state).
D.
Trespass to Land
1.
Elements of Trespass to Land (for Nominal + Punitive damages). Injury not necessary for punitive damages
(e.g. Jaque v. Steenberg Homes - punitive damages used to deter trespass)
a)
Act by D
b)
Intent (Purpose, Knowledge, Transfer)- Intent only
goes to entry upon land. Mistake of
ownership no excuse (52)
c)
Cause in fact of interference of possession of real
property.
d)
(if seeking compensatory damages) Cause in fact and
proximate cause of injury to P.
E.
Trespass to Chattel
1.
Elements of Trespass to Chattel (for nominal and punitive damages;
equitable injunction)
a)
Act by D
b)
Intent (Knowledge, Purpose, Transfer)
c)
Cause in fact of interference with possession of
chattel.
d)
(if seeking compensatory damages) cause in fact and
proximate cause of injury to P.
Liability based on actual damage, not market value of chattel (56).
F.
Conversion
1.
Elements of Conversion (to recover compensatory & punitive damages)
a)
Act by D
b)
Intent (Purpose or Knowledge only). Only knowledge of possession necessary. Mistake as to ownership is no defense.
c)
Cause in fact of substantial interference or
appropration of personal property belonging to P.
2.
Damages in conversion are measured as “forced sale”
III.
Defenses to Intentional Torts
A.
Justification Defenses
1.
Defense of Property
a)
Necessity must be actual
b)
Reasonable (comparable) force
c)
Force is limited - force causing death or serious
bodily harm is not permitted
(1)
Human life is valued over property (Katko v.
Briney)
(2)
After chattel is taken, peaceful means must be used
to regain it. “Hot pursuit” is only
exception.
2.
Violent Felony//Self Defense/Defense of Others
a)
Necessity must be actual or apparent
b)
Force must be reasonable (comparable to apparent
necessity)
(1)
Escalating force justified if agressor uses
escalating force
(2)
“Reasonable” judged by results. i.e., Bad shots are penalized.
c)
Unlimited force is permitted - including force
causing death or serious bodily harm
d)
Duty to retreat if not in home or workplace(“Castle”
rule)
e)
Court determines whether Felony was violent in each
case.
f)
Under common law, defense of another was subject to
liablility if in fact the other would not have been justified in using the
amount of force used themselves. Modern
law allows defender to use force that defender believed necessary.
3.
Arrest (DH 67)
a)
Police officer may make arrest under “probable cause”
that felony has been committed.
b)
Private person who is mistaken as to existence of a
misdemeanor has no defense (e.g. Great Atlantic v. Paul - store liable for
false arrest of suspected shoplifter), but mistake of felony may be a defense.
B.
Consent (Exampled by medical cases)
1.
Types of Consent
a)
Express - written or spoken (bars recovery)
b)
Implied in fact - illicited by actions (bars
recovery)
c)
Implied by law (bars recovery)
2.
Scope
a)
Surgeon permitted to remedy unanticipated situations
w/i area of incision (Kennedy v. Parrot)
3.
Elements that can void consent
a)
Incompetency
(1)
“Mature minor” might make competent decision
(2)
“Substituted Consent” allows family/friend to stand
in for patient that is unable to give consent.
b)
Fraud/Duress
(1)
If patient agrees to surgery under false diagnosis,
physician liable for battery (Cacdac v. West).
c)
Illegal act by defendant
d)
Against public policy
C.
Necessity
1.
Public necessity
a)
Government usually does not have to pay for damage to
private property owners resulting from necessity.
b)
If Gov. is liable, necessity provides a partial
defense. Compensatory, but not punitive
or nominal, damages may be awarded.
2.
Private necessity
a)
Lack of necessity precludes defense.
b)
Must be case of harm to property
c)
Force used must be reasonable
d)
Compensatory damages must be paid to property owner
(Vincent v. Lake Erie).
e)
If property owner acts to end trespass that occured
out of necessity, property owner is liable for damages sustained by trespassor
(Ploof v. Putnam).
D.
Statute of Limitations
E.
Immunities
IV.
Recklessness
A.
Elements of Recklessness (to recover compensatory and
punitive damages [punitive applies to subjective recklessness])
1.
Act by defendant
2.
Reckless act (subjective or objective)
3.
Duty of care
4.
Breach of Duty
a)
D knew (subjective) or should have known (objective)
of high risk of harm
b)
D’s conduct highly unreasonable
5.
Cause in fact & proximate cause of harm to P
B.
Defenses to Recklessness
1.
Assumption of risk
2.
Contributary recklessness
3.
Statute of Limitations
4.
Immunities
V.
Negligence
A.
Elements of Negligence (to recover compensatory
damages)
1.
Act by D
2.
Negligent act (subjective or objective)
3.
Duty of Care (applies to recklessness as well)
a)
Reasonable Person Standard
b)
Judicial Rule (e.g. Helling v. Carey - Despite
custom, opthamology patients under 40 should have glaucoma test administered)
c)
Legislation (negligence per se)
(1)
Two types:
(a)
Civil (e.g. Scovill v. Hubbard -
Officials liable for not confining drunk when they had a statutory duty to do
so.
(b)
Criminal
(i)
Violation might result in negligence per se (e.g.
Mundy v. Pirie-Slaughter - adult liable for allowing minor to operate vehicle),
but
(ii)
It might not (e.g. Carter v. William Sommerville
& Son - application of statute too far removed from activity causing
injury)