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Intentional Torts – Notes and Cases

By: esquire
December 14, 2010

Intentional Torts – Notes and Cases

Hammontree v. Jenner pg3


Why was Mr Jenner not liable for negligence in light of the facts that:
He knew he had seizures
He knew his meds did not fully control condition
He chose to drive even with foreseeable risk
Negligence doesnt matter if he desired or intended to tort
Def: Taking of unreasonable risk of harm
Negligence is conduct that creates unreasonable risk of harm
The only alternative Mr Jenner had was to not drive. His driving was a reasonable risk.
What if he had driven the next day and killed children in a crosswalk.
The court ruled that he had taken every precaution he could have, so the situation would be no different because he had done no “wrong”
Day after next he hits a toxic truck, sets fire to the city, his risk is now becoming more likely.

As the likelihood increases, the duty to protect also increases. The magnitude of risk

Why did the plaintiff abandon the negligence charge.
Because he probably wouldnt have been found guilty of taking unreasonable risk
The case was a clear looser based on Dr. testimony of Jenner doing everything reasonable to control
Is it surprising that the plaintiff went to strict product liability of defectiveproducts?
No the analogy has to start somewhere in the absence of a more similar case.
Accident reduction is a reason behind policies
He left the instruction broad because as originally applied to product liability the strict liability is applied regardless of prior knowledge
Goals of the Torts system
Accident reduction
Compensation to innocent victim
Loss distribution (eg insurance)
Fairness justice
8/30/2010
Peters:
was the original judge:
He believed that the award should be reversed if it “shocks the conscience/passion prejudice”

Traynor dissents (Wants to take her damages away)
pg 703
Believes that the pain and suffering awarded was excessive that there was passion and prejudice in the jury.
Agrees with the law, but he disagrees and believes that the award does “shock the conscience”
Basically LA transit will not pay the damages, they will just raise bus fares and the public will end up paying the loss or they have insurance
The damage award is always arbitrary and cannot be based on any real fact or data
If the defendants action was reprehensible than maybe there should be pain and suffering

Jaffe’s opinion
Pg 710
on pain and suffering: “it is doubtful justice seriously to embarrass a defendant, though negligent, by real economic loss in order to do honor to plaintiff’s experience of pain” insurance should not be used either as the pool of social funds would grow larger each year as a proportion of national income. No amount of compensation will reverse the damages
Pecuniary damages make the plaintiff “whole” by paying back loses
Non-pecuniary can never make a plaintiff “whole” because you can’t “measure” pain
Its doubtful justice to inflict that much on an uninsured individual
A social fund, ie insurance costs, should not be depleted to pay damages that perform no specific economic function.
• How expensive would Health insurance be if it paid out for Pain and Suffering???
Posner’s opinion: (conservative Reagan appointee)
“most people would pay a good deal of money” to be free of pain and suffering. If there was no monetary recourse for victims in pain and suffering damages then there would be more negligence and thus higher social costs.
Believes tort law is a deterrent to future negligent acts “an essential mechanism”
Tort actions are generally about damages.
Pecuniary loss: income, medical expenses, past and future
Non-pecuniary: Pain and suffering, sometimes larger than pecuniary
Judge and jury have different roles
Jury hears facts witnesses testimony request for damages, issues a damage for the judge to review etc
Judge issues the damages and is thought to be the 13th juror
Judge cannot set the amount, he can reduce it and tell the plaintiff to either accept or the case will go to new trial
Appellate court doesnt hear testimonys only has court records to go by
Decided that award shocked the conscience and pointed to prejudice or passion
California Supreme Court is the most influential state supreme court in the country
Vicarious liability, respondiant superior = Corporation is liable for the actions of its employees
Back in old days when suing, the plaintiff could end up owning the defendants farm, now we have liability insurance a “public pool of funds”
Damages in this case on a public service will get distributed to the public
• in the case of business say Hertz had to raise prices to cover damages then you could always use Avis instead
• Posner belives that damages cause businesses to be less negligent to avoid future loses

Workers Compensation
pg 556 ?

19th Century courts were full of employee injury/compensation claims
• Employee had to prove negligence
• Could not recover if they were injured by another employee
• Ordinary people were on the jury, not corporations, and didnt go along with the law and favored the worker
Reformed legislation
All the worker had to prove was that the accident occured as a result of working
Even collect awards if the negligence was your own, ei dropped an axe on your foot
Expanded liability for limited damages, workers comp is limited.
September 11th major workers comp claims
• Were the architects negligent?
• Were the airlines negligent?
• Within one week enacted a massive compensation agreement
- only had to prove they were injured in 9/11
- largely no pain and suffering
- most likely limited to $250,000
read opinion on 557 Traynor (whole first paragraph)
How much money would Traynor allow in Seffert?
• How does it relate to 557 opinion
- How do both opinions it relate to workers comp
Read Garret v Daily pg 885

Traynor on 557 discusses product manufacturers and strict liability.

The reasoning being that even when there is no negligence, a manufacturer still has to take responsibility and liability for it’s products knowing that they are to be used without inspection.
This strict liability loosely related to workers comp in so far as employers are strictly responsible for the safety of their empires regardless of who us at fault.

In the case of the boy pulling the chair it would need to be proved that –>

  • he pulled the chair with intent of Ruth Garret falling or
  • had specific knoledge that Ruth would attempt to sit where the chair had been
    Tort law is controversial
    - Malpractice pain and suffering limited to $250,000.
    The court didnt rule on the per diem argument, however 3 of the judges opposed to this (per diem argument) in their opinions
    The court had a solid majority backing, Traynor lost on his opinion in this, and California eventually approved use of a per diem argument.
    Traynor alludes to the fact that he would reverse any judgement where non-pecuniary exceeded pecuniary.
    Escola v. Coca Cola Bottling Co. of Fresno
    Traynor believes there should be strict liability on products
    - liability should be placed where it will most likely reduce negligence at its source.
    - strict liability distributes losses among the public
    20 years after his opinion the courts adopted his rule on a large scale

    Battery
    Assault definition pg 891
    pg902 Lopez Case false imprissionment
    READ NOTE 10 on pg 890
    Assault
    A physical act | of a threatening nature| [or] an offer of corporal injury | {which} puts an individual | in reasonable fear | of imminent bodily harm
    • Requires apprehension, you can batter someone without placing them in reasonable fear of imminent harm
    A threat of force intended to cause contact or apprehension of contact that results in a well founded apprehension of imminent contact.
    - cant be fear of future contact, cant be conditional

    Battery
    Intentional infliction of harmful or offensive bodily contact
    - Voluntary Act
    - Intent to cause contact or apprehension of contact
    Intent – purpose to cause contact/apprehension, OR the knowledge that contact is substantially certain to be produced.
    Intent can be transfered, attempt to hit some one and hit someone else by accident.
    - Contact, harmful/ with a person
    Contact can include an object held by a person: cane, glasses, maybe a camera
    Must be offensive to a reasonable sensitivity, if they are super sensitive it may not hold water
    - Not offensive at a club; may be very offensive at a funeral
    Lack of consent
    - a doctor removing a scar without permission is battery (maybe you liked the scar)
    - You do not need the actual ability to effectuate the battery, only an apparent ability to effectuate (to put in force or operation)
    The purpose of causing contact or the apprehension of contact. If the contact occurs then you have fulfilled the requirement for battery
    An act that was intended to cause, and in fact did cause “an offensive contact with or unconsented touching of or trauma upon the body of another, thereby generally resulting in the conssumation of the assault.
    • An intent to injure, however, is unnecessary in a situation in which the defendant willfully sets in motion a force that in its ordinary course causes the injury.
    Intent
    Purpose, knowledge, substantially certain to occur
    In an auto accident have the parties write a statement of what happened.
    Add II. pg 39 and pg 6 & 7 and Traynor 551-560

    III. Remove pg 44-45 (Carol Toyen case)
    Definitely moving on to false imprisonment
    Must be actual or illeagal intent to restrain
    False Imprisonment
    Two pronged
    - Lack of consent AND
    - Actual confinement
    If free to leave not imprisonment
    Not letting someone in is not imprisonment
    - Consciousness of confinement
    Unless it causes harm
    Common law tort of false imprisonment  is defined as “an unlawful restraint of an individuals personal liberty or freedom of locomotion” “any unlawful exercise or show of force by which a person is compelled to remain where he does not wish to remain or to go” there must be legal intent to restrain. Unlawful restraint may be effected by words alone.
    • There must be actual or legal intent to restrain
    1. actual or apparent physical barriers; 2. overpowering physical force, or by submission to physical force; 3. threats of physical force; 4. or other duress; and 5. asserted legal authority
    If there is “reasonable means of escape” then it is not false imprisonment
    Locking someone out is not false imprison
    Defenses

    Consent
    implied consent, games, sports (implied consent that some rules will be broken within reason)
    Not Offensive
    What if an HP employee is accused of stealing upcoming software, that may get out to competitors.
    Takes employee in back, brandishes a gun and shows pics of dead employees.
    Says by end of the day if you dont give back software we will kill you.


    Traynor opinion in Supplement How does tort law evolve?
    Read Silisnoff case

    Starting class with Courvasier

    See Courvoisier v Raymond

    Self Defense
    Force must be reasonable, deadly force only reasonable only if threat of serious bodily harm.
    - Force can only be used until out of harms way, you cant chase down a threatener and beat the crap out of them.
    - cant use deadly force on outlying property. (outside of house)
    Intentional Infliction of Emotional Distress
    Courts original against this tort, but begrudgingly recognized.
    - Backdoor way of getting to it, intentionally caused severe emotional distress with reasonably foreseeable bodily harm.
    - De facto reasoning of the tort of assault
    - Bridge to modern tort of IIED
    Now cause of action even if there is no bodily harm if the conduct is extreme and outrageous.
    Position of authority may inflict what is extreme and outrageous (such as a boss)
    Extreme and outrageous of recklessly
    Test severity and length of distress





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