We impose negligence when there is a precaution we want people to take

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Ryan Preston Dahl; Tel. 917 687 7416


Levmore: “We impose negligence when there is a precaution we want people to take.”

Epstein: The minute a defendant loses a motion for summary judgment, the claim is automatically worth sixty cents on the dollar.
Epstein: Greater risk should imply greater control.
Epstein: Strict liability analysis may not apply in consensual, coordinated, cooperative endeavors (e.g, medicine)
Epstein: It is not enough to show that P was negligent: Remember you have to show that D’s specific negligent act/omission caused the P’s harm
Intentionally Inflicted Harms

Physical Harms: Difficult thing w/intentional torts is that the P must prove some intention on the part of the defendant

  1. Trespass to persons, land, and chattels

    1. Terms:

      1. Assault: The threat or use of force on another that causes that person to have apprehension of imminent harmful or offensive contact; the act of putting another person in reasonable fear of an immediate battery

      2. Battery: Intentional infliction of bodily harm on another. There is no element of intent in battery.

      3. Trespass: An unlawful act committed against the person or property of another; a legal action resulting for injuries caused by an act of this kind

      4. Tort: A civil wrong for which a remedy may be obtained; a breach of duty which the law imposed upon everyone in the same relation to one another in a given transaction

    2. Harms to persons.

      1. Epstein hates this reliance upon “mental states”. Rather he prefers the prima facie “you kick, you’re liable” subject to this process of analysis:

        1. Physical state: was there a physical cause for the present action?

        2. Was there license to commit the act?

        3. Assumption of risk on the part of the P? No assumption of risk → strict liability (e.g., stranger cases)

          1. Explicit agreements

          2. Regularity of expectations imposed by time and place (custom)

        4. Malice/intent to harm on the part of the D? If so, then strict liability applies

      2. Vosburg v. Putney 50 N.W. 403 (Wis. 1891). D liable for the unintended consequences of a kick. Lack of harmful intent is irrelevant if the intended act causes harm. Court uses the circular reason that a wrongful act necessarily implies a wrongful intention (a required element of the tort of battery)

        1. Court relied upon the fact that the act took place in the classroom to bar assumption of risk

        2. RPD: Thin skull rule at work?

        3. “Unlawful intent” adopted in Garrat v. Dailey, 270 P.2d 1091 (Wash. 1955). 5 year old child liable in battery when he pulled a chair out from woman since he “knew with substantial certainty” that the P would attempt to sit where the chair had been though not that the harm would follow

        4. But see White v. Univ. of Idaho, 797 P.2d 108. Court refused to apply this efinition of intent when P suffered severe damage after a professor walked up behind her and lightly touched her back

      3. Transferred intent. Talmage v. Smith, 59 N.W 656 (Mich. 1894). P was struck in eye when D threw at two of P’s companions who were trespassing on D’s land. Court held that D’s intent to harm the companions transferred to his intentional battery of P

      4. But see Shaw v. Brown & Williamson Tobacco Corp., 973 F. Supp. 539. P brought suit when he developed cancer as a result of sharing a truck cab with a heavy smoker. Court held that generalized knowledge is insufficient to satisfy a cause for battery.

        1. The action controlling the wrong would occur in the cab, not in the general acts of the defendant; the defendant is removed from the chain of causation

        2. When you entrust something to another individual, you are only responsible for what that person does for it if he is an incompetent or an idiot (case?)

          1. Hence, the tort responsibility moves downstream and not upstream

          2. In order to affix proximate cause, find the nearest cause possible

    3. Trespass to real property; another strict liability

      1. Analysis:

        1. Liability is determined discretely: did you or did you not trespass?

        2. Damages are continuous from that entry (see Brown v. Dellinger, Perry)

      2. Dougherty v. Stepp. Every unauthorized entry onto the property of another is a trespass.

        1. Rooted in the idea that there can be a threat to title

        2. See also, Neiswonger v. Goodyear tire and Rubber Co., 35 F.2d 761 (N.D. Ohio 1929), airplane flights within 500 feet of the ground inviolation of air traffic rules were treated as a common law trespass. See also, Causby.

      3. Generally speaking, courts apply stringent damages for damages resulting from trespass to real property

        1. Brown v. Dellinger, 355 S.W.2d 742 (Tex. Civ. App. 1962). Two children liable for loss of entire home when they started a fire in the garage. The boys were “trespassers” (they had no permission to be there) and liable in an intentional tort

        2. See also, Cleveland Park Club v. Perry, 165 A.2d 485 (D.C. 1960). 9-year old boy liable in trespass when he inserted a rubber ball in pool which caused substantial damages: “the intent controlling is the intent to complete the physical act and not the intent to cause injurious consequences.”

      4. However, in intangible trespass the P has a higher burden. Public Service Co. of Colorado v. Van Wyk (Colo. 2001). Plaintiff must actually demonstrate injury and the act creating that injury must be intentional on the part of the defendant. Allowing claims against all intangible trespasses would create too much litigation.

    4. Trespass to chattels.

      1. Trespass to chattels: The act of committing, without lawful justification, any act of discrete physical interference with a chattel possessed by another; the act must amount to a direct forcible injury

        1. Intel Corp v. Hamidi. D’s emails of up to 35,000 emails at a time did not constitute a trespass to chattels since it did not harm or impair or harm the actual servers themselves

        2. See CompuServe, Inc. v. Cyber Promotions, Inc.: trespass to chattels lay when the servers actually crashed as a result of D’s spamming activities

        3. But see Ebay v. Bidder’s Edge, an action for trespass to chattels lies when D’s “spiders” probed P’s auction site given that there was real threat of damage to Ebay’s business and Ebay suffered actual damage to its system

        4. Court in fact granted injunctive relief to Ebay where it would not for Intel

  2. Defenses to Intentional Torts

    1. Consensual defenses (note: Consent is not the same thing as assumption of risk in terms of defense for intentional torts)

      1. Consent to violent activity generally bars liability: Volenti non fit injuria, “To a willing person it is not a wrong.”

        1. But see Hudson v. Craft: Where it is a crime to inflict a particular invasion of an interest of personality upon a particular class of persons, irrespective of their assent, and the policy of the law is primarily to protect the interests of such a class of persons from their inability to appreciate the consequences of such an invasion, and it is not solely to protect the interests of the public, the assent of such a person to such an invasion is not a consent thereto

          1. Court was particularly concerned w/fighters being fraudulently induced by promoters to engage in risky behavior (see McPherson, below)

          2. Also, if you let fighters recover from one another, you only have the wrong kind of people entering the ring

          3. Epstein: Hudson created a very efficient “gap filler” in the absence of statute

        2. Courts are also unwilling to allow tort liability for statutory rape on the “moral hazard” theory. Barton v. Bee Line, Inc. 265 N.Y.S. 284 (1933)

      2. Patient has right to consent to surgery. Otherwise it is technically assault and battery even if no injury ensues. Schloendorff v. Soceity of New York Hospital, 105 N.E. 92 (N.Y. 1914)

        1. Mohr v. Williams. An operation performed without consent (an unauthorized operation) is still battery even if surgeon had consent to operate on the other hear. However, jury may consider the nature of the act when calculating damages

        2. But see Kennedy v. Parrot, 90 S.E.2d 754 (N.C. 1956), consent for one operation is good if the doctor non-negligently determines other procedures are necessary in order to complete the ongoing surgery

      3. Consent may be inferred from conduct. O’Brien v. Cunard Steamship Co., 28 NE. 266 (Mass. 1891).

        1. Woman raises her arm in order to receive a vaccination shot, later claims this was not consent. Court holds that only expressed feelings constitute consent; in this case the woman’s act of raising her arm implied consent

      4. Emergency rule. An emergency creates the legal fiction of consent for a doctor performing surgery. Allore v. Flower Hospital, 699 N.E.2d 560 (Ohio App. 1997).

      5. Substituted consent. The consent of a parent of guardian is required to perform surgery on a child or incompent. Bonner v. Moran (D.C. Cir. 1941).

        1. However, end of life decisions create a problem:

          1. In re Quinlan (N.J. 1976). Court affirms right of parents of a comatose woman to cease extraordinary efforts to keep her alive. Court protected the good faith decision of parents/guardians in this regard (without necessarily ruling on the actual nature of that decision)

          2. Belchertown State School v. Saikewicz (Mass. 1977). Court decided it was appropriate not start chemo for a 67-year old with IQ of 10. Indicated willingness of court to review all end of life decisions

          3. Brophy v. New England Sinai Hospital (Mass. 1986). Court allowed wife of man to cease life support when it was broadly agreed he would have so agreed. Does autonomy therefore imply a right to euthanasia?

        2. Generally speaking the court will not force people to give consent for the benefit of others.

          1. Lausier v. Pescinski (Wis. 1975). Court forbade the removal of an incompetent’s kidney’s in order to transplant it into his brother; his guardian had refused to give consent.

          2. Curran v. Bosze (Ill. 1990). Mother refused to submit 3-year-old daughters to testing to see if they were viable candidates for Leukemia transplant for their brother; the court refused to force this upon the children. Rule: Cannot have the consent of an incompetent person when the guardian refuses to give it

      6. Consent to contract is overridden, however, if induced by fraud. E.g., Conduct is actionable if D intentionally misrepresents or fails to affirmatively disclose having an STD. McPherson v. McPherson, 712 A.2d 1043 (Me. 1998)

      7. Informed consent is necessary to bar liability. Disclosure is also the affirmative duty of the physician. However, failure to disclose results in liability if and only if a reasonable man would have acted otherwise had he known of those risks. Canterbury v. Spence.

        1. The rule of Canterbury (per Epstein):

          1. A duty to disclose

          2. The adequacy of disclosure measured against an “objective” standard; what would a reasonably prudent man have wanted to know?

          3. The breach is a failure to give this kind of notice

          4. The negligence claim comes out when the failure to disclose resulted in some act which caused the injuries suffered by the plaintiff

          5. Then, finally, damages must be claimed

        2. Paradigmatic example of a risk that must be disclosed: Risk of paralysis in spinal surgery

        3. Objective causation refers to the “autonomy principle” of Canterbury, in which the hypothetical, rational patient is used to determine consent rather than the potential “bitterness” and “20/20 hindsight” of the actual patient (there is some disagreement among the courts as to which standard to use: objective or subjective)

        4. The plaintiff may provide evidence that he was not informed of the risks of a particular treatment. However, plaintiff must show through expert testimony that such risks actually required disclosure (more restrictive then the “rational person” rule generally at work in Canterbury). Bly v. Rhoads 222 S.E.2d (Va. 1976)

        5. Disclosure and its limits:

          1. Valles v. Albert Einstein Medical Center (Pa. 2002). In order to obtain consent, Physician is required to disclose the risks of procedure, not the manner of method in which the procedure is performed (Vallas died from complications in a procedure inserting a “permacath” dialysis device. There were alternative, less risky placements that the physician could have used.)

          2. Truman v. Thomas (Cal. 1980). Defendant was negligent for failing to inform plaintiff the necessity for a diagnostic procedure. Imposes an additional obligation on the physician to disclose the risks associated with declining a risk-free test or treatment

      8. Athletic activities. Generally speaking a plaintiff cannot recover unless he can prove that D acted recklessly. Gauvin v. Clark, 537 N.E.2d 94 (Mass.1989)

        1. Recklessness: Actor knows/should know of the risk created by his conduct and the precautions are so slight relative to the risk as to render his conduct highly blameworthy. (Restatement (Second) § 2)

        2. Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir.1979). Plaintiff Hackbart had his career ended by a late forearm shiver to his head and neck. Claim was dismissed at the trial level on the basis that in the absence of legislation an assumed standard of care did not apply to pro football. The Appellate court reversed and remanded citing the existence of specific rules prohibiting the very sort of act which caused the injury.

        3. Even in informal settings, “recklessness” must be demonstrated by P in order to bring a claim. Marchetti v. Kalish, 559 N.E.2d (Ohio 1990)

    2. Insanity. Lunatics are liable for their intentional torts. McGuire v. Almy, 8 N.E.2d 760 (Mass. 1937). That is, they still can act “intentionally”

      1. Epstein: The assumption of risk issue in McGuire was real but misunderstood by the court

      2. But see Gould v. American Family Mutual Insurance, 543 N.W.2d 282 (Wis. 1996); D, who was institutionalized with alzheimer’s, was not liable when he injured his paid care giver

        1. Assumption of risk on the part of the caregiver

        2. “A person institutionalized as here with a mental disability and who does not have the capacity to control or appreciate his or her conduct cannot be liable for injuries caused to caretakers who are employed for financial compensation.”

    3. Self-defense.

      1. Actor not liable if he harmed an party, even an innocent party, if he acted on the reasonable belief that his life was in danger or that he was in danger of immediate bodily harm. Courvoisier v. Raymond.

      2. However, self-defense is an excuse only when one is in fear of bodily harm. Boston v. Muncy, 233 P.2d 300 (Okla. 1951)

        1. RPD: There is some sense of proportionality in this.

        2. Epstein: But if the attack is a lethal one, all bets are off and you can use as much force as possible

      3. A person may intervene in the defense of third parties under the same circumstances under which he may defend himself. (RST §76)

    4. Defense of property. Lethal force may not be used to defend property. Bird v. Holbrook.

      1. In Bird, the use of a spring gun to defend property was the basis for an intentional tort

        1. Note the importance of P’s “calling out” b/f jumping into D’s garden. This negates any possible claim of self-defense.

      2. See also, Katko v. Briney 183 N.W.2d 657 (Iowa 1971) (another spring gun)

        1. Jury instruction: “one may use reasonable force in the protection of his property, but such right is subject to the qualification that one may not use such means of force as will take human life or inflict great bodily injury even though the injured party is a trespasser and in violation of the law himself.”

        2. Iowa Supreme Court approved these instructions and affirmed the judgment for plaintiff. Punitive damages were not awarded (they had not been raised by counsel at trial).

      3. See also, M’Ilovy v. Cockran, 2 A.K. Marsh 271 (Ky. 1820). D shot P who was tearing down a piece of fence the defendant’s land. The court ruled that the defendant should have warned the plaintiff prior to firing as it was in defense of possession not person and there was time to make such a warning (as opposed to say, someone barging through your door with a gun).

    5. Recapture of chattels.

      1. Self-help remedy is generally allowed when one person wrongfully obtained possession of the chattel either by force, fraud, or without claim of right. But there are limits.

        1. cf., Uniform Commercial Code allows repossessions when they may occur without “a breach of the peace” (§9-503); again, Fuentes v. Shevin. Note, the privilege of recapture must be exercised promptly (“hot pursuit”) or else it is lost. Thus, the benefits of self-help must be weighed against the cost of escalating violence.

        2. But see: Berg v. Wiley 264 N.W.2d 145 (Minn. 1978). Court held that landlord committed a tort when he changed the locks of a restaurant leased by the plaintiff (in order to evict) while she was away. The court held that this constituted a peaceable eviction only b/c the plaintiff was not present, which was insufficient.

          1. Berg substantially limits the self-help remedy in this respect b/c it operates under the assumption, then, that no eviction could be peaceable.

      2. “Where a person has come into the peaceable possession of a chattel from another, the latter has no right to retake it by violence, whether the possession is lawful or unlawful.” Kirby v. Foster.

        1. Note: Kirby is immediately distinguishable from a stranger case in that P and D had an ongoing relationship.

          1. There is the 100% assurance that the taker of property will not act violently

          2. You know exactly who took the money and what they took

          3. You know you can go to the legal system quickly

    6. Necessity. (Note: “imminent peril” needs to be involved when it comes to pleading necessity for intentional torts). Necessity is an example of a bi-lateral monopoly so great that normal property rights must be suspended

      1. Necessity suspends property right. Necessity suspends property rights. Ploof v. Putnam 41 A. 188 (Vt. 1908). It’s a question of economic efficiency: How does Ploof differ from a typical self-defense of property case?

        1. Well, you’re not pleading necessity out of self-defense from another

        2. You’re not damaging the attacker qua attacker

        3. You’re not liable in damages

      2. General Average Contribution (The Rule of Mouse’s Case). Based on theory that if you had to sacrifice items on a boat, you’d want maximize the impact of the sacrifice at a minimum of financial loss. Namely, if the master jettisons some cargo to save the ship and remaining cargo, the disadvantaged parties will receive pro rata compensation from the other parties (including the owner of the hull) to spread out the risk

        1. You throw off 1% of total value, everyone loses 1% of the value of their items

        2. The pro rata distribution takes into account overvalued items (higher values pay more) and too low valuation (lower values get thrown over quickly)

        3. Hence the incentive to tell the truth on your value

        4. Encourages master to minimize the aggregate loss

        5. Owners are in a position where they can maximize their own position only by ensuring fairness (very Rawlsian)

      3. Vincent v. Lake Erie. Economic efficiency. Necessity may be invoked in case of damage/loss of chattels, but liability for damages subsequent.

        1. Consistent with the idea that we want to minimize overall economic loss

        2. And, making the boat owner pay for damages makes sure he’ll act efficiently when securing the boat (minimizing damage to dockowner)

        3. RPD: Why shouldn’t the dockowner have recourse against the boatowner for the full value of the boat?

      4. Bilateral monopoly. Courts will allow salvors to enforce contracts so long as they have not taken unreasonable advantage of their bargaining power. Post v. Jones, 60 U.S. (19 How.) 150 (1856)

        1. Two participants create exceedingly high transaction costs

        2. So, the rule of necessity pre-empts/excludes the extortioners

      5. Public necessity.

        1. A person legally empowered to act in emergencies cannot be held liable for the destruction he orders/causes (e.g., pulling down a building in case of fire). Mayor of New York v. Lord, 18 Wend. 126 (N.Y. 1837)

          1. Levmore: We continue to uphold the traditional rule of “The King can do no wrong.” We don’t like courts overseeing the Executive under the heading of the Separation of Powers

            1. We have a political check

            2. The most effective remedy/deterrent is to vote the relevant politicos out of office

        2. See also:

          1. U.S. v. Caltex Inc., 344 U.S. 149 (1952) Court refused to order compensation for the demolition of an oil company’s prior to its occupation by the Japanese in Manila.

          2. National Board of Y.M.C.A v. U.S. 395 U.S. 85 (1969). Court found no compensable taking when the U.S. occupied the plaintiff’s buildings located in the Canal Zone after they had been placed under siege by rioting Panamanians who had already caused significant structural damage

        3. RPD: How do you reconcile this with the 5th Amendment?

    7. Trolley Problem. [Revisit me]

Emotional and Dignitary Harms

  1. Assault

    1. A failed attempt to intentionally inflict harm is grounds for assault. I. de S. and Wife v. W. de S.

    2. However, mere words do not constitute an assault. Generally speaking, ambiguous or unclear statements are insufficient to constitute an assault. Tuberville v. Savage.

      1. Repeated, anonymous threats are not an assault absent the threat of imminent harm. Brower v. Ackerly, 943 P.2d 1141 (Wash. App. 1997)

    3. Waving a gun in someone’s face is an assault whether or not it’s loaded. Allen v. Hanaford, 244 P.700 (Wash. 1926)

  2. Offensive battery.

    1. Spitting on someone in court is actionable offensive battery (RPD: It’s an emotional/dignitary offense). Alcorn v. Mitchell.

    2. Restatement (Second) § 18: Actor is liable for offensive battery if he intends to cause the offensive contact and the contact actually occurs.

Strict Liability and Negligence

Defendant is prima facie liable to D regardless of the standard of care

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