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Chapter Three

Torts

Tort law encompasses what non-lawyers often call personal injury law. In each tort, there is an act causing harm. Harm is a trespass onto an interest that is specific to the victim. The act can be either affirmative, an omission, or through the principle of vicarious liability. With that framework, intentional torts follow.

Intentional Torts

With regard to intentional torts, an act is an external manifestation of an actor’s will.1 Intent means to desire consequences or to believe with substantial certainty that consequences will result from the act.2 The modern approach is that one who intentionally causes another harm is liable for that harm.3 The classical approach had a more elaborate framework as indicated below.

Battery is an intentional act that causes a harmful or offensive touching.4 Assault is an intentional act that causes apprehension of a harmful or offensive touching.5 Touching or its apprehension is neither harmful nor unwanted when the person being touched consents to the touching. Consent is either not assault or battery or a defense to assault and battery depending on the jurisdiction.6

False imprisonment is an intentional act that confines another into boundaries fixed by the actor where the other is conscious of the confinement or harmed by it.7 Where the plaintiff is accused of stealing the defendant’s property, the defendant has a privilege to make a brief detention short of arrest of the plaintiff on the defendant’s premises while a reasonable investigation of the facts occurs.8

Self-defense is a commonly asserted defense against assault, battery, and false imprisonment. Committing assault or false imprisonment to protect oneself or another from battery is justifiable self-defense.9 However, battery, when used to combat battery, must be proportional to the unwanted touching the defender is repelling.10

An intentional infliction of emotional distress (IIED) is extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress.11 Interestingly, no cases have raised IIED as a privilege for self-defense against battery. Restatement of the Law (2d) Torts § 46 comment g theorizes that the defense is possible, mentioning that statutes in Mississippi, Virginia, and West Virginia specifically provide for it.

Trespass to land is an intentional act that results in 1) entering onto the land of another, 2) remaining on the land of another, or 3) failing to remove something from the land of another where the actor has a duty to remove it.12 Recklessly or negligently entering onto the land of another is actionable but only if there are damages for the plaintiff to recover.13 There is no liability for an unintentional and non-negligent entry on land in the possession of another.14

Trespass to chattels is an intentional act that interferes with the possession of the good of another.15 Conversion is civil theft that dispossesses the owner of one’s chattel.16 Consent of the person seeking recovery is a common privilege to these torts.17

Case Problems

Marion Bonkowski left Arlan’s Department Store (Arlan’s) after making some purchases that she carried in bags. While on her way out, a security guard called her back into the building and loudly accused her of theft. She returned and, five minutes later, after the security guard discerned there was no theft, she went on her way. Bonkowski sued for false imprisonment. Arlan’s defended stating it had a privilege to briefly check to see if anything was stolen. Was Arlan’s permitted to stop and check Bonkowski’s bags?18

William Wyant owned a blacksmith shop. George Crouse sometimes worked in the shop for Wyant’s son. One night, Crouse broke into the shop to sharpen some of his tools. He built a fire in the forge. The wind started blowing causing some embers from the chimney to catch the roof on fire. Wyant sued Crouse for trespass to land. Crouse defended by stating that he did not intend to set fire to the building; he merely intended to break into the shop. Does Crouse’s intent to break into the shop transfer to all the damages that result?19

Lauren McLean hired Guy V. Colf to construct a house for her. The parties had a written contract. When Colf arrived at the job site, McLean stated she wanted to make some changes to the scope of work. Colf sat down at a table, pulled out the original contract, and began writing down the changes on a new piece of paper. At that point, McLean took the original paper and stuffed it under her clothing. Colf responded by trying to forcibly recover the paper. McLean sued for assault and battery. Colf defended stating that he was trying to recover his property and his conduct was privileged. Was Colf’s conduct privileged under these circumstances?20

Hamilton Cartwright and Cecil Geysel engaged in a boxing match for money. However, neither had a boxing license making the endeavor illegal. Geysel landed a rather well placed punch on Cartwright and killed him. Cartwright’s executor, Dean Hart, sued Geysel for battery. Geysel stated that Cartwright had consented to the match and moved to dismiss the case. Hart responded that since the boxing match was illegal the consent was invalid. Does the legality of the underlying consent affect the status of the battery claim?21

Long Live Ronald Coase

Ronald Coase’s The Problem of Social Cost, 3 J. L. & Econ. 1 (1960) won the Nobel Prize in Economics for several contributions that relate to legal practice in general and intentional torts in particular. First, Coase argued that forcing others to bear costs is beneficial to society when the benefits from the cost shifting outweigh the cost. Coase argued that by making a tort actionable, a court was simultaneously removing a potential economic engine from the economy—the plaintiff—and that this was not always wise. He posed the following hypothetical involving trespass to land:

Let’s say that a rancher lives next door to a farmer, and the farmer grows something that the rancher’s steers would like to eat. The rancher’s fence is broken, and it will cost $9 to fix. The rancher’s herd will provide the following damage on the farmer:

Size of herd (steers)	Crop Loss ($)	Marginal Crop loss per steer
1	1	1
2	3	2
3	6	3
4	10	4

How large would the rancher’s herd have to be to justify building the fence? It would have to be four steers, at which point the crop loss extends past the cost of fixing the expense. The rational rancher would simply pay the farmer for the damage done by the herd at a lesser number. Coase pushes the hypothetical further and assumes that the farmer spends $10 to grow and harvest a crop worth $2. Now, with a herd of a mere two steers, the rancher is better off paying the farmer the expected profit and asking the farmer not to grow crops at all.

Coase then turns to nuisance. Nuisance is an unreasonable interference with the property of another. At the time Coase was writing, any interference with the property of another was a nuisance, but what if the defendant had more to offer society than the plaintiff? Coase uses Sturges v. Bridgman, (1879) LR 11 Ch D 852 as an example. In this case, Bridgman operated a candy factory, and Sturges moved in next door and started up a medical practice. The medical practice expanded almost to the property line of the factory. The noise from the factory was so great that the addition to the Sturges building could not be used. Coase would resolve the problem, again, in terms of marginalism. Does the continued use of machinery add more to the factory than it subtracts from the doctor? If so, then the business should proceed, and the factory should pay off the doctor the revenue lost less the costs of operating in that part of the building. This is an optimum allocation of resources in the absence of transaction cost. Coase takes on transaction costs in another article that is discussed later in this monograph.

Negligence

Negligence is a breach of a duty of care which is the actual and proximate cause of damage.22 Each of those elements is taken in turn.

The Breach of a Duty of Care

Restatement of the Law (3d) Torts: Liability for Physical and Emotional Harm § 7 takes the position that the duty of care is that of a reasonable person whose conduct could create a risk of harm. If the person is a child then the standard is that of a child of like age, intelligence, and experience under the circumstances.23 Mental deficiency does not change the standard of care, but physical deficiency does.24 This high-level reasoning of a “reasonable person” standard use to be the sole manner for determining a breach of a duty of care and created a good deal of moral relativism while judges and juries struggled with what a reasonable person would do.

A breach of a duty of care typically happens in one of four ways. First, a breach of a duty of care occurs when the benefit of defendant’s conduct is outweighed by the product of the probability of harm and the likelihood of harm.25 This test places the loss on the plaintiff unless the defendant knew (or should have known) that avoiding the breach of a duty of care was cheaper than the cost of the accident. This is a kind of utilitarian reasoning that is presently manifested in the Law and Economics legal theory. This reasoning is shown in the Carroll Towing case below.

Second, under negligence per se, a breach of a duty of care occurs when a statute sets forth a standard of care. Then, the defendant breaches the standard of care by violating the statute and harming the plaintiff in a way that the statute was intended to prevent.26 This is a variety of Legal Positivism reasoning. Statutes are commonly passed in response to a court not finding liability in a case reasoned under the utilitarian test above. The Gore case shows this reasoning.

Third, the doctrine of res ipsa loquitor (Latin for “the thing speaks for itself”) applies where 1) an injury occurs that does not normally occur without negligence, 2) of a class of actors of which the defendant is the relevant member.27 This creates an inference of negligence from which the factfinder can find for the plaintiff. The increased use of the jury to use its insight into human behavior to determine liability is a natural law solution.28 The Mintzer case below shows this reasoning.

Fourth, an actor breaches a duty of care if one does not act to inform those who may not know of the risk that the actor knows.29 Where the actor is a professional (generally, one with a license to do something) a breach of a duty of care occurs when the actor fails to act with the competence necessary to prevent an unreasonable risk of harm to another.30 Informed consent poses a duty to one party to avoid breaching a duty of care with another party. This is deontological reasoning.

Case Problems

Conners Marine Company chartered the barge Anna C to the Pennsylvania Railroad Company. Anna C loaded flour owned by the United States at Pier 58 and then moved to Pier 52 where its entire crew disembarked for the evening. Since the Anna C was not going anywhere, the tug Carrol began mooring and unmooring ships against the Anna C. Grace Line, Inc. chartered the tug Carrol from the Carrol Towing Company. The unmooring did not go well. Wind caused the Anna C to break free from the pier and crash into a tanker at Pier 51 causing a hole in the Anna C’s hull. Anna C. subsequently sank because, as of 2:15 PM, the crew had not returned, and there was no one on board to inspect for damages. The contents of flour poured into New York Harbor. Who is responsible for the collision damages? Who is responsible for the sinking damages?31

Oscar Whitlock was a trampoline user. He joined the Beta Theta Pi fraternity which lived in a house leased from the University of Denver. Whitlock began regularly using the trampoline in the front yard. On June 19, 1978, at approximately 10:00 p.m., Whitlock suffered an injury while attempting to complete a one-and-three-quarters front flip on a trampoline rendering him a quadriplegic. Whitlock then sued the University of Denver for negligence. Does the University of Denver have a duty to remove the trampoline from the front yard and prevent Whitlock from using it?32

Dolly Mintzer was staying in a hotel operated by Robert A. Wilson. Shortly before 4 am, a piece of plaster ceiling weighing some thirty pounds fell on her causing injuries requiring hospitalization. Mintzer sued Wilson for negligence. Wilson simply argued that Mintzer had failed to show he breached a duty of care. How would this issue be resolved under the common law? How does res ipsa loquitor change that?33

Thomas Gore and his son rented a residential dwelling from People’s Savings Bank. The son was exposed to lead-based paint and suffered injuries. Conn. Gen. Stat. § 47a-7(a)(2) provides that a landlord shall “keep the premises in a fit and habitable condition.” At the time, Conn. Gen. Stat. § 47a-8 provided that the presence of lead based paint in a residential dwelling violated § 47a-7. Gore sued People’s Savings Bank for negligence. How would this issue be resolved under the common law? How does negligence per se change that?34

Proximate and Actual Causation

Actual cause (C) involves a set of all possible causes (A) which could cause the injury (I) which includes those directly attributable to the defendant (D) and those which are not directly attributable to the defendant (O⇒ ~D). This set further includes a subset of conditions necessary for the injury to occur (N). Liability (L) exists if and only if conduct was necessary and sufficient to cause I alone. Written algebraically:

{ C }=A{ I }={ D }+{ O }	(Eqn. 1)
L≡{ N }−{ D }=ϕ and	(Eqn. 2)
L≡{ N }−{ O }≠ϕ	(Eqn. 3)

Courts classically limited liability to Eqn. 2 articulating that actual cause was satisfied when “the harm would not have occurred absent the conduct.”35 However, the modern world is more complicated than that, and events often have many causes. Accordingly, courts look for whether the defendant’s conduct is a substantial cause of plaintiff’s harm.36 The difference in Eqn. 3 is that now, defendant’s conduct is actionable if it could have caused harm or it was sufficient to cause harm, but it is unknown whether that actually occurred.37 In Eqn. 2 cases, or “but for” causation, the plaintiff has the burden of proof to show that the act caused the harm. In Eqn. 3 cases that demonstrate necessary and sufficient condition causation, the burden shifts to the defendant to show that no factual cause existed.38 This distinction is shown in the Summers case below.

Proximate cause is a limitation on the plaintiff’s ability to recover from the defendant. There are at least three theories on how proximate cause can be determined. The first is foreseeability. Where a judge determines that the event causing harm was highly extraordinary beyond the unpredictability of the defendant, then there is no foreseeability and no proximate cause.39