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Glossary of Torts & Compensation

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Battery Restatment Definition?
R2 S13
Intentional infliction of a harmful or offensive contact with the person of the plaintiff
Prime Facie Case Elements for Battery?
-Act
-Intentional
-Causes
-Harmful or offensive contact
Purpose of Battery?
Protect against unwanted touching.
Lopez faints and falls on Jones
Not battery. There is no act.
Smith pushes lopez into jones
Not battery. There is no act on the part of Lopez
Chu bumps into Munoz while stepping off the bus
Not battery. No intent. Intended to step off the bus and put foot down but did not intend the resulting contact. She failed to look where she was going but she did not do it with the purpose of or KSC.
Intent refers to
Acting for the purpose of, desire or motive;
or knowledge with substantial certainty.
Intent and carelessness
intent does not include carelessness but a higher level of culpability
Chu pushed Munoz to get her out of the way as she steps off the bus.
She meets the intent requirement because she has KSC that Munoz would find it offensive.
Chu pushes Munoz to embarrasse her in front of a friend.
intent to offend is met.
Smith throws a stone at Jones though she thinks Jones is probably beyond her range
she is not substantially certain she will hit jones but she acts with desire to do so. If the stone hits Jones then battery.
Chu deliberately throws a bucket of water on Jones.
She possesses tortuous intent though she bears her no ill will. She intends a contact she has KSC will occure as well as those she desires to happen. battery.
What if Chu says she was just emptying a bucket and did not mean to offend Jones
She still has the intent to contact. battery
Clayton v. New Dreamland Roller Skating Rink.
Attempted to set a broken arm against the protests of the D. He knew contact was offensive but only wanted to help.
Chu throws a rock at Smith hoping to hit her but hit's lopez by mistake.
Though no tortuous intent to hit lopez courts say her tortuous intent to hit smith transfers to lopezs
transfered intent
R2 S16(2)
Policy behind transfered intent
Tortfeaser should be just as liable when her aim is bad as when it is good.
Smith taps Jones on shoulder to tell her she dropped a glove and Jones is offended by it.
It is reasonable for Jones to believe the touching is acceptable because it would be to most people.
R2 S 15
"any physical imparement of the condition of another's body, or physical pain or illness."
What if the contact is minor
Still battery cuz court will recognize the D right to physical autonomy though the damages will probably be minor.
Smith spits on jones
offensive contact-battery.
Policy behind offensive contact
Gives the D a civilized alternative to retaliation.
What if smith went around patting people on the back at an office party and Jones finds it obnoxious.
If offensive depended on the subjective reaction of everyone, you wouldn't know it's offensice until after contact was made.
Then how do the courts define offensive?
courts use the objective definition of "offends a reasonable sense of personal dignity" R2 S19
R2 S 19
It is offensive if a reasonable person in the circumstances of the victim would find the particular contact offensive.
What about socially acceptable contact
Not battery because a reasonable person in the circumstances would not find the contact offensive.
Burgess and Munoz routinely horsplay.
It would not be considered battery because a reasonable person would not find the contact offensive because it's been acceptable in the past. A 3rd party though-battery if a RP would find it offensive.
Brutus decides to humiliate Cassius by tripping him and in doing so Cassius falls down a flight of stairs.
He intended to trip but not the resulting freak injury. Once he committed the battery of triping he is held liable for all following consequences.
Lambertson v. U.S.
Jumped on guy from behind and pulled a bag over his head. Stumbled forward and injured head on a meat hook.
Inspector intended horsplay
court found the act of jumping on the back was a battery because a reasonable person in that situation would find it offensive.
Policy of intentional tort law
Deter intentional invasions of an individuals privacy. these are avoidable because they require a deliberate choice.
Smith pokes Jones with a 10 ft pole or stretches a wire accross a sidewalk as Jones approaches causing her to fall.
In each smith invades Jones physical integrity and intends to do so. unauthorized contact is sufficient. No need to be present at the time
Lopez pulls Chu's coat lapels or knocks off her hat.
These objects are intimately associated with the victims body. Her personal space has been breached.
If Lopez kicks the fender of Chu's car and she is in the back seat.
The contact requirement is probably not met.
Romeo showing off in parking lot for ladies skids and hits Thibault.
No, there is no intent to cause a harful or offensive touching.
Romeo goes to appologize and Thibault pushes him.
Intentionally inflicted a contact he knew would be offensive (and potentially harmful)-battery.
Romeo hugs girlfriend Juliet as he does every day.
Given past embraces Romeo is justified in believing Juliet will not find the contact offensive. A reasonable person in Juliets position would not find the contact offensive even if it resulted in accidental injury which Juliet did find offensive or was harmed by it.
Romeo goes to help Juliet up who says "don't touch me" and he does it anyway cuz he loves her.
His motive was honorable but his intent was enough because he had KSC she would find his help offensive.
If you find that, when the D acted, he did not know that his act was substantially certain to cause a harmful or offensive contact to the P, you must find for the D?
Though no KSC, motive or desire for an unwanted contact is enough.
Leaving soap in shower hoping someone will slip though you know it's highly unlikely.
If it happens, it's a battery. motive/desire satisfies intent.
Romeo watches Thibault walk into a trench cuz he was reading and not paying attention.
intent=desire:good. contact that was harmful=fall in trench:good. Romeo doesn't have to touch him=true. romeo does not cause the contact so no battery.
Romeo hugs Iphelia a new student to get in good with her.
Romeo doesn't think his contact is offensive and doesn't even think ophelia will either but it's whether a reasonable person in ophelia's circumstances would-battery.
Romeo beats Mercutio on a track meet. Pat's him on back "great run". Mercutio hates that type of contact.
Those contacts are common in those situations. He has no reason to believe the contact would be offensive to a reasonable person under those circumstances.
romeo does it again at a later point.
R. doesn't take a stand but common law does. Cohen v. Smith. Battery.
Romeo loses a race and throws his shoes in the stands in anger hitting polonius.
As long has he KSC that the shoe would hit someone.
Policy argument behind shoe in crowd.
If you weren't liable then a terrorist could blow up a building and kill many not being liable for battery cuz he had no ill will toward any ind. in particular.
Romeo kisses juliet while sleeping though they are no longer dating. She finds out about it later.
If purpose of battery is to prevent invasions of physical sucurity. her right against unwanted touching is still in place whether she is asleep or awake. If they are still dating then no.
Romeo insults Thibault in cafeteria jelous over his dating Juliet.
offensive contact not conduct-no battery
Romeo laces Thibaults lemonade with 100 proof vodka at the prom and he drinks it.
indirect contact resulting from a purpose. As long as a reasonable person in the circumstances would find it offensive-battery.
same scenario but Thibault gives his drink to Juliet who drinks it.
transfered intent-liable
Romeo throws his drink at Thibault but principle is hit instead.
transfered intent-battery.
Romeo destroys Thibaults science project while Thibault is watching.
offensive contact to the person not the persons property. not battery.
Romeo blows cigarette smoke in thibaults face.
intentional with purpose to offend. contact is made with the particulate matter. battery.
Offers to show Juliet band pictures but pulls out porno instead.
no contact- not battery. (light waves don't count)
hotel manager rents room to Thibault though he knows the bed is infested with bugs.
he rented a room with KSC Thibault would get an offensive contact. battery.
Regan shines light with a mirror on cars below overpass
Probably not because as of now light transfered through the air is not considered contact.
Snyder v. Turk
Contact was offensive.
Cohen v. Smith
Nurse KSC contact would be offensive-intent req. is met.
Garrett v. Daily
Intent req is met with KSC
Policy behind Garrett v. Dailey
Not merely to protect against ill-meaning act but to protect from unwanted contact. (case is NOT about contact)
Leichman v. WlW Jacor Comm.
Offensive intent is enough
Words alone can initiate contact "blow it at him". no physical injury is required.
Palmatier v. Russ
losing parties arguments on Act
no act-no external manifestation of actor's will. Exp by analogy= a pure relfex is not an act. Applied= her irrational and uncontrollable which like a reflex that can't control, uses criminal case.
Palmatier v. Russ
losing parties arguments on intent
no intent=req. motive or KSC: Explanation by policy=irrational intent not morrally culpable-thus liab in crim case: applied here:lots of evidence of irrationality intro at trial.
Palmatier v. Russ
losing parties arguments; what they wanted
blanket immunity for irrational people from tort liability
Courts policy behind decision
.
Courts answer for Act argument
All his actions ie beating, getting gun, then bullets, come back and shoot show motive and desire. reflexive movement is not an act but irrational yet purposeful is an act.
courts answer for intent argument.
Irrational intent is sufficient.
White v. Muniz
Intent to contact without intent to harm or offend is not enough.
Cullison v. Medley
words alone may be an act.Look at everything that was happening and determine if imminent threat was reasonable. Acts may negate words and vice versa.
Assault rule statement
R2d S21
An act intended to cause either harmful or offensive contact with another person or apprehension of such contact, and that creates in that other person's mind a reasonable apprehension of an imminent battery.
Elements of assault
-Act
-Intent
-causes apprehension of an imminent battery.
Reveiw question format?
C=Conclusion,I=Issue,R=Rule (rule statement setting forth the rule or part of at issue), E=Explanation of rule (flesh out rule lang., analogy w/ facts of other cases, give policy),A=apply rule as explained to facts in issue,C=conclude again.
Koffman v. Garnett
No reasonable apprehension of an immenent battery cuz contact had allready been made.
Intent in assault v. battery
same so can't argue you didn't mean to place in immenent apprehension if KSC fear of the contact would result.
Owens throws shot put across field while Jackson is standing in landing area.
Cannot argue that he was just warming up for the decathalon-assault assuming Jackson was looking at him.
Jackson loses control of his car and careens out of control toward Owen.
Owen will be in fear but Jackson did not act with the purpose to frighten owen or with substantial certainty that the act will frighten him (act here is driving the car)no assualt.
What if in the same scenario Jackson deliberately swerved toward the curb where owen was.
If she does not desire or KSC she will hit owen then she is still not liable for assault.
Ross tries to hit Owen with the shot put but misses.
attempted to batter but missed so liable for assault. Assuming owen sees it coming.
What exactly are you attempting to show in an assault claim?
You must prove that you feared a type of contact that would have been harmful or offensive had it occured.
Leonard and Spinks slap each other around alot. Leaonar goes pretends to slap spinks but doesn't-assault.
No, it is not reasonable for spinks to fear the type of contact he agreed to on a regular basis with Leonard.
apprehension or fear for the purposes of determining assault mean what?
not fright, just the perception or anticipation or expectation of a contact.
how does the restatment S29 describe the meaning of imminent?
There will be no significant delay. It is not necessary that one would be within striking distance of another.
If you try out for the team next month then I'm going to bust your nose?
no, not imminent. Policy: the law can't protect everyone from every thing and future actions leaves the victim time to take other steps to avoid the harm.
Landy brandishes a realistic looking toy pistol to Oda.
D places the reasonable person in apprehension of an unwanted contact even though he could not actually better the P. Assault because P had the "apparent present ability"
What is meant by "apparent present ability"
D act's place a reasonable person in apprehension of an unwanted contact not whether the d can actually do it or not.
Policy behind "appearent present ability"
assault protects your right to be from meaningful threats of unwanted contact.
'I'm going to ring your neck"
not an assault
"I'm going to ring your neck" while pulling a rope out and begins preparing it.
provides necessary evidence of an imminent intent to batter.
Why do the courts require actions behind the words?
to distinguish between bluster and real aggresion.
Are words relevant at all in determinning assault?
yes, they are put together with other acts or circumstances may suffice to make words actionable for an assault.
how do you look at words and circumstances to determine if an assault occured.
If they reasonably cause the victim to fear an imminent contact.
"If you hadn't fouled out of the hundred meter competition, I'd beat you to a pulp"
The threat itself defeats the assault, since they indicate there is no plan to carry it out. though unpleasant and unwelcome it is not reasonable to believe an imminent threat to personal security exists.
If you were not an old man, I'd knock you sensless.
words negate intent to cause harm.
"If you don't get off this track, I'll kick your tail into next week"
It's conditional and the threat can be avoided. the P holds the key to avoiding the contact but still an assault because imposing something you have no right to do. Can't force one persons right to be on the track.
difference between civil and criminal assault
You don't have to be placed in apprehension for criminal assault. If P throws a javeline at D intending to injure and misses she can be held guilty of criminal assault even if D didn't see it coming.
Same scenario but civil assault and not criminal
If no intent to throw the javeline just scare the other person.
Hennie sees someone attempting to destroy her hard worked on tape for an ice skate.
no assault. no apprehension of contact with the P
Wilson loosens a banner over Hennie and releases it as she skates under. it misses. Hennie turns and seas it on the floor and is suprised at how close she came to getting hit.
No, realizing it afterwords does not place her in imminent apprehension of a battery. If you could show Wilson acted with the purpose of hitting her then criminal assault.
As the banner falls she looks up, sees it coming, and skates to safety.
Wilson might argue she did not intend to frighten Hennie just hit her. that's enough for assault. Liable for assault since he acted with tortuous intent though it was for battery.
She sees it coming but can't get out of the way in time and is hit though not injured.
This is a battery. The contact was unwelcome though not harmful.
Thinking he's droping it on Hennie but it's thomas who sees it coming and gets out of the way just in time.
This is not transfered intent. He did not intend one thing and did another rather it was a case of mistaken identity but the intent was tortuous-assault.
Button observes from the stands and is terrified that Hennie will be hit?
No, assault protects only the intended victim not bystanders who fear for the victims welfare.
Button is warming up and Wilson on his way to drop the banner on Hennie knocks of an obj. bystander warns button who sees it coming and gets out of the way.
not acted intentionally in the restricted intentional tort sense. he carelessly nocked the object down but not with the purpose of hitting or scaring button.
"If you run Ashford on the anchor leg of the women's four-hundred-meter relay tomorrow, I'll see that you never walk again."
a threat to do something tomorrow is not imminent. no assault.
Hennie skating and Wilson yells "watch out your going to hit the zamboni" but it's on the other end of the ice but hennie is startled.
If apprehension of a battery is needed then no assault. Collision would have been with the zamboni not diliberate battery by the driver.
"wipe that smile of your face or I'll wipe it off of you" while shaking fist. D is tiny while P is huge.
though not frightened it would cause apprehension of an imminent contact. assault.
Miathias rushes at Weismuller to upset him. Weismuller turns to run and sprains an ankle. While treated at the hospital he dies in a fire.
Commited an assault and will be liable for everything that follows. Courts hold intentional tortfeasers liable for all consequences of their torts.
Policy behind Cullison v. Medley
"mental distress" that going to happen
Hall v. Mcbride
tranfered itent: tortfeaser attempts one tort but accomplishes another.
False Imprisonment
occurs when a person confines another intentionally without lawful privilege and against his consent within a limited area for any appreciable time, however short. (benet v. Ohio)
elements of false imprisonment
-act
-intent
-confinement
other intentional torts.
Trespass to land
Conversion of chattels (trover)
Trespass to chattel
Trespass to land rule and elements
intentional entry on land of another.
-act
-intent
-results in entering land of another
Conversion of chattel rule and elements
intentional exercise of substantial dominion of personal or other non-real property.
-act
-intent
-results in substantial depravation of property.
Trespass to chattel rule and elements
intentional intermeddling chattel of another.
-act
-intent
-result in dispossession, lost use, harm to possessor or chattel
False imprisonment ACT?
physical restraint, or threat of force, or threat of lawful authority
old maine case
physical restraint is enough but not required.
McCann v. Wal-Mart
threat of force against individual.
purses and babies
threat of force against valuables
Steve and false arrest case
Threat of lawful authority by police
Wal-mart case
threat of lawful authority by reference to use of police.
intent and trespassory torts
intent has the same meaning for all trespassory torts
Confinement for the purposes of determining false imprisonment
P must either be aware of the confinement or harmed by the confinement. Also, would a reasonable person believe they were confined (wal-mart)
Policy behind confinement determination
the interest protected by battery is unwanted confinement so normally have to realize can't leave.
self Defense and defense of others.
Is the privelege to use force to avert threat of battery, assault, or false imprisonment.
What is the requirement for the privelege of self defense and defense of others?
Reasonableness requirements.
1. reasonable belief force is necessary, and
2. reasonable force is used.
determining reasonable belief force is necessary.
apparent necessity. This is split among courts in self defense of others but it is as viewed by the D or 3rd party being defended.
determining reasonable force used.
deadly force only if threatned with deadly force and it's imminent. Is allways authorized in home or in cases of sex abuse.
How do you determine reasonablness in a case?
requires a fact sensitive inquiry.
Affirmative defenses (ie priveleges)all of them
1. self defense and defense of others
2. arrest and detention
3. defense of property
4. If act/intent/force is priviledged, then the defense will transfer.
transfered defense
1. if priveleged act results in harm to another then not liable to injured third party.
2. glannon ex 1g, page 52, throwing brick to ward off bat.
3. Martinez, this case does not discuss this issue.
Defense of property rule of law.
force likely to cause death or serious bodily harm may not be used to defend mere property.
Katco v. Briney

and policy
shotgun case: values humans over property. Gun aimed at knees to protect an empty house.
Martinez v. Brown

and policy
watermellon case: values humans over property.Gun aimed away from humans-not deadly. force that may have been reasonable in defending property, not transferable after threat is over. Crucial fact-did kids drop watermelons and when (not answered in case)
Advice on reading cases and clarifying holdings
1. holdings may be overly broad when closely read facts of case.
2.Look for parties arguments as way of narrowing/claifying/distinguishing holdings. exp. lesson from the Paul v. A&P FI case.
consent as a defense. how to determine.
1. consent as manifested by outward signs.
2. words not necessary, conduct may suffice
3. consent can be revoked.
Issues under consent as defense
1. capacity to consent
2. coercion/duress
3. Scope of consent
4. failure to reveal material (ie crucial) facts or misrepresentation
5. exceptions, when consent is not required.
6. emergencies
7. surgical exception
consent issues and autonomy revisited
1. P can put d on notice does not consent to touching most people find okay.
blood transfusion case
1. P can put d on notice does not consent to touching most people find okay.
reason for not wanting touching.
can be out of main stream, as long as P has mental capacity to make the decision.
Policy limits on P ability to declare unwanted touching.
socially necessary touching as unwanted; exp. glannon and person in subway.(not same as socially customary). presents difficult issues involving sexual contacts.
scope of consent
what touching did P consent to?
ie blood transfusion patient and sex with person who has std's (majic johnson). consent to touching not damages that occure.
failure to reveal material (crusial) facts
1. rules of law with sexual touching. known std material fact. known prior partner with std material fact. beyond that challenging olicy questions distinguishing battery from negigence.
2. misrepresentation
capacity to consent
1. age as a fact: 16 yo transfusion patient.
2.mental capacity and irrational decisions (1 test: understand the risk and benefits?)
in medical consent questions allways start with what
should Dr. ask?
self defense
only authorized to prevent an impending battery or stop one already taking place. Protect against battery and confinement. Appearent necessity of self defense not actual reality.
b.Deadly force in self defense:
1. Only when you believe it is reasonably necessary.
2. Only if you reasonably believe you are in threat of deadly force and see the use of it as only option. Includes anything intended or is likely to cause death or serious bodily harm.
Some states require a duty to
retreat if possible before deadly force can be used unless in own dwelling.
deadly force does not include
Does not include excessive force so if it is seen as excessive then no.
deadly force and provocation
Provocation is not sufficient alone. Includes resistance to false imprisonment as well as assault and battery.
c.Defense of others:
can use the same force to stop D that the P has a right to use in defense of himself. “mistaken defense of other” is not a defense in some states.
d.The “defense” of consent:
Usually not liable if other person consents to contact. The contact must be the exact contact that is consented to.
e.Consent to medical treatment:
The common sense principle is applied in determining if contact was of the nature consented to.
what is an affirmative defense
when the prime facie case is made you can say there a additional facts that allow the avoidance of laibility. these are called affirmative defenses.
defense of statute of limitations
example of affirmative defense that has nothing to do with the incident itself
signed release from liability
example of affirmative defense that has nothing to do with the incident itself
police force used in arrest
ex of priveledge of force
Smith and Jones rehearsing for a play requiring a slap. The slap takes place. consent?
yes, not liable
defense of necessity
privelege due to attempt to prevent a greater harm
self defense is what kind of privelege?
limited. not a liscense to attack and aggressor or to respond to unwarranted provocation or to give blow for blow.
what does self defense authorize?
authorizes use of force to prevent an impending battery or stop one in progress
Jones slaps smith on face and says "there, now we are even"
no privelege of self defense. No longer threatened with a battery. retaliation for battery is not self defense.
Jones makes derogatory statements about Smith's lineage and her politics so she strikes her.
not priveleged. no right to attack another simply because they deserve it nor in threats of future harm cuz there are peaceful legal remedies.
Smith knife's jones who is about to slap her.
not priveleged. only reasonable force. only what is necessary to avert the threatened harm.
Smith blocks jones' slap and pushes her away.
priveleged self defense.
self defense and as a remedy to a wrong committed.
self defense is not a remedy for a wrong allready committed. that's what the courts are for. it is to prevent a further intrusion that cannot be avoided by waiting for legal redress.
is it ever okay to use more force than is necessary to avert a threatned battery?
yes, based on reasonable belief that the force is necessary.
jones raises a knife at smith though only intending to scratch her back. smith kills her.
priveleged self defense. based on reasonable belief that the force was necessary.
policy behind limiting the use of force as self defense.
attempting to minimize the use of force as a means of self protection.
policy behind courts reluctance to impose a duty to retreat even when easily done.
require a victim of threatned violence to relinquish rights to walk the streets.
deadly force in self defense
only with reasonable belief of being threatned with deadly force, and which can only be prevented with the immediate use of deadly force.
mistaken defense of other
in some states it's okay as long as you can show the belief was reasonable. some states have a "shoe-stepping" approach and say if you are wrong about whose the aggressor you are liable.
volenti no fit injuria
to one who is willing, no wrong is done.
Is consent really a defense against a prime facie case?
not really, it negates a basic element of the prime facie case.
how do courts determine the scope of consent
by using common sense.
Jones agrees to a fist fight with smith. smith begins to lose and shoots jones. consent.
consent to a fist fight not a gun battle. no consent.
consent is determined by
manifested by outward signs.
o'brien v. cunard ss co
in line with 200 other women. held arm out for shot but didn't want it. he could be guided only by her overt acts.
Dr. gets patient to consent to an exam but is seeking sexual gratification
a fundamental misunderstanding of the facts does not evidence true acceptance of a contact. consent is invalid to to misrepresentation
P agrees to sex when d has an STD
a fundamental misunderstanding of the facts does not evidence true acceptance of a contact. consent is invalid to to misrepresentation
when can actual consent not create a privelege?
with a protected class, ie under age girl. guilty even if she agreed to sex.
policy behind protected class exception.
deemed incapable of making a proper judgment about whether to engage in the conduct.
Mohr v. Williams
dr. operated on other ear cuz found it worse. battery cuz touch was not what P agreed to.
substituted consent
seek permission from relative or representative.
what does a Dr. do if substituted consent is not available.
cases support a limited privelege to extend surgery in area of initial incision unless it involves the destruction of a bodily function.
patient comes in ER unconscous and dr. performs surgury.
Dr. has privelege to do what a reasonable patient would consent to in those circumstances if there is no reason to believe the person would not and delay would involve risk of death or serious bodily harm.
do people have a right to refuse treatment even if it will result in their death
yes based on common law battery principles. based on same policy of a persons right to do what they want with their body.
Okina slaps rollins after she says bad things about her husband
no privelege. privelege comes from stoping an impending assault, battery, FI, not revenge for an insult.
rollins goes to knock of okina's hat and she pushes him back hard.
priveleged to use reasonable non-deadly force. if rollins finishes his act he has committed a battery so she's good.
rollins punches okina in stomach and turns to run. okina hits him with the umbrella she is carrying.
retaliation not self defense so no privelege.
after punching okina, she charges rollins with umbrella and he pushes her as she swings it.
rollins battery is over and okinas is a new assault which he is priveleged to use force to prevent.
Rollins pushes okina and she stabs the sharp part of her umbrella at his face.
her stab is likely an assault and if it lands battery. Her force is not reasonable. she isn't authorized to use deadly force which if she pokes out his eye she has done.
Zilla sees enemy kong running toward her excitedly. fearful, she punches him in the chest. As it turns out he was coming to appologize
priveleged because, though she was wrong, it was reasonable for her to believe she was about to be battered.
Zilla sees enemy kong running at her with a bat, she throws a brick and hits bystander cusack.
priveldged in most jurisdictions (with no duty to retreat)kong is liable for cusacks battery.
Kong approaches enemy Zilla shaking fists and threatning to knock her down. Zilla pushes kong who is impailed on a metal object sticking out of the ground.
turns on whether she committed a tort in the first place which she did not. she is privelged to use self defense and her response was just a push that resulted in further injury so no she's okay.
Zilla sitting in front seat of car with door open. kong charges at her from 100 yds away. Zilla steps out of car and swings a bat hitting her.
not liable. privelege.
same situation but state requires retreat.
no privelege of self defense because she could have retreated. Zilla is liable as well.
same situation but state doesn't require retreat in instances of threat of deadly force.
she could have closed her door and locked it so she may have trouble arguing she used more than the force reasonably necessary to prevent the battery.
Goliath threatens to tear patch of davids coat and moves toward him in anger. David stabs goliath with a pitchfork believing it was his only option for self defense cuz goliath is huge.
priveleged for non-deadly force but not deadly force. liable.
same facts but goliath sees pitchfork coming and picks up a board and hits david with it.
tuff one. middle ground would require goliath to retreat if possible cuz he's the original aggressor though davids use of deadly force is not justified.
same situation but david defended himself by pushing goliath. goliath, suprised, responds swings at him knocking him down.
goliath is not priveleged to act in self defense because davids response is reasonable to the threat imposed by goliath.
same situation but lancelot comes on scene, sees david rushing goliath with pitchfork and hit's him with a crowbar.
depends on the jurisdiction and court.
same situation but sees david about to push goliath and hits him in the stomach to stop him.
depends on the jurisdiction and the court.
kong bears down on zilla with a knife, unable to retreat, she hits him with a bat only to find out that the knife was a toy.
priveleged. she was reasonable to believe it was real.
"if you didn't find that the D was attacked with nondeadly force, then the D was only privelged to use nondeadly force in self-defense.
no, if she was reasonable to believe she was about to be battered.
"if you don't leave, i'll give you 2 black eyes", stein refuses to leave and gets socked by franken
stein does not consent to punch by standing his ground. Franken has no right to impose the condition on stein. franken is not privelged.
hulk says "push me" Brower does it and hulk gets hurt.
contact v. consequences. hulk got the exact contact he consented to.
rodriguez consents to sex with alvord only to find out she got an std. evidence show's he did not know at the time he had the disease.
since he didn't know, he is not liable for not revealing a material fact so the contact she got was consented to.
carella in ER unconscious with bracelet saying no blood transfusions to save her Dr. gives her one anyway.
bracelet is as good as express words. Dr. did not have consent.
Dr. langone performs hip replacement but does not inform Lew risk of screw comming out req additional surgery which it does.
lack of informed consent case, probably neglagence but not battery.
seaman signs a general consent to "further procedures, during, preceding, and after operation which Dr. deems necessary" to remove bony growth but learns, as is common, hip replacement needed and does it.
probably should have asked ahead of time. may be liable.
same scenario but Dr. attempts to tell him of risks and seaman says you do what you think is best for me.
delagated decision to Dr. but courts will assume it's limited and will not justify big variances from original agreement ex nose job. court will want all facts of conversations and etc to determine what he consented to.
Langone needs to operate on willis who is in bad shape. His wife does not consent cuz she doesn't think it's necessary and gives her the creeps.
__________________________
not entirely clear today. if wife wasn't around he's be good but since she is it's cloudy. it's a gamble.
consent as defense
would a reasonable person in the actor's position (the one touching, threatening to touch, restraining)believe there is consent?
words are not necessary because
contact will suffice
consent can be
revoked
what are the issues regarding consent
capacity to consent, coercion or duress, scope of consent, failure to reveal material facts or misrepresentation, exceptions when consent is not required, emergencies, surgical exceptions
P can put D on notice that she does not consent to touching most people want?
true, smith v. cohen, blood transfusion case,
What if the reason is out of the mainstream?
doesn't matter as long as P has mental capacity to make the decision.
in medical cases start with what question
should the dr. ask
what limits are there on P ability to declare socially acceptable touching is acceptable?
glannon exp. of person in subway. it's socially necessary touching. presents difficulties involving sexual contact.
scope of consent is determined by looking at
what touching did P consent to? blood transfusion patient. sex with person who has std.
consent to touching doesn't include what kind of consent
not consent to damages that occur.
exp. of failure to reveal material facts rules of law
known std material fact, known prior partner with std material fact, beyond that challenging policy questions distinguishing battery from negligence.
failure to reveal a material fact is essentially.
misrepresentation
capacity to consent is determined how
age as a fact, 16 yr old transfusion patient. mental capacity and irrational decisions (1 test understand the risks and benefits?)
consent exceptions
medical=true emmergencies, policy=value saving lives/functioning over the autonomy interest of asking.
other med exceptions
surgical emmergencies, policy= get melded into highly specific fact statements. kennedy v. parrot
why study kennedy v. parrot
to understand the policies that drives the rule statement; going beyond formalism. Policies weigh autonomy intersts against concerns for allowing physicians room to use their professional judgments. (be sure to review notes)
reavis v. slomenski
exemplifies compexitites when view events as a whole. consent as manifested by outward signs, words not necissary conduct may suffice, consent can be revoked.
what does the "reasonable" mean here
intentional torts use a subjective intent standard for D, ie Garret v. Daly-what he knew, understood etc. also, how to handle the social bore, the person who just won't take no for ans answer even when others would, but jury can disbelieve.
capacity to consent. an adults incapacity needs to be
such that the D would know about it. plus drinking and drugs can incapacitate
coercion/duress exp.
job and other power relationships
surocco v. geary is a case about
necessity
surocco v. geary rule statement
a person who tears down or destroys the house of another, in good faith, and under apparent necessity, during th etime of conflagration, for the purpose of saving the buildings adjacent, and stopping its progress, can not be held personally liable.
elements by examining surocco
1. Person, only public officials? analagies involved priviate individuals. 2. to protect public from fire, analogies used various kinds of disasters; ship sinking, war. 3. apparent necessity suffices, reasonable belief surrocco-clearly shown from view of person destorying private property. reasonable force? 4. destory private property.
surrocco rationale
1. natural law. 2. fact analgoies where allowed; goods overboard when ship at risk, war 3. greater good takes precendence over indiciduals property. 4. indiv. should bear the loss rathher than pedrson acting to protect public. 5. invites legislature to change.
who bear lose of property from surocco
individual property owner.
Wegner v. milwaukee mutual is about?
consitituitional taking.
wegner rule language
property shall not be taken, destroyed, damaged for public use w/o just compensation
wegner holding is what specific
Minn. fact specific, 1. innocent's property 2. by police 3. in course of apprehending suspect.
GA. only improvements for public use.
wegner rationale
1. greater good takes precedence over private prop. 2. state should bear the loss rather than indiv. 3. constitutional cause of action not common law. 4. minn constitution.
who bears loss in wegner
govt, govt, insurer
might surrocco be justified today on the ground that fire insurance is commonly purchased by all landowners and that it is a cheap and efficient way of dealing with the loss by fire?
possible test question. answer not given.
intentional tort defense of public necessity summary
1. reasonable destruction 2. apparent necessity 3. immiinent public disaster, r2 and wgner, surroco fire 4. P bears the loss and P does not recover. 5. dinstinguish from a constitutional taking, arguments based on wegner, facts, language, ratuinale, holding vs. dicta.

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