Exam #1 Notes

Week 1: Opening Material for Torts

1.1 Scope of Tort Law

1. Routine personal injury cases (e.g., auto accidents, slip-and-fall cases).

2. Larger personal injury cases: These include products liability, medical malpractice, and business tort claims.

3. Mass tort claims: These are usually product liability cases, but on a scale that can affect many thousands of plaintiffs. One example is asbestos claims, of which some 250,000-300,000 are pending in the court system or being settled each year.

1.2 Elements of All the Torts

EXAMPLE: The tort of Intentional Infliction of Emotional Distress is (1) An act of extreme of outrageous conduct, with (2) intent to cause severe emotional distress, which (3) caused (4) severe emotional distress to be suffered. To state a prima facie case, a plaintiff would allege facts covering all four elements.

1. (Outrageous conduct):

2. (Intent to cause severe emotional distress):

3. (Act caused injury):

4. (Suffered severe emotional distress):

1.3 Categories of Torts

1. Intentional Torts: For all intentional torts, the plaintiff either intended to bring about the result or knew with substantial certainty that the result would follow from what he/she did or failed to do. EXAMPLES: Battery, assault, intentional infliction of emotional distress.

2. Negligence is the largest category of torts. Negligence is the failure to act as a reasonable person would act under the circumstances.

3. Strict Liability is the final category, and it is most often used in product liability cases. If the defendant engages in a certain kind of conduct that causes harm, liability will result even without intent (to cause harm) or negligence (failure to act reasonably).

1.4 Video

Week 2: Client Intake & Interviews

2.1 Overview

Learning Objectives

• Identify the main concerns when meeting with a client in a personal injury law practice

• Describe some features of a typical client intake form (or software program used for client intake)

2.2 Client Intake and Interviews

The Role of a Paralegal in Interviewing and Investigations

• In some law practices, paralegals are also involved in interviewing witnesses and in other aspects of investigating the facts in a case (though most personal injury firms will retain or contract with professional investigators when needed).

• Plaintiff’s-Side versus Defense Work: In many of our examples here, we are assuming you are a paralegal employed by a law firm that represents plaintiffs in personal injury cases.
• Bear in mind that many paralegals also work for defense-side law firms, insurance companies, banks, other corporations, and government agencies that continuously get sued by allegedly injured plaintiffs. Try to imagine each step in the process from both the plaintiff’s and the defendant’s perspective, and this will help you become better at legal analysis and at client interviewing.

Interviewing in a Personal Injury Case

1. The initial client interviews

2. the follow-up client interviews

3. the interviews of someone other than a client (which is normally part of a field investigation). We will focus primarily on the initial client interview, but the skills you will practice are important for all three.

Initial Client Interview:

→ Concern 1: Liability

1. Definition: Liability means being legally responsible for something.

2. Harm must be legally wrongful: Even if someone has caused harm to a client, this harm must be considered wrong under the law in order for your client to have a case.

3. Liability in Torts requires a plaintiff to successfully state and prove a cause of action (e.g. negligence), which is a legal reason to bring a case.

→ Concern 2: Damages

1. Definition: Damages are the amounts of money awarded to the plaintiff once he/she establishes a cause of action against the defendant for a particular tort.

2. Types of Damages: Compensatory damages are the normal remedy for harm to a plaintiff. They are designed to compensate the plaintiff to a whole position (as near as possible). Punitive damages are larger amounts, designed to punish the defendant for some serious, intentional wrongdoing. Nominal damages ($1 and up) are sometimes awarded if the defendant has done something wrong, but the plaintiff cannot prove he/she has suffered harm as a result.

3. Money motivation: Many clients (and attorneys) will be motivated to pursue a particular case because of the possibility of earning a big damages award. Most personal injury attorneys only accept cases that have a good chance of winning. Often, PI attorneys are paid on contingency fee basis (a % of the winnings).

→ Concern 3: Collectability

2.3 Obtaining the Facts

1. People and Events: Most tort cases involve an event that happened, which is the alleged cause of the injury. To understand the event itself and the plaintiff’s involvement, you will also have to learn more about the important people (the plaintiff(s), the defendant(s), eyewitnesses, physicians, etc.).

2. Think: Who? What? When? Where? How? And above all, what evidence will we need to prove each element of the case?

2.4 Client Intake Reports

Function

• This is the interviewer’s written report, which summarizes the important factual information from the interview.

• In the interview, you will either take notes or record the conversation, and you will then prepare the memo using your notes or recordings. Some law firms have a Client Intake Form for you to fill out, so you do not need to write a separate report.

Audience

Format of Intake Memo

1. Heading at the top of the page, which should include the following information:
1. Your name (interviewer and author of memo)
2. Supervisor’s name (to whom the memo is addressed)
3. Date memo was written
4. Date interview was conducted
5. Name of case
6. Office file # of case
7. RE: After this notation, which means “regarding,” you can state the general subject matter of the memo

2. Personal Data
1. Name of client
2. Home address
3. Phone numbers where client can be reached
4. Age of client
5. Marital status
6. Place of employment of client
7. Other relevant info

3. Statement of the Assignment (Introduction): In the first paragraph of your memo, state the precise objective that you were given in conducting the interview.

4. Body of the Memo: Presentation of the facts of the case in a coherent, readable manner. You can organize the facts in any logical way (usually chronologically or by issue/topic).

5. Conclusion: Your supervisor may ask you to give your opinions about the case, include your impressions about the client, or list the next steps that need to be taken in the case (e.g., what further facts should be sought, or evidence obtained). Even if you have not been asked specifically for any of these things, the conclusion provides you an opportunity to briefly discuss any or all of them.

2.5 Investigating in a Personal Injury Case

1. To record what our client has told us in the interview.

2. To help our firm decide whether the case should be settled, and for how much.

3. To help us prepare for trial. All cases are headed towards trial, even those expected to settle. It’s easier to obtain facts earlier than later.

Week 3: The Court System and Stages in a Civil Case

Material on The Court System and the Stages in a Civil Case

1. Court Systems
1. Jurisdiction: There are 50 state court systems and a federal court system. When you hear the word “jurisdiction,” it can refer to a particular state court or geographic area (e.g. California). But “jurisdiction” also refers to the power of a court to hear a particular case. Two kinds of jurisdiction must be satisfied:
2. Subject Matter Jurisdiction: The court must have jurisdiction over the subject matter of the case or type of dispute. State trial courts usually have general jurisdiction. For a matter to be brought in federal court, it must either: (1) involve a question of federal law (e.g., Civil Rights Act, U.S. Constitution) OR (2) involve opposing parties who are residents of different states, and where the matter in controversy exceeds $75,000.
3. Personal Jurisdiction: For a court to have power in a case, it must also have personal jurisdiction over the defendant. Personal jurisdiction is satisfied when a defendant has a certain level of “minimum contacts” in the forum (state or district), which can be satisfied through being a resident, owning property or doing business there, or simply being involved in an accident while passing through.

2. Federal. In the federal court system, there are three levels of courts:
1. U.S. District Courts (trial courts), which can hear cases brought to trial. Example: U.S. District Court for the Northern District of CA.
2. U.S. Courts of Appeal (intermediate appellate courts), which can hear appeals brought from district courts. Example: U.S. Court of Appeals for the Ninth Circuit.
3. U.S. Supreme Court (highest appellate court), which has discretion to hear appeals brought from U.S. Courts of Appeal and from state Supreme Courts on issues involving federal law.

3. California. In the California court system, there are three levels of courts, plus the possibility of U.S. Supreme Court review in cases involving federal law:
1. Superior Courts (trial courts), which can hear cases brought to trial. Example: Santa Clara County Superior Court.
2. CA Courts of Appeal (intermediate appellate courts), which can hear appeals brought from trial courts. Example: CA Court of Appeal, 6th Appellate District.
3. Supreme Court of California (highest court in state), which has discretion to hear appeals brought from CA Courts of Appeal. Highest court on matters of state law.
4. U.S. Supreme Court: Cases involving federal issues (e.g., federal constitutional issue) may be appealed beyond the state supreme court, and the U.S. Supreme Court may hear them.
5. Other states often have different court structures, so be aware that their courts may have unusual names.

4. Pleadings: Formal, pre-trial documents filed by parties to begin a civil lawsuit. The pleadings contain the parties’ claims, defenses, or other responses.
1. Complaint: The plaintiff’s statement of claims against the defendant. A copy of the complaint and a summons is served upon the defendant.
2. Answer: The defendant’s response to the complaint. The defendant must admit or deny allegations in the complaint, and present defenses.
3. Other types of pleadings include counterclaims (defendant’s claims against plaintiff) and cross-claims (defendant’s claims against a third party who was not originally sued by plaintiff).

5. Discovery: Once the defendant files an answer, each party can begin to find out more about the strength of the other side’s case through methods of discovery. Under the modern rules of civil procedure, discovery (and not the trial itself) is the most crucial phase of many lawsuits. Some methods of discovery that parties may use are:
1. Interrogatories: Written questions sent by one party to another party, seeking written answers in return. Parties are limited to 25-35 questions (depending on the court), and they may use these questions to help them locate potential witnesses, establish dates, determine a person’s medical or financial condition, and inquire about the existence of certain evidence, or for other purposes.
2. Depositions are pre-trial questioning sessions of potential witnesses. Witnesses provide sworn testimony outside of the court, which is recorded by a court reporter. For example, if a physician has treated the plaintiff for injuries, the defendant may want to depose the physician to learn more about the extent of the plaintiff’s injuries.
3. Requests for Admissions are written documents that list statements about specific facts in the case. One party prepares them and requests that the other party admit or deny each of the statements. These are designed to clarify the facts in the case and allow parties to agree some things, so they will not need to be established at trial.
4. Requests for Documents and Physical Examinations can be made through a number of different motions. They are usually designed to obtain copies of documents in the other party’s possession or to schedule a physical exam when a party’s health or injuries are at issue in the case.
5. Enforcing Discovery Rights: Parties have an obligation to respond to discovery requests. If one party is not cooperating, the other party can go to the judge and obtain a court order to force its opponent to comply. The court can also use certain sanctions against a party who fails to cooperate, such as prohibiting the use of certain evidence and dismissing some or all of a defendant’s lawsuit.
6. Out of court settlements are encouraged by the courts and the rules. Before trial, parties usually hold a settlement conference with the judge, and are invited to solve their problems before incurring the additional time and expense of trial litigation. Most civil cases end via settlement, not trial.

6. Trial and Appeal
1. Jury Selection: The right to a jury trial is available in most types of cases. Before a jury trial begins, a jury must be chosen. When potential jurors are chosen, they can be questioned by the judge and parties’ attorneys in a process called voir dire. Each side can eliminate potential jurors using challenges for cause (if a juror is unable to serve in an unbiased capacity) or preemptory challenges (dismissing a potential juror with no reason needed; each side has a certain number of peremptories). The acceptable jurors are seated in the jury box and sworn in.
2. Opening Statements: Attorneys then make opening statements to outline their cases and the evidence they plan to present.
3. Presentation of Evidence: The plaintiff’s attorney then presents his/her case using witnesses and exhibits as evidence. Federal or state Rules of Evidence govern what can and cannot be admitted or asked of a witness. Direct examination is the questioning of one’s own witness. After direct examination, the other party’s attorney has the right to question the witness also, and this is known as cross-examination.
4. Closing Arguments give attorneys for each party the chance to summarize their case for jurors and make their strongest arguments one last time.
5. Jury Instructions: The judge will then instruct the jury members before sending them to deliberate. The judge’s instructions will clearly explain the jury’s duty and the requirements of the law.
6. Jury Deliberations, Verdict, and Judgment: The jury then deliberates, renders its verdict, is thanked by the judge and dismissed from service. The court issues a judgment in the case, which is the court’s official statement regarding the party’s rights and obligations.

7. The Appeal
1. Appealing a Final Judgment: Once a final judgment is issued, the losing party may appeal. Appeals are time-consuming and costly, so not everyone appeals.
2. Appellate Court Review: Appellate courts do not conduct new trials; they simply review the official record of an appealed case. They limit their review to the issues raised in the appeal, and these can only be issues of law, not of fact.
3. Appellate Court Action: Appellate courts will generally affirm (support) the lower court’s decision, reverse (overturn) it, or remand the case back to the lower court for more action. After the first appeal, the losing party may appeal again to a higher court but does not have a right to have the appeal considered (higher appellate courts have discretion to review or not to review cases).

8. Alternatives to Trial and Litigation: Trial Litigation can be expensive, contentious, and time-consuming. Most cases settle before trial, and the court system encourages ‘out of court’ settlements. 
1. Alternative Dispute Resolution (ADR) is a cheaper, less contentious, and sometimes quicker route for many parties.
1. One form of ADR is arbitration, in which the parties agree to appoint a neutral third-party arbitrator to decide a case.
2. Another form of ADR is mediation, which involves a third party who assists the parties in resolving their dispute through discussion and compromise.

Week 4: Intentional Torts, Part I: Battery and Assault

4.1 Overview

Learning Objectives

• Define intentional torts

• Explain the elements of the tort of battery

• Explain the elements of the tort of assault

Overview

4.2 Material on Battery and Assault

Elements in Tort Law

Battery —

• Torts is mainly a common law subject. There are some written statutes in state codes, but most of the rules come from previous case law. And a court hearing a battery case would also look at the individual elements of that battery definition.

• What are the parts of the case that need to be proven? What are the elements of battery? The court might separate them out and number/label them like this:
• Elements: Battery is (1) An act, involving (2) harmful or offensive contact with the plaintiff’s person, with (3) intent to cause a harmful or offensive contact (or intent to cause apprehension of an immediate contact), and (4) causation of the harmful or offensive contact.
• Do you notice Element #3 there? It’s intent. And it’s a required element for all intentional torts. Other torts, like negligence, do not require that the plaintiff show intent. But battery requires it. In a moment, you’ll read a case that illustrates this point. But first, let’s define the elements of battery.

Defining the Elements

1. Act. Voluntary movement of defendant’s body.

2. Harmful OR offensive contact. Harmful: Involving physical damage, impairment, pain, or illness to the body. Offensive: Offending the personal dignity of an ordinary person who is not unduly sensitive.

3. Intent. Either:
1. the desire to bring about the consequences of the act, OR
2. the substantially certain knowledge that the consequences will follow from the act (e.g., the contact would occur).

4. Causation. Either:
1. but for the defendant’s act, the consequences would not have occurred, OR
2. the defendant’s act was a substantial factor in bringing about the consequences (e.g., the contact).

5. Now please focus on these elements as you read the following case:

Garrett v. Dailey

Assault —

1. to cause harmful or offensive contact, OR

2. to cause an apprehension of an imminent harmful or offensive contact,

Cullison v. Medley, 570 N.E.2d 27 (1991)

• 28 Rudolph Wm. Savich, Bloomington, for appellant.

1. Assault

• ------end of case opinion-------

4.3 Intentional Torts: Summary

4.4 The Same Conduct Can Give Rise to Civil and Criminal Liability

"Assault and Battery" Defined

• Threat of action — by one person that puts another person in apprehension of imminent bodily harm.
• Battery — again, both civil and criminal -- is usually the logical extension of assault (a completed assault, in other words). An action that starts as an assault becomes a battery when there is an actual physical touching.
• As an example, if a person raises a fist to you and you believe you're about to be punched, that person has committed an assault, since you're put in fear of an imminent punching. Even if the punch is never thrown, the threat of the punch is enough to constitute assault. If the same person follows through with the punch and connects with your body, you've been battered. Assault and battery are so intertwined that they are often referred to as one cause of action.

Civil Assault and Battery

• "Regular" torts don't take the intent of the tortfeasor (the person committing the tort) into consideration. As long as the tortfeasor had a duty to act in a non-negligent manner, and they breached that duty and caused harm to someone, they are said to have committed the tort.

• Intentional torts are torts that are committed on purpose. In addition to assault and battery, causes of action such as false imprisonment, slander, and fraud typically fall under this category.

• While the requirements of duty, breach, causation and damages are the same, the added element of the tortfeasor's intent is taken into consideration as well. If a plaintiff cannot prove that the tort was committed intentionally, it may be a case of negligence as opposed to an intentional tort.

Scenario:

1. First, consider that the driver was reaching for a fallen cellphone and slipped and hit the gas, causing the car to move quickly in reverse.

2. If the driver strikes you or your vehicle, the driver has committed general negligence.

3. He had a duty to operate his vehicle in a non-negligent manner, and he breached that duty and caused you harm.

4. Now imagine that, immediately prior to getting into his car, the driver was yelling and cursing at you for being in his way while he was trying to back out. Instead of dropping a cellphone and accidentally hitting the gas, the tortfeasor deliberately threw the car into reverse and drove toward you, slamming on the brakes at the last instant to avoid hitting you.
1. You were legitimately apprehensive — you were afraid he was going to run you over, in other words.
2. The tortfeasor has intentionally placed you in apprehension of imminent physical harm and has committed civil assault.
3. If the driver actually hits you, he has committed civil battery. The driver's intent is key.

Criminal Assault and Battery

• the burden of proof is stricter in a criminal case, and

• there is the added requirement of proving the violation of a specific criminal statute, as worded by the legislature.

Week 5: Intentional Torts. False Imprisonment and False Arrest

5.1 Overview

Learning Objectives

• Describe the elements of the tort of false imprisonment

• Apply the elements of false imprisonment in a hypothetical case

Overview

5.2 Material on False Imprisonment

In 1984, Andrews, a diabetic who had previously suffered a stroke, was admitted to Greenville Memorial Hospital for circulatory problems in his right leg. As a result of the stroke, his speech was slurred, he drooled, and his left side was paralyzed. Unfortunately, the treatment for his leg was unsuccessful and it had to be amputated above the knee. During the recovery period, the hospital contacted Andrews' daughter in Florida and asked if her father could live with her. She agreed and the hospital arranged the trip. A hospital social worker, Andrew Irwin, telephoned Piedmont and reserved a seat for Andrews. Piedmont informed Irwin that the airline had guidelines governing travel by unaccompanied physically handicapped passengers.

In December 1984, the hospital discharged Andrews and took him by ambulance to the Greenville/Spartanburg Airport. He was placed in an airport wheelchair and taken to the Piedmont ticket counter. He purchased a ticket and was wheeled to the gate area to wait for his flight. While waiting to embark, Andrews asked other passengers for cigarettes and asked a passenger to tie his leg to the wheelchair. The supervisor of airport security notified Milton Ward, the Piedmont station manager, of a potential problem at the departure gate. When Ward arrived at the gate, he found Andrews slumped over in the wheelchair with saliva drooling out of the side of his mouth. Ward questioned Andrews about his ability to go to the bathroom by himself. He received a negative answer. Since Andrews did not meet Piedmont's guidelines, Ward kept him off the flight. Andrews was removed from the passenger waiting area to an area adjacent to the Piedmont office and ticket counter. Piedmont telephoned the hospital to come get Andrews. Upon receipt of Piedmont's call, Irwin went to the airport and found Andrews in a wheelchair. He called the hospital requesting an ambulance and remained with Andrews, one and a half to two hours, until it arrived. Andrews returned to the hospital and alternate travel plans were arranged….

1. That the defendant restrained the plaintiff;

2. That the restraint was intentional; and

3. That the restraint was unlawful. 

• -----------------------------------------------------

• Plaintiff accepted this assurance and sailed for America on the yacht. On arrival in port, defendant refused to furnish her with a boat so that she could leave. When plaintiff raised the issue with her husband, he said it was up to the defendant, the leader of the sect and owner of the yacht.

• She remained on board for nearly a month, during which time defendant and plaintiff’s husband attempted to persuade her to rejoin the sect. On several occasions, plaintiff was allowed to go ashore to the mainland and to various islands, but always in the company of her husband.

• She was not allowed to leave the yacht unaccompanied. She finally obtained her release with the assistance of the sheriff and a writ of habeas corpus. She then brought this action for false imprisonment. The jury returned a verdict in her favor for $1100. Defendant excepted to the court’s instructions and appealed from an order denying his motion for a new trial.]

• ------end of case opinion-------

1. Act. A voluntary movement of the defendant’s body.

2. Complete: A total confinement where plaintiff knows of no safe or inoffensive means of escape.

3. Confine: A restraint of plaintiff’s freedom of movement (e.g., by physical barriers, physical force, threat of physical force, threat of legal authority to confine, or refusing to release plaintiff).

4. Intent to confine. The intent to confine plaintiff or the knowledge with substantial certainty that the defendant’s act will result in the confinement.

5. Causation: But for the defendant’s act, plaintiff would not have been confined, or defendant’s act was a substantial factor in plaintiff’s confinement.

6. Consciousness of the Confinement or Physical harm: At the very least, the plaintiff must have been conscious of the fact that he/she was confined.

5.3 California Law on False Arrests

5.4 California Case Law and Other Sources on False Imprisonment

Sources and Authority

• “The crime of false imprisonment is defined by Penal Code section 236 as the ‘unlawful violation of the personal liberty of another.’ The tort is identically defined. As we recently formulated it, the tort consists of the ‘ “nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short.” ’ That length of time can be as brief as 15 minutes. Restraint may be effectuated by means of physical force, threat of force or of arrest, confinement by physical barriers, or by means of any other form of unreasonable duress.” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 716 [30 Cal.Rptr.2d 18, 872 P.2d 559], internal citations omitted.)

• “ ‘[T]he tort [of false imprisonment] consists of the “ ‘nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short.’ ” ’ ” (Scofield, supra, 45 Cal.App.4th at p. 1001, internal citations omitted.)

• “The only mental state required to be shown to prove false imprisonment is the intent to confine, or to create a similar intrusion.” (Fermino, supra, 7 Cal.4th at p. 716.)

• “[False imprisonment] requires some restraint of the person and that he be deprived of his liberty or compelled to stay where he does not want to remain, or compelled to go where he does not wish to go; and that the person be restrained of his liberty without sufficient complaint or authority.” (Collins v. County of Los Angeles (1966) 241 Cal.App.2d 451, 459—460 [50 Cal.Rptr. 586], internal citations omitted.)

• “[I]t is clear that force or the threat of force are not the only means by which the tort of false imprisonment can be achieved. Fraud or deceit or any unreasonable duress are alternative methods of accomplishing the tort.” (Scofield, supra, 45 Cal.App.4th at p. 1002, internal citations omitted.)

• “Because ‘[t]here is no real or free consent when it is obtained through fraud’ . . . the [plaintiffs’] confinement on the aircraft was nonconsensual and therefore actionable as a false imprisonment.” (Scofield, supra, 45 Cal.App.4th at p. 1006, fn. 16, internal citations omitted.)

• “[C]ontemporaneous awareness of the false imprisonment is not, and need not be, an essential element of the tort.” (Scofield, supra, 45 Cal.App.4th at p. 1006.)

• “[T]he critical question as to causation in intentional torts is whether the actor’s conduct is a substantial factor in bringing about the type of harm which he intended from his original act.” (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1536, fn. 6 [254 Cal.Rptr. 492], internal citations omitted.)

• “[T]he law of this state clearly allows a cause of action for false imprisonment notwithstanding the fact a plaintiff suffered merely nominal damage.” (Scofield, supra, 45 Cal.App.4th at p. 1007.)

• “In addition to recovery for emotional suffering and humiliation, one subjected to false imprisonment is entitled to compensation for other resultant harm, such as loss of time, physical discomfort or inconvenience, any resulting physical illness or injury to health, business interruption, and damage to reputation, as well as punitive damages in appropriate cases.” (Scofield, supra, 45 Cal.App.4th at p. 1009, internal citation omitted.)

Secondary Sources

Week 6: Week 6: Intentional Torts, Part III. Trespass. Intentional Infliction of Emotional Distress (IIED)

6.1 Overview

Learning Objectives

• Describe the elements of the tort of trespass to land

• Describe the elements of the tort of Intentional Infliction of Emotional Distress (IIED)

• Apply the elements of false imprisonment in a hypothetical case

Overview

6.2 Material on Trespass to Land and IIED

Trespass and the Intentional Infliction of Emotional Distress (IIED)

Intentional Infliction of Emotional Distress (IIED)

1. Elements of IIED in California (also used in the case above):
1. [An act of] outrageous conduct by the defendant;
2. The defendant's intention of causing, or reckless disregard of the probability of causing emotional distress;
3. The plaintiff's suffering severe or extreme emotional distress; and
4. [Defendant is the cause of this distress].

2. Defining the Elements:
1. Act: Voluntary movement of d’s body; could be words here.
2. Extreme or outrageous conduct: Atrocious and totally intolerable behavior, enough to shock the conscience.
3. Intent: Desire/knowledge with substantial certainty
4. Severe emotional distress: Substantial mental anguish.
5. Cause: But for/substantial factor.
 
If you would like another interesting IIED case to read (which is optional only), please try Chuy v. Philadelphia Eagles Football Club, 431 F. Supp. 254 (E.D. Pa. 1977), available at: https://law.justia.com/cases/federal/district-courts/FSupp/431/254/2184260/

6.3 California Case Law and Other Sources on IIED

Sources and Authority

• “A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050—1051 [95 Cal.Rptr.3d 636, 209 P.3d 963])

• “ ‘[I]t is generally held that there can be no recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities or threats which are considered to amount to nothing more than mere annoyances.’ ” (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128 [257 Cal.Rptr. 665], internal citations omitted.)

• “It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903—904 [2 Cal.Rptr.2d 79, 820 P.2d 181].)

• “Severe emotional distress [is] emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.” (Fletcher v. Western Life Insurance Co. (1970) 10 Cal.App.3d 376, 397 [89 Cal.Rptr. 78].)

• “ ‘It is for the court to determine whether on the evidence severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed.’ ” (Fletcher, supra, 10 Cal.App.3d at p. 397, internal citation omitted.)

• “ ‘The law limits claims of intentional infliction of emotional distress to egregious conduct toward plaintiff proximately caused by defendant.’ The only exception to this rule is that recognized when the defendant is aware, but acts with reckless disregard of, the plaintiff and the probability that his or her conduct will cause severe emotional distress to that plaintiff. Where reckless disregard of the plaintiff’s interests is the theory of recovery, the presence of the plaintiff at the time the outrageous conduct occurs is recognized as the element establishing a higher degree of culpability which, in turn, justifies recovery of greater damages by a broader group of plaintiffs than allowed on a negligent infliction of emotional distress theory.” (Christensen, supra, 54 Cal.3d at pp. 905—906, internal citations omitted.)

Secondary Sources

• 5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 451—454

• 4 Levy et al., California Torts, Ch. 44, Intentional Infliction of Emotional Distress, § 44.01 (Matthew Bender)

• 32 California Forms of Pleading and Practice, Ch. 362, Mental Suffering and Emotional Distress, § 362.10 (Matthew Bender)

• 15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional Distress. § 153.20 et seq. (Matthew Bender)

Videos

Week 7: Defenses to Intentional Torts

7.1 Overview

Learning Objectives

• Describe the main defenses to intentional torts

• Explain how these arguments can help a defendant escape liability

Overview

7.2 Defenses to Intentional Torts: Case Law

Consent

1. Consent is giving permission that an act or an invasion of an interest shall take place. (Definition from Restatement, Second, Torts, §10A.)
1. Using the Defense: Consent can be used as a defense to a prima facie case, but it can also be used to negate the “offensiveness” of the touching (battery) and it can negate a confinement (false imprisonment). This may depend on the court, as some courts consider “unconsented” to be an element of intentional torts, while other courts will require a defendant to plead and prove consent as a defense.
Example Cases (summaries)
• Hackbart v. Cincinnati Bengals, 601 F.2d 516 (10th Cir. 1979): “The question in this case is whether in a regular season professional football game an injury which is inflicted by one football player on an opposing player can give rise to liability in tort where the injury was inflicted by the intentional striking of a blow during the game.” During a game between the Cincinnati Bengals and Denver Broncos, Bengals’ offensive back Charles Clark inflicted a blow against Broncos’ defensive back Dale Hackbert. Hackbert had been kneeling on the sidelines, out of the game, when a frustrated and angry Clark walked by and hit him in the back of the head, breaking Hackbert’s neck. Clark’s blow was caught on film and he admitted that it was intentional.
• The trial court held as a matter of law that football is a violent game, that such incidents are common, and that players give implied consent to the risk of injury by playing. On appeal, the Tenth Circuit Court of Appeals took note of the rules of professional football, which state that “All players are prohibited from striking on the head, face or neck with the heel, back or side of the hand, wrist, forearm, elbow, or clasped hands.” The appeals court reversed and remanded the case for a new trial, holding that the allegation of intentional misconduct outside the parameters of the game (both the rules and the accepted customs) was enough to state a cause of action for an intentional tort. “We take the view that…plaintiff was entitled to have the case tried on an assessment of his rights and whether they had been violated.”
• Hogan v. Tavzel, 660 So. 2d 350 (Fla. 1996): Hogan (wife) and Tavzel (husband) were married for fifteen years but encountered marital problems which caused them to separate. During a period of attempted reconciliation in late 1989 and early 1990, Tavzel infected Hogan with a sexually transmitted disease. He knew of his condition but did not warn Hogan or take any precaution against infecting her. The parties were divorced in 1990 and Hogan later sued Tavzel for battery.
• The trial court dismissed the battery count on the grounds that the sexual intercourse was consensual, and thus the offensive element of battery was not satisfied. The Florida appeals court, finding no case precedent in Florida for a similar claim, examined a California case which held that one party’s consent to sexual intercourse is invalidated by the partner’s fraudulent concealment of a risk of infection with venereal disease. The Florida court also looked to the Restatement of Torts, which suggested that one party infecting an unknowing partner with venereal disease should be liable for battery. The court agreed with these authorities, holding that Tavzel could be liable for battery. It reasoned that “Hogan’s consent, if without the knowledge that Tavzel was infected with a sexually transmitted disease, was the equivalent of no consent, and would not be a defense to the battery charge if proven.”

Self-Defense/Defense of Others/Defense of Property

1. Self-Defense is the protection of one’s person or property against some injury attempted by another. In Torts, as in Criminal Law, a person has a recognized privilege to use (or threaten to use) force to defend himself/herself against an attack. Defense of Others is an extension of this; the law also recognizes a person’s right to use (or threaten to use) force in defense of a person other than himself/herself.

2. Using the Defense: Self-defense can be asserted as a privilege for conduct that would otherwise be considered a battery, assault, false imprisonment, IIED, conversion, trespass to chattels, or trespass to land. Self-defense can only be used to protect and resist an attack, not as retaliation

• Tatman v. Cordingly, 672 P.2d 1286 (Wy. 1983). There was a dispute between Tatman and Cordingly which precipitated a fight. Tatman was 66 years old at the time, while Cordingly was in his early 20’s. As a result of the fight, Tatman was hospitalized for eight days and incurred substantial medical expenses. There was evidence that Tatman had a bad temper, that he carried a gun and used it often, that he ran over Cordingly’s motorcycle with his pickup truck, that Tatman struck Cordingly first, that Tatman was repeatedly trying to grab his rifle, and that Cordingly feared for his life during the encounter.
• The trial court entered judgment on a jury verdict that Tatman committed a battery and Cordingly exercised reasonable self-defense. On appeal, the Wyoming Supreme Court agreed, upholding the lower court’s judgment. It suggested that the person exercising self-defense must show that he/she acted under a reasonable belief that real danger exists, a standard that is both subjective and objective: “Not only must a person believe that real danger exists, but that belief also must be reasonable.”

Defense of (Unoccupied) Property: Please read the case below.

Facts

• Bertha Briney inherited an old farmhouse in Mahaska County, Iowa, which the Brineys had left vacant for the last ten years prior to the incident. The farmhouse was boarded up and "No Trespassing" signs were displayed around the property. The farmhouse was in poor condition and was subject to frequent burglaries and break-ins.

• To defend the house against further intruders and theft, Edward Briney mounted a 20-gauge spring-loaded shotgun in the farmhouse and rigged it to fire when the north bedroom door was opened. Bertha suggested aiming the gun downward to shoot towards an intruder's legs, rather than cause a mortal injury. Edward Briney also covered the bedroom window with steel.

• Marvin Katko worked regularly as a gasoline station attendant in Eddyville, seven miles from the Briney's farmhouse.

• TIMELINE:
1. In 1967 the area around the house was covered with high weeds, Katko had observed it for several years while hunting in the area and considered it as being abandoned.
2. Prior to July 16, 1967, Katko and his friend Marvin McDonough had been to the premises and found several old bottles and fruit jars which they stole and added to their collection of antiques.
3. On July 16, 1967, Katko and McDonough again entered the farmhouse with the intent of stealing more old bottles and dated fruit jars. Upon entering the bedroom, the shotgun fired into Katko’s right leg at point blank range where much of Katko's leg, including part of the tibia, was blown away. Katko was subsequently hospitalized for 40 days.

Court Opinion

Aftermath

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