Negligence

Assault Black letter: 1. Intent 2. Imminent apprehension R2 §21: Assault (1) An actor is subject to liability for assault if (a) He acts intending to cause a harmful or offensive contact with the person of another or a third person, or an imminent apprehension of such a contact, AND (b) The other is thereby put in such imminent apprehension R2 §29: Apprehension of Imminent and Future Contact tion of a future contact, which is (1) To make the actor liable for assault he must put the other in apprehension of an imminent contact (2) An act intended by the actor as a step toward the inflic so recognized by the other, does not make the actor liable for an assault under §21    Intent to cause apprehension OR intent to cause contact itself Not necessary that ∆ has malice or hostility towards π, or intent to harm, like in battery Doctrine of transferred intent applies  Apprehension must be reasonable o Not to be confused with fear or intimidation  all you need is reasonable apprehension of an offensive conduct  Both an objective (reasonable person) and subjective (π actually apprehensive) standard  Harmful/offensive contact doesn’t have to include π to cause apprehension – can be with the ground or some free-standing object  Apparent + present ability = reasonable apprehension o If threat is incapable of performance, then no assault o But if π believes ∆ can carry out threat (even though in reality he can’t), then there is assault  π must be aware of threatened conduct o Apprehension ≠ fear (sufficient that π believes that if she does not take action then harmful/offensive conduct will occur in near future)  Threats to third person not actionable  Assault exists where there is an intent to assault coupled with a present ability to do personal violence (Read v. Coker) o Threat of violence + ability to carry out threat  An assault is an unlawful attempt, coupled with an apparent ability (even if there’s no present ability), to commit a violent injury to the person of another (Beach v. Hancock) o Sufficient for reasonable person to would have perceived present ability  Words alone are not enough  need words coupled with conduct o If words negate the conduct, then no reasonable apprehension (negate the intent) However, R2 says there might be cases where it’s sufficient for words are sufficient to constitute an assault  12 1. 2. 3. 4. Is the threat realistic? Is threat aimed at π? Does π experience apprehension? What do we do when there are words alone?  Assault – threat of bodily harm, while battery is the actual physical touch   o If victim has not been touched, then it’s assault Assault is completed as soon as π suffers the apprehension  ∆ can abandon the plan but still counts Rules for damages for assault are the same as for battery False Imprisonment Black Letter: 1. Intent to confine 2. Confinement occurs 3. π is aware or harmed R2 §35: False Imprisonment (1) An actor is subject to liability to another for false imprisonment if (a) He acts intending to confine the other or a third person within boundaries fixed by the actor, AND (b) By his act directly or indirectly results in such a confinement of the other, AND (c) The other is conscious of the confinement or is harmed by it (2) An act which is not done with the intention stated in (1,a) does not make the actor liable to the other for a merely transitory or otherwise harmless confinement, although the act involves an unreasonable risk of imposing it and therefore would be negligent or reckless if the risk threatened bodily harm      One doesn’t need to exert physical force to be liable for false imprisonment; actual physical restraint/impediment to escape is sufficient (Whittaker v. Sanford) o Lack of freedom/personal liberty = injury o Punitive damages can be reduced if the court feels there is not an element of humiliation/disgrace o False imprisonment action will not hold if brought by parents to rescue children from a sect when the only restraints are moral If ∆ threatens to use force if π tries to escape – requisite confinement exists (both explicit and implicit threats, ex. showing gun) o But strictly verbal commands, unaccompanied by force or threats, are not false imprisonment o Threats to property can constitute the necessary duress (ex. grabbing someone’s bag to stop him from leaving) Doctrine of transferred intent applies MUST be imminent harm – threats of future harm (like for assault and battery) are not sufficient Must be confined within definite physical boundaries – π is held within certain limits, not prevented from entering certain places 13  If π does not express a will to leave, then he does not have COA (Rougeau v. Firestone Tire and Rubber Co.) Actual submission necessary – if π refuses to submit then ∆’s assertion of authority not enough for false imprisonment claim   Under common law, π must be aware of confinement o However, under R2, π must be either aware OR must suffer some actual harm  An imprisonment is justified if the circumstances would lead a prudent and cautious man to reasonably assume such…objective standard, not subjective (shopkeeper’s view) (Coblyn v. Kennedy’s Inc.) o If a man is restrained of his personal liberty by fear of a personal difficulty, it amounts to false imprisonment o False imprisonment does not occur [when a person is detained within the immediate vicinity of a merchant’s premises] if he is detained in a reasonable manner for not more than a reasonable length of time, and if there are reasonable grounds, as measured by an objective standard, to believe the person detained was committing or attempting to commit larceny of goods for sale on the premises o Reasonableness is key (reasonable always implies objective)  Restraint which is reasonable under the circumstances, imposed to prevent another from inflicting personal injuries or damaging property in one’s lawful possession or custody, is not unlawful (justification defense) (Sindle v. New York Transit Authority) o If one acts negligently in escaping (doesn’t exercises due care) from a false imprisonment, then those that falsely imprison him cannot be held liable for bodily injuries Recovery of damages akin to assault and battery  Intentional Infliction of Emotional Distress (IIED) Black Letter: 1. 2. 3. 4. Extreme + outrageous conduct Intentionally or recklessly Severe emotional distress to another May be liable for ensuing injuries (damages) R2 §46: Outrageous Conduct Causing Severe Emotional Distress (1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. (2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress (a) To a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, OR (b) To any person who is present at the time, if such distress results in bodily harm 14   IIED is the weakest tort, courts are very strict in interpreting it  if there is any other applicable tort, you should use that instead o Can easily be faked The ONLY intentional tort that requires damages 1. Extreme and Outrageous Conduct    Conduct must be extreme and outrageous, not enough to show that ∆ insulted π or hurt his feelings o R2: “beyond all possible bounds of decency” Courts will take into account π’s particular characteristics and the relationship between him and ∆ o If π is young/retarded/senile then his conduct can be held outrageous even if it wouldn’t be for a normal adult o In such cases, held that ∆ must have been aware of these characteristics Emotional distress, with no physical harm, is sufficient to recover if conduct is extreme and outrageous (State Rubbish Collects Association v. Siliznoff) o If one suffers extreme and outrageous threats threatening physical violence (but the threat is not imminent and never occurs) and suffers physical illness or other injury occurs, then π has a COA for IIED 2. Intent    3 ways to show intent for IIED: 1. Desire to cause π ED 2. Knowing with substantial certainty that π will suffer 3. Recklessly disregarding the high probability that ED will occur Transferred intent is not generally applicable to IIED o 1 exception: if ∆ directs her conduct at a member of π’s immediate family AND π is present o R2 allows recovery for people who witnessed conduct being directed at others if π suffers bodily harm from watching the episode  If immediate family, then can recovery without bodily harm If ∆ intends to inflict some other tort and the only effect is IIED, then IIED has not occurred 3. Severe Emotional Distress   Severe emotional distress – π must always show that his mental distress was sufficiently severe to seek medical aid Some courts allow recovery for IIED only when there is physical harm in additional to ED, but most modern courts don’t require physical harm (Siliznoff) o R2 doesn’t require any bodily harm 15  Reasonable person (objective) standard used for IIED o If π is an unusually sensitive person, then no recover for IIED o However, reasonable person standard doesn’t apply where ∆ has notice that π is unusually sensitive Constitutional limits on IIED awards 1st Amendment places limits on states’ rights to impose liability for IIED If ∆’s conduct that causes ED is the delivery of a message or communication, then awarding damages could violate 1st Amendment freedom of speech  1. π is a public figure o π who is a public figure may succeed with IIED claim based on communication only if π makes this same showing that ∆ either knew that his speech was false or recklessly disregarded whether it was true (Hustler Magazine v. Falwell) 2. Statement on a matter of public concern o Can violate 1st Amendment if alleged distress stems from the communicative impact of ∆’s speech, and the speech involves a matter of public concern   Speech involves a matter of public concern when it either (1) can be fairly considered as relating to any matter of political, social, or other concerns to the community, or (2) is a subject of legitimate news interest (Snyder v. Phelps) o The statement being inappropriate or controversial is irrelevant o First Amendment protects public speech when a church protests a military funeral on public land in a peaceful manner  3. Public utility and common carrier o Common carriers and public utilities are held to a stricter standard of conduct than the rest of the population o Normal person: insults will never be actionable, but utility/carrier will be liable when employee uses an insult towards a customer while at work Misrepresentation Black Letter (MIRD): 1. 2. 3. 4. 5.   Misrepresentation of material fact Intent (to induce π’s reliance) Knowledge by ∆ (scienter) Reliance Damages Deceit/fraud = intentional misrepresentation General rule: failure to disclose ≠ misrepresentation o Exceptions: 1. Fiduciary relationship (ex. bank and depositor) 16 2. Half-truth (matter that must be disclosed to prevent a partial statement of facts) 3. Subsequent statements (newly acquired information that would make previous statement misleading) 4. Facts basic to transaction (if other party would reasonably expect a disclosure of these facts) 5. Termite cases (homeowners) o Rules for measuring π’s recovery    “Out of Pocket” rule – measures recovery by the difference in value between what π gave up and what he received o Looks backward, seeks to restore π to position held before the transaction “Benefit of the Bargain” rule – measures recovery by the difference in value between what π actually received and what would have been received if the misrepresentation had been true o Looks forward, seeks to put π in position that would have been held after the transaction had ∆’s representation not been false Out-of-pocket rule more commonly used  A contract is voidable if induced by fraud as to a matter material to the party defrauded. (Adams v. Gillig) o Victim must rely on misrepresentation when acting  “Puffing,” or offering a favorable but exaggerated opinion of a product, by a manufacturer will not constitute actionable fraud based on a misrepresentation of the quality of a product if the seller and buyer possess relatively equal bargaining power. (Vulcan Metals Co. v. Simmons Manufacturing Co.) o Higher standard for fraud if both parties are businesses  An individual may not be held liable for fraudulent misrepresentation if he reasonably believes his representation is accurate (Derry v. Peek) o Negligent misrepresentations are not actionable (∆ must have known, must be proof of fraud) o British case, American courts hesitant to accept Derry  If there is a serious purpose to communications and there is a reliance on the communications and the relationship between the parties is where one relies on the other, the party can be held liable without the element of intent being met (International Product v. Erie R.R.)  Many courts now allow recovery for negligent misrepresentations  It is not a defense to an action for fraud for ∆ to claim that π was wrong to rely upon ∆’s misrepresentations and that π was thus contributorily negligent (Pelkey v. Norton)  When ∆ is employed under a contract to review and make statements about the worth of a business, he will not be liable for negligent misrepresentations made to any π besides the parties to the contract  if no duty of care (Ultramares Corporation v. Touche) o Cardozo relies on the privity doctrine * add more shit on misrepresentation cases * 17