Thursday, September 1st, 2011.

Session 1: Assault and Battery: Reconciling Harm with Culpability

Some intricacies around battery, degree of harm, and intentionIn Vosburg v. Putney, there was a disconnect between the level of wrongness of

Putney’s kicking Vosburg and the amount of harm caused to Vosburg.·      All witnesses agreed the touch was quite light. However, Vosburg still might have lost the leg, he was limping.·      Why should Putney have to pay?Even a slight touching -- or spitting -- can amount to a battery, so long as it is harmful or offensive.  And the touching might not even have to be

Or, as the court put it in V v. P, “wrongful.”Putney’s kick may have been light enough to count as just messing around -- but since it

took place in the schoolroom rather than the playground, there’s no license to mess around.So context matters: a tap in a subway car, or even a push in the confusion during a fire alarm in a school hallway, isn’t alone offensive -- and if there’s intention (or “substantial certainty”; see Garratt v. Dailey) of harm resulting, it doesn’t rise to a battery.  In such cases, even if harm then results, no liability and no damages.

For Putney, though, he pays everything to Vosburg -- even for the large amounts of unanticipated harm -- because his touch exceeded what was allowed.  We see this at work in Alcorn v. Mitchell, where spitting on someone is offensive, and even though there’s no physical harm -- no limping afterwards -- a separate kind of damages was allowed: punitive, not just compensatory.  But we see punitive damages tend to be reserved for special circumstances of “wanton conduct” or malice -- hence not allowed in Picard v. Barry, even as the defendant committed a battery when he angrily touched the plaintiff’s camera lens.  (If a camera lens or a cane can count as part of a person when touched, how about a car in which someone’s sitting? Maybe there’s a case somewhere on that, but either way we’re asked to think through how a car situation could differ from a camera or cane.  The front of a car is further from the driver than a camera or cane would be, unless it’s a smart car.  A car provides shelter and separate from the outside where nasty defendants lurk, while a cane or camera do not.  But what if it’s a convertible?  Etc.)

On a procedural note, in today’s cases, we can see that the appellate court takes the appellant’s side of the story at face value. (See Garratt v. Dailey, or Picard v. Barry Pontiac) This is to give them the best shot at winning - even if you credit what the loser said happened, the loser still committed a battery.

More generally, the torts process is one in which one private citizen can call out another (and sometimes a government, too) for a perceived wrong.  The court then weighs in on whether the wrong properly fits into a legal category -- is “actionable.”  How does the court decide?  There could be (but usually isn’t) a statute on point.  Or the court can look to prior cases, either directly or through the convenience of law professors and judges having gotten together to produce a “restatement.”  Or: the court (at least the highest court of the jurisdiction,

usually a state) can simply articulate a new “cause of action” or retire an old one, subject to correction by statute or revision by that court or a higher one.

The doctrinal part of torts class is a “tour of the boxes where we put wrongs” In Vosburg v. Putney and most of today’s cases, it’s a battery.  Alcorn didn’t bother to say what box it was using (it was the nineteenth century, so they get some slack), but it appears it would fit into battery.

Some of today’s references --

“Turtles all the way down.”

The ALI (American Law institute) pays people to make the restatement.o Others produce such things as suggested or model jury instructions ( Indiana

Model Jury Instructions).

Towards other boxes: Intentional Torts v. Negligence:Spectrum of Liability (See slides)

Intention – that’s today, and the next couple of days.o They intended to do it, it was bad.

Knowledge – “substantial certainty”o Counts as intent, so that you don’t have to get all the way inside the head of the

defendant.o It doesn’t matter if you didn’t intend something to happen (I didn’t mean for her to

hit the floor, I just needed the chair.) Negligence - between intention and strict liability.

o Careless – if your standard of care fell below the standard of care for the community, and it harmed someone

Strict Liability – you caused it, even if you don’t do anything wrong or mean to hurt someone

Absolute Liability – you will pay, no matter what, (see insurance)

Friday, September 2nd, 2011.

Session 2: Assault and Battery: Intent and AutonomyDoctrinal Points:

Wishnatsky v. Huey

o If contact was offensive, it is not necessary to prove harm. (Restatement- “harmful OR offensive”)

But offensive to whom? Offensive to a reasonable person (not someone who is unduly sensitive). (That’s why Wishnatsky lost – although Huey’s conduct was rude, the

court did not think that it was offensive to a reasonable person.)(What is the difference between harmful and offensive? Was Wishnatsky harmed emotionally?)

Unlike, for example, spitting on someone (Alcorn v. Mitchell).o From Garratt v. Dailey, substantial certainty is as good as intent in battery cases.

Therefore, even if Huey did not mean to close the door on Wishnatsky, but pushed the door closed knowing he would be there, that still can count as an intentional act.

Leichtman v. WLW Jacor Communicationso Even particulate matter can be considered contact.o It was the intention in this case that made it so clear cut – of course, the radio

host knew the guest would find smoke being blown in his face very offensive.o This falls within the reasonable person standard, because the reasonable person

standard is based on context. (Would a reasonable person, in this situation, find it offensive?)

Neal v. Nealo Consent can be revoked if it was elicited through fraud, and a battery can result

from actions previously consented to. O’Brien v. Cunard

o Did she subjectively consent? No.

o Did she objectively consent? Yes. It’s like the rough and tumble of the playground She gave no sign that she was not consenting – the law does not expect

the people around you to be psychic.

Hypotheticals:

What if Wishnatsky had been substantially injured by Huey’s door closing – say he fell backwards, tripped, and landed on a cactus?

o Closing the door on Wishnatsky – not offensive contact to reasonable person.o So in order to proceed with a battery claim, Huey would have to be substantially

certain Wishnatsky would fall on the cactus (See Wallace v. Rosen.)o It’s only battery if it’s to offensive contact to a reasonable person (or harm).o The door was not offensive contact to a reasonable person. (Kick on a

playground)o And Huey had no way of being certain that Wishatsky would fall on the cactus.o Therefore, even in this hypothetical, Huey still wouldn’t have committed a battery.

What if Werth had woken up just as the doctor was about to do the blood transfusion?

o Werth had signed the papers before being in the situation where her life was put in danger by not receiving a blood transfusion.

o The court says that she had not been in a position to decide against a blood transfusion when just agreeing to a routine surgery.

o Therefore, her doctor could assume implied consent – even though she had previously agreed that she did not want one (because the paperwork was signed at a point where she might not have thought her life would hang in the balance)?

o But if she could be awakened – and she still said no, I’m a Jehovah’s Witness, then it’s battery.

Or is it? Would a reasonable person find a blood transfusion offensive? (Is this the Wishnatsky – unduly sensitive- problem?)

Probably not – courts have affirmed that people have a right to refuse medical treatment for any reason.

How do courts deal with problems that don’t fit nicely into the categories of battery, or other torts, but still should be punished?

o Either they stretch the category of torts in such a way as to make it fit (Leichtman)

o Or create new categories (Intentional Infliction of Emotional Distress or IIED).

Remaining Questions:

Does the contact need to be intended to be offensive, or can it just be intended?o Prosser and Keeton disagree.

Outside References:House