最新英美侵权法-笔记及案例分析

1、一、 Introduction1. Comparison of conceptsa) Torts v. Contract lawi. legal basis :torts : legislationcontract law : agreementconsentii. purpose (remedy) :torts : restoration to original position and requirements of punitive damages in some cases. contract law: Protecting 3kinds of interests: restituti

2、on, reliance, and expectation interests (should the contract performed)iii. form of remedy :torts : monetaryspecialcontract law: monetary, injunctive relief, rescind the contract, equitable relief performanceb) Torts v. Constitutionoverlapping issues but considered in different angles eg.(defamation

3、) :freedom of speech v. right of reputationc) Torts v. Criminal lawsi. legal basis:torts : private lawcriminal laws : public lawii. purposetorts : Injured party seeking personal relief criminal laws : protect the public and satisfy its sense of justice by punishing the wrong doersiii. form of remedy

4、torts : monetarycriminal laws : fines , imprisonment, death penaltyiv. sta ndard of prooftorts : prep on dera nee of the evide neecrim in al laws :bey ond all reas on able doubt2. 3 types of tort lawa) i nten tio nal tortsthe harm is desired or the results of harm are with in kno wledge(the substa n

5、tial certainty of the harm).b) n eglige nee /torts of n eglige nee:legal duty is own ed; break of that duty ; and damage is caused to pla in tiff. The foreseeability is crucial.c) strict liability torts:A liability assig ned regardless of fault as a matter of social policy.( no foreseeability of inj

6、ury or blameworthy con duct is required)3. remediesCompe nsatory damagesPun itive damages (require malicious, fraudule nt, or evil motives)二、intentional torts1. general elements of intentional tortsa) eleme nts(3)(prima facie case)a voliti onal act: a moveme nt dictated by a pers on(wron gful acmind

7、intent : general intent (substantial certainty of the consequences)& specific intent(want to bring about the results)causation : (causal relationship)the result must be legally caused by the actb) tra nsferred intent doctri ne(i ntent issue)i. Defin iti on : while A intends to commit a tort aga

8、inst one pers on but in stead commits adiffere nt tort aga inst that pers on, or commits the same tort but aga inst a differe ntperson,or commit a different intent against a differentperson, the intent istran sferred to the other tort or the injured pers on.ii. Application : assault, battery, falsei

9、mprisonment,trespass to land, trespass tochattels.c) eggshell skull rule(compe nsatory issue)an intentional tortfeasor is ordinary liable for all consequences, whether foreseeable or not,which are actual cause of his con duct.Case 13 Vosburg v. Put neyProcedural history:Vosburg sued Put ney for assa

10、ult and battery. The jury ren dered a verdict for Pla in tiff in the amountof $2,800. The defendant appealed, the case was again tried in the circuit court, and the judgmentwas reversed for error and the new trial resulted in a verdict for Plaintiff in the amount of $2,500.Facts:Putney (Defe ndant,

11、11-years old) slightly, but uni awfully, kicked Vosburg (Pla in tiff, 14-years old) onthe leg duri ng school intending no harm. Although the kick was slight, Plain tiff lost the use of his limb because Defendan t's kick revivified a previous injury.Issue:1. While the intent to do harm is of the

12、esse nee of an assault, whether the defe ndant had thein te nt?(i ntent)2. While the defe ndant just kicked slightly on the leg of the pla in tiff, whether he was liable for allinjuries result ing directly from the wron gful act even it could not have bee n foresee n? (damage)Holdi ng:1. Yes2. YesRe

13、as ons:1. In acti ons for assault and battery, Plain tiff must show either that the inten ti on was uni awful, orthat Defendant is at fault. If the intended act is unlawful, the intention to commit it must n ecessary be uni awful. I n this case, the act was uni awful since it took place duri ng clas

14、s, rathertha n on the playgro und. The court held it was uni awful and that uni awfu In esswas eno ugh toimpose liability on Defendant.2. The wrongdoer is liable for all injuries resulting directly from the wrongful act whether theycould or could not have been foreseen by him, which is the so-called

15、 “ eggshell skull ruleJudgme nt:Judgme nt reversed and case rema nded for a new trial.2nten ti onal torts to the pers on(4 types)a) Batteryi. Defin iti on : the inten ti on al, un privileged, and either harmful or offen sive con tract withthe pers on of ano ther.ii. Eleme nts: (3)-Act : brings about

16、 harmful or offen sive con tacts to pla in tiff's pers on or effects(rule:pla in tiff's pers on in cludes anything directly conn ected to the pers on, such as a pen or a book held by the pla in tiff pers on.)Intent :to make a con tact(physical touch)LCausation :between the act and harmful or

17、 offensive touchingPs:defe ndan t's like or dislike towards the pla in tiff is expla in able but not n ecessaryto establish the prima facie case.b) Assaulti. Defin iti on :an act creati ng a reas on ableapprehe nsionin the pla in tiffof immediateharmful or offen sive con tact to the plai ntiff&#

18、39; s pers onii. Elements : (3)Act: creati ng a reas on ableapprehe nsion in the plai ntiff of immediate harmful oroffen sive con tact to the pla in tiff' s pers onIntent: to cause apprehe nsionCausati on: betwee n the act and apprehe nsionApprehe nsion : means the pla in tiff's expectati on

19、 of the batteryA display of force which directed specifically towards the plai ntiff (e.g. a threate ninggesture suggest ing imminent, unconsen ted con tact).The victim be aware of the threate ningcon duct and actually feel threate ned(notrequire actually be frighte ned, test: a reas on able pers on

20、)e.g1: a 13 year old boy in military uniform carried a plastic gun and threatened anadultapprehe nsive of imminent harm?reas on able pers on sta ndard.e.g2: B stand behind A ;B want to stab A ; A find it later ;A want to sue B ; is therean assault ? Answer : there is no assaultthere is NO apprehensi

21、ve of imminent harmwith in A's kno wledgeiii. Differences betwee n assault and battery(act)1. Act: without physical touch->Assault ; with physical touch->Battery.2. Time: before physical touch h->Assault ; after physical touch->Battery.Case 15 Fisher v. Carrousel Motor Hotel, I nc.Pr

22、ocedural history:Fisher sued Carrousel Motor Hotel, Inc., the Brass Ring Club and the employee Robert W. Flynn for actual and exemplary damages grow ing out of an alleged assault and battery. The jury retur ned a verdict of $400 for actual damages and $500 in punitive damages. The trial court render

23、ed judgme nt for the defe ndantno twithsta ndingthe verdict.(JNOV) The pla in tiff appealed and theCourt of Civil Appeals affirmed.Facts:At a professionalconference held in Defendant'shotel, one of Defendant'semployees forciblyremoved a plate from the Plain tiff's hand, shout ing that a

24、"Negro could not be served in the club".Defendan t's employee did not make physical con tact with Plain tiff, but the event was wit nessed by many of Plain tiff's colleagues.Issue:1. While the defe ndant did n' t do any physical harm to the pla in tiff' s body bfrom his han

25、 ds, whether an action able battery was committed?2. Whether the defe ndants must resp ond in exemplary as well as actual damages for the maliciouscon duct of Flynn?Holdi ng:1. Yes.2. Yes.Reas ons:1. The dispossessi on of an object from one' s hand in an offen sive manner is actually unwan ted a

26、rinten ti onal in vasi on of on e's pers on(an offense to his dig nity), thus con stitutes a battery.2. A prin cipal or master is liable for exemplary or pun itive damages because of his age nt if theage nt was employed in a man agerial capacity and was acti ng in the scope of employme nt. In th

27、iscase,F lynn was the man ager of the Brass Ring Club and was acting with in the course and scope ofhis employme nt.Judgme nt:The trial court erred in overruling that motion and in entering judgment for the defendants no twithsta nding the verdict; and the Court of Civil Appeals erred in affirm ing

28、the judgme nt. Thejudgme nts below are reversed and judgme nt is here ren dered for the pla in tiff for $900 with in terest from the date of the trial court' s judgme nt and for costs of this suit.c) False impris onmenti. Defin iti on :an act or omissi on to act of the defe ndant that confines o

29、r restra ins thepla in tiff to a boun ded area.ii. Elements (3)Act: uni awful and unconsen ted dete nti onof the pla in tiff with in boun dariesIn te nt: to confine the pla in tiff, omissi on or arbitrarilyCausati on: betwee n the act and apprehe nsionConfine: use of un reas on able force, threat of

30、 force or assert ion of legal authority of the defe ndant,and harm to the pla in tiff or kno wledge by the pla in tiff of the confin eme nt, both physically and men tallyA boun ded area:appare nt lack of a reas on able exite.g. the shop owner mistake nly shut somebody dow n in the shop whe n he thou

31、ghtthere is n obody therefalse impris onmentiii. DefenseShoplifti ng rulea) Definition : Shopkeepers have a privilege to detainsuspected thief forin vestigati on, which may n egate one of the eleme nts of false impris onment.b) Elements : (4)reas on able belief: believe the plai ntiff was a suspecte

32、d thiefreas on able period: the dete nti on is only for a reas on able timereas on able manner :only reas on able force was used()reas on able purpose: for reas on able in vestigati onCase 16 Marius S. Cobly n v. Kenn edy' s Inc.Procedural history:Facts:aftershopping in Defendant store, Plaintif

33、f, a 70 -year-old man, was leaving when Defendantstopped him. Defendant thought Plain tiff was attempt ing to steal an ascot. As a result, Plain tiff was hospitalized and sued Defendant for false impris onmen t.Issue:3. Does restraint of personal liberty, by fear of a personal difficulty, amount to

34、a false imprisonment?4. If Plaintiff was falsely imprisoned, was the imprisonment privileged?Holding:3. Yes4. NoReasons:s arm1. Any general restraint is sufficient to constitute an imprisonment. Any demonstration of physical power, which, to all appearances, can be avoided only by submission, operat

35、es as effectually to constitute a n imprisonment. In this case, Goss firmly grasped Plaintiff had better go back to see the manager. There was another employee standing next to Goss. Considering Plaintiff age'ansd heart condition, it is hardly expected that Plai ntiff could do anything but compl

36、y with Goss '“srequest that” he go back and see the manager. If a man is restrained of his personal liberty by fear of a personal difficulty, that means if Plaintiff left before exonerating himself, the onlookers might have interpreted his departure as an admission of guilt, so that amounts to a

37、 false imprisonment.2. Defendant, a shopkeeper, has a privilege to detain Plaintiff if detained in a reasonable manner, for a reasonable length of time, and if Defendant had reasonable grounds for believing that Plaintiff was attempting to commit larceny of goods held for sale. In this case, it is c

38、onceded that Plaintiff was held for a reasonable length of time. However, Defendantd'etesntion ofPlaintiff was not performed in a reasonable manner. There were no reasonable grounds for believing that Plaintiff was committing larceny and, therefore, he should not have been detained at all. Furth

39、ermore, Goss ' s failure to identify himself as an employee of Defendant, coupled with the physical restraint in a public place imposed upon Plaintiff, an elderly man, who had exhibited no aggressive intention to depart, could be said to constitute an unreasonable method by which to effect deten

40、tion.Judgment:only be avoided byto detain Plaintiff.Plaintiff was imprisoned by a demonstration of physical power that couldsubmission. Plaintiff was falsely imprisoned and Defendant was not privilegedDefendant did not haveany objective, reasonable grounds for believing thatPlaintiff committeddetain

41、 Plaintiff, thelarceny. The court added that even if there were reasonable grounds toto Plaintiffdetainment was not executed in a reasonable manner. In its analysis, the court pays special attention ' s age and physical condition. So, there is a false imprisond) lntentional infliction of emotion

42、al distress(the tort of outrage)i. Definition : serious, intentionaland unprivilegedinvasions of mental and emotionaltranq uility.ii. Eleme nts:(4)Act : amoun ti ng to extreme and outrageous con ductIntent : to cause the pla in tiffto suffer or reckless nessas to the effect of thedefe ndant' s c

43、on ductCausation : between the act and damage,causationbetween the intent and act (2causati ons)Damage : severe emotional distress as a resultSevere emoti onal distress : in cludi ng fright, grief, shame, humiliati on, embarrassme ntand an ger, must be substa ntial or persiste nt that no reas on abl

44、e pers on in a civilized society should be expected to en dure it.why damages are required ? the sufferi ng must be tan gible therefore it requiresdamageiii. Differe nces betwee n IIED and other 3 tortsa) Act: amounting to extreme and outrageous con ductb) Damage is n eededCase 17 Robert Loga n v. S

45、ears, Roebuck &Co.Procedural history:Facts:ll hold theDefendant ' s employee called pla in tiff at his place of bus in ess to see if he had made the mon thly payment on D' store credit card. P heard the Sears employee state: “ Thisguy is a queer as a three-dollar bill. He owns a beauty s

46、al on, and he just told me that if youmy checkbook.” No one on P' s end of the con versati on but P heard the employeehomosexual and sued D for IIED.Issue:Whether the trail court erred in granting summary judgme nt?Holdi ng:NoReas ons:The word“ queer ” , even though is an intrusion upon Por secl

47、usion, we do ndtbslisoiuhat itis so extreme or outrageous as to offend the sensibilities of an ordinary person similarly situated. Inorder to create a cause of action, the con duct must be such that would cause men tal sufferi ng,shame, or humiliati on to a pers on of ordinary sen sibilities, not co

48、n duct which would be con sideredun acceptable merely by homosexuals. What' s more, the employee did n' t know thand is super sensitive about being called“ queer ”EDSo there is not exist anJudgme nt:The trail court did not err in gran ti ng summary judgme nt.3nten ti onal torts to propertya)

49、Trespass to landi.Infringe : a possessor' s in terest in exclusive possessi on of landii.Elements :Act : physical in vasi on of the pla in tiffproperty ' s realIntent : to bring about the in vasi onCausation : between the act and intentPhysical invasion: enter(actuallypresent on, under or ab

50、ove the land) ; intentionallycasts an object upon the land or causes another to enter(the another one is not liable ifhe leave with reas on able dispatch)Intent : merely to be prese nt at the place, not intent to go upon the land of ano ther norto violate ano ther' s rights(that is, no need to k

51、now whose land it unless it's in ducedby the pla in tiffb)Trespass to chattelsi.Infringe : a possessor' s in terest in freedom from minor inten ti onal in terfere nee withpers onal propertyii.Elements :Act: in terferes with the plai ntiff' s right of possessi on in the chattel, by dispos

52、sessi on,use, or in termeddli ngIntent : to affect the chattelCausation : between the act and damage, between the act and intentDamage : dispossession itself is damage, if no dispossession, must prove damage in the form of substa ntial loss of use, or impairme nt of con diti on, quality, or valueiii

53、.Differences betwee n trespass to land and trespass to chattelsTrespass to land: no damage, immoveable propertyTrespass to chattels: damage, moveable propertyiv. Differe nee betwee n tort of trespass and tort of nu isa neeTrespass: actual in vasi onNuisa nee: projeeti on of light, no ise, vibrati on

54、se) C onversioni. Definition:a personintentionallyexereises exelusivecontrolover the personalproperty of ano ther without permissi on so that the aetor justly be required to pay theother the full value of the ehattel.conversion vs. laree ny:tort law vs. erim in al lawii. Eleme nts:Act: in terferes w

55、ith the pla in tiff' s right of possessi on in the ehattel that is seriouseno ugh in n ature or con seque nee to warra nt the defe ndant pay the full valueIn te nt: to in terfere with the plai ntifft of possessi on iri the dlgattelCausati on: betwee n the act and resultDamage:iii. Differe nces b

56、etwee n the trespass to chattels and conversiona) DegreeTresspass to ehattels:lowpla n to pay backConversion:highkeep it foreverb) RemedyTresspass to ehattels:pay the damageConversion: pay the full value(fair market value) or replevi n( retur nof theproperty),at the pla in tiff' s elect ion； wan

57、t to borrow the book for a while withoutpermission(lost thetemporary own ership of the book )e.g2:take the bike for a while-trespass; a ear aeeide nt destroy the bikecon vers ionstuff that has bee n destroyed totally or take n forever:e onversionstuff that has bee n borrowed for a while to be used:

58、trespass to chattelsiv. Ways(types)Aequisition of property without justifieationWron gful tran sfer of the ehattel-Substa ntially eha nging of the ehattelSeverely damagi ng or destro ying the ehattelMisus ing the ehattelv. Subject matterBoth tan gible and intan gible that is reduced to physical form, such as a promissory no te,and documents in which title to chattel is merged