Torts Today: May 2022

“ One who is involved in an altercation with another has the right to use such force as is necessary to protect himself from bodily injury, and the question of the amount of force justifiable under the circumstances is one for the trier of fact.”

Is this the Kyle Rittenhouse defense? Does that invalidate the principle?

Katko v. Briney , 183 NW 2d 657 (Iowa 1971)

https://www.quimbee.com/cases/katko-v-briney

Quimbee case summary

Spring gun in vacant boarded up farmhouse seriously injures plaintiff

plaintiff and companion broke in to find old bottles to sell as antiques.

Verdict: $20,000 compensatory, $10,000 punitive or exemplary

Do you agree with Judge Larson in dissent?

"I would hold the award of $10,000 to plaintiff is void.

We cannot in good conscience ignore the conduct of the plaintiff. He does not come into the court with clean hands."

Koffman v Garnett, 266 Va. 12 (2003)

Quimbee video and Case summary

Appeal from grant of a Motion for judgment as a matter of law in favor of defendant football coach.

Reversed as to gross negligence, affirmed as to assault, and reversed as to battery.

Could a jury reasonably conclude that the coach was reckless as defined in the Restatement of Torts 3rd?

§ 2 Recklessness

A person acts recklessly in engaging in conduct if:

(a) the person knows of the risk of harm created by the conduct or knows facts that make the risk obvious to another in the person’s situation, and

(b) the precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk.

Or, per Virginia law:

"that degree of negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety of another; such a degree thas wwould shock the fair-minded although something less than willful recklessness"

Did Andrew Garnett - by joining a tackle football team - give actual consent to the Coach's demonstration of how to tackle? Use Draft Restatement 3rd: Intentional Torts:

§ 14. Actual Consent: Scope Conditions (T.D. No. 4) (approved 2019)
(a) A person’s actual consent extends to conduct of the actor that is not substantially different in nature from the conduct that the person is willing to permit.
(b) If a person places a condition upon his or her actual consent that limits the consent with respect to time, area, or otherwise, the consent is legally effective only within the limits of the condition.

Leffler v. Sharp , 891 So 2d 152 (2005)

Law School case brief

Appeal from summary judgment dismissing plaintiff's complaint on ground he was a trespasser. on the roof of a party venue.

Compare California Civil Instructons: Premises Liability Section 1004, et seq.

Affirmed

Three common law categories of strangers coming onto land:

an invitee is a person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage . . . A licensee is one who enters upon the property of another for his own convenience, pleasure, or benefit pursuant to the license or implied permission of the owner whereas a trespasser is one who enters upon another's premises without license, invitation, or other right."

An invitee is owed the duty of keeping he premises reasonably safe and to warn of hidden dangers; licensees enter with permission, and both licensees and trespassers are owed the duty to "refrain from willfully or wantonly inuring them"

What was Leffler's status when he entered? When he fell?

Why are different categories of entrants on land treated differently?

Tarasoff v. Regents of University of California, 17 Cal. 3d 425 (1976)

Quimbee case brief and animation

Why wasn't it enough, in the Curt's view, that Dr. Moore reported Poddar's threat to kill Tatiana Tarasoff to the UC Berkeley campus police?

Why does the court impose an obligation to notify the potential victim? Doesn't that destroy the confidentiality which is an essential part of the psychotherapist-patient relationship?

Vetter v. Morgan, 22 Kan App. 2d 1

Quimbee animation and case brief

Would Morgan be liable for assault under the Restatement 3rd, Intentional Torts?

§ 5. Assault (T.D. No. 4) (approved 2019)
An actor is subject to liability to another for assault if:
(a) (i) the actor intends to cause the other to anticipate an imminent,
and harmful or offensive, contact with his or her person, or
(ii) the actor’s intent is sufficient under § 11 (transferred intent);
and
(b) the actor’s affirmative conduct causes the other to anticipate an
imminent, and harmful or offensive, contact with his or her person.

Why would plaintiff press a theory of negligence, rather than intentional harm - which might support a verdict of punitive damages?

The court holds that such horseplay and intentional rude pranks may be treated as negligence, because such behavior created "a risk that the victim's reaction may cause harm."

Restatement Torts 2d 303, cmt e provides:

e. It is common experience that a sudden fright or shock is likely to cause the person subjected to it to react to it instinctively without regard to the danger involved to himself or to others in his vicinity. The circumstances which the actor knows, or which he should recognize as likely to exist, may be such that he should realize that this instinctive reaction may involve risk to the bodily security of the other whom he subjects to the shock or to the bodily security of third persons. If so, he is negligent toward them if he intentionally subjects the other to such a shock or acts in a manner which he should recognize as involving an unreasonable risk of such a result.

Why did it matter to plaintiff to establish a "joint venture"civil conspiracy?

Restatement (Second) of Torts § 876 (1977) sets out rules for tort liability of persons acting in concert.

Why does this matter to plaintiff?

"For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he

(a) does a tortious act in concert with the other or pursuant to a common design with him, or

(b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or

(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person."

Vosburg v. Putney, 50 N.W. 403 (1891)

Quimbee animation and summary

"the wrong-doer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him."

Is this a battery or an assault?

Is the result fair since the 12 year old defendant could not have known how serious an injury would result?

Wagner v. State of Utah, 205 UT 54 (Utah 2005)

Law School Case Brief

Mentally disabled assailant accompanied by a state worker at a K-Mart: Non consensual contact is a battery, regardless of intent.

Sovereign immunity retained.

Conclusion: Only intent to make contact was necessary, and the attack constituted a battery. The fact that plaintiff injured party and her husband alleged that the patient could not have intended to harm her or understood that his attack would inflict injury or offense was not relevant to the analysis of whether a battery occurred. So long as the patient intended to make contact and so long as that contact was one to which the injured party had not given her consent, the patient committed a battery. Finally, battery was a tort for which the state had retained immunity pursuant to Utah Code Ann. § 63-30-10(2) (1997) (repealed 2004).

Walter v. Wal-Mart Stores, 2000 Me 63 (2000)

Law School Case Brief

Compare: NJ Model Civil Jury Charge 8.11B: Duty to Mitigate/Avoidable Consequences

Pharmacist inattentively fills prescription with wrong drug [Alkeran not Leukeran] , causing harm.

What is a "judicial admission"? Who can make such an admission?

The pharmacist admitted a "serious error". Why then does the court deny that there has been an admission of liability as a matter of law?

What is the meaning of a judgment as a matter of law on liability?

What if anything remains for the jury if the court decides there is liability?

Avoidable Consequences - Duty to mitigate damages

What is contributory negligence? When does it apply?

Was the patient negligent for failure to recognize the dispensing error?

What is the effect of a failure to mitigate"?

What is the "double reduction" of which the Court warns?