英美侵权法-笔记及案例分析.docx

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

2、eliance, and expectation interests (should the contract performed)iii. form of remedy:torts: monetarycontract law: monetary, injunctive relief, rescind the contract, equitable relief of special 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 remedytorts:

4、monetarycriminal laws: fines , imprisonment, death penaltyiv. standard of prooftorts: preponderance of the evidencecriminal laws:beyond all reasonable doubt2. 3 types of tort lawa)intentional tortsthe harm is desired or the results of harm are within knowledge(the substantial certainty of the harm).

5、b)negligence /torts of negligence:legal duty is owned; break of that duty ; and damage is caused to plaintiff. The foreseeability is crucial.c)strict liability torts:A liability assigned regardless of fault as a matter of social policy.(no foreseeability of injury or blameworthy conduct is required)

6、3.remediesCompensatory damages Punitive damages (require malicious, fraudulent, or evil motives)二、intentional torts1.general elements of intentional tortsa)elements(3)(prima facie case)a volitional act: a movement dictated by a persons mind(wrongful act)intent: general intent (substantial certainty

7、of the consequences)& specific intent(want to bring about the results)causation: (causal relationship)the result must be legally caused by the actb)transferred intent doctrine(intent issue)i. Definition: while A intends to commit a tort against one person but instead commits a different tort aga

8、inst that person, or commits the same tort but against a different person, or commit a different intent against a different person, the intent is transferred to the other tort or the injured person.ii. Application: assault, battery, false imprisonment, trespass to land, trespass to chattels.c)eggshe

9、ll skull rule(compensatory issue)an intentional tortfeasor is ordinary liable for all consequences, whether foreseeable or not, which are actual cause of his conduct.Case 13 Vosburg v. PutneyProcedural history: Vosburg sued Putney for assault and battery. The jury rendered a verdict for Plaintiff in

10、 the amount of $2,800. The defendant appealed, the case was again tried in the circuit court, and the judgment was reversed for error and the new trial resulted in a verdict for Plaintiff in the amount of $2,500. Facts: Putney (Defendant, 11-years old) slightly, but unlawfully, kicked Vosburg (Plain

11、tiff, 14-years old) on the leg during school intending no harm. Although the kick was slight, Plaintiff lost the use of his limb because Defendant's kick revivified a previous injury.Issue:1. While the intent to do harm is of the essence of an assault, whether the defendant had the intent?(inten

12、t)2. While the defendant just kicked slightly on the leg of the plaintiff, whether he was liable for all injuries resulting directly from the wrongful act even it could not have been foreseen?(damage)Holding:1. Yes2. YesReasons:1. In actions for assault and battery, Plaintiff must show either that t

13、he intention was unlawful, or that Defendant is at fault. If the intended act is unlawful, the intention to commit it must necessary be unlawful. In this case, the act was unlawful since it took place during class, rather than on the playground. The court held it was unlawful and that unlawfulness w

14、as enough to impose liability on Defendant. 2. The wrongdoer is liable for all injuries resulting directly from the wrongful act whether they could or could not have been foreseen by him, which is the so-called “eggshell skull rule”.Judgment:Judgment reversed and case remanded for a new trial. 2.Int

15、entional torts to the person(4 types)a)Batteryi. Definition: the intentional, unprivileged, and either harmful or offensive contract with the person of another.ii. Elements: (3) Act: brings about harmful or offensive contacts to plaintiff's person or effects(rule: plaintiff's person includes

16、 anything directly connected to the person, such as a pen or a book held by the plaintiff person.)Intent:to make a contact(physical touch)Causation:between the act and harmful or offensive touchingPs:defendant's like or dislike towards the plaintiff is explainable but not necessary to establish

17、the prima facie case.b)Assaulti. Definition:an act creating a reasonable apprehension in the plaintiff of immediate harmful or offensive contact to the plaintiffs personii. Elements: (3)Act: creating a reasonable apprehension in the plaintiff of immediate harmful or offensive contact to the plaintif

18、fs personIntent: to cause apprehension Causation: between the act and apprehensionApprehension: means the plaintiff's expectation of the batteryA display of force which directed specifically towards the plaintiff (e.g. a threatening gesture suggesting imminent, unconsented contact)The victim be

19、aware of the threatening conduct and actually feel threatened (not require actually be frightened, test: a reasonable person)e.g1: a 13 year old boy in military uniform carried a plastic gun and threatened an adult-apprehensive of imminent harm? -reasonable person standard.e.g2: B stand behind A；B w

20、ant to stab A； A find it later；A want to sue B；is there an assault？Answer：there is no assaultthere is NO apprehensive of  imminent harm within A's knowledgeiii. Differences between assault and battery(act)1. Act: without physical touch->Assault ; with physical touch->Battery.2. Time:

21、before physical touch h->Assault ; after physical touch->Battery.Case 15 Fisher v. Carrousel Motor Hotel, Inc.Procedural history:Fisher sued Carrousel Motor Hotel, Inc., the Brass Ring Club and the employee Robert W. Flynn for actual and exemplary damages growing out of an alleged assault and

22、battery. The jury returned a verdict of $400 for actual damages and $500 in punitive damages. The trial court rendered judgment for the defendant notwithstanding the verdict.(JNOV) The plaintiff appealed and the Court of Civil Appeals affirmed.Facts: At a professional conference held in Defendant

23、9;s hotel, one of Defendant's employees forcibly removed a plate from the Plaintiff's hand, shouting that a "Negro could not be served in the club". Defendant's employee did not make physical contact with Plaintiff, but the event was witnessed by many of Plaintiff's colleag

24、ues.Issue:1. While the defendant didnt do any physical harm to the plaintiffs body but snatched an object from his hands, whether an actionable battery was committed?2. Whether the defendants must respond in exemplary as well as actual damages for the malicious conduct of Flynn?Holding:1. Yes.2. Yes

25、.Reasons:1. The dispossession of an object from ones hand in an offensive manner is actually unwanted and intentional invasion of one's person(an offense to his dignity), thus constitutes a battery.2. A principal or master is liable for exemplary or punitive damages because of his agent if the a

26、gent was employed in a managerial capacity and was acting in the scope of employment. In this case,Flynn was the manager of the Brass Ring Club and was acting within the course and scope of his employment.Judgment:The trial court erred in overruling that motion and in entering judgment for the defen

27、dants notwithstanding the verdict; and the Court of Civil Appeals erred in affirming the judgment. The judgments below are reversed and judgment is here rendered for the plaintiff for $900 with interest from the date of the trial courts judgment and for costs of this suit.c)False imprisonmenti. Defi

28、nition:an act or omission to act of the defendant that confines or restrains the plaintiff to a bounded area.ii. Elements(3)Act: unlawful and unconsented detentionof the plaintiff within boundariesIntent: to confine the plaintiff, omission or arbitrarilyCausation: between the act and apprehensionCon

29、fine: use of unreasonable force, threat of force or assertion of legal authority of the defendant, and harm to the plaintiff or knowledge by the plaintiff of the confinement, both physically and mentallyA bounded area: apparent lack of a reasonable exite.g. the shop owner mistakenly shut somebody do

30、wn in the shop when he thought there is nobody therefalse imprisonmentiii. DefenseShoplifting rulea) Definition: Shopkeepers have a privilege to detain suspected thief for investigation, which may negate one of the elements of false imprisonment.b) Elements: (4)reasonable belief: believe the plainti

31、ff was a suspected thiefreasonable period: the detention is only for a reasonable timereasonable manner :only reasonable force was used()reasonable purpose: for reasonable investigationCase 16 Marius S. Coblyn v. Kennedys Inc.Procedural history: Facts: after shopping in Defendants store, Plaintiff,

32、a 70-year-old man, was leaving when Defendant stopped him. Defendant thought Plaintiff was attempting to steal an ascot. As a result, Plaintiff was hospitalized and sued Defendant for false imprisonment.Issue:3. Does restraint of personal liberty, by fear of a personal difficulty, amount to a false

33、imprisonment?4. If Plaintiff was falsely imprisoned, was the imprisonment privileged?Holding:3. Yes4. NoReasons:1. Any general restraint is sufficient to constitute an imprisonment. Any demonstration of physical power, which, to all appearances, can be avoided only by submission, operates as effectu

34、ally to constitute an imprisonment. In this case, Goss firmly grasped Plaintiffs arm and told him that he had better go back to see the manager. There was another employee standing next to Goss. Considering Plaintiffs age and heart condition, it is hardly expected that Plaintiff could do anything bu

35、t comply with Gosss “request” 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

36、 a 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

37、 conceded that Plaintiff was held for a reasonable length of time. However, Defendants detention of Plaintiff 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. Furthe

38、rmore, Gosss 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 detention.Jud

39、gment:Plaintiff was imprisoned by a demonstration of physical power that could only be avoided by submission. Plaintiff was falsely imprisoned and Defendant was not privileged to detain Plaintiff. Defendant did not have any objective, reasonable grounds for believing that Plaintiff committed larceny

40、. The court added that even if there were reasonable grounds to detain Plaintiff, the detainment was not executed in a reasonable manner. In its analysis, the court pays special attention to Plaintiffs age and physical condition. So, there is a false imprisond)Intentional infliction of emotional dis

41、tress(the tort of outrage)i. Definition: serious, intentional and unprivileged invasions of mental and emotional tranquility.ii. Elements:(4)Act: amounting to extreme and outrageous conductIntent: to cause the plaintiff to suffer or recklessness as to the effect of the defendants conductCausation: b

42、etween the act and damage,causation between the intent and act(2 causations)Damage: severe emotional distress as a resultSevere emotional distress: including fright, grief, shame, humiliation, embarrassment and anger, must be substantial or persistent that no reasonable person in a civilized society

43、 should be expected to endure it.why damages are required？ the suffering must be tangibletherefore it requires damageiii. Differences between IIED and other 3 tortsa) Act: amounting to extreme and outrageous conductb) Damage is neededCase 17 Robert Logan v. Sears, Roebuck &Co.Procedural history:

44、 Facts: Defendants employee called plaintiff at his place of business to see if he had made the monthly payment on Ds store credit card. P heard the Sears employee state: “This guy is a queer as a three-dollar bill. He owns a beauty salon, and he just told me that if youll hold the line I

45、will check my checkbook.” No one on Ps end of the conversation but P heard the employees remarks. P is a homosexual and sued D for IIED.Issue:Whether the trail court erred in granting summary judgment?Holding:NoReasons:The word “queer”, even though is an intrusion upon Ps solitude or seclusion, we d

46、o not believe that it is so extreme or outrageous as to offend the sensibilities of an ordinary person similarly situated. In order to create a cause of action, the conduct must be such that would cause mental suffering, shame, or humiliation to a person of ordinary sensibilities, not conduct which

47、would be considered unacceptable merely by homosexuals. Whats more, the employee didnt know that P is a homosexual and is super sensitive about being called “queer”. So there is not exist an IIEDJudgment:The trail court did not err in granting summary judgment. 3.Intentional torts to propertya)Tresp

48、ass to landi. Infringe: a possessors interest in exclusive possession of landii. Elements:Act: physical invasion of the plaintiffs real propertyIntent: to bring about the invasionCausation: between the act and intentPhysical invasion: enter(actually present on, under or above the land) ; intentionally casts an object upon the land or causes another to enter(the another one is not liable if he leave with reasonable dispatch)Intent: merely to be present at the place, not intent to go upon the land of another nor to violate anothers rights(that is, no need to