Torts 1

Courtesy of Unknown
Torts I:  Question

    One evening, Kevin who is 15, and Paul, who is 22, went out drinking.  Paul purchased the
liquor, gave some to Kevin, and both drank until they were visibly intoxicated.  After finishing
the liquor Paul had bought, Kevin and Paul got into Paul’s car, and Paul drove to a nearby bar. 
Despite his being intoxicated, Paul did not injure anyone on the drive over.

    Paul and Kevin entered the bar, still visibly intoxicated, and began ordering even more drinks. 
Bartender served both Kevin and Paul three drinks each, and then asked them to leave.  When
they refused, Bouncer took Kevin by the neck and one arm, and pushed him out the door.  Kevin,
because of the force used by Bouncer and because he was intoxicated, fell and broke his wrist. 
He then picked himself up and started walking along the highway toward his home.

    Paul, meanwhile, ran out of the bar and jumped into his car, and drove around looking for
Kevin.  Instead, Paul saw Bouncer, and tried to run him over.  Bouncer jumped out of the way
and was not injured.  Finally, Paul started driving on the highway towards home.  Suddenly,
Kevin staggered out into the middle of the highway.  Paul could not stop and hit Kevin with the
car.

Kevin v. Bouncer—battery
Issue: Whether Kevin has a viable claim against Bouncer for battery when Bouncer takes Kevin
by the neck and one arm and pushes him out the door.
Rule:
(1) intent to touch—single intent/ intent for touch to be harmful or offensive—dual intent
a. Desired/wanted the consequence to result
b. Knew with substantial certainty the consequence would result
c. Transferred intent applies
(2) harmful OR offensive contact
 Harmful—bodily contact is harmful if it causes impairment to the (P) physical body,
physical pain or illness
 Offensive—bodily contact is offensive if it offends a reasonable sense of personal dignity
(3) with the (P) person
 Person—means any so connected with the (P) body as to be customarily regarded as
part of the (P) person.
 Extension of the (P) body
Application: Transferred intent applies, tort to tort as the (D) Bouncer wanted to commit an
assault (cause an apprehension of an imminent battery) but instead caused a battery. The
contact with the (P) Kevin caused the harm he suffered—a broken wrist. And the contact was
with the (P) person as the Bouncer (D) took (P) by his neck and one arm.
Conclusion: (D) Bouncer is viable to Kevin for battery.
Damages: Since the harm was not trivial harm or offends, (P) is able to recover economic
damages which includes (1) lost wages, medical bills, and earning capacity.
If (P) is not able to prove a prima facie case for battery against (D) then (D) is able to avoid
liability. (D) can also avoid liability by claiming an affirmative defense or a privilege.

It is unlikely that (P) consented (actual or apparent) being escorted out of the bar because (P)
would have left on his own accord. And (P) was too drunk to consent. Any consent induced by
mistake or deception if it rises to the essential character of the act nullifies consent.

(D) can also claim self-defense or defense of others. If the (D) has (1) reasonable belief that he
or someone else is going to be attacked he can defense himself as well of some oneself using
the same means he would in protecting himself (2) but force used has to be commensurate
with the level of attack.

Kevin v. Bouncer—assault
Issue: Whether Kevin has a viable claim for assault when Bouncer takes him by the neck and
one arm out of the bar.
Rule:
(1) Intent to bring about an apprehension of a battery
(2) Victim has reasonable apprehension of an imminent battery
 Reasonable is an objective standard
 It is whether a reasonable person would be apprehensive.
 Imminent means without delay
 (P) must apprehend or anticipate an imminent battery
 Not synonymous with fear
 Mere words rule—words without some overt action are not effective to bring
about a claim for assault.
Application: (D) intended to bring about an apprehension to a battery as he desired or wanted
the consequence. He wanted to be feared and respected as he is the bouncer and by definition
is the symbol of authority in a bar. (P) also had reasonable apprehension of an imminent
battery as the (D) dragged (P) by his neck and one arm to escort him off the premises.
Conclusion: (P) has a viable claim against (D) Bouncer for assault.

Even if (P) can prove a prima facie case against (D) for assault, (D) can still avoid liability if he
claims an affirmative defense or a privilege.

(D) cannot claim consent (actual or apparent) as it was evident that (P) was drunk and consent
by mistake or deception nullifies consent. Restat. 2d torts 982B. Further, (P) was not at risk of
serious bodily injury or death and therefore, the privilege of emergency does not apply. Also,
self-defense does not apply as nothing in the fact pattern would make us believe that (P)
started a fight with the Bouncer (D). The ONLY privilege (D) can claim is defense of others as it is
his job, as a bouncer, to protect the patrons and employees within the bar. If (D) reasonably
believes that he OR patrons OR employees are being attacked (D) is allowed to use force
commensurate with the level of attack and threat.
Bouncer v. Paul—false imprisonment
Issue: Whether Bouncer has a claim against Paul for false imprisonment when attempts to
restrict Paul’s freedom of movement by attempting to run him over with his car.
Rule: In order for (P) to prove a prima facie claim against the (D), (P) must prove: (1) intent to
confine (2) Actual confinement—a. physical force, b. threatens third party of (P) with physical
force, c. actual or apparent barriers (3) awareness or actual damages from confinement. NY
requires actual confinement.
Application: Transferred intent applies, tort to tort, as (D) intended to cause a battery by
running (P) Bouncer over with his car but instead caused false imprisonment as he restricted (P)
movement. Further, (P) was threatened with physical force—the car. The chase of the (P) by
the car of the (D) shows that there were actual barriers stopping (P) from staying in any one
place. Additionally, the (P) was aware of the confinement as he was forced to run for his life
and his safety in order to avoid being run over by the (D).
Conclusion: (P) Bouncer has a viable claim for false imprisonment against Paul (D).

Even if (P) can prove a prima facie claim for false imprisonment against the (D) Paul, Paul would
be able to avoid liable if he can claim an affirmative defense or privilege.

The ONLY privilege (D) can claim is defense of others as it is his job, as a bouncer, to protect the
patrons and employees within the bar. If (D) reasonably believes that he OR patrons OR
employees are being attacked (D) is allowed to use force commensurate with the level of attack
and threat.

Bouncer v. Paul—assault
Bouncer v. Paul—IIED
Kevin v. Paul—Battery
Kevin v. Paul—assault