Anglo-American Contract and Torts Prof. Mark P. Gergen Class One

1. Anglo-AmericanContract and TortsProf. Mark P. GergenClass One Introduction to TortsIntentional Personal Injury

2. Materials • Lundmark, Common Law Tort and Contract • Supplement

3. The “Common Law” • Common Law sometimes is used to refer the body of private law (e.g., Contracts, Torts, Property) that evolved from the English common law in English-speaking nations that principally were settled by the English. • Compare Civil Law • The term “common law” was used because it was the body of law administered by the Crown’s courts across the entire realm. • Compare ecclesiastical law, the law merchant, etc . . . .

4. Common Law sometimes is used to refer a body of judge made law in which a court looks to precedence (prior cases) for guidance. • Compare law based on an authoritative text such as a statute, a treaty, a written constitution, or a code. The common law “cannot be reduced to an authoritative form of words.” At times it has been said courts look to “right reason” and history for guidance. John Austin (1790-1859)(a legal positivist) described the common law as like “dog law.” See George v. Jordan Marsh, Text p. 11 (applying new theory of liability).

5. History of the common law • Until the early 19th century, a “writ system.” Writs with analogous modern actions: Battery, Nuisance, Trespass, Conversion, Defamation . . . Blackstone’s Commentaries (1765-1769) The first English language Contracts treatise was published in 1807. The first Contracts treatise describing contract law in a form that would be recognizable today was published in 1876. The first English language Torts treatise was published in 1860.

7. Torts can be usefully arranged on two dimensions . . . one axis is liberty of action v. security from harm. Prioritize liberty of action Prioritize security from harm Immunity rules Negligence liability Strict liability rules Privilege for competition Trespass and conversion Privilege to say harmful things about a public figure Strict liability for abnormally dangerous activities

8. Prioritize security from harm Prioritize liberty of action Negligence liability Immunity rules Strict liability rules Immunity from liability if an accident is not reasonably avoidable Liability if an accident is reasonably avoidable

9. The axis of culpability (moral fault) Subjective culpability Objective culpability No culpability Some intentional torts Negligence Strict liability Fraud Trespass and conversion Under US law an innocent purchaser of stolen property is liable for conversion.

10. Intentional infliction of emotional distress Liability rules for “Maliciously” or dishonestly inflicted harm, including . . . . . . Defamation and malicious prosecution Tortious interference with contract and business relations Bad faith breach of contract Privilege for competiton Privilege to say harmful things about a public figure Offensive social behavior Liberty Security Culpability Trespass and conversion

11. Intentional personal injury Battery—knowing physical contact that the actor knows or has reason to know is harmful or offensive Assault—threat of an imminent battery • Tuberville v. Savage, Text 5 • D angrily touched sword while stating to P he would not use it while the court was in town. Held not an assault. Not an imminent threat. Example of touching another in conversation is not a battery (court says assault) because it is not harmful or offensive. An alternative explanation is implied consent.

12. Intentional personal injury Battery—knowing physical contact that the actor knows or has reason to know is harmful or offensive Assault—threat of an imminent battery • Coblyn v. Kennedy’s Inc. (Mass 1971), Text 7 • Mistakenly believing P, an elderly man, to be a shoplifter, D’s guard physically confronted P as P was leaving store grabbed P’s arm and escorted P back. P had mild heart attack. The guard’s contact is a border line battery and perhaps an assault but P brought a claim for false imprisonment, the gist of which is to knowingly deprive another of their liberty without justification.

13. Coblyn v. Kennedy’s Inc. (Mass 1971), Text 7 • Mistakenly believing P, an elderly man, to be a shoplifter, D’s guard physically confronted P as P was leaving store grabbed P’s arm and escorted P back. P had mild heart attack. • This is an appeal from a jury verdict for P. D raises 2 issues on appeal • Did the guard knowingly restrain P? • Did the guard have reasonable grounds (probable cause)? On 1) the court concludes there was sufficient evidence to put this issue to the jury. See Text 8 (top) This is a deferential standard. Debatable cases go to the jury. On 2) D challenges the jury instruction arguing for a subjective standard—did the guard honestly believe he had probable cause? The court holds the standard is objective and that a jury might reasonably find the guard did not have reasonable cause.

14. Note the significant role played by the jury in deciding whether P was restrained and whether D had reasonable cause. False imprisonment is similar to battery. An actor who knowingly touches or restrains another commits the tort of battery or false imprisonment even if the action is in good faith if the contact or restraint is objectively unreasonable. Touch or restrain someone else at your risk!

15. Liberty Security Culpability Battery and false imprisonment Trespass and conversion

16. George v. Jordan Marsh Co. (Mass 1971), Text 11 • D repeatedly harassed P (phone calls late at night and dunning letters) to coerce her to pay debt of adult child. Harassment continued though P’s attorney requested D stop. P claims she had a heart attack as a result. The trial court granted D’s motion for demurrer (directed verdict), finding that even if everything P alleged was true she had no legal claim. The trial court followed Spade v. Lynn & Boston RR (Mass. 1898), Text 12, which held there was no recovery for emotional disturbance absent “injury to the person from without,” e.g., a battery, assault, or false imprisonment.

17. George v. Jordan Marsh Co. recognizes a new cause of action (tort). Look at the lower half of p. 12 where the court argues that the law is open to novel claims and that a may court may create “additional niches” in the “ancient walls surrounding the law of torts.” Elements: “intentional or reckless extreme and outrageous conduct” resulting in “severe emotional distress.” These are taken from the Restatement, Second Torts Sec. 46 (p. 14 top). Following English law, Prof. Lundmark states physical harm is an element. See p. 10. As he notes at p. 11, in US law the focus is on the outrageousness of the conduct. Some US courts do require that the emotional disturbance be “physically manifested.” What does the Massachusetts court say about this at p. 14 (middle)? Why require physical manifestation?

18. In most US states punitive damages would be available in a case like George v. Jordan Marsh Co. Punitive damages are available for willful or malicious wrongs involving dishonesty, oppression, or reckless infliction of severe harm.

19. Intentional infliction of emotional distress Liberty Security Culpability Battery and false imprisonment Trespass and conversion

20. Battery—knowing physical contact that the actor knows or has reason to know is harmful or offensive Assault—threat of an imminent battery False imprisonment—knowingly deprive another of liberty without justification. Intentional infliction of emotional distress—intentional or reckless extreme and outrageous conduct resulting in severe emotional distress. As a prank D steals P’s clothing while P is in a public shower at a beach. Which if any claims might be available? Is shining a bright line in someone’s eye for the purpose of momentarily blinding them a battery?

21. Battery—knowing physical contact that the actor knows or has reason to know is harmful or offensive Assault—threat of an imminent battery False imprisonment—knowingly deprive another of liberty without justification. Intentional infliction of emotional distress—intentional or reckless extreme and outrageous conduct resulting in severe emotional distress. D physically blocks door way with his body to prevent P from entering a public bar where P’s friends are congregated. Which if any claims might be available?