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Mar 28, 2013 - (1) Includes 333 shares of restricted stock which fully vested on March 8, 2013, 19,742 performance share units (2,329 of these units are.
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Trial Ct. and Appellate Ct. made decision on filtered facts. •
We don’t know why they found for Elaine. May infer that it was from the defendants counsel direction of if you find it was battery should find for defendant. But could have been something else.
Would it be better to have jury explain their rationale? o Cts. Don’t require jury to explain reason. Might all have different reasons. Hard to make all jury come up with one reason, so it would be unproductive.
Can ask Jury “Special issue” questions to figure out what they were thinking, o Special issues. Do you think it was battery? Negligence? ! Did have cause injury? Etc ! !
One way to get jury to explain. Some lawyers have abused this process. Ask 40-50 to right to get contradictions out of jury.
Could we have a democratic system without jury? •
Could open up to public to ask who wins?
Why not require judge to explain why he takes a side? Saying it was mutually exclusive. Doesn’t make sense. Plaintiff’s lawyer totally blew it. Doesn’t make sense saying if you did it intentional not liable but did it negligently then liable. Don’t have to be that smart to figure out that this is not the law. Appellate Ct. says we don’t have jurisdiction of the appeal because Trial Ct. didn’t bring it up didn’t “reserve” the objection. Why did Appellate Ct. go on to explain that P attorney was right in that it’s not mutually exclusive? Key- Take Aways: •
Courts appear to decide cases on without knowing all relevant facts. This is bc our adversarial system is set up to have both parties decided what the relevant facts are.
Helps to promote efficiencies to let parties decide what the relevant facts are May be better to have a system that requires the judge explain his rationale. Harder for jury bc may have several different rationales that lead to the same point.
Appellate Ct ruled that battery and negligence is not mutually exclusive.
P lost on procedural error even though rule was in her favor. Must “preserve objection” can’t bring it up later in appeal. Make sure trial judge has a chance to get it right.
Class 8/28/14 Gassemieh learned that: Battery and Negligence is not mutually exclusive. •
But this case was held by intermidate ct (not Highest Ct.) would need to know what highest court says
IF cite this case then might come back saying this was a victim of process (just not jurisdiction of appellate court)
In Gass no dispute of facts in Garratt there is, how does a fact finder decide what version of facts to believe? •
One way fact finder can decide look at neutral person to the case; someone with no interest in case
• • •
Burden generally on Plaintiff to show evidence of the cause of action This case she had an eyewitness (her sister-Naomi) We don’t know why the P (Ruth) didn’t testify (maybe has nothing to say didn’t see chair being moved)
Why are they suing 5 yr old? Insurance company insuring him Even 5 yr old can understand where his interest lies if lawyer explains it to him
How does fact finder determine which side of story to believe? • •
Two interest witness testimony Plausible story- Brian is very small doesn’t seem reasonable he can pull chair out from under her quickly.
Judge might have thought -Harder for a 5 year to conceal the fact that he is lying. Push him a little bit the truth may come out.
Most instance it would be a jury that decides which version to believe, but judge doesn’t tell us why he chose Brian’s version
Don’t have to accept a defendant word that he didn’t “intend” to hurt. What is basis of Ruths Appeal? •
Trial Judge erroneously dismissed the case. What is the error of law?
o Tr. Judge erred in misunderstand the law of battery. ! Trial judge said that it Isn’t battery unless intent to cause injury. BUT THAT Is WRONG. ! Battery – intent to injury is not require just intent to touch. •
How can knowledge substitute for intent? o Garrett intended to move the chair with knowledge that she might sit there and knowledge that she may be harmed IF you knew it was going to happen then we will charge you with the intent. (even if you say you didn’t intend) If you knew certain act would happen from your intended act then charge you with intent. How do you contact the intent to harm?
**Reasonably person standard does not work in intentional torts only in negligence •
Intent can be shown not only by purpose to cause harm, but also by knowledge that it would cause harm.
What is different b/t first fact finding and second fact finding? • •
Judge viewed sequence of events Knew before he moved it that she try to sit there
Does it suffice to say know that she was going to fall? What about harm? Don’t need harm, just need offensive. It would be humiliating to fall on ground. Does actor have to realize that touching/action is harmful or offensive? •
There’s a lot of things that may offend someone and not others? o Look at cultural differences. Offense is contextual. Depends on context.
Is offense objective or subjective? o Objective (not by person’s own mind) o Enforcing cultural norms—just choice that has been made that it would be a better world if we do this. “Intent to cause action that caused unintended consequences” •
Key-Take-A-ways: -Fact finders usually look to witness testimony and most plausible story to figure out the facts -Don’t have to accept D word that he did not intend the harm. Intent can be shown not only by purpose to cause harm, but also by knowledge (“substantial certainty”)that it would cause harm. -Intent is a subjective measure (did the actor intend or know that harm would be caused)
-Offensive is based on Objective measure (what reasonable person would find offensive) CLASS Sept. 2, 2014 • •
Last week learned that jury doesn’t state why/how they found the facts Learned that can only appeal on issue that you preserve at the trial court. Have to be pretty specific to preserve. If counsel makes unclear objection the courts will say you didn’t preserve the error (you have to be specific) so trial judge can get it right. o Objections on jury instruction have to be specific
System won’t rescue victims of a bad lawyer o Lawyers mistakes are not ground for legal malpractice, lawyers make a lot of mistakes
Learned single act can be negligence and battery P need not prove D intended to harm just prove that D knew with “substancial certainty”
Touching doesn’t have to be direct can be indirect
MUST the D intend harm or is it enough prove intended act that caused harm? (revist at end of class) •
Battery need not involve any physical harm at all
Fisher Case: Why might law concern itself with touching that don’t cause harm? o Provide legal recourse to prevent violence o Protect plaintiffs peace of mind, emotional well-being ! The law protects certain kinds of offenses but a lot of things go unprotected (if just yelling) Background: Hotel at the time had the right to refuse to serve black people. The policy was not unusal at the time. Not until later that segregation statute passed. Also didn’t recognize emotional distress at the time of case. •
So when case gets to supreme ct. stick propositions Even though only $900 o Why was touching offensive? ! Bc P was embarrassed ! In this case, The offensiveness is made clear by the words used o What if no words just snatched plate still offensive?
Offensiveness is determined by reasonable person standard (objective) could potentially still be offensive. o If D just yelled at him and not taken plate battery? ! No battery. o Suppose that Flynn was enforcing a dress code? ! Flynn says “get out of here you cant be served” and snatches plate battery? " Debatable of whether or not that is offensive (can change clothes) " May not sue because not as big of issue of race discrimination •
This case we have a contact that was offensive with the words (maybe even wo the words) o No doubt that within context act was offensive
$500 exemplary (texas calls punitive exemplary) (punitive) damages ---punish the d
Gassamieh- was there a offensive touching? • •
Yes. Caused to teacher to fall Did she intended to cause offensive touching? Yes she knew teacher would fall and that is objectively an offensive touching.
Could be that Gass was a battery bc offensive touching that turned out to cause harm If you intend one tort and another tort results your liable for that too. Doesn’t matter that girl didn’t intend to be offensive. It’s still battery because that act is offensive to objective person Garratt- intended a touching that turned out to be offensive. • • •
Priniciple: whether they intend harm is irrelevant intended action that resulted in harm. -Any intention touching that turns out to be harmful is actionable of battery • Not necessarily How do we know? • •
Look at cases—when know the law because we have seen it applied in cases White case from Idaho (piano teacher) tells use “if you intend the to cause an unpermitted contact, not an intent that the contact be harmful or offensive” Ct held that it was a battery.
Judges can only look at facts that are presented to them. Hard to make judgment. Must be confined to those facts.
Cts don’t recognize what needs to be intentional the touching or the harm. Have to read cases to figure out what that means. • •
White case the harm was unintended but the touching was intended What did the court do as opposed to what the court says
-Intent can be shown by the actions of the Defendant. •
Otherwise we could never prove battery (D would always say “I didn’t intend harm”) therefore we can impute intent
Easier to prove that they intended the touching rather than intended harm
The Black Letter Law is ambiguous on what is intended (the touching or harm) •
Italian example don’t have to prove that he knew with substantial certainty just that an objective person knew with substantial certainty o Exception that if you can’t appreciate that it was offensive (Alzheimer patient) then not liable. Didn’t know with subst. certainty that it would cause harm
Key-Take A-way: --battery need not involve physical harm/injury enough to be offensive --why does law concern itself with touching that doesn’t cause harm? • Provide recourse w/o violence • Protect person’s emotional well-being --Black letter law is unclear about whether intent is for touching or for harm courts have ruled that whether they intend harm is irrelevant intended action that resulted in harm. --intent can be shown by actions of the D.
25/03/2015 10:00 AM Class 9/3/14 -The law is not a rule book—there is a lot of uncertainty. Frequently the rule fails to resolve the “intentional harmful or offensive touching”- battery that doesn’t answer the questions. What constitute touching? Turns out you don’t have to touch them at all. Can pull plate out of hand. Must answer the question by look at other cases, other remedies available, There’s uncertainty about intent? Does it mean intend to harm or intend to touch? Most cases don’t resolve it. The second restmt seems to be oblivious to the ambiguity of it. 3rd restmt doesn’t deal with battery. Left it to be covered in future restatement. But it does cover a general section of intent. But doesn’t resolve the intent in battery. BUT they did acknowledge the ambiguity and said that you have to intend the harm (but its not binding law-just authority) the White case says just intend touching (but not binding (maybe in Idaho it is)).
What is the Assault in the Vetter case? • •
D screamed vile and threatening obscenities at the P After light turned green, P claims car swerved and ran her off road…isn’t that a battery?
What has to be shown to commit an assault? o “Intentional threat or attempt, coupled with apparent ability to do bodily harm to another, resulting in immediate apprehension of bodily harm” o Pulling out of car is that a threat to bodily harm? ! Coupled with the jester of fist implies he was going to commit harm. o NO doubt he intends it and no doubt he makes a threat. o Must also prove no lapse of time. o Intent yes, threat yes, and immediate yes, apprehension ? ! She testified she was scared but did it meet the objective standard. " 1:30am women alone against 3 other people—it is reasonable to believe she had apprehension
Trial court dismissed assault claim why? o Judge says no apparent ability to carry out the threat bc in car with windows rolled up and door locked.
o But a jury could have decided this fact. They had enough evidence to determine if she had apprehension or not. How could the trial judge have thought otherwise? o Don’t have to put yourself as a tortfeasor yourself or commit a crime yourself to prevent assault. o Is it still assault if you could have run away? Yes. o Law is social engineering – attempting to make world a better place. Trying to prevent violence. ! Why is world a better place if people like Vetter are protected against harmless jester? " The law takes a possession that you can’t do anything that comes to your head. IF it harms someone of frightens someone else you can’t do it. Regulate behavior. Tells people what you can and can’t do. o If judge said “I don’t see assault bcc she had means of escaping” Doesn’t work bc means of escaping doesn’t absolve assault. • •
Instantaneous versus no significant delay. Gaither and Morgan and Faulkner could be held liable for Morgan tort bc they are a “joint enterprise”
False Imprisonment: Herbst v. Wuennenberg •
What is the trial judge error? He shouldn’t have granted the motion of directed verdict.
What do you have to make out in false imprisonment? o Confinement ! Physical Force (not a barrier case) o Assume being held against will (have not consent) o Do they have to try to leave? ! No o You have to show apparent ability to apply force and threatening force ! Was she threatening force? Both P and D claim she didn’t threaten them. ! You don’t have to commit a tort yourself to get out
You don’t have to test a threat
• But you can’t just assume you are confined o Jury found in favor of plaintiff that they were confined (this was later overturned) ! Special verdict—they answered specific questions. ! Given their confession that they didn’t feel threaten hard to believe that they continued suit on confinement of physical threat. •
Are they required to ask to leave? That is the question. o Not required to put themselves in risk of finding out
What does law protect against false imprisonment? o Protects our freedom of movement of being restrained. o Isn’t their ability to leave being restrained? ! Seems to Prof Anderson that they have a good case of confinement with physical barrier. Don’t have to test the physical barrier ! BUT jury could find otherwise.
Don’t have to test threat but judge said the threat wasn’t even there. Therefore no case.
Bases of the law there is enough evidence to show grounds of false imprisonment. Jury verdict should stand. o Would have been a better case if said “physical barrier” versus “physical force”
Hypo: You are accused of shop lifting. The manager ask to go to office and ask you where you got swimsuit and you say bought it last week. He says wait here and you do…is that false imprisonment? A lot of merchants have lobbied for exception to the case.
You’re entitled to go about world without be confined against your will.
25/03/2015 10:00 AM Class 9/4/14 -Varying levels of restriction on appellants court ability to review -We aren’t being asked what our opinion is on the conclusion of the jury. We are asked if another reasonable person could believe it or reach the opposite conclusion. -law requires that we need to acknowledge that other rational people could reach a different conclusion. -Could a reasonable person have concluded that Mrs. Wuennenberg did used physical force? -Court says that didn’t dispute facts – that’s BS! Did she or didn’t she put her arms up to block the door way? - finding of no evidence an appeal court can review. “is there any evidence to support…” -if sufficient evidence it’s a different question. -Must always be conscious not ask to give its view of the facts.
Intentional Infliction of emotional distress What constitutes IIED? • Intentional • Outrageous extreme How did Insurance Co inflict emotional distress? •
It’s decided that P story is true
Did insurance company intend? • • •
Just business dispute. Co. said they didn’t owe money Why are they saying they don’t owe? Don’t know. Why did trial court dismiss P complaint? Diversity complaint- what is applicable of the diversity complaint in federal court? State law. Why? BC There’s no federal tort law.
Illinois law used. Trial judge says that Illinois don’t recognized IIED tort. Court of Appeals says we aren’t sure that Illinois doesn’t recognized this tort or not. Appeals can “certify question” to state court. o If federal court of appeals determined that Illinois does recognized (it wouldn’t be precedent on Illinois bc in federal system---unless they answer yes to certified mail) What do we know about intent? • •
If you KNOW that emotional distress will follow then you are guilty of intent.
In this sense the Co knew it would cause distress, knew that she was in financial distress
What about outrageous? Extreme? Severe? •
Objective standard as a reasonable person in that state or placed in that position (husband died, no money, etc)
Severity can be inferred from the circumstances. o Can’t feed children pay rent etc.
Howell v. NY post Co. •
Was the taking of photograph of the publishing that caused distress? o Publish but could have been taking if she saw and new it was a newpaper
Why dismissed? Trial judge said intentional because they knew it would cause distress but not outrageous conduct bc allowed to take pictures on private property.
NY court of appeals said that photographer acted with legal right to publish … but got it illegally They were trespassing but that’s not outrageous. o Why isn’t trespassing outrageous? ! Can’t combine the illegal act with the legal act of taking photograph " But he argues you can’t do the legal act without committing illegal act ! Trying to set bar high on outegraous to prevent frivolous act ! It is a tort but its priviledged –is a defense " If Defendant has a legal right to do what he is doing then no tort
Dana v. Oak Park marina •
How was distress inflicted in this case? o Survellance Camera ! Did they have a right to install camera? ! Yes
Outragous is that they traded videos. Why treat as “reckless” instead of “intentional” o Marina had a right to install camera at the point of installation they didn’t know that it would cause distress
25/03/2015 10:00 AM Class 9/9/14 O’Brien -What is alleged assault? •
Battery –unconsented intentional touching that is harmful or offensive
-What did trial judge err in doing? •
directed verdict for the defendant
Without jury to decided
-What is the issue? •
Whether she consented
OR whether he justifiably believe she was consenting o
Court thinks the latter
-What is evidence that she consented or he justifiably believed •
She held up her arm o
Could be interpreted as implicit consent
But could have been to show him that she was previously vaccinated
She doesn’t object o
If she doesn’t object does she consent? Not necessarily. You don’t have to object. If someone come up to hit you, you don’t have to say “please don’t do that”
She wins if there is any evidence that she didn’t consent. •
Any different interpretation of why she was holding up arm
She did resist – she said “I don’t need it, I’ve already been vaccinated”
The question isn’t whether it can be interpreted in favor of doctor but it whether it can be interpreted in favor of her
Looking at facts more thoroughly •
17 yrs old irish immigrant
She could read but didn’t understand word “quarantine”
She was separated from father to be vaccinated
She held back (for some reason –probably bc she didn’t think she need it)
She is last person in hole and surgeon on deck to get out of boat
Doc told her “She must be vaccinated”
Smallpox often resulted in disease. Like Syphalis. We are told nothing of her injuries. She had sores all over her body.
IF the jury knows all of these things, would it still be impossible to find that he didn’t unjustifiable believe she consented o
Not so clear anymore
Why does law put the burden on plaintiff instead of defendant when it comes to misunderstanding? •
Social policy decision
If you want the world for freedom of action then place burden on plaintiff
If you want the world on personal integrity is more highly protected then say “defendant” you need to make sure you have consent.
Why not make defend know for sure they consented vs. reasonably believe? •
The question has to be resolved on the OBSERVABLE objective facts. Not what is in here head subjectively.
Now a days the rules are changing. As in surgery example. •
Just by showing up you are not consenting must sign all these papers now
Kadella Case 3 possible rules 1. Consent to all rules in game 2. consent to safety rules What about activities that don’t have a rule book? What are you consenting to in dancing? •
Depends on type of dancing (club versus salsa)
Why so? General understanding
3. One consents to touching that is expected in the activity •
charge people with a certain amount of knowledge or observation skills
Consent is accustom of the activity are
Hockey has rules against fighting. Every hockey games has fights. •
The rule doesn’t establish what is customary. Fighting is customary.
Hitting someone with a stick? •
Against the rule, but it happens
Even if we talk about safety rule. Reality is there is lots of ambiguity.
Can sports determine what is permissible? •
Two different rules Technical 1 and Technical 2
The law imposes some limits on what is permissible o
Ex: gun in basketball shorts
What about UFC. Extreme fighting? o
There are rules but apparently the legal system permits it
Propose: that now we allow fights to death? o
Will the law tolerate that? No.
Is it the obligation of the law to protect civilization?
Ex: euthanasia. Most cases people in right mind just in a lot of pain. Terminally ill.
Majority is allowed to impose their will on the minority
No a one way street. Social norms dictate the law and sometimes laws dictate social norms. • Broader point: Sports organization supplement the law in fixing social norms •
NFL suspend people for domestic violence.
Nascar Tony Stewart killed another driver
Law has informally ceded the law to sports organization
Take hockey for example, the law never really steps in (there are instances that it does step in) but generally it doesn’t (it says you guys handle it)
IF law starts to interfere in sports there might be outcry. Don’t want players to fear being liable in in court system only liable to penalties on field.
The rules of the game are some evidence that its ok o
The fact there is a rule suggest that its part of game
McPherson v. McPherson What is battery? •
Sexual act – STD
What his defense? •
What is her rebuttal? •
She consented to sex under false assumptions (he assumed he didn’t have any std)
Had she know that he was in affair or had STD I wouldn’t have consented
What do we do when claim that resulted from mistake? •
What does case say? o
He didn’t do anything wrong because he wasn’t aware he had it
What if he knows about std and knows she doesn’t know !
Can he reasonably believe she is consenting? No. "
He knows she is under mistaken impression
If he knows she doesn’t know-He can’t justifiable believe she is consenting
25/03/2015 10:00 AM Class 9/10/14 – Defense of intentional torts : Self-Defense, Defense of Property, What is basis of Tatman appeal? (self defense) •
Ground of faulty jury instructions
What is difference bt instruction that were given and what tatman wanted? o
Question is not whether Crodingly believes it reasonable but whether a reasonable person believes
Instruction 7 didn’t talk about reasonable belief and Instruction 8 and 9 does state it.
Would it have changed the outcome of the case if Judge gave instruction that Tatman wanted to be given !
Ct of appeals judge doesn’t think so
Student argues that one side correctly states the law that emphasizes one point but the other instruction doesn’t really emphasize the reasonableness.
When the court is deciding what to do when possibility that jury misled by instruction? !
Is it appropriate to look at the facts of the case and say this person is liable anyway (belief that tatman would have shot cordingly)
Presumably appeallate cts are conscious of it and don’t send cases back because of technical reason
Harmless error (doesn’t say because the result was correct) say bc instruction covers it. But hard to deny fact that courts don’t look at the proper outcome of case
Cordingly shoots him when tatmen attacks him with his fist !
Law takes position that if its just a fist fight you just get beaten up you can’t shot him
Your not entitled to shot someone to prevent getting beaten
Law says its better to get beat up then kill someone (court regard human life higher)
Can’t use deadly force if not being attacked by deadly force "
Common law rules are based on days of “Fair fight” there was a time that a fist fight was ok
There are statutes that govern this matter now (not common law entiriely) •
Suppose someone is threathening deadly for on you Can you use deadly force even if you can leave? o
Common law if safe escape you have to take (can’t shoot even if threatened with deadly force if you have a safe alternative )
Stand your ground statute – says cordingly doesn’t have to leave if Tatmen say “get out of here or I’ll shoot you” States says Cordingly can stand ground and shot Tatmen