torts hypo Forum

[uwb09]

torts prof gave us a little hypo, we're going through a little "how to do well on my exam" phase in her class, and she dished this one out but didn't really give any answers, just curious if people agree with what I found, think im a little crazy, or maybe you can see some things I might have missed

plus who doesn't love hypos? intentional torts and consent and defense of self/others/property

Mr. Pringle, a widower with two children, asked his fifteen-year-old daughter, Prudence, to babysit his five-year-old son, Christopher, while he went out to play poker with his friends one evening. Prudence invited her eighteen-year-old boyfriend, Dick Dasher, to watch TV with her. Prudence and Dick expected Mr. Pringle to come back around midnight. Mr. Pringle got a migraine headache as he was playing poker, however, and returned much sooner than expected. At approximately 10 p.m., he walked into the house and discovered Prudence and Dick on the sofa, both undressed and engaged in the act of sexual intercourse. Mr. Pringle yelled [expletive deleted] at Dick, and Dick jumped up off the sofa, quickly put on his pants and dashed out of the house. Prudence then had a long conversation with her father in which she told him that she had been a virgin until that evening, that she had been dating Dick for over six months, that he had asked her to have intercourse with him before, and that in the past she had always refused because she was not sure of what she ought to do. This evening, she had not said anything one way or another, but she had not resisted his advances because she had talked with a girlfriend who had told her that there was nothing wrong with having sex. In fact, it could be fun!

Mr. Pringle has come to you for advice. He wants to know whether Prudence could recover damages in an action against Dick Dasher. (This lawsuit is obviously Mr. Pringle’s idea; Prudence is still dating Dick.) You have discovered that the legislature has enacted the following statutory rape law:

A person who perpetrates an act of sexual intercourse with a female, not his wife, under the age of sixteen years is guilty of rape, and punishable by imprisonment for not more than ten years. Under this statute, a crime is committed even if the female consents.

Discuss Prudence’s rights against Dick Dasher. You have 50 minutes to answer this question.

I didn't write it all out, but I got:

Torts
Mr. Pringle vs. Dasher:
- Trespass to land (in his house without his permission)
- Trespass to conversion (Dasher's actions on sofa have robbed Mr. Pringle of it's usefulness)
- Assault (possible when he jumped off of sofa when caught that he might have made some motion that created apprehension in Mr. Pringle)

Daughter Pringle v. Dasher:
- Assault (when he moved in it could have created apprehension on the part of Pringle of immediate offensive contact)
- Battery (Dasher performed offensive contact on Pringle)

Dasher v. Mr. Pringle:
- Assault (Mr. Pringle screaming at him, causing apprehension of immediate harmful contact)
- False Imprisonment (this is kind of stretching the hypo a bit, but if Mr. Pringle was standing in door-way, or was telling him that he couldn't leave along with immediate threat of harm)


Defenses
Dasher:
- Implied-in-fact consent to battery (Daughter pringle never rejected sex and never made any conduct that she didn't want it)
--- Consent is void for incompetence of plaintiff (plaintiff is a minor, not aware of severeity of her actions)
--- Consent is void for consent to illegal act (plaintiff can not consent to an illegal act, aka see statutory rape statute)

Mr. Pringle:
- Defense of Others (assault on Dasher was in a perceived defense of the battery against his daughter)

thoughts?

[thinkbig]

Dick had asked for sex many times before, and Prudence refused each time. I think this makes it more likely that her silence this time created a reasonable appearance of consent, and hence no liability for battery. Would a reasonable person in that situation have interpreted her silence as consent? Given the history of boyfriend's previous sexual attempts, I would think so. On the other hand, the fact that the act was illegal regardless of the child's consent probably would render the consent defense null. Not sure about this though. Anyone?

[usuaggie]

pringle v dasher
(btw this is an absurdly stupid hypo)
unclear about trespass. daughter could have given dick the right to come and dick probably had a routine of coming (ha) and going in the house.
trespass to chattels or conversion (not trespass to conversion, i think you mean?)- maybe. this really seems like a bad hypo cause not a lot is happening in the tort world. i could see this argument though.
assault-doubt it. facts do not indicate any sort of hostility in dasher to pringle.
IIED? probably not because action was not outrageous.

daughter v dasher
assault- probably not. no reason for her to fear imminent contact from him getting up, but maybe from before the sex started.
battery-definitely battery.

dasher v pringle
nothing really, IMO. this is an awful hypo.


What thinkbig said about consent is 100% not a defense. it is definitely battery. consent by a person protected by a statute cannot be a defense. that is the point of statutory rape.

[Charles Barkley]

Dick had asked for sex many times before, and Prudence refused each time. I think this makes it more likely that her silence this time created a reasonable appearance of consent, and hence no liability for battery. Would a reasonable person in that situation have interpreted her silence as consent? Given the history of boyfriend's previous sexual attempts, I would think so. On the other hand, the fact that the act was illegal regardless of the child's consent probably would render the consent defense null. Not sure about this though. Anyone?

The daughter is not old enough to consent to the contact.

[Bustang]

Assault is an intentional tort.

Act with intent (2) to place the victim in imminent apprehension of a harmful or offensive contact or to make such a contact, and (3) the victim must reasonably be placed in apprehension of such a contact.

Jumping off the couch would not be an assault. He intended to escape, not place the victim (mr pringle) in imminent apprehension of harmful or offensive contact. Also, Mr Pringle yelling at D wouldn't qualify as assault, either.Mere words do not constitute an assault. Words must be followed by acts. Mr Pringle yelled, but did nothing afterward. Unless Mr Pringle can prove the court that damages resulted from the sexual intercourse that took place on the couch, he cannot recover under trespass to chattel, either. Unless D dispossessed P, P is required to show that the interference caused damages in order to recover under this intentional tort.
d) Actual damages- Can only be proved if,
i) He dispossessed the other of the chattel, or
ii) The chattel is impaired as to its condition, quality or value, or
iii) The possessor is deprived of the use of the chattel for a substantial time, or
iv) Bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.

D will be held liable in a criminal court and probably in a civil action for his actions towards the 15 year old girl. Consent can be made silently if a reasonable person would have/could have objected in the specific circumstance (refer to case about girl on a ship who receives vaccine but then complains afterward that she didn't want it). Defendant is privileged to make a contact where the plaintiff's words, gestures, or conduct reasonably manifest consent to it, even if she was not willing to be touched. However, P's daughter is a minor. Children lack the capacity to make consent.

(I'm confused about the consent section regarding children. In Hellriegel v. Tholl, a child gives consent to horseplay which consequently leads to P's neck being broke. Court confirms the consent).

Edit: durf, you cannot consent to a criminal act. D liable.

[usuaggie]

see restatement (second) of torts section 892c(2) or glannon torts e&e near bottom of page 97 for information on consent from minors.

[ChattTNdt]

Maybe I'm way off, but I don't see how the statute applies. That is a criminal statute and would have no bearing on the awarding of damages in a civil suit.

There is no way it is a "trespass to conversion" to have sex on the dad's couch. You could go a long way arguing that it is trespass to chattels, but not conversion.

Also, the question only says "Discuss Prudence's rights against Dick Dasher". I've gotten the impression from my professors that we are to stick to the question... answering questions that aren't asked will do nothing to help our grade.

This hypothetical is just weird and you can't really do anything with it.

[usuaggie]

(I'm confused about the consent section regarding children. In Hellriegel v. Tholl, a child gives consent to horseplay which consequently leads to P's neck being broke. Court confirms the consent).

this is because in this case of the hypo, the statute is made SPECIFICALLY to protect minors in having sex with an older partner.

"statutory age of consent laws are intended 'to protect a definite class of persons from their own immaturity.' harper, james and gray section 3.1 at 3:49-3:50. they prohibit the defendan'ts conduct regardless of the minor's consent."

that is from glannon.

[usuaggie]

Maybe I'm way off, but I don't see how the statute applies. That is a criminal statute and would have no bearing on the awarding of damages in a civil suit.

There is no way it is a "trespass to conversion" to have sex on the dad's couch. You could go a long way arguing that it is trespass to chattels, but not conversion.

Also, the question only says "Discuss Prudence's rights against Dick Dasher". I've gotten the impression from my professors that we are to stick to the question... answering questions that aren't asked will do nothing to help our grade.

This hypothetical is just weird and you can't really do anything with it.

definitely this. make sure you only answer the P v. D the teacher wants you to answer. and this hypo really is awful. If anybody wants a good torts hypo, I have one so PM me or if a few people request it, i can probably post it here.

[Bustang]

(I'm confused about the consent section regarding children. In Hellriegel v. Tholl, a child gives consent to horseplay which consequently leads to P's neck being broke. Court confirms the consent).

this is because in this case of the hypo, the statute is made SPECIFICALLY to protect minors in having sex with an older partner.

"statutory age of consent laws are intended 'to protect a definite class of persons from their own immaturity.' harper, james and gray section 3.1 at 3:49-3:50. they prohibit the defendan'ts conduct regardless of the minor's consent."

that is from glannon.

I realized my durf moment after posting

[uwb09]

ya, i know the hypo isn't that great, this prof is EXTREMELY motherly and she kinda treats us all like we know nothing, she sent us like 5 more "sample exam" hypos that I haven't looked at yet

I know some of the torts I pointed out (trespass to chattels) are pretty big reaches, just kinda seeing how bad of reaches they were, and judging by responses pretty bad

and I know that its just looking for P v D, but I figured I'd try and find some other stuff, just kind of bored on a Wednesday night

[usuaggie]

ya, i know the hypo isn't that great, this prof is EXTREMELY motherly and she kinda treats us all like we know nothing, she sent us like 5 more "sample exam" hypos that I haven't looked at yet

I know some of the torts I pointed out (trespass to chattels) are pretty big reaches, just kinda seeing how bad of reaches they were, and judging by responses pretty bad

and I know that its just looking for P v D, but I figured I'd try and find some other stuff, just kind of bored on a Wednesday night

what kind of mother tells her children stories about statutory rape and dick dashers? lol

[thinkbig]

What thinkbig said about consent is 100% not a defense. it is definitely battery. consent by a person protected by a statute cannot be a defense. that is the point of statutory rape.

I understand how it's not defense given the statutory protection of the girl. So, let's say the girl were an adult too and claimed battery, given the facts of the case, would the boyfriend still be liable for battery? She even said she talked to her girlfriends and then decided she wanted to have sex. If the girl weren't protected by statute, would her silence be enough to overcome a defense based on consent?

[D-hops]

Wouldn't the daughter being able to recover for the battery depend on the jurisdiction? Under the Barton v. Bee Line rule I don't think she could.

[Bustang]

What thinkbig said about consent is 100% not a defense. it is definitely battery. consent by a person protected by a statute cannot be a defense. that is the point of statutory rape.

I understand how it's not defense given the statutory protection of the girl. So, let's say the girl were an adult too and claimed battery, given the facts of the case, would the boyfriend still be liable for battery? She even said she talked to her girlfriends and then decided she wanted to have sex. If the girl weren't protected by statute, would her silence be enough to overcome a defense based on consent?

Yes.

iv. Defendant is privileged to make a contact where the plaintiff's words, gestures, or conduct reasonably manifest consent to it, even if she was not willing to be touched.
a) Silence can manifest consent where a reasonable person would speak or act in a different way if he objected. Lady on a boat getting vaccine example.

[thinkbig]

What thinkbig said about consent is 100% not a defense. it is definitely battery. consent by a person protected by a statute cannot be a defense. that is the point of statutory rape.

I understand how it's not defense given the statutory protection of the girl. So, let's say the girl were an adult too and claimed battery, given the facts of the case, would the boyfriend still be liable for battery? She even said she talked to her girlfriends and then decided she wanted to have sex. If the girl weren't protected by statute, would her silence be enough to overcome a defense based on consent?

Yes.

iv. Defendant is privileged to make a contact where the plaintiff's words, gestures, or conduct reasonably manifest consent to it, even if she was not willing to be touched.
a) Silence can manifest consent where a reasonable person would speak or act in a different way if he objected. Lady on a boat getting vaccine example.

In our hypo, I think a reasonable person would find that silence does manifest consent. You referenced O'Brien v. Cunard, which basically showed that the plaintiff knew what was going on and granted consent by her failure to object. I think the same would be true here. No?

[usuaggie]

agreed. silence would be consent if she were an adult.

i think bustang is referring to Obrien. that is the one i thought about too.

but going to your edit before, "you cannot consent to a criminal act."
this is not necessarily true. too lazy to explain, here is a paste from my notes

consent to criminal acts
minority rule-consent is a defense (in a botched abortion when it was illegal, for example) unless the conduct is criminalized in order to protect a particular class of persons deemed incapable (e.g. statutory rape). THIS IS THE RULE OF THE RESTATEMENT AND MINORITY OF THE STATES.
majority rule- consent is not effective where criminal acts were involved. case law in most jurisdictions.

[thinkbig]

As to the relationship between criminal acts and the cause for civil action regarding those acts, I was reminded of Katko v. Briney. The owner of an abandoned farmhouse, fed up with burglaries on the property, aimed a shotgun at an interior door and rigged a wire to fire the gun when anyone opened the door. A burglar broke in and was badly maimed by the trap. The burglar was convicted of trespassing and attempted burglary in criminal court but won a civil suit against the property owner in which he collected $30k (and this was in 1971). My point is that you can violate criminal statutes and within the same action still collect tort damages.

[Bustang]

What thinkbig said about consent is 100% not a defense. it is definitely battery. consent by a person protected by a statute cannot be a defense. that is the point of statutory rape.

I understand how it's not defense given the statutory protection of the girl. So, let's say the girl were an adult too and claimed battery, given the facts of the case, would the boyfriend still be liable for battery? She even said she talked to her girlfriends and then decided she wanted to have sex. If the girl weren't protected by statute, would her silence be enough to overcome a defense based on consent?

Yes.

iv. Defendant is privileged to make a contact where the plaintiff's words, gestures, or conduct reasonably manifest consent to it, even if she was not willing to be touched.
a) Silence can manifest consent where a reasonable person would speak or act in a different way if he objected. Lady on a boat getting vaccine example.

In our hypo, I think a reasonable person would find that silence does manifest consent. You referenced O'Brien v. Cunard, which basically showed that the plaintiff knew what was going on and granted consent by her failure to object. I think the same would be true here. No?

If she was an adult, I would agree. However, she is a minor which presents two problems. 1: Minors cannot manifest consent because they lack the mental capacity to do so. 2: You cannot consent to a criminal act. The bottom of the hypo presents a statutory law prohibiting adults having sex with minors etc etc. Her consent for sexual intercourse was a consent for a criminal act, making it ineffective.

[usuaggie]

As to the relationship between criminal acts and the cause for civil action regarding those acts, I was reminded of Katko v. Briney. The owner of an abandoned farmhouse, fed up with burglaries on the property, aimed a shotgun at an interior door and rigged a wire to fire the gun when anyone opened the door. A burglar broke in and was badly maimed by the trap. The burglar was convicted of trespassing and attempted burglary in criminal court but won a civil suit against the property owner in which he collected $30k (and this was in 1971). My point is that you can violate criminal statutes and within the same action still collect tort damages.

just read this case an hour ago, actually. that is where the notes came from in my last post.

[usuaggie]

If she was an adult, I would agree. However, she is a minor which presents two problems. 1: Minors cannot manifest consent because they lack the mental capacity to do so. 2: You cannot consent to a criminal act. The bottom of the hypo presents a statutory law prohibiting adults having sex with minors etc etc. Her consent for sexual intercourse was a consent for a criminal act, making it ineffective.

you can consent to a criminal act, depending on jurisdiction and the purpose of the statute/law. see my post above yours.

[D-hops]

agreed. silence would be consent if she were an adult.

i think bustang is referring to Obrien. that is the one i thought about too.

but going to your edit before, "you cannot consent to a criminal act."
this is not necessarily true. too lazy to explain, here is a paste from my notes

consent to criminal acts
minority rule-consent is a defense (in a botched abortion when it was illegal, for example) unless the conduct is criminalized in order to protect a particular class of persons deemed incapable (e.g. statutory rape). THIS IS THE RULE OF THE RESTATEMENT AND MINORITY OF THE STATES.
majority rule- consent is not effective where criminal acts were involved. case law in most jurisdictions.

In some (well, at least one) jurisdictions you can consent to a battery that is statutory rape.

[thinkbig]

You cannot consent to a criminal act? Not sure yet, but intuitively it makes sense. The Katko case is inherently different from the hypo because in Katko the defense had nothing to do with consent. Breaking and entering implies lack of consent by the victim. Battery, possibly not. In a broad construal of "offensive or harmful contact", a court may find any intentional contact to suffice for the purpose of proving battery.

[Bustang]

Katko seems more to do with mechanical devices/not allowed to use deadly force via a mechanical device because economic interests are less important than the life of another. Can you guys please copy and paste your notes where consenting to something criminal was a sufficient defense? We didn't go over that in my class, but I'm very interested.

[thinkbig]

[quote="Bustang"where consenting to something criminal was a sufficient defense? We didn't go over that in my class, but I'm very interested.[/quote]

ditto