5 RESPONSABILIDAD SUBJETIVA I. INTENTIONAL TORTS A. ELEMENTOS DE LA ACCIÓN ...

745 Pages·2013·1.65 MB·English

by  Juan Javier

Este libro forma parte del acervo de la Biblioteca Jurídica Virtual del Instituto de Investigaciones Jurídicas de la UNAM
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RESPONSABILIDAD CIVIL EXTRACONTRACTUAL
EN ESTADOS UNIDOS

RESPONSABILIDAD SUBJETIVA
I. INTENTIONAL TORTS
A. ELEMENTOS DE LA ACCIÓN
BATTERY: INTENT

VOSBURG, by guardian ad litem, Respondent, v.
PUTNEY, by guardian ad litem, Appellant. SUPREME
COURT OF WISCONSIN 80 Wis. 523; 50 N.W. 403
October 26, 1891, Argued November 17, 1891, Decided
[*527] [**403] LYON, J. Several errors are assigned,
only three of which will be considered.
1. The jury having found that the defendant, in touching
the plaintiff with his foot, did not intend to do him any
harm, counsel for defendant maintain that the plaintiff has
no cause of action, and that defendant's motion for
judgment on the special verdict should have been granted.
In support of this proposition counsel quote from 2 Greenl.
Ev. § 83, the rule that "the intention to do harm is of the
essence of an assault." Such is the rule, no doubt, in actions
or prosecutions for mere assaults. But this is an action to
recover damages for an alleged assault and battery. In such
case the rule is correctly stated, in many of the authorities
cited by counsel, that plaintiff must show either that the
intention was unlawful, or that the defendant is in fault. If
the intended act is unlawful, the intention to commit it must
necessarily be unlawful. Hence, as applied to this case, if
the kicking of the plaintiff by the defendant was an
unlawful act, the intention of defendant to kick him was
also unlawful.
Had the parties been upon the play-grounds of the
school, engaged in the usual boyish sports, the defendant
being free from malice, wantonness, or negligence, and
intending no harm to plaintiff in what he did, we should
hesitate to hold the act of [**404] the defendant unlawful,
or that he could be held liable in this action. Some
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consideration is due to the implied license of the play-
grounds. But it appears that the injury was inflicted in the
school, after it had been called to order by the teacher, and
after the regular exercises of the school had commenced.
Under these circumstances, no implied license to do the act
complained of existed, and such act was a violation of the
order and decorum of the [*528] school, and necessarily
unlawful. Hence we are of the opinion that, under the
evidence and verdict, the action may be sustained.
2. The plaintiff testified, as a witness in his own behalf,
as to the circumstances of the alleged injury inflicted upon
him by the defendant, and also in regard to the wound he
received in January, near the same knee, mentioned in the
special verdict. The defendant claimed that such wound
was the proximate cause of the injury to plaintiff's leg, in
that it produced a diseased condition of the bone, which
disease was in active progress when he received the kick,
and that such kick did nothing more than to change the
location, and perhaps somewhat hasten the progress, of the
disease. The testimony of Dr. Bacon, a witness for plaintiff
(who was plaintiff's attending physician), elicited on cross-
examination, tends to some extent to establish such claim.
Dr. Bacon first saw the injured leg on February 25th, and
Dr. Philler, also one of the plaintiff's witnesses, first saw it
March 8th. Dr. Philler was called as a witness after the
examination of the plaintiff and Dr. Bacon. On his direct
examination he testified as follows: "I heard the testimony
of Andrew Vosburg in regard to how he received the kick,
February 20th, from his playmate. I heard read the
testimony of Miss More, and heard where he said he
received this kick on that day." (Miss More had already
testified that she was the teacher of the school, and saw
defendant standing in the aisle by his seat, and kicking
across the aisle, hitting the plaintiff.) The following
question was then propounded to Dr. Philler: "After hearing
that testimony, and what you know of the case of the boy,
seeing it on the 8th day of March, what, in your opinion,
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was the exciting cause that produced the inflammation that
you saw in that boy's leg on that day?" An objection to this
question was overruled, and the witness answered: "The
exciting cause was the injury received at that day by the
kick on the shin-bone."
[*529] It will be observed that the above question to
Dr. Philler calls for his opinion as a medical expert, based
in part upon the testimony of the plaintiff, as to what was
the proximate cause of the injury to plaintiff's leg. The
plaintiff testified to two wounds upon his leg, either of
which might have been such proximate cause. Without
taking both of these wounds into consideration, the expert
could give no intelligent or reliable opinion as to which of
them caused the injury complained of; yet, in the
hypothetical question propounded to him, one of these
probable causes was excluded from the consideration of the
witness, and he was required to give his opinion upon an
imperfect and insufficient hypothesis,--one which excluded
from his consideration a material fact essential to an
intelligent opinion. A consideration by the witness of the
wound received by the plaintiff in January being thus
prevented, the witness had but one fact upon which to base
his opinion, to wit, the fact that defendant kicked plaintiff
on the shin-bone. Based, as it necessarily was, on that fact
alone, the opinion of Dr. Philler that the kick caused the
injury was inevitable, when, had the proper hypothesis been
submitted to him, his opinion might have been different.
The answer of Dr. Philler to the hypothetical question put
to him may have had, probably did have, a controlling
influence with the jury, for they found by their verdict that
his opinion was correct.
Surely there can be no rule of evidence which will
tolerate a hypothetical question to an expert, calling for his
opinion in a matter vital to the case, which excludes from
his consideration facts already proved by a witness upon
whose testimony such hypothetical question is based, when
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a consideration of such facts by the expert is absolutely
essential to enable him to form an intelligent opinion
concerning such matter. The objection to the question put
to Dr. Philler should have been sustained. The error in
permitting [*530] the witness to answer the question is
material, and necessarily fatal to the judgment.
3. Certain questions were proposed on behalf of
defendant to be submitted to the jury, founded upon the
theory that only such damages could be recovered as the
defendant might reasonably be supposed to have
contemplated as likely to result from his kicking the
plaintiff. The court refused to submit such questions to the
jury. The ruling was correct. The rule of damages in actions
for torts was held in Brown v. C., M. & St. P. R. Co. 54
Wis. 342, to be that the wrong-doer is liable for all injuries
resulting directly from the wrongful act, whether they could
or could not have been foreseen by him. The chief justice
and the writer of this opinion dissented from the judgment
in that case, chiefly because we were of the opinion that the
complaint stated a cause of action ex contractu, and not ex
delicto, and hence that a different rule of damages--the rule
here contended for--was applicable. We did not question
that the rule in actions for tort was correctly stated. That
case rules this on the question of damages.
The remaining errors assigned are upon the rulings of
the court on objections to testimony. These rulings are not
very likely to be repeated on another trial, and are not of
sufficient importance to require a review of them on this
appeal.
By the Court.--The judgment of the circuit court is
reversed, and the cause will be remanded for a new trial.

Prontamente enfrentamos en el caso de Vosburg una
de las características más sobresalientes del ordenamiento
jurídico privado estadounidense: la supervivencia y
vigencia actual de los delitos civiles del derecho romano en
este sistema europeo; como veremos, el common law no es
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excepcional, sino que conforma una de las familias del
derecho europeo, siendo el resultado de la combinación de
todos los elementos del ius commune que se unen para
darle forma, todos aquéllos a la par presentes en nuestra
tradición jurídica: derecho romano vulgar, derecho feudal,
derecho canónico, teología cristiana, aunque los
encontraremos combinados de una manera distinta en el
derecho de factura inglés.

¿No es la decisión del tribunal sobre la cuestión del
intent en Vosburg una aberración, más aún vista desde
nuestra perspectiva doctrinaria civil que distingue
solamente entre dolo y culpa? ¿Evidentemente, Putney no
actuó con dolo? ¿Por qué el intent de su compañero sí fue
doloroso, aunque el niño no decisión causar el daño? ¿Qué
hechos definen el comportamiento doloso del niño, aún sin
el más mínimo deseo, ni siquiera previsibilidad, de que un
contacto tan inocente pudiera ocasionar un daño semejante?

KENDRA KNIGHT, Plaintiff and Appellant, v.
MICHAEL JEWETT, Defendant and Respondent. No.
S019021 SUPREME COURT OF CALIFORNIA 3 Cal.
4th 296; 834 P.2d 696; 11 Cal. Rptr. 2d 2 August 24, 1992,
Decided
[*299] [**697] GEORGE, J. In this case, and in the
companion case of Ford v. Gouin, post, page 339 [11
Cal.Rptr.2d 30, 834 P.2d 724], we face the question of the
[*300] proper application of the "assumption of risk"
doctrine in light of this court's adoption of comparative
fault principles in Li v. Yellow Cab Co. (1975) 13 Cal.3d
804 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393].
Although the Li decision itself addressed this issue,
subsequent Court of Appeal decisions have differed in their
interpretation of Li's discussion of this point. We granted
review to resolve the conflict among the Courts of Appeal.
I
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We begin with a summary of the facts of this case, as
set forth in the declarations and deposition transcripts
submitted in support of and in opposition to defendant's
motion for summary judgment.
On January 25, 1987, the day of the 1987 Super Bowl
football game, plaintiff Kendra Knight and defendant
Michael Jewett, together with a number of other social
acquaintances, attended a Super Bowl party at the home of
a mutual friend. During half time of the Super Bowl,
several guests decided to play an informal game of touch
football on an adjoining dirt lot, using a "peewee" football.
Each team had four or five players and included both
women and men; plaintiff and defendant were on opposing
teams. No rules were explicitly discussed before the game.
Five to ten minutes into the game, defendant ran into
plaintiff during a play. According to plaintiff, at that point
she told defendant "not to play so rough or I was going to
have to stop playing." Her declaration stated that
"[defendant] seemed to acknowledge my statement and left
me with the impression that he would play less rough
prospectively." In his deposition, defendant recalled that
plaintiff had asked him to "be careful," but did not
remember plaintiff saying that she would stop playing.
On the very next play, plaintiff sustained the injuries
that gave rise to the present lawsuit. As defendant recalled
the incident, his team was on defense on that play, and he
jumped up in an attempt to intercept a pass. He touched the
ball but did not catch it, and in coming down he collided
with plaintiff, knocking her over. When he landed, he
stepped backward onto plaintiff's right hand, injuring her
hand and little finger.
Both plaintiff and Andrea Starr, another participant in
the game who was on the [**698] same team as plaintiff,
recalled the incident differently from defendant. According
to their declarations, at the time plaintiff was injured, Starr
already had caught the pass. Defendant was running toward
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Starr, when he ran into plaintiff from behind, knocked her
down, and stepped on her hand. Starr also stated that, after
knocking plaintiff down, defendant continued [*301]
running until he tagged Starr, "which tag was hard enough
to cause me to lose my balance, resulting in a twisting or
spraining of my ankle."
The game ended with plaintiff's injury, and plaintiff
sought treatment shortly thereafter. After three operations
failed to restore the movement in her little finger or to
relieve the ongoing pain of the injury, plaintiff's finger was
amputated. Plaintiff then instituted the present proceeding,
seeking damages from defendant on theories of negligence
and assault and battery.
After filing an answer, defendant moved for summary
judgment. Relying on the Court of Appeal decision in
Ordway v. Superior Court (1988) 198 Cal.App.3d 98 [243
Cal.Rptr. 536], defendant maintained that "reasonable
implied assumption of risk" continues to operate as a
complete defense after Li v. Yellow Cab Co., supra, 13
Cal.3d 804 (hereafter Li), and that plaintiff's action was
barred under that doctrine. In this regard, defendant
asserted that "[b]y participating in [the touch football game
that resulted in her injury], plaintiff ... impliedly agreed to
reduce the duty of care owed to her by defendant ... to only
a duty to avoid reckless or intentionally harmful conduct,"
and that the undisputed facts established both that he did
not intend to injure plaintiff and that the acts of defendant
which resulted in plaintiff's injury were not reckless. In
support of his motion, defendant submitted his own
declaration setting forth his version of the incident, as
summarized above, and specifically stating that he did not
intend to step on plaintiff's hand or to injure her. Defendant
also attached a copy of plaintiff's deposition in which
plaintiff acknowledged that she frequently watched
professional football on television and thus was generally
familiar with the risks associated with the sport of football,
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and in which she conceded that she had no reason to
believe defendant had any intention of stepping on her hand
or injuring her.
In opposing the summary judgment motion, plaintiff
first noted that, in contrast to the Ordway decision, the
Court of Appeal decision in Segoviano v. Housing
Authority (1983) 143 Cal.App.3d 162 [191 Cal.Rptr. 578]
specifically held that the doctrine of "reasonable implied
assumption of risk" had been eliminated by the adoption of
comparative fault principles, and thus under Segoviano the
basic premise of defendant's summary judgment motion
was untenable and plaintiff was entitled to have the lawsuit
proceed under comparative fault principles.
Furthermore, plaintiff maintained that even were the
trial court inclined to follow the Ordway decision, there
were numerous disputed material facts that precluded the
granting of summary judgment in favor of defendant. First,
plaintiff noted there was a clear dispute between
defendant's and [*302] plaintiff's recollection of the
specific facts of the play in which plaintiff was injured,
and, in particular, of the details of defendant's conduct that
caused plaintiff's injury. She claimed that under the facts as
described by plaintiff and Starr, defendant's conduct was at
least reckless.
Second, plaintiff vigorously disputed defendant's claim
that, by participating in the game in question, she impliedly
had agreed to reduce the duty of care, owed to her by
defendant, to only a duty to avoid reckless or intentionally
harmful conduct. Plaintiff maintained in her declaration
that in view of the casual, social setting, the circumstance
that women and men were joint participants in the game,
and the rough dirt surface on which the game was played,
she anticipated from the outset that it was the kind of
"mock" football game in which there would be no forceful
pushing or hard hitting or shoving. Plaintiff also asserted
that the declarations and depositions of other players in the
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game, included in her opposition papers, demonstrated that
the other participants, including defendant, [**699] shared
her expectations and assumptions that the game was to be a
"mellow" one and not a serious, competitive athletic event.
1 Plaintiff claimed that there had been no injuries during
touch football games in which she had participated on
previous occasions, and that in view of the circumstances
under which the game was played, "[t]he only type of
injury which I reasonably anticipated would have been
something in the nature of a bruise or bump."
1 The portion of defendant's deposition attached to
plaintiff's opposition included the following passage:
"Q: .... [F]rom your perspective--and I asked this
same question of both of your friends yesterday--is
the standard of care in which you were going to be
dealing with people out there in the play field
different, in your opinion, when you're playing in
that kind of a game, that is, the one that happened on
that day versus if you're out there playing in the exact
same place and with a bunch of guys and no girls.
"A: Yeah, it would be different. Yes.
"Q: So, theoretically, you should be much more
careful when the women are out there than if it was a
bunch of guys?
"A: Right."
In addition, in further support of her claim that there
was at least a factual dispute as to whether she impliedly
had agreed to assume the risk of injury from the type of
rough play defendant assertedly engaged in, plaintiff relied
on the portion of her declaration in which she stated that (1)
she specifically had told defendant, immediately prior to
the play in question, that defendant was playing too rough
and that she would not continue to play in the game if he
was going to continue such conduct, and (2) defendant had
given plaintiff the impression he would refrain from such
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conduct. Plaintiff maintained that her statement during the
game established that a disputed factual issue existed as to
whether she voluntarily had chosen to assume the risks of
the type of conduct allegedly engaged in by defendant.
[*303] In his reply to plaintiff's opposition, defendant
acknowledged there were some factual details--"who ran
where, when and how"--that were in dispute. He contended,
however, that the material facts were not in dispute, stating
those facts were "that plaintiff was injured in the context of
playing touch football."
After considering the parties' submissions, the trial
court granted defendant's motion for summary judgment.
On appeal, the Court of Appeal, recognizing the existing
conflict in appellate court decisions with regard to the so-
called "reasonable implied assumption of risk" doctrine,
concluded that Ordway v. Superior Court, supra, 198
Cal.App.3d 98, rather than Segoviano v. Housing Authority,
supra, 143 Cal.App.3d 162, should be followed, and further
concluded that under the Ordway decision there were no
disputed material facts to be determined. The Court of
Appeal, holding that the trial court properly had granted
summary judgment in favor of defendant, affirmed the
judgment.
As noted, we granted review to resolve the conflict
among Court of Appeal decisions as to the proper
application of the assumption of risk doctrine in light of the
adoption of comparative fault principles in Li, supra, 13
Cal.3d 804.
II
As every leading tort treatise has explained, the
assumption of risk doctrine long has caused confusion both
in definition and application, because the phrase
"assumption of risk" traditionally has been used in a
number of very different factual settings involving
analytically distinct legal concepts. (See, e.g., Prosser &
Keeton on Torts (5th ed. 1984) § 68, pp. 480-481; 4 Harper
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