Torts Outline I. Intentional Torts to the Person and to the Property A. Ways Plaintiff Can establish Intent 1. Purpose 2. Knowledge to a substantial certainty that an invasion of the protected interest would take place a) Cannot be highly likely (1) Garrett v. Dailey – Boy pulls out chair. He new to a sub. cert that the woman would fall. 3. Transferred Intent – if defendant intended an invasion which falls within one of the original trespass writ torts (battery, assault, false imprisonment, trespass to land, and trespass to chattels) and causes an invasion which falls within one of them, intent is established 4. Does not have to be intent to harm (1) Case where boy kicked friend in the leg. Just intent to do something 5. Act is distinguished from consequence a) Act has to be intentional or to a SC but not the consequences B. Battery 1. An act a) It cannot be just the act it has to be the act coupled with something that makes the act wrong b) An act of battery has to have purpose. It cannot be done on accident c) The act must be done voluntary; it cannot be done reflexive. 2. With the intent to cause a contact with a person which is harmful or offensive, or with the intent to cause the imminent apprehension of such contact; a) A person can be liable for battery if they had purpose in action b) In order for battery to be established actor must act with knowledge on the part of the actor that such contract or apprehension is substantially certain to be produced (1) Garrett v. Dailey--5 year old boy pulled out chair from under woman. Had knowledge that the fall would cause contact. 3. Causing; a) When it has been established that someone intended a torts, once the torts has been done, the person is liable for the extended circumstances or resulting injury to the person intending the tort. (Vosburg) (1) Vosburg Case – Little boy kicked friend playfully and caused previous leg condition to flare up. He was found liable for battery. b) Intent to cause injury is not required but more intent to invade security (1) Waiter Case – where waiter took plate violently away from black guy c) In order to commit a battery person had to be culpable (1) McGuire Case – Insane person was found liable for hitting care taker. (a) Possible exception: someone could assume the risk. 4. A harmful or offensive contact with the person a) Includes unpermitted and intentional contacts with things connected to the body (clothing, cane) when done in an offensive manner (1) Fisher case-Fisher went to a luncheon, defendant took Fisher’s dinner plate and shouted he could not be served there, Fisher was humiliated, intentional grabbing of plaintiff’s plate constituted a battery, this was invasion of his person as would be an actual contact with the body b) Contact that is offensive to a reasonable sense of personal dignity is offensive (Fisher) (1) Even if someone spits on a person it could be. If an average person in (P) shoes would have dignity harmed c) The contact is judged to be offensive from a reasonable person’s point of view from the (P)’s shoes. d) Transferred Intent: when the intended harmful or offensive contact falls upon other recipient other than the person intended. (1) Talmage Case – Man threw stick at boy and hit another kid. e) Not necessary for persons reasons behind intention to be rational in order to invade the interest of another f) Not necessary that victim have awareness of the contact C. Assault 1. An overt act; a) Act must be able to be seen b) Act cannot be merely words not matter how harmful (1) Ex. If there are surrounding circumstances or D’s past act make it reasonable for apprehension of contact there can be just words. 2. With the intent to cause a contact with a person which is harmful or offensive, or with the intent to cause the imminent apprehension of such contact; (1) A bill collector that threatens he will punch (D) immediately if he does not pay. 3. Causing; a) Words negating effect of immediate touching, if there are not facts that 4. A reasonable, imminent apprehension of such contact. a) What matters is if the person that would be receiving the contact could have had reasonable apprehension that offensive contact could or would be made. b) Apprehension of contact is taken form reasonable person n the (P)’s shoes (1) Western Union Case – Man reached over counter to grab wife of (P) to try and bring her to his lap. c) Attack that is unknown is not assault; P must be aware of the threaten contact d) Attack has to imminent. It must appear to P that the threat is imminent and D has the present ability to carry out the threat D. False Imprisonment 1. An act; a) If there is reasonable or safe escape then there is no F.I. b) Act have to be direct or indirect that result in confinement c) The other is conscious of confinement (awareness) 2. With the intent to confine within boundaries; a) Boundary does not have to be four walls (1) Threat of immediate force-when person goes beyond boundaries physical force will result (2) Freedom must be restricted, not mere inconvenience (a) Hardy v. La Belle – Store accused (P) of stealing. Invited her to come into a room for questioning. She was allowed to leave at any time. There has to be confinement, not just perception of confinement (3) Must be bound in all directions (4) No F.I. if victim is free to proceed in some direction though it may not be desired b) Intent to confine or knew with a SC. 3. Causing a) If person has a reasonable belief that they cannot leave then they are F.I. b) The threat of a loss of job if you leave is not considered confinement c) Calling the police is not considered confinement (probably more of a policy rule). d) Threat of future actions is not considered confinement e) Ommission to act can be cause for F.I. 4. The confinement of plaintiff within boundaries; a) Omission of duty – unless there is an implied relationship of some type of formal relationship (such as father to son, husband to wife, dean to student) there is no liability. b) A person is not liable for the omission of act to a call of distress unless he caused the imprisonment. c) Duty of Responsibleness – if the person is in charge of a facility he has a duty of care over those on the premises. d) With Which Not Test --Without the actions of the (D) I would not have suffered this harm. (1) Whitaker v. Sanford – Woman trying to get out of cult accepts boat ride form cult leader. He parks the boat off shore and would not let her off. His omission held him liable because he did not give her an adequate way to get to shore. 5. Plaintiff’s awareness of the confinement [ or plaintiff’s harm from such confinement – Restatement} a) (P) has to be conscious at time of imprisonment (1) Parvi v. City of Kingston – Police dropped off man in golf course to sober up. Court ruled that he could have been conscious at time of pick up. He was not arrested so he could have been F.I. b) Intent aspect-it is only necessary for the plaintiff to prove that the defendant had the purpose to confine him or her, or that the defendant was substantially certain that his conduct would cause confinement; motive is irrelevant E. Intentional Infliction of Emotional Distress (IIED) 1. An extreme and outrageous act a) Conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.? (Outrageous! Test) b) Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, and other trivialities 2. Intentionally [or recklessly – Restatement] a) There has to be the intent to cause severe emotional distress. b) The (D) has to know that the person is there. You can not inadvertently cause IIED. (1) Taylor v. Vallelunga – Duaghert watched father being beaten. (D) did not know that she was there. (a) A close relative may collect if he or she is an observer; or the relative is in aarea where the immeadiate action causes sever emotional distress (child hearing mother being beaten in another room); the (D) must know the observer is close or observing. c) Reckless conduct also counts for IIED 3. Causing a) Restatement intent: purpose of causing distress or actor knew that distress was substantially certain to be produced 4. Severe emotional distress a) There has to proof of severe emotional distress (1) Harris v. Jones —Man with a speech impediment was teased by boss. Court ruled that the (P) could not show enough evidence to support the severe emotional distress. F. Trespass to Land 1. An Act a) The law infers some type of damage in every trespass (treading down of grass, etc.) b) 2. With the intent to enter or remain on land a) Does not have to be intent to cause damage or intent to go on someone else’s land. Only has to be intent to be on a property 3. Causing a) Trespass, a thing from a person can be trespass (1) Rogers v. Kent County – Snow Fence case where court ruled that there was trespass when County left Chattel on property that caused injury. 4. The entry or remaining on land in which plaintiff has a possessory interest by the (D), a third person, or a thing a) There has to be damage (1) Bradley v. American Smelting and Refining Co. – Smelting company that allowed particles to go on lawn of (P). Court ruled that there had to be damage. b) Technical trespass is interfering with the quiet undisturbed, peaceful enjoyment of the plaintiff. c) Trespass doe not mean that something has to touch the ground (1) Herrin v. Sutherland—Court ruled that man standing on different property shooting a bird was trespassing G. Private Nuisance 1. An act 2. Negligently or intentionally 3. Causing 4. A substantial unreasonable interference with (P) use of enjoyment of (P) land H. Trespass to Chattels 1. An act a) Intentional interference with the right of possession of personal property 2. With intent to affect a chattel 3. Causing a) Liability for intentionally intermeddling with chattel of another if: (1) dispossession another of chattel (2) chattel is impaired in its condition, quality, or value, OR (3) possessor is deprived of the use of the chattel for a substantial period of time, OR (4) bodily harm is caused to possessor 4. Damages to a chattel in which plaintiff has a possessory interest or loss of its use for a substantial time or injury to plaintiff or a person or thing in which plaintiff has a legally protected interest. a) Plaintiff must show actual damages; nominal damages won’t work b) Bad faith does not matter c) Can interfere with possessory rights in two ways: (1) Intermeddling-directly damaging chattel (scratch briefcase) (2) dispossession-dispossess plaintiff of a lawful right to possession (take briefcase for own use) d) The difference between trespass to land and trespass to chattels you have to show harm and actual damages I. Conversion 1. An act a) Used when a defendant completely dispossesses the plaintiff of an interest in personal property (1) a defendant need not physically damage a plaintiff?s property to convert it (2) court have allowed a plaintiff to recover the full value of converted property even if the defendant has not damaged the property 2. With the intent to exercises dominion or control over a chattel 3. Causing 4. An interference with the right of the (P) to control the chattel a) Purchasing stolen property, even if the purchaser was acting in good faith and was not aware the seller did not have title, constitutes conversion by both the seller and innocent buyer because both acts seriously interfere with the ownership of the rightful owner (1) Vaughn Ford, Inc. v. Rouse—Care dealer would not give back (P) keys for a couple minutes. Court found conversion. 5. And the interference is so serious that the defendant may be justly required to pay the plaintiff the full value of the chattel. Any of the following may be of sufficient seriousness to justify this remedy: a) the defendant's exercise of dominion and control for a substantial amount of time b) substantial harm done to the chattel, c) substantial inconvenience and expense cause to the plaintiff, or d) the defendant's intent to assert a right that defendant knows is inconsistent with the plaintiff’s right of control [Note that the defendant's good faith, under rare circumstances, may be a defense to an action for conversion.] (1) Conversion can only be to personal property not real property II. Consent 1. Explicit Consent a) Verbally give consent for a period of time (1) Snow fence case – gave consent for snow fence to be there for a certain amount of time. 2. Apparent Consent a) (P) Actions convey to a reasonable person in the (D) shoes. (women raising her arm for injection) Look for expectations of the game 3. Implied Consent a) Actions can imply consent (1) Moore v. Williams – ear patient. 4. Factors negating consent a) Fraud: case where man lies that he is fixed; they have sex; she gets pregnant. She sues for battery. Her consent to sex is negated by his lie. (1) There is explicit direct fraud or a mistake of fraud. b) Incapacity: there is age and mental disability (1) There are some torts that even people at a young age can consent to. The courts say that you are able to understand eth nature and probable consequences of the act. They apply the same test to people with mental disabilities. c) Duress: if someone threatens a person to get consent that consent is negated. Threat does not have to be immediate. d) Consent to a violation of positive (legislative) law: When someone consent to a prize fights where there is legislation against prize fighting. The person signs that he will not hold the organizers liable. He then gets hurts. His consent is negated and he can have a cause of action. (1) Unless the statute is designed to protect class of population who are particularly vulnerable (i.e. no prize fighting for kids under 18). III. Self Defense 1. An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him. 2. Privilege to use reasonable force to defend against immediate harm 3. Must have a reasonable belief that force is necessary 4. No right to retaliate when no longer threatened 5. Amount of force generally is limited to that which is necessary or reasonable appears to be necessary 6. No duty to retreat where use of force will not result in serious injury a) Restatement puts a duty to retreat before using force unless in ones home, majority of courts usually say there is no duty to retreat b) If you have an opportunity to flee, the restatement says flee; most jurisdictions say shoot the guy, you don’t have to flee c) You cannot shoot someone in the back running away, this is no longer self defense because the threat is over, must be an immediate threat 7. Defense of Others a) similar to privilege of self-defense b) reasonable mistake c) limited privilege: intervener steps into shoes of person he defends d) privileged to use reasonable force even if mistaken, if mistake is reasonable e) a person may defend a third person in the same manner, under the same conditions, as the person being defended would be able to do in self defense f) you can do anything for someone else you would reasonably do for yourself IV. Defense of Property 1. Privilege to defend property is limited to amount of force that is reasonably necessary 2. No privilege to use force that is intended or likely to cause death or serious harm unless intrusion threatens death or serious bodily harm to occupiers of premises 3. Must be dwelling place? 4. The use of force must be proportional to the threatened interest 5. Property always has less value than life 6. Use of a mechanical device a) the actor is privileged to employ deadly force by means of a mechanical device to the same extent to which he is otherwise privileged to use such force; a possessor of land cannot do indirectly and by a mechanical device, that which, were he present, he could not do immediately and in person b) Prosser: spring guns and other man-killing devices are not justifiable against a mere trespasser or petty thief; they are privileged only against those upon whom the landowner, if he were present in person, would be able to inflict injury of the same kind 7. Vacant farmhouse will always lose (1) Katko v. Briney-held liable for use of spring gun in boarded up house, shot a young boy, what if it had been a fireman or child? 8. Owner dispossessed of property may use reasonable force to recover property immediately after dispossession a) fresh pursuit v. undue lapse of time b) force is limited to what is reasonable under the circumstances V. Necessity 1. General Rule: D has a privilege to harm the property of P where there is necessity to prevent further harm to third persons or the D. 2. Public necessity: if interference of chattels of another is necessary for public safety then there is public necessity. a) No compensation is due to owner 3. Private necessity: a person can protect his property or a third person property using private necessity. a) Actual damage: if no damage was done then no one would have to pay but f there was damage the P would have to pay (1) If D parks boat during storm at P dock and damages it. D would have to pay for damage of the dock. b) The owner may not resists someone use private necessity VI. Necessity A. Proof of Negligence 1. Court and Jury Circumstantial evidence a) 2. Res Ipsa Loquitur