TORTS OUTLINE (GASH, Fall 2006) Proffessor
CHAPTER 1: INTENTIONAL TORTS
I. Battery:
A. Volitional Act (external manifestation of the will or a conscious act of one’s volition). B. Intent to cause contact 1) Purpose/desire (specific intent) 2) Knowledge or belief to a substantial certainty (general intent) – very high probability (subjective test) C. That actually causes D. Actual harmful or offensive contact Bodily harm- any physical impairment of the condition of another‘s body, or physical pain, or illness Impairment exists when there is any alteration of the structure or function of another‘s body even if no other damage is done, like plucking hair). Offensive-offends a reasonable person‘s sense of personal dignity unwarranted by the social usages prevalent at the time and place. Look at mind of plaintiff—if defendant is aware of a hyper-sensitivity, then subjective test is used (we look at whether this person would be offended, rather than a reasonable person). Notes on Battery Insanity: Even insane people, if they seem to have intent that a normal person would have (subjective test) are responsible for torts. If the person is delusional, then an objective test is used—such a person is still held responsible though. Some jurisdictions have exceptions—those who cannot control or appreciate the consequences of his conduct can‘t be held liable for injuries caused to those who care for him. Also, for certain torts, that require specific intent, it has been held that insanity may prevent people from forming the requisite intent (i.e. deceit, which requires plaintiff to prove that the defendant was not telling the truth). If defendant intends to cause contact, and resulting injuries are more extensive than a reasonable person would have anticipated, defendant is still liable. The person doesn‘t have to be aware of the contact when it occurs (i.e kissing Sleeping beauty) for battery to have occurred. Transferred intent doctrine: When defendant intends any of the following five torts and accidentally accomplishes any of them he is liable—battery, assault, false imprisonment, trespass to land, and trespass to chattels. When either the tort intended or the tort accomplished is not one of these five, the doctrine does NOT apply. To constitute an assault and battery, it is not necessary to touch the plaintiff‘s body or even touch his clothing; knocking or snatching anything from plaintiff‘s hand or touching anything connected with his person, when done in an offensive manner, is sufficient.
II. Assault
1. 2. Overt act (has to be actual movement toward, Mere preparation is not sufficient) Intent to cause imminent apprehension of contact (again, H/O is left out in practice) a. Purpose/desire (specific intent) b. Knowledge or belief to a substantial certainty (general intent) – very high probability (subjective test) Causation Actual apprehension of harmful/offensive contact (apprehension that a reasonable person would have.)
3. 4.
Notes on Assault Mere apprehension of contact is enough; fear is not required. The anticipation of contact could be harmless but offensive.
As long as person doesn‘t know gun is loaded, the apprehension would be reasonable, and assault has occurred. Victim must be aware and have apprehension of contact (Sleeping Beauty no claim here) Assault does not apply unless contact is imminent. Threatening future harm is not enough (that gave rise to new tort – garbage collector case) Word contrary to fact is not assault (I.e. Telling a brunette ―If your hair wasn‘t blonde, I‘d kill you.‖) The words negate the threat. Words alone are not sufficient to constitute an overt act of assault. Two exceptions: o Unprivileged conditional threats. ―If you don‘t pay me money, I‘ll kill you.‖ o Words that threaten harm from an independent source IF all other elements are satisfied. (Person knew you would be apprehensive, intended to cause apprehension, and caused actual apprehension, and caused apprehension of harmful or offensive contact). This is judged on a case-by-case basis. If defendant is aware of a hyper-sensitivity, then subjective test is used again. We look at whether this person is offended, rather than reasonable person. (The example is with a threat of harm from an independent source, where he knows she is hyper-sensitive, so we use subjective test, and determine that this fits the exception of words alone not being enough to constitute act part of assault). Victim is not required to run away. Assault has a quirk on transferred intent. The person who is actually apprehensive must be the one whom you were intending to cause apprehension to.
III. False Imprisonment - the direct restraint of the physical liberty of another without adequate
legal justification. 1. 2. 3. 4. 5. Volitional Act Intent to confine within boundaries Causation Actual Confinement Awareness of confinement or harm by confinement (this is a restatement element. Not all jurisdictions follow it. Some require awareness regardless of whether there was harm).
Notes on False Imprisonment Confinement is complete, even if there are reasonable means of escape, if the confinee doesn‘t know about the means of escape. YOU ARE NOT CONFINED IF YOU CAN ESCAPE WITHOUT HURTING YOURSELF, SOMEONE ELSE, OR EXPOSING YOURSELF. Jury questionwhether or not it is a reasonable means of escape. Preventing someone from going in a particular direction is not confinement. It is not enough that the freedom of movement is restricted, you have to be confined within boundaries (how big they can be is a question for jury). You can have physical confinement within moving vehicle, the boundaries are the car itself. Confinement needs not be directly caused, indirectly is sufficient. (dig a hole and someone falls in). Confinement may be actual or apparent boundaries. (someone with a gun, or electric fence that isn‘t energized) as long as it would appear to a reasonable person that they were confined. Confine by threat of force or submission to threat of force is sufficient. Confined party need not fight way out to be confined. Threats of future harm NOT sufficient. Duress is sufficient, such as holding a family member hostage. Moral persuasion is not sufficient. You have to be aware of the confinement (though some jurisdictions argue that if there is harm caused directly by the confinement, then you don’t have to be aware of it at the time.) It is immaterial whether the confined party knows who is confining him/her.
Transferred intent does apply. If you intend to batter someone, but confine them, intent transfers. Refusal to release when asked to do so is an act sufficient for the tort. If it is transitory, (locked in 3 seconds), it is not enough. Some courts disagree with this, but it is a possible argument. If a means of escape is unreasonable, and the person escapes, no liability for the confiner (absent the building being on fire, you can remain safe while you are confined, and you jump out the third floor building, and are hurt, the confiner is not liable.) False imprisonment has become an exclusively intentional tort.
IV. Intentional Infliction of Mental Distress
1. 2. Extreme and outrageous act (utterly intolerable to civilized society) Intent to cause severe emotional distress a. Purpose or desire b. Knowledge that severe emotional distress is substantially certain to be produced. c. Some jurisdictions allow recklessness as another way to show intent. This is a deliberate disregard for a high degree of probability Causation Severe emotional distress (bodily harm eliminated in rubbish case) beyond that which an ordinary person should have to bear, has to be that which a person of ordinary sensibilities would suffer, in the absence of special knowledge or notice (of a hyper-sensitivity). Outrageous and extreme-conduct exceeding all bounds usually tolerated by a decent society. Emotional distress is severe if it is beyond that which an ordinary person should have to bear. We all have to endure the rough edges of life, but to qualify for ―severe,‖ it has to be beyond that which an ordinary person should have to bear.
3. 4.
Notes on Intentional Infliction of Emotional Distress TRANSFERRED INTENT DOES NOT APPLY Two positions on bodily harm requirement o Original rule required bodily harm. You no longer need to prove bodily harm to come to the conclusion that distress has been suffered. (CA included) Jurisdictions that follow this look to the nature of the conduct (is it extreme enough to justify action? – does it exceed ―limits of social toleration‖) rather than physical impact. o Some states, however, restrict the application of this tort to situations in which plaintiff has suffered physical consequences. Rule which seems to be emerging is that there is liability only for conduct exceeding all bounds which could be tolerated by society, of a nature especially calculated to cause mental damage of a very serious kind. (tendency to hinge cause of action on degree of insult has led some courts to reject this doctrine.) Threshold for outrageous and extreme behavior is very high. If defendant is aware of someone‘s sensitivities, then intent to make fun of someone might be transformed into intent to cause severe emotional distress. Plaintiff‘s sensitivity to race/religion, pregnancy, and any other physical conditions are taken into account if defendant is aware of them. In order for a bystander, who is not the object of the intent, to have a claim for NIED, we have to have two things: o Awareness that the person is there. o The two have to be closely related (but defendant doesn’t have to know that the two are closely related). This rule curtails the substantial certainty rule. Most courts require that plaintiff is present at the time. Some courts allow it for the intentional mutilation of a dead body, or interferences with proper burial.
V. Trespass to Land (protects right to possession of his land.)
1. 2. 3. 4. Volitional Act Intent to enter upon land of another Which causes Actual entry onto land of another.
Notes on trespass
No requirement of damages or harm to property. Even accidental entry constitutes a trespass. (you intended to be where you were, which happened to be someone else‘s land, so it is a trespass). Doesn‘t matter if trespasser was trying to help (i.e. mow your lawn). When dealing with particulate matter, and only then, harm to land is required. Thus, the elements change: 1. Volitional act 2. Intentional act that foreseeably leads to invasion of someone’s land 3. Causation 4. Actual harm to the land of another Trespass protects air space within immediate reaches. There are two different rules that can be applied: o You own airspace to your property to the extent that it is within immediate reaches of your land. o You own the amount of space above your land that you can reasonably use (sliding scale, different for a residential property than for radio company, jury questions). Interest in possession also extends below surface. Overstaying your consent is trespass (I.e. Failing to remove fence after permit expired). Privileged entry onto the land of another may be limited not only by time and space, but also by purpose. Private land, you can exclude anyone you want to, but on public land, you can not discriminate b/c of race, etc. Civil rights laws trump the right to exclude in such a situation. Note that trespass protects the right to exclusive possession, nuisance protects the right to exclusive use and enjoyment of one‘s own land.
VI. Trespass to Chattels
1. 2. 3. 4. Volitional Act Intent to deal with chattel of another in manner dealt (doesn’t matter if you think it is yours). Causation Invasion of chattel interest by: a. Intermeddling with harm to chattel, or b. Dispossession for a substantial period of time (will be circumstance dependent. Objective test is based on surrounding circumstances which will include the desire or need to use the chattel by someone else.)
Notes on Trespass to Chattels Dispossession – taking the chattel away from someone or depriving them of its use Unlike interest in land, the interest in chattel is not given legal protection by an action for nominal damages for harmless intermeddling with the chattel. Sufficient legal protection of the possessor’s interest in the mere inviolability of his chattel is afforded by his privilege to use reasonable force to protect his possession against even harmless interference. Trespass to chattels is now quite universally limited to intentional interference with them. As with the case of trespass to land, conduct is treated as intentional even though the defendant acts under an innocent mistake. If there is actual dispossession, then the deprivation of possession is regarded as damage in itself. But where there is merely interference, such as laying hands on horse or auto, decisions have held that action cannot be maintained without proof of actual damages. Electronic signals generated and sent by computer have been held to be sufficiently physically tangible to support a trespass cause of action.
VII. Conversion
1. 2. 3. 4. Volitional act Intent to deal with chattel of another in manner dealt with Causation Invasion of chattel so serious as to warrant a forced sale (jury question)
Notes on Conversion Technically, transferred intent should not apply, but Courts do apply it to conversion.
Bright line rule says that dispossession or intermeddling with someone’s chattel with intent to steal is an immediate an automatic conversion. When you discuss conversion, talk about trespass to chattels, and vice versa. Same with assault and battery—RAISE and DISMISS Computing values for forced sales. 1. Extent and duration of the actor‘s exercise of dominion or control 2. The actor‘s intent to assert a right in fact inconsistent with the other‘s right of control. 3. The actor‘s good faith 4. The extent and duration of the resulting interference with the other‘s right of control. 5. The harm done to the chattel. 6. The inconvenience and expense caused to the other. Goods with changing market values (either highest value b/t time of tort and time of trial, or majority-highest intermediate value b/t time of tort and reasonable amount of time to replace.) In trespass to chattels, the damage is the amount value is decreased by the tort. If it is totaled, then the amount would be the same as with conversion. Sentimental value is not used in estimating the value of the property. If one can prove emotional distress (a component of damage in all intentional torts), then it might be added to damages. Anytime you are aware of a hyper-sensitivity at the time of committing the tort, it is likely that you will have to pay for the damages related to that. If you asked for it back and were refused, it is more likely to be a conversion rather than trespass to chattels. Only certain types of information are protected by tort of conversion. Exception is where information is gathered at some cost and considered a commodity, where ideas are formulated with labor and inventive genius, where they are instruments of fair and effective commercial competition. Conversion may occur where one who is authorized to use a chattel uses it in a manner exceeding the authorization (like driving someone‘s car further than authorized). Acting in good faith, and under a mistake, does not protect against liability. An innocent purchaser can‘t get good title from thief and may be sued by true owner. Return of chattel: 1. In most states, a conversion occurs as soon as property is taken, not at time demand for return is made. 2. When return is demanded, and granted, action for conversion is not barred, though it might reduce damages. 3. Courts differ as to whether plaintiff has to accept return. Even the wrongful possessor of an item may have a cause of action
CHAPTER TWO: PRIVILEGES
I. Consent
Given facts and circumstances, would a reasonable person have believed there was consent? Types of consent: 1. Actual Consent (Express) 2. Implied Consent (Apparent) Customs Actions 3. Consent implied in law 1. 2. 3. 4. 5. Exceptions Incapacity Consent induced by fraud (fraud has to be related to the matter of consent) Consent induced by duress Exceeding scope of consent (being punched in basketball game) Consent to something illegal
Ways To Get Consent: Consent implied by custom: Trespass everyday for years, if neighbor is aware that it is going on and doesn’t do anything then you have consent. Consent implied by law: 1. Medical care providers can act in absence of express consent if: The patient is unable to give consent (unconscious, intoxicated, mentally ill). Emergency There is evidence of serious bodily harm if treatment is delayed Reasonable person would consent to treatment under the circumstances No reason to think the person wouldn‘t consent (this person would consent under circumstances.) (MOST HOSPITALS TODAY HAVE BROAD CONSENT FORMS) For minor child, parent‘s consent is necessary, except in emergencies. Courts will sometimes step in for the child. Doctors are required to inform patients of the risks of treatment or proposed procedure. 3. Mutual combat – 2 views The MAJORITY RULE: Consent is ineffective and you can sue o (If the thing done is not in violation of positive law, then consent is a complete defense). This rule is an exception to two generally well-recognized principles of law- (a) that one who has consented to suffer a particular invasion of his private right has no right to complain, and (b) that no one shall profit by his own wrongdoing. The MINORITY RULE: Consent is effective and you can‘t sue. In sum, majority would say there is a cause of action for both parties, minority would say you choose to fight, you made the bed you lie in. Growing # of courts and Restatement follow position that plaintiff‘s consent will be nullified if the defendant‘s conduct violated a criminal statute, designed to protect a class of persons to which plaintiff belongs.
II. Self-defense
1. 2. 3. Anyone is privileged to use reasonable force to protect himself against a threatened battery on the part of another. No retaliation – When the battery is no longer threatened, the privilege terminates. Reasonable belief – The privilege exists when the defendant reasonably believes that force is necessary to protect him against battery, even though there is in fact no necessity. Reasonable mistakes are okay. Provocation not sufficient- Almost every court has said that insults, verbal threats, and opprobrious language do NOT justify the exercise of self-defense. If there is threat of force in the name calling then you may act. Injury of third party. The privilege of self-defense is carried over and the defendant is not liable to the other person in the absence of sum negligence toward him.
4.
5.
6.
Can lose privilege if you exceed the scope of it (Knock someone down then jump on them and batter them. In this case they then have the privilege of defense against you.) Amount of force- Differences in size, weight, age and relative strength are considered. To justify resistance with a deadly weapon, defendant must have reasonable apprehension of loss of life or great bodily injury. Generally, burden is on D to prove that the use of force was reasonable under the circumstances. Some jurisdictions shift the burden if defendant is police officer. Force used must be proportionate. You can threaten more force than you entitled to use so long as your intention is just to create apprehension to diffuse the situation. IF YOU EXCEED THE SCOPE OF THE PRIVILEGE WITH EXCESSIVE FORCE, YOU LOSE THE PRIVILEGE AND ARE LIABLE FOR BATTERY. 8. Retreat – MINORITY RULE - Rather than kill his assailant or seriously wound him; defendant ―must retreat to the wall.‖ A minority of the American courts will apply this rule, and is adopted by the restatement. Never have to retreat in one‘s own home MAJORITY RULE – Never have a duty to retreat, even when deadly force is threatened. Restatement provides that the victim may use deadly force if there is the slightest doubt, if reasonable, that the retreat can safely be made, and “in determining whether his doubt is reasonable, every allowance must be made for the predicament in which his assailant has placed him.” You do have to step out of the way if the danger coming at you is negligently created (I.e. someone coming at you on skates, and is going to run into you.)
7.
III. Defense of others
1. A privilege similar to self-defense is recognized for the defense of a third person as long as the force is reasonable and proportionate. Can use the same amount of force the person being attacked would be able to use. Reasonable mistake – MINORITY RULE: Intervenor steps into the shoes of the person he is defending, and is privileged only if the person he is defending would be privileged to defend himself. MAJOIRTY RULE - Defendant is privileged to use reasonable force to defend another even when he is mistaken in his belief that the intervention was necessary, so long as his mistake was reasonable.
2.
IV. Defense of property
1. No privilege to use force intended or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises. * * * 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. Unlike in cases of self-defense, a reasonable mistake as to the existence of a privilege will not protect the defendant. (You are only liable for mistake if the person has privilege to be there, not if you make mistake in amount of force necessary). Privilege to defend property is limited to use of force reasonably necessary to the situation as it appears to the defendant. Normally, this is a jury question, but there are some exceptions. 1. When invasion is peaceful and occurs in presence of possessor, the use at any force at all will be unreasonable unless a request was made to depart. Request does not have to be made if the conduct of the intruder would indicate to a reasonable person that it would be useless or could not be safely made in time. 2. Force calculated to cause death or serious injury can only be utilized to defend property in a few situations. When invader threatens personal safety of the defendant or his family (self-defense). To prevent the commission of a crime.
Some states allow deadly force in serious invasions of property, like burglary, and there is also some authority that the right of peaceful habitation may be protected by the use of deadly force. General rule prohibiting deadly force is modified in some states if defendant gives plaintiff clear notice of the danger. The landowner can still be held liable if he meant only to scare the intruder but accidentally injured him. Limitations on possessor‘s privilege may also restrict his power to eject the plaintiff if it would put plaintiff in danger. If the plaintiff‘s presence endangers the personal safety of others, the privilege of self-defense or of defense of third party may justify ejection.
V. Recovery of property
A. What the owner needs to be able to show to get the property back 1. Property must be taken tortiously 2. Fresh pursuit (no undue delay) Limited to prompt discovery of the dispossession, and prompt and pursuant efforts to recover the chattel. If pursuit is halted or has not commenced, the original owner has no privilege. 3. Demand for return unless it is futile or impossible A resort to any force at all will not be justified until a demand has been made for the return of the property, but this is not required if when it reasonably appears that demand would be useless or dangerous. 4. Reasonable force (recovery of property does NOT allow for deadly force). Reasonable mistakes are not allowed as part of this privilege unless the mistake was induced by another. (stuff is not as valuable as people). When there is an installment plan, the title remains in the seller and upon default he has the right to retake the chattel if he can do so peaceably, he may do so without liability. But, no right to recapture by force. The courts do not agree as to whether a clause in the contract giving seller right to use force is valid. General Rule that you can‘t recover property that was sold; there are legal remedies you can seek. B. Shopkeeper’s privilege 1. Reasonable suspicion of shoplifting 2. On or near premises (for tort law don’t have to wait till they leave, can stop them near or on the premises) 3. notify of suspicion/demand return 4. reasonable force/search (can’t use deadly force) (Reasonableness can depend on how expensive the thing was that was stolen) 5. reasonable detention for a reasonable amount of time VA statute says not longer than an hour. Can hold for a reasonable amount of time Restatement allows reasonable force short of bodily harm. Some has extended it to suppliers of services when defendant refuses to pay. Does not extend to protection against action for defamation.
C. Reentry upon real property 1. MINORITY – individual who has the legal right to immediate possession of land to is allowed to attempt to retake possession by use of reasonable force short of causing death or serious injury. 2. MAJORITY – Most states allow another remedy, and hold that you cannot retake possession of land by force.
VI. Necessity
A. Public necessity privilege 1. A person is privileged to enter land and interfere with chattels if it reasonably appears necessary to avert a public disaster. Reasonable force may be used, depending on the facts, even deadly force may be authorized under rare situations.
2. 3. 4.
Modernly, courts appear to say that if one person has to make a sacrifice for the good of public, then he ought to be compensated by the public. Governmental immunity is disappearing. Some jurisdictions provide for compensation by statute. If unreasonable then the person is liable
B. Private Necessity 1. If your chattel is more valuable than the one you are imperiling, and there is an emergency situation, then you have the privilege to interfere with someone else’s property to save your own. (A starving man could take what he needed, but he has to pay when he can). Traveler on highway is normally held to be privileged in turn out to avoid an obstruction, to pass over abutting land. Generally, the necessity privilege never extends to taking of life. MPC does permit duress as a defense if the force or threat of force was such that a person ―of reasonable firmness in his situation would be unable to resist. Sentimental value can not factor in Can be reasonably mistaken about the worth
VII. Discipline
The immunity that used to attach to parent/child situations has evaporated in most jurisdictions, so now parents and children can sue each other. But privilege or discipline can still be used as a defense.
CHAPTER 3: NEGLIGENCE Negligence: 1. Duty 2. Breach 3. Factual Cause 4. Proximate Cause 5. Damages DUTY – Duty to act as an Average Reasonable Person with ordinary prudence in the same or similar
I.
circumstances A. ARP: a. Ordinary person is not super-cautious b. Level of intelligence is irrelevant i. MAJORITY: You are held to your superior knowledge ii. Superior physical and mental capabilities are considered, so you can be held to a higher standard than ARP. - EXCEPTIONS: B. Custom Rule – Customary practice can by probative but it is not conclusive (except in the medical arena). If custom is unreasonable then it might not be admitted still use B