I. Intentional Torts a. BATTERY i. Act (volitional) 1. external manifestation of the will 2. volitional movement of some part of the body a. unconscious acts and reflex actions are not sufficient i. insane persons and minors are capable of volitional conduct ii. Intent to cause contact which is harmful or offensive (subjective test) 1. purpose/desire, or 2. belief or knowledge to a substantial certainty (about 85%) a. just need intent to cause contact (Vosberg v Putney): kid kicked another lightly on shin b. Intent is subjective, except if the person is insane. Then, we look at the objective facts and impute intent if the facts warrant it. 3. transferred intent applies iii. Causes (directly or indirectly) iv. Harmful or offensive contact 1. harmful a. any physical impairment to another‘s body or physical pain or illness i. physical impairment- any alteration of the structure or function of another‘s body 1. pulling a hair out would count 2. we protect harmful contact more than offensive. 2. offensive- invasion of another‘s sense of personal dignity. a. objective test, unless you have been put on notice of Pl‘s hypersensitivity. Once on notice, it becomes subjective. b. Pl does not have to be aware of contact i. Sleeping Beauty or unconscious patient during operation 3. contact a. can be with anything so closely associated with the body as to be customarily regarded as part of the person 1. Examples: plate, hat, backpack---Grey areas: bicycle, car, house b. QUICK GLANCE AT BATTERY i. Act ii. Intent to cause (harmful or offensive) contact iii. Causes iv. Harmful or offensive contact b. ASSUALT i. overt act 1. volitional movement of some part of the body 2. generally, words alone not sufficient a. exception one: unprivileged conditional threat i. ex. Coming up behind someone and saying, ―don‘t move or I‘ll shoot.‖ 1. the surrounding circumstances force Pl to rely on the words alone ii. ex. If you don‘t pay me my money now, I will kill you. 1. this is a threat with no privilege, even if the guy owes him money b. exception two: threat of danger from an independent source i. ex. ―Look out! The spider is going to get you!‖ ii. intent (to cause imminent apprehension of a harmful or offensive contact ) 1. to cause contact, or 2. to cause imminent apprehension of contact a. this is a subjective test (what was in D‘s mind when he acted?) i. purpose/desire, or ii. belief or knowledge to a substantial certainty 2. transferred intent applies iii. Causes iv. Imminent apprehension of (harmful or offensive) contact 1. majority approach: test is objective (would a reasonable person apprehend contact?) a. unless there is prior knowledge (I have been put on notice) i. ex. I know the guy can throw the rock 100 yards. ii. minority approach (also Restatement view): test is subjective 1. actual apprehension of the pl is what is important 2. pl must apprehend a contact to her own person a. threats to home or 3rd person are not enough
1
b.
if D‘s words negate harm, then it is not assault a. If you weren‘t such an old fool, I‘d kill you! 4. pl does not have to fear, just apprehend (anticipation, expectation) a. ex. A small boy can assault a large bodybuilder 5. apparent ability of D is sufficient a. if man has gun, and it is unloaded, and threatens you with it, it is still assault if you think it is loaded 6. mere preparation is not sufficient a. standing and loading a gun is not enough. The gun must be turned on you to have imminent apprehension 7. apprehension must be of an imminent harmful or offensive contact a. pl must be aware of threat at the time thereof 8. threats of future harm insufficient a. How do we know what imminent means? i. Without significant delay is test 9. if there is no intervening by either the pl or another and the assault would happen anyway, then there is an assault a. ex. Roger Clemens and Kissing Bandit b. pl is under no duty to intervene or avoid the assault 10. harmful a. any physical impairment to another‘s body or physical pain or illness i. physical impairment- any alteration of the structure or function of another‘s body 11. offensive-invasion of another‘s sense of personal dignity. a. objective test, unless you have been put on notice of Pl‘s hypersensitivity. Once on notice, it becomes subjective. i. QUICK GLANCE AT ASSAULT 1. Act 2. Intent to cause imminent apprehension of a harmful or offensive contact 3. Cause 4. Imminent apprehension of harmful or offensive contact FALSE IMPRISONMENT (FI) i. Act 1. volitional movement of some part of the body a. physical force against pl or pl‘s immediate family i. note: reasonableness of pl‘s submission is immaterial 1. ex. Nun could imprison huge weightlifter 2. words alone may be sufficient a. threats of imminent physical harm to pl or pl‘s family or to pl‘s property; i. future threats don‘t suffice. ii. threats to economic well-being do not suffice iii. moral persuasion will not suffice (there must be duress) b. words asserting legal authority---arrest by police officer 3. If someone has a duty to let someone out, and they don‘t, there can be FI. 1. ex. Lady on boat who they won‘t let off. 2. refusual to release when under a duty to do so is intent to confine 3. ii. Intent to confine within boundaries 1. subjective test a. purpose/desire, or b. belief or knowledge to a substantial certainty 2. transferred intent applies iii. Causes iv. Confinement within boundaries 1. within boundaries for some period of time, however short 2. pl must not be aware of a reasonable means of escape a. If there is a reasonable means of exit that you are aware of, it is not FI. i. Pl is under no duty to risk harm to self (or dignity), property (including clothing), or another (3rd person) by attempting escape. 1. ex. Pl would not be required to make his escape by crawling through a sewer. ii. Pl is under no duty to search for a means of escape iii. A larger person can be confined by words of force from a smaller person, even if he could easily escape the threat of force
2
c.
iv. if the only means of escape could cause physical danger to pl, and he could remain ―imprisoned‖ without any risk of harm, he may not recover for injuries he suffers in making his escape. v. pl does not have to break law to escape 1. if D asserts that pl must break law to be released, compliance is not deemed a ―reasonable‖ means of escape. vi. Keeping someone out is not FI 1. ex. Keeping out of a concert or theater. vii. Confinement can be in apparent barriers, what looks like a barrier to pl 1. ex. Electric fence that is not working is still confinement if pl thinks it is working. v. Awareness of confinement necessary 1. unless harmed by confinement a. QUICK GLANCE AT FALSE IMPRISONMENT i. ACT ii. INTENT TO CONFINE WITHIN BOUNDARIES iii. CAUSES iv. CONFINEMENT WITHIN BOUNDARIES v. AWARENESS OF CONFINEMENT NECESSARY UNLESS HARMED BY CONFINEMENT INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS i. Extreme and Outrageous Act 1. atrocious and utterly intolerable in a civilized community (reasonable man test) a. Court is gatekeeper. If the facts say reasonable minds could differ, then the jury will decide. If reasonable minds couldn‘t differ, then the court will decide. b. Extreme and outrageous is a very high standard ii. INTENT to cause severe emotional distress (subjective) 1. Purpose or desire-to cause severe emotional distress, or (Pl, family, friend, dog, chattel) 2. Believe to a substantial certainty that your behavior will cause severe emotional distress (Pl, family) 3. Recklessness also suffices (restatement and majority) (Pl) a. Conscious disregard of a high degree of probability i. recklessness only suffices when act is done to you, not to others or chattel ii. If you act with a purpose/desire to cause distress to someone watching by harming chattel, dog, or friend then there is liability. (purpose/desire will work for everyone or every chattel) iii. If you act with substantial certainty that you could cause distress to someone watching by harming chattel, dog, or friend then there is no liability. iv. If you act with substantial certainty that you could cause distress to someone watching by harming a family member, then there is liability v. There is no transferred intent for IIED iii. Causation iv. Severe emotional distress 1. Distress beyond that which a reasonable person should have to endure, or 2. bodily harm results from severe emotional distress a. QUICK GLANCE AT IIED i. Extreme and outrageous act ii. Intent to cause severe emotional distress (recklessness suffices under Restatement & Majority) iii. Causation iv. Severe Emotional Distress TRESPASS TO LAND i. Act ii. Intent to enter or remain on land which is in the possession of another 1. It doesn‘t matter if he doesn‘t know it is someone else‘s land (no good faith mistake) 2. Person with immediate right to possession of land has right to bring suit. a. Intent for particulate matter is different analysis i. Court distinguished environmental trespass (particulate matter): 1. Act 2. Intent to do an act which results in invasion a. Reasonably foreseeable that invasion would occur 3. Causes 4. Invasion of land
d.
3
5. Actual damages iii. Causation iv. Entry or remaining on land in possession of another by person or thing 1. Difference between trespass and nuisance: a. Trespass: interference in the exclusive possession of land b. Nuisance: interference in the use and enjoyment of land 2. In common law, Owner of land owns above and below land; below to core of earth and infinitely above. a. Courts have ruled that owner owns air space in immediate reach (whatever owner can reasonably use) 3. Overstaying your welcome can result in trespass a. QUICK GLANCE AT TRESPASS TO LAND i. Act ii. Intent to enter or remain on land which is in the possession of another iii. Causation iv. Entry or remaining on land in possession of another by person or thing e. TRESPASS TO CHATTELS i. Act ii. Intent to deal with chattel in manner dealt with iii. Causation iv. Invasion of chattel through 1. dispossession for a substantial period of time, or 2. harm to chattel a. Mistake is not a defense b. D pays diminution of value of chattel. c. Harm to chattel doesn‘t have to be physical harm, it can just harm its value or usefulness f. Conversion i. Act ii. Intent to deal with chattel in manner dealt with iii. Cause iv. Invasion of chattel interest which is so serious that defendant is required to pay plaintiff full value of chattel (forced sale) 1. factors to consider a. extent and duration of D‘s exercise and control over the chattel b. extent and duration of interference with P‘s right of control c. D‘s good faith d. D‘s intent to assert a right inconsistent with P‘s right of control e. amount of harm done to chattel f. amount of inconvenience and expense to P 2. If D intends to steal it is an automatic conversion. 3. The value of the chattel for conversion is the fair market value. a. Fair market value is determined at the time and place of conversion (common law). Some courts give highest intermediate value between time of conversion and the time of judgment. 4. Damages cannot be recovered for sentiment alone a. Anyone in possession of chattel may maintain action 5. If conversion is found, pl elects remedy of either Trespass to Chattels or Conversion II. PRIVILEGES (8) a. Consent-3 types (burden is on D to prove): i. Express (actual)-orally or in writing ii. Implied (apparent)-can be inferred through custom (ex. Shaking hands, hitting in football, or manifesting your intent without objecting (lady getting shots on cruise ship) iii. Consent implied-in-law 1. Docs can act in the absence of express consent if a. the patient is unable to give consent (unconscious, intoxicated, mentally ill, incompetent) b. there is a risk of serious bodily harm if treatment is delayed c. a reasonable person would consent to treatment under the circumstances d. this patient would consent to treatment under the circumstances. iv. Exceptions to consent (burden is back on Pl) 1. Incapacity- consent invalid if person consenting is incapacitated 2. Fraud- Consent procured by fraud is invalid 3. Duress-consent invalid if given under duress (threats of harm to spouse sufficient) 4. Exceed scope of consent 5. Illegal---Consent to criminal acts:
4
b.
c.
d.
e.
6. Self-defense i. A person is entitled to use reasonable force to prevent any threatened imminent bodily harm 1. Degree of force: Only the degree of force necessary to prevent the threatened harm may be used. If D uses more force than necessary, he will be liable for damage caused by the excess. 2. Apparent necessity: Self-defense may be used where D reasonably believes there is a real threat of harm a. Reasonable mistake will not give rise to liability 3. D may not use retaliation for a tort already committed a. Ex. P hits D with a snowball. Ten minutes later, D hits P with a snowball, in retaliation. D has committed battery on P, because D‘s act was not done in true self-defense 4. You can threaten more force than you are entitled to use, as long as your purpose is to diffuse the situation. 5. When deadly force is threatened against you: a. Majority view i. you can stand your ground and use deadly force, even if you can retreat b. Minority view: If you can retreat safely, you must, unless you are in your house (also Restatement view) 6. If you intend to defend yourself, and you hurt someone else, you will have a defense (self-defense) because Transferred Intent works. 7. You can‘t use self-defense if you are the attacker and then the guy starts getting the better of you. Defense of others i. A person may use reasonable force to defend another person against attack. The same rules apply as in self-defense ii. The traditional view protects defender only if the person protected is actually privileged to defend themselves. The modern view protects the defender‘s reasonable mistake Defense of Property i. A person may use reasonable force to defend their property, both land and chattels. ii. Warning required first 1. The owner must first make a verbal demand that the intruder stop, unless it reasonably appears that violence or harm will occur immediately, or that the request to stop will be useless. iii. Mistake: The effect of a reasonable mistake by D varies 1. Mistake as to danger: If D‘s mistake is about whether force is necessary, D is protected by a reasonable mistake. (Example: D uses non-deadly force to stop a burglar whom he reasonably believes to be armed. In fact, the burglar is not armed. D can rely on the defense of property.) 2. Mistake as to Privilege: But if the owner‘s mistake is about whether the intruder has a right to be there, the owner‘s use of force will not be privileged.(Example: D reasonably believes that P is a burglar. In fact, P is a friend who has entered D‘s house to retrieve her purse, without wanting to bother D. Even non-deadly force by D will not be privileged.) 3. Mechanical devices a. You can‘t use force calculated to cause death or serious bodily harm to protect property. b. A mechanical device that won‘t cause death or serous bodily injury is ok (such as electrical fence or barbed wire) 4. If someone hops on your train, you can‘t throw them off until the next stop Recovery of property (recapture of chattels) i. Elements: 1. property taken tortiously (fraud, bad check, etc.) 2. you must be in fresh pursuit (w/o undue delay) 3. you must demand return (unless it would be futile or dangerous) 4. you can use reasonable, non-deadly force a. General rule for a possession taken non-tortiously---You can‘t use any force (no breach of peace) ii. Shopkeeper‘s privilege 1. Reasonable suspicion of shoplifting 2. person on or near premises 3. must give notification of suspicion or demand return 4. reasonable search---includes reasonable amount of force 5. reasonable time of detention iii. Recapture of real property 1. General rule is no use of force is allowed
i. Where D‘s act against P is a criminal act, courts are split. 1. majority rule is that P‘s consent is ineffective if the act consented to is a crime a. Ex: P and D agree to fight with each other. In most states, each may recover from the other, on the theory that consent to a crime – such as breach of peace – is ineffective 2. Minority rule: consent is effective, so no recovery available Mistake known or caused by actor
5
Necessity i. Public Necessity- no compensation to the injured party for damage caused by necessity, because it is for the public good (common law) (there are statutes which disagree) 1. Rule: Any person is privileged to commit a tort if it reasonably appears necessary to avert a public disaster. a. Any force reasonable is allowable, including deadly force. b. Mistake is ok. ii. Private Necessity- person claiming necessity must compensate the injured party 1. Rule: You can preserve your more valuable property at the expense of someone else‘s less valuable property, but you must pay the owner damage that is caused to his property. a. This rule gives the trespasser legal right to trespass to save his property, but he must pay damages. i. If there is a detour, you have the right to trespass to get around it (necessity), but you must pay for any damage that occurs. g. Discipline i. General rule: kids can‘t sue parents 1. But this is changing, and a lot of states have said kids can sue parents h. Justification i. a catch-all term used when there is a good reason for exculpating D from what would otherwise be an intentional tort. III. NEGLIGENCE (Duty, Breach, Factual Cause, Proximate Cause, Damages) a. DUTY i. The average reasonable person in the same or similar circumstances 1. level of intelligence is irrelevant a. If you have superior knowledge (say, a truck driver with 20 years experience), majority says you are held to your superior knowledge, not ARP b. Superior physical and mental capabilities are considered, so you are held to a higher standard than ARP 2. Exceptions: 3. Custom Rule: Proof of custom allowed, but a. Custom is probative, but not dispositive (conclusive). We still must ask the question of B