1 I. Intentional Torts (IT) A. Prima Face Case: Act with intent that causes harm 1. Act must be of actor’s volition. 2. Intent is specific or general. i. Actor has specific intent to bring about certain consequences when the goal of his action is to bring about these consequences. ii. Actor has general intent to bring about certain consequence when he knows with substantial certainty that these consequences will result. iii. Anyone can commit an IT – Garratt v. Dailey: 5yr who knew w/substantial certainty that an injury likely had requisite intent to commit IT. iv. Note: An unintended injury may still be the basis of the tort (i.e. A intends to push B, but not break B’s arm. A breaks B’s arm after pushing him. A is nonetheless liable for breaking B’s arm v. Transferred Intent (across torts and between persons). a. A intends to commit tort1 against B, instead: 1) A commits tort2 against B, or 2) A commits tort1 against C, or 3) A commits tort2 against C. b. Occurs ONLY in trespassory group: (1) assault, (2) battery, (3) F.I., (4) trespass to land, and (5) trespass to chattel. 3. Causation: actor’s conduct is a substantial factor in bringing about the injury. B. BATTERY 1. Purpose: To protect a person’s interenst in freedom form unwanted bodily contact. 2. Prima Face Case: An (1) act with the (2) intent to bring about a harmful or offensive contact, that (3) causes the contact to a person. i. Harmful and offensive contact based on objective standard: what a reasonable person of ordinary sensibilities would find harmful or offensive. a. Offensive when it: 1) occurs absent express or implied consent. 2) “offends a reasonable sense of personal dignity” (R § 19) 3) Determinative Factors: i. Relationship of the parties ii. Previous interactions iii. Circumstances ii. “Person” –anything so intimately connected w/one’s person as to be universally regarded as part of the person [Fisher v. Carrousel Motor Hotel, plate]. a. Artificial line-drawing mechanisms, dep. on perceived offensiveness. b. Causation (direct or indirect) only requires that the actor sets in motion a force that brings about the contact. iii. Consciousness of the harmful act at the time it occurs is NOT required to establish battery (ex. unauthorized surgery on unconscious patient). iv. Damage from the act is NOT required to establish battery. In this case = nominal damages. Punitive damages = (D) acts with malice. C. ASSAULT 1. Purpose: Protects a person from the apprehension of unwanted bodily contact. 2. Prima Facie Case: An (1) act w/the (2) intent to bring about reasonable apprehension of immediate harmful or offensive contact that (3) causes the reasonable apprehension. i. Reasonable apprehension based on expectation of a reasonable person vis-a-vis an apprehension of immediate contact (i.e. ability to defend potential threat does not remove apprehension in (P)). 2 a. Requires only apparent ability to cause injury. (not actual capability. Ex. A points unloaded gun at B. B doesn’t know it’s unloaded. A can’t injure B, but B is reasonably apprehended). ii. The act must be overt. a. Mere words are insufficient, you have to DO something. b. Words negate an assault if they render apprehension unreasonable despite a hostile act. (Ex. Shaking a clenched fist while saying, “I’d hit you if I weren’t so nice.) iii. Conditional Threats, combination of acts and words, are sufficient to establish assault (ex. A points gun at B and says, “your money or your life”). iv. To be immediate, the contact must be eminent. a. Future contact is not immediate. b. Great distance b/w actor & victim removes immediacy. 3. Consciousness of the harmful act at the time it occurs is required. [Halloway v. Wachovia, sleeping child unaware of repo woman] 4. Damage from the act is NOT required to establish assault (see battery). D. FALSE IMPRISONMENT 1. Purpose: Protects an individual’s right to move freely from place to place as she sees fit & deters violence resulting from claustrophobia 2. Prima Facie Case: An (1) act or omission to act with the (2) intent to confine or restrain a person to a bounded area that (3) causes the person to be confined to that area. i. An actor may confine a person with: a. Physical barriers or, b. Physical force to (1) person, (2) his family, (3) his property or, c. Direct threats of force to (1) person, (2) his family, (3) his property or, d. Indirect threats of force to (1) person, (2) his family, (3) his property or, e. Failure to Provide Means of Escape – intentional breach of an actor’s affirmative duty to provide means. ii. To require one to choose b/w injury to person or property and freedom of motion is to confine one. iii. An act DOES NOT confine a person when the decision to remain in the area is due to: a. moral pressure b. future threats against person or property iv. Bounded area exists when victim: a. has limited freedom of movement in all directions. b. is unaware of a reasonable means of escape. 3. Victim need not resist physical force, or test a threat of force to est. prima facie case. 4. Time of confinement: relevant ONLY to the extent of damages. 5. Awareness of imprisonment is required to establish false imprisonment. 6. Shoplifting Exception: Detentions are privileged if: i. Shop-owner has reasonable belief of shoplifting, and ii. Detention occurs in a reasonable manner, and iii. Detention lasts for a reasonable period of time for investigative purposes 7. Damage from the confinement is NOT required to establish F.I. E. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED) 1. Prima Facie Case: An (1) extreme and outrageous act with the (2) intent or recklessness to inflict severe emotional distress on a person that (3) causes the distress, resulting in (4) severe emotional damages. 3 i. Extreme and outrageous conduct must be 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 [R §46]. a. Almost insurmountable element to establish: (1) difficult to prove, & (2) easy to falsify. b. Misuse of Authority may provide a basis. c. Offensive/Insulting Language usually NOT a basis. ii. Special Relationships (common carriers, i.e. bus driver to rider) and Known Sensitivity may lower the threshold required to establish extreme or outrageous conduct: (1) child, (2) elderly, (3) hypersensitive adults, (4) pregnant women. a. Marriage counselor sleeping w/P’s wife [Figueiredo-Torres v. Nickel] iii. IIED that is parasitic to physical harm is easier to establish. iv. Negative correlations exist b/w: (1) severity of distress and requisite extremity of conduct; (2) foreseeability of distress and requisite extremity of conduct. 2. A bystander may est. IIED when an actor batters a 3rd party and bystander suffers severe emotional distress if he can prove: i. his presence when the 3rd party was injured, and ii. he is closely related to the 3rd party, and iii. actor’s knowledge of bystander’s presence and close relationship to 3rd party. iv. EXCEPTION: Presence is NOT required if actor has a design or purpose to cause distress (ex. Frank tell Nate he will kill his BF, Jeremy. Frank does in Nate’s absence = IIED). 3. Damage from the conduct is required to establish IIED. i. Physical injuries are unnecessary. ii. Severe emotional distress is a must = BRING IN EXPERTS. a. P’s own description of ED resulting from racist incident insufficient to establish element [Caldor v. Bowden] F. TRESPASS TO LAND: 1. Purpose: Prevents interference w/right to exclusive possession of property. 2. Prima Facie Case: (1) an act of physical invasion of P’s real property, with (2) the intent of D to bring on the invasion whether they know it’s P’s land, and (3) causation. i. Physical invasion – doesn’t require D to personally go on land (i.e. rock, or pushing someone else onto land will suffice) a. Generally, invasion must be tangible, but intangible objects that cause tangible damage may rise to trespass to land [Bradley v. American Smelting, particulates said to trespass b/c of damage caused]. b. Generally, D must invade the possessory interests of P. c. Contrast invasion of use and enjoyment which is only a nuisance. ii. The intent must be to: a. Enter land in possession of another, or cause a thing/3rd party to do so, or b. Remain on land, or c. Fail to remove from the land a thing/person he is under a duty to remove. iii. The definition of “land” for this tort may include air and ground. 3. Damage from the invasion is NOT required to establish prima facie case. G. TRESPASS TO CHATTELS: 1. Purpose: Protects possessory interests in personal property. 2. Prima Facie Case: (1) an act of intermeddling or dispossession with (2) the intent to use, dispossess, damage the chattel of another, or cause a thing or 3rd party to do so that (3) causes the use, etc., and results in (4) provable damages. i. The act must: a. dispossess the other of the chattel, or 4 b. impair the condition, quality or value, or c. deprive the other of the use for a substantial time, or d. cause (bodily) harm to the other or a person or thing in which the other has a legally protected interest. 1) Trespass where D SPAMed P’s server [Compuserve v. Cyber Promotions] ii. A failure to remove a thing or person from chattel when under a duty to do so may constitute a trespass to chattel. iii. Mistake is NOT a defense (ex. accidentally taking the wrong coat) iv. Chattel is anything moveable or unattached to the land. 3. Recovery limited to the amount of the damages. 4. Zwier’s test: i. Personal property ii. Intermeddling iii. Physical contact w/chattel iv. Substantial amount of time v. Actual damages H. CONVERSION : 1. Purpose: protects possessory interests in personal property. 2. Prima Facie Case: (1) an act with (2) the intent to use, dispossess, damage the chattel of another, or cause a thing or 3rd party to do so that (3) causes the complete dispossession or interference of the property interest in the chattel. 3. An act that so seriously interferes w/the right of another to control the property that the actor may justly be required to pay the other the full value of the chattel [R § 221(a)]. i. Acts of conversion include: a. Wrongful acquisition (theft, embezzlement) b. Wrongful transfer (selling, mis-delivering) c. Wrongful detention (refusing to return to owner) d. Substantial alteration e. Severely damage or destruction f. Misuse of the chattel ii. Seriousness of interference determined by: a. Extent and duration of actor’s exercise of dominion. b. Extent and duration of resulting interference w/other’s control. c. Intent of actor to assert a right inconsistent w/the other’s control. d. Harm done to the chattel e. Inconvenience and expense caused to the other 4. MERE INTENT is required. i. Legitimate purchaser of stolen chattel may be liable for conversion. ii. Innocent conduct may result in conversion (Wiseman v. Schaffer, D towed P’s truck when called by 3rd party (not owner) to do, & then 3rd party stole it). 5. Remedies include: i. Forced Sale: full value of converted property, even if property isn’t damaged a. Once converted, P is NOT obligated to accept the property even if D wishes to return. b. Conversion-specific remedy. ii. Return of Chattel 6. Mistake is NOT a defense. 7. Damage to chattel not required—dominion over property is sufficient. 8. Conversion vs. Trespass to Chattel i. Substantial damage vs. Some damage 5 a. Fact finder determines severity of damage ii. Substantial invasion of interest vs. Some invasion of interest iii. Forced Sale remedial option vs. Forced Sale NOT a possible remedy. II. Defenses to Intentional Torts A. CONSENT: 1. D is NOT liable for an otherwise intentional tort if P CONSENTED to D’s act. i. Volenti non fit injuria—to one who is willing, no wrong is done. 2. Did P have capacity to consent? (NO capacity = NO consent) i. All have capacity to commit a tort, BUT everyone does NOT have the capacity to consent to a tort. 3. Did P give consent? i. Express: actual consent by words. a. Fraud, duress and mistake exceptions ii. Implied: a. By actions – [O’Brien v. Cunard Steamship, P extended arm for smallpox vaccine 1. Custom and usage – inferred in ordinary contacts in daily life (minor bumping in crowd). b. P’s participation in an activity consent to injuries unless they result from unlawful, unreasonably expected, deliberate, reckless or willful conduct [Hackbart v. Cincinnati Bengals, NOT consent where alleged tort broke the rules and not part of the general roughness of the game] c. By law: where it’s necessary to save a life or important interest and: 1. P is unconscious/unable to consider matter, 2. an immediate decision is necessary, 3. there’s no reason to believe P would w/hold consent if able, and 4. a reasonable person in P’s position would consent. B. SELF-DEFENSE 1. Defn, R § 63 (1): (a) An actor is privileged to use reasonable force (b) to defend himself or [third person] against unprivileged harmful or offensive contact or bodily harm (c) which he reasonably believes that another is about to inflict intentionally upon him. 2. Defensive force must be proportional to: (1) original force, (2) threatened interest. i. Restatement: “not intended or likely to cause death or serious harm.” ii. Common Law: deadly force ok in some situations [Roberts v. American Employers, officer shooting gun at P’s jaw in defense of P grabbing him]. 3. Timing: tort must be now-occurring or imminent. Can NOT have already occurred. 4. Does NOT require P to attempt to escape. 5. Factors to consider: i. Age and strength of parties ii. Previous reputations for violence iii. Which party was the aggressor iv. Degree of physical harm reasonably feared v. Presence/absence of weapons vi. Race?? C. DEFENSE OF PROPERTY -1. Defn, R § 77: a person may use reasonable force to protect property when he reasonably believes that force is necessary to prevent the intrusion. 2. Defensive force must be proportional to threatened interest i. Deadly force NOT O [Katko v. Briney, spring gun in abandoned farmhouse bad]. 3. Timing: when property is threatened, or in “fresh pursuit” of property. 6 i. D may peaceably enter another’s land in attempt to take possession of personal property to which he is entitled. ii. Landlord may use reasonable force to evict tenant 4. Storeowners can use against accusations of FI. D. PRIVATE NECESSITY 1. Defn., R § 263: one is privileged to commit an act which would otherwise be trespass to chattel or conversion if the actor reasonably believes it necessary to protect the person or property of the actor or 3rd party from serious harm, UNLESS the actor knows that the person for whose benefit he acts is unwilling that he shall do so. i. Ploof v. Putnam: D liable for damages to P’s boat even though P committed trespass to property/chattel in mooring boat to dock during the storm, b/c it was necessary to dock to save human life. 2. NOT ABSOLUTE: where the act is for the benefit of the property (instead of life) of the actor or 3rd party, the actor is subject to liability for any injury caused to another’s property by the exercise of the privilege. i. Vincent v. Lake Erie, in the face of the storm, P allowed to use privilege to dock boat, but must pay for the damages inflicted on the dock. E. PUBLIC NECESSITY 1. Defn, R § 196: one is privileged to commit an act which would otherwise be a trespass to a chattel or conversion if the actor reasonably believes the act to be necessary for the purpose of avoiding a public disaster that would benefit many people. 2. ABSOLUTE: D not required to compensate P for loss. i. In general, no compensation for destruction of property or taking property to prevent disaster to community [U.S. v. Caltex, destruction of property to prevent the valuable drilling wells from falling into enemy hands. Dissent: just compensation under 5th Amend. Imminent Domain]. Prima Facie Case + Lack of Defense = Liability