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					Torts M.O.                                                                                                                                   12/5/10 9:45:30 PM


  Topic
         TORTS
           Intentional Torts
              Torts to the Person
                  Battery
                    Prima facia case:
                        1. Act by Defendant
                        2. Intent
                        3. Harmful or offensive touching
                        4. Causation
                    Act by defendant
                        Requires volitional movement
                            Unconscious acts are generally not sufficient, i.e., people having seizures or on drugs.
                            Reflex actions are not sufficient. Note that actions such as bracing oneself for fall are volitional.
                            Persons who are not legally competent are still capable of volitional conduct.
                    Intent
                        The plaintiff generally must show that the defendant did the act with the intent to inflict a harmful or offensive touching on
                        the plaintiff or a third person. The test is:
                            The plaintiff desired to cause the result, or;
                            believed that the result was substantially certain to occur. This test is subjective. It is not what a reasonable person
                            would have desired or believed, but what the defendant in fact desired or believed.
                        The defendant's motive for acting is generally immaterial to establish a prima facia case, but may be relevant when
                        considering punitive damages.
                        Transferred intent doctrine
                            If a defendant acts with the requisite intent for battery, she is liable for battery to anyone injured even if it is not the
                            intended victim.
                    Harmful or Offensive Touching
                        Plaintiff must show that the defendant's intentional act resulted in the infliction of a harmful or offensive touching of the
                        plaintiff's person, or something so closely associated with the plaintiff as to make the touching tantamount to a physical
                        invasion of the plaintiff's person. Fisher v. Carrousel Motor Hotel, Inc.
                        Harmful touching
                            A touching is harmful if it injures, disfigures, impairs, or causes pain to any bodily organ or function.
                        Offensive touching
                            A touching is offensive if it would offend a reasonable person's sense of personal dignity.
                                 A plaintiff's hypersensitive reaction is insufficient.
                                    This rule might not apply if the defendant knows of the plaintiff's hypersensitivity and proceeds anyway.
                                 The plaintiff need not have knowledge of the touching at the time thereof.
                    Causation
                        The causation element is satisfied if the defendant's conduct directly or indirectly results in the injury.
                            The injury must be caused by some force that the defendant's act sets in motion - must do more than simply cause
                            plaintiff to be in a place in which a totally independent and unexpected force injures her.
                            Defendants are liable for direct and indirect consequences of intentional acts, whether or not they are foreseeable.
                    Damages
                        Nominal damages
                            Even if no actual harm is suffered the court will award nominal damages (usually $1).
                        Compensatory damages
                            General damages
                                 Unidentified damages deemed to result from the touching, i.e., embarrassment, pain or suffering, disfigurement or
                                 disability, etc.
                            Special damages
                                 Specific identifiable economic losses, i.e., medical bills, lost wages, etc.
                        Punitive damages
                            If it appears that the defendant's act was motivated by an intent to injure or harm the plaintiff, most courts will allow
                            the jury to award punitive damages.
                                 Jury is not required to award punitive damages.
                                 State law usually requires careful post trial review of the award
                                 Constitutional concerns
                                    The eighth amendment prohibition of excessive fines does not apply to punitive damages in tort cases
                                    between private parties. Browning-Ferris Industries of Vermont v. Kelco Disposal, Inc.
                                    May violate the due process clause if the defendant did not have adequate notice of the possible severity of the
                                    penalty.
                                       The reprehensibility of the conduct;
                                       The disparity between compensatory and punitive award; and
                                                                                                                                                              1
                            May violate the due process clause if the defendant did not have adequate notice of the possible severity of the
                            penalty.
Torts M.O.                                                                                                                           12/5/10 9:45:30 PM


  Topic                        The disparity between compensatory and punitive award; and
                               The difference between the punitive award and the possible criminal and administrative penalties for such
                               conduct. BMW of North America, Inc. v. Gore

             Assault
                Prima Facia Case
                   Act by defendant
                   Intent
                   Apprehension
                   Causation
                Act by defendant
                   Same as for battery - volitional movement.
                       Words alone are not sufficient, except for certain threats.
                Intent
                   The plaintiff must show that the defendant intended to 1) inflict a harmful or offensive touching on the plaintiff or a third
                   person, or 2)put the plaintiff or a third person in apprehension of an immediate harmful or offensive touching.
                       The defendant's intent is measured by the desire or belief in substantial certainty test.
                       The transferred intent doctrine is applicable.
                Apprehension
                   The defendant's intentional act must have placed the plaintiff in apprehension of an imminent harmful or offensive
                   touching of her person.
                       The plaintiff must be aware of the threat at the time thereof.
                       The plaintiff must be apprehensive of a threat to her own person. Threats to a third person, or property is not
                       sufficient.
                       The defendant may be liable for assault where he causes apprehension of harm from someone, or something else.
                       (Snake example).
                       The threat must be of an imminent harmful or offensive threat.
                          Defendant's words cannot negate any immediate threat.
                          Conditional threats may be sufficient provided the condition is one that the defendant is not privileged to assert.
                          Fear is not required.
                          It is immaterial that a reasonable person would not have been placed in apprehension. The test is actual
                          apprehension.
                          It is sufficient if the defendant had the actual or apparent ability to inflict the touching.
                Causation
                   THe plaintiff's causation must have been caused by the defendant's act or something the defendant set in motion. See
                   causation with regard to battery.
                Damages
                   Same as battery. The defendant need not have suffered any emotional distress, physical injuries, or other damages.
             False Imprisonment
                Prima Facia case
                   Act by defendant
                   Intent
                   Confinement
                   Causation
                Act by Defendant
                   The plaintiff must show some act by the defendant that caused the confinement of the plaintiff. Usually volitional
                   movement.
                       Words alone may be sufficient, i.e., threats of physical force, or words asserting legal authority.
                Intent
                   The act must have been done by the defendant with the intent to confine the plaintiff.
                       Desire or belief in substantial certainty test.
                       Transferred intent doctrine applies.
                Confinement
                   Defendant's intentional act must result in the confinement of the plaintiff within boundaries fixed by the defendant for
                   some period of time, however short. Confinement requires that the defendant be restricted to a limited area without
                   knowledge of a reasonable means of escape.
                       Normally there must be a specific area in which the plaintiff is completely confined.
                       Knowledge of a reasonable means of escape
                          The plaintiff is under no duty to search for means of escape, or;
                          to risk harm to her person or property by attempting to escape.
                       Plaintiff's awareness
                          There can be no confinement unless the plaintiff is knows that she is confined at the time of confinement, or;
                          is harmed by the confinement.
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                       Plaintiff's awareness                                                                                            12/5/10 9:45:30 PM


  Topic                    There can be no confinement unless the plaintiff is knows that she is confined at the time of confinement, or;
                           is harmed by the confinement.
                       How confinement is caused
                           Physical force
                               The defendant's use of physical force against the plaintiff or a member of the plaintiff's immediate family
                               constitutes confinement.
                                   Where physical force is used, the reasonableness of the plaintiff's submission thereto is immaterial.
                           Threats or duress
                               Confinement may be effected by threats of immediate physical harm to the plaintiff or a member of her
                               immediate family. (There is no actionable confinement where the plaintiff submits to threats of future harm.)
                               Threats to inflict immediate harm on the plaintiff's property may also be sufficient.
                               Threats to plaintiff's economic well-being are insufficient, i.e., threat by employer to fire employee.
                           Actual or apparent physical barriers to escape.
                               Enclosures (walls, fence, etc.)
                               Acts that deprive the plaintiff of the ability to escape, i.e., removing ladder.
                               Refusing to release
                                   Refusing to release the plaintiff, or to assist her when under a duty to do so.
                           Arrest
                               A confinement may be effected by the defendant's assertion of legal authority.
                Causation
                    See causation with regard to battery and assault.
                Damages
                    The tort is complete upon confinement, and plaintiff may recover even if she suffers no special damages.
                       A plaintiff an recover for injuries sustained in a reasonable attempt to a escape. No recovery for unreasonable
                       attempt.
             Intentional Infliction of Emotional Distress
                Prima Facia Case
                    Act by defendant, and extreme and outrageous conduct.
                    Intent
                    Causation
                    Extreme emotional distress
                Act by defendant and extreme and outrageous conduct
                    Words alone may be sufficient, but must be extreme and outrageous. The conduct must exceed all bounds of decent
                    behavior.
                       Totality of the circumstances
                           In determining whether conduct is extreme and outrageous, courts will consider the totality of the circumstances.
                           Not each isolated incident.
                       Petty insults
                           There is no redress for simple insults, annoyances, or petty indignities.
                       Exception - Special carrier/utility rule
                           Common carriers and public utilities have been held liable for gross insults that would not otherwise be
                           actionable.
                       Exception - Harassment
                           Attacks based on race and gender may be actionable harassment claims even of not amounting to the traditional
                           tort. (on exam?)
                       Extension - Liability to third persons
                           The defendant will also be liable to members of target's family present at the time, it the defendant knew of their
                           presence. This is not transferred intent.
                Intent
                    The defendant must have intended to cause severe emotional distress or mental anguish. Reckless conduct will suffice
                    where the defendant acts in deliberate disregard of high probability that his actions will cause emotional distress.
                       Inference of intent
                           Such intent or recklessness may be inferred if the plaintiff knows that the defendant is particularly sensitive or
                           susceptible to emotional distress.
                       Intent cannot transfer among torts.
                           Of the defendant intended to cause bodily harm or property damage, but failed the defendant is not liable for
                           unintended and unexpected emotional distress.
                       Distinguish from assault
                           IN assault defendant must have intended to touch or place in apprehension of touching. Also the tort is complete
                           upon apprehension.
                Causation
                    Early cases held that emotional disturbance had to result in demonstrable physical injury.
                    Modern approach allows recovery without physical injury. The outrageous nature of the conduct may be a more reliable
                    indication of damage to the plaintiff than actual physical injury.
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                Causation                                                                                                                 12/5/10 9:45:30 PM


  Topic             Early cases held that emotional disturbance had to result in demonstrable physical injury.
                    Modern approach allows recovery without physical injury. The outrageous nature of the conduct may be a more reliable
                    indication of damage to the plaintiff than actual physical injury.
                       Whether the defendant's conduct is sufficiently outrageous is a fact question in each case. Changing societal
                       attitudes are relevant.
                Severe Emotional Distress
                    Must more than a reasonable person could be excepted to endure.
                    Corporations cannot suffer severe emotional distress.
                Defenses
                    Because the prima facia case requires such outrageous conduct, defenses based on good faith or reasonable mistake
                    are not relevant in practice.
                    Some courts will not allow a claim for IIED if the same facts would have allowed a claim for criminal conversation.
                    Constitutional defenses
                       If the defendant's act is statement, it may be protected speech,
                       If the act is a part of religious activity by a religious organization, the free exercise clause may bar recovery.
                Damages
                    In addition to compensatory damages, some states allow punitive damages.
                       Some states that usually permit punitive damages may bar them if the conduct is entirely speech.
             Privileges
                Consent
                    Consent based on Plaintiff's behavior
                       Actual express consent
                       Apparent consent
                           Implied from the plaintiff's conduct in light of the circumstances
                    Consent Implied by law
                       The Plaintiff's consent may be implied by law to a bodily contact that is necessary for some cardinal interest in person
                       or property if:
                           The plaintiff is unconscious or otherwise unable to give or withhold consent;
                           An immediate decision in necessary;
                           There is no reason to believe that the plaintiff would withhold consent, and;
                           A reasonable person would consent.
                    When consent is not a defense
                       Acts in excess of consent given
                           There is no effective consent if the invasion goes beyond the consent given.
                       Fraud
                           Consent is ineffective if procured by fraud.
                           Consent IS effective if there is fraud as to a collateral matter
                       Duress
                           Consent is ineffective if given under duress.
                       Mistake
                           The plaintiff's consent is ineffective if given due to a mistake, and:
                              The mistake was caused by the defendant, or;
                              The defendant was aware of the mistake
                           Mistake of law
                              A mistake of law caused by the defendant renders the plaintiff's consent ineffective.
                           Mistake of fact
                              The plaintiff's mistake as to the essential nature or consequences of the invasion voids consent if the mistake
                              was caused by the defendant or the defendant was aware of it.
                                 This is the basis on which consent to medical treatments is sometimes ineffective, exposing the Dr. to claims
                                 for battery.
                       Incapacity to consent
                           There is no valid consent if the plaintiff is known to be incapable of giving consent.
                       Criminal acts
                           Majority view
                              Consent is effective if the crime does not breach the peace.
                              Consent is ineffective if the crime breaches the peace.
                           Minority view
                              Consent is effective in any case.
                           Exception
                              Even under the minority view plaintiff's consent will be disregarded if the plaintiff is a member of a protected
                              class. (The class the violated law is meant to protect.)
                Self-Defense
                                                                                                                                                           4
                       Exception
Torts M.O.                                                                                                                                12/5/10 9:45:30 PM
                           Even under the minority view plaintiff's consent will be disregarded if the plaintiff is a member of a protected
  Topic                    class. (The class the violated law is meant to protect.)
             Self-Defense
               Non-deadly force
                   When acting in self-defense a defendant is privileged to use force that is not likely to cause death or serious bodily
                   harm, subject to the following conditions:
                       Reasonable apprehension of imminent bodily harm.
                       Reasonable means used
                           The defendant used only means that appeared reasonably necessary to avoid or prevent the harm threatened.
                       Retreat
                           The defendant must not have had a duty to retreat.
                              There is generally no duty to retreat or comply with any demand, except:
                                  If the defendant recognizes that the plaintiff is not intentionally creating the risk, there is a duty to retreat if
                                  he can do so safely.
                                  If the defendant recognizes that the plaintiff has mistaken the defendants identity, the defendant must
                                  make reasonable efforts to resolve the matter instead of using force in self-defense.
               Deadly force
                   The defendant privileged to use force likely to cause death or serious bodily harm when acting in self defense
                   subject to the following conditions:
                       Reasonable apprehension of death or serious bodily harm
                       Duty to retreat
                           Majority view
                              Most courts hold that there is no duty to retreat as an alternative to using deadly force that would otherwise
                              be permissible.
                           Minority view
                              Some courts impose a duty to retreat before using deadly force if it can be done safely.
                              Exception - Even under the minority view there is no duty to retreat if the defendant is 1) in his own home; 2)
                              retreating would endanger a third party; 3) the defendant is attempting a valid arrest.
               Threats of force
                   The defendant is privileged to threaten more force then he would actually be privileged to use, as long as he has no
                   reason to believe his threats will do more than place the plaintiff in apprehension.
               Limitations on the right of self-defense
                   Danger terminated
                       There is no privilege of self-defense if the defendant know the danger has terminated.
                   Excessive force
                       If the defendant uses force in excess of that which he is privileged to use:
                           he is liable for whatever amount of force is excessive, and;
                           the plaintiff then has a privilege of self-defense
                   Plaintiff using privileged force
                       There is no privilege of self-defense against a privileged action by another.
                   Third person intentionally injured
                       Defendant is liable for intentional torts committed against third parties in his attempt to defend himself.
                       If he unintentionally harms a third person he will be liable if he was negligent.
                   Reasonableness
                       Objective reasonable person test. Not how the defendant actually perceived it, or how it actually was.
             Defense of third persons
               Defendants are privileged to use force to defend third persons.
                   Limited to the amount of force that the person being defended would be allowed to use.
                   Anyone who is endangered may be defended.
                   Effect of defendant's mistake in intervening
                       Older view
                           Defendant is only privileged to intervene if the person being defended was actually privileged to defend
                           himself.
                       Modern view
                           Defendant is privileged if he reasonably believes that:
                              1) the third person was privileged to defend himself; and
                              2) use the means of defense and amount of force that defendant used; and
                              3) defendant's intervention was necessary to protect the third person.
             Defense of Land or Chattels
               A defendant may not use deadly force to defend his land or chattels
               Use of non-deadly force id permitted, if:
                   The intrusion by the plaintiff is not privileged, or is conducted so as to lead the defendant to reasonably believe that it
                   is not privileged; and
                   Defendant reasonably believes that force is necessary to prevent or terminate plaintiff's intrusion; and
                                                                                                                                                           5
                Use of non-deadly force id permitted, if:
Torts M.O.                                                                                                                            12/5/10 9:45:30 PM
                    The intrusion by the plaintiff is not privileged, or is conducted so as to lead the defendant to reasonably believe that it
  Topic             is not privileged; and
                    Defendant reasonably believes that force is necessary to prevent or terminate plaintiff's intrusion; and
                    Defendant demands that the plaintiff desist or leave prior to the use force.
                        No demand need be made where it reasonably appears that it would be futile or would further endanger
                        defendant's property.
                Use of mechanical devices
                    The defendant is privileged to use mechanical devices in defense of his land or chattels only if:
                        1) The use of such means is reasonable and necessary under the circumstances, or customary in the locale; and
                        2) Adequate warning of the use thereof is given or posted.
                    Deadly mechanical devices
                        If the devices threaten death or serious bodily harm their use is privileged only if the intrusion in fact constitutes a
                        threat of death or serious bodily harm to the defendant or his family. (Not just reasonably appears to).
                    Use of threats
                        Same rule as for self-defense
             Force to recover possession of land wrongfully withheld
                Majority view
                    There is no privilege to use force to recover land withheld even of the owner has been tortiously dispossessed.
                    Owner is liable for any resulting harm. Title or right to ownership is no defense.
                Minority view
                    Some jurisdictions and the restatement allow a person who has been tortiously dispossessed to use reasonable
                    non-deadly force to regain possession if he acts quickly after discovering the dispossession.
                        Tortious dispossession means that the plaintiff obtained possession by force, fraud, or duress.
             Force to effect recapture of chattels wrongfully withheld
                Tortious dispossession cases
                    Privilege to use reasonable non-deadly force to recapture chattels subject to the following conditions:
                        Immediate right to possession
                            1) Defendant must in fact be entitled to immediate possession. No mistake, however reasonable, is permitted.
                            2) Defendant must demand return of the chattel and the demand must be ignored.
                            3) The recapture must be effected promptly - "fresh pursuit."
                               Must have been reasonably diligent in discovering the loss;
                               Must have been reasonably diligent in efforts to retake the chattel.
                            4) The defendant must effect the recapture from the person who tortiously dispossessed him, or a third party
                            who has notice thereof.
                               No privilege to use force to recapture from an innocent third party, even if in fresh pursuit.
                Other dispossessions
                    If the defendant has not been tortiously dispossessed, he generally is not permitted to use any force to effect their
                    recapture.
                        Conditional sales contracts
                            When a buyer defaults, the seller is entitled to peacefully repossess; neither force nor fraud are permitted.
                Shopkeeper's privilege
                    Most states recognize a privilege of shopkeeper's to temporarily detain anyone whom they reasonably suspect of
                    shoplifting.
                    Requirements
                        1. Investigation on or near premises.
                        2. Reasonable suspicion.
                        3. Reasonable force.
                        4. Reasonable period and manner of detention.
                            Where these are satisfied a reasonable mistake is protected.
             Privilege of Arrest
                Arrests for felonies without an arrest warrant.
                    Police Officer
                        Privileged to arrest for a felony without a warrant if 1) he reasonably suspects that a felony has been committed,
                        and 2) that the person he arrests committed it.
                    Private Citizen
                        Privileged only if 1) a felony has in fact been committed, and 2) he reasonably suspects that the person he arrests
                        committed it.
                Arrests for misdemeanors without a warrant
                    In general, both police officers and private citizens are privileged to arrest for misdemeanors without a warrant if the
                    misdemeanor 1) involves a breach of the peace 2) that has in fact been committed 3) in the presence of the arresting
                    party 4) who makes the arrest in fresh pursuit.
                        Minority view
                            A police officer is privileged to arrest for a misdemeanor based on a reasonable belief that the misdemeanor
                            was being committed in his presence and that the party arrested is guilty.
                Under under arrest warrant.
                                                                                                                                                       6
                           misdemeanor 1) involves a breach of the peace 2) that has in fact been committed 3) in the presence of the arresting
                           party 4) who makes the arrest in fresh pursuit.
                               Minority view
Torts M.O.                                                                                                                                      12/5/10 9:45:30 PM
                                  A police officer is privileged to arrest for a misdemeanor based on a reasonable belief that the misdemeanor
  Topic                           was being committed in his presence and that the party arrested is guilty.
                       Under under arrest warrant.
                           The arrest is privileged if the warrant is "fair on its face."
                               A warrant is fair on its face as long as its face is free of defects that reasonable police officer would discover.
                               Distinguish search warrant
                                  An arrest without a warrant or probable cause made while a police officer is executing a search warrant gives
                                  rise to a claim for false imprisonment.
                       Amount of force privileged
                           Misdemeanors
                               Police and private citizens are privileged to use that degree of force necessary to effect the arrest, but never
                               deadly force.
                           Felonies
                               When the arrest is for a felony there is split of authority on privilege to use deadly force.
                                  Traditional view
                                     In a lawful arrest for any felony, police and private citizens may use deadly force if it is reasonably
                                     necessary to effect the arrest.
                                  Serious felonies
                                     Some states now limit the privilege to use deadly force to "serious" felonies, and do not permit deadly force
                                     in arrests for felonies such as larceny.
                                  Constitutional definition of "deadly force."
                                     SCOTUS has held that deadly force is reasonable under the Fourth Amendment only if it is necessary to
                                     prevent a felon's escape (or capture a suspect) and there is probable cause to believe that the suspect
                                     poses a "significant threat of death or serious injury to the officer or others.
                                         Effect on state tort law
                                            A state statute may privilege a defendant's use of force in the plaintiff's state tort claim, even if it would
                                            violate the plaintiff's constitutional rights under Garner.
                                         Effect on constitutional torts
                                            In a federal civil action where the plaintiff sues the defendant for violating his constitutional rights the
                                            defendant's force must meet the Garner standards.
                       Right to invade land
                           The privilege of arrest carries with it the right to enter another's land for the purpose of effecting the arrest.
                       Effect of defendant's misconduct following arrest.
                           The person making the arrest is liable for the only whatever damage is attributable to the force or detention
                           exceeding the amount privileged.
                       Resisting Arrest
                           The traditional view allowed a person unlawfully arrested to use reasonable force to resist. Modern trend has been to
                           deny such a privilege. In some states - CA - failure to submit to asserted legal authority is itself a crime. In that case
                           even of the original arrest was improper, the officer may use reasonable force to arrest for the crime of resisting
                           arrest.
                   Privilege of Discipline
                       Parents and teachers have a privilege to use such reasonable force and confinement as they believe reasonably
                       necessary for the proper control, training, and education of children in their care. A similar privilege is recognized in the
                       military.
                       However, some legislatures and courts have rejected this common law approach as applied to corporal punishment.
             Torts to Property
                Trespass to Land
                   1. Act by defendant
                       Volitional movement that results in an intrusion onto another's land or sets in motion a force resulting in such
                       intrusion.
                   2. Intent
                       Defendant must have intended to do the act that results in the intrusion. However, he need not realize that the land
                       belongs to another.
                       If the act was not intentional, defendant may still be liable on a negligence theory.
                       Some invasions may be actionable on the theory of strict liability. (Dynamite hurls rocks onto plaintiff's land.)
                       The transferred intent doctrine applies to trespass.
                   3. Intrusion upon land
                       The intrusion may be y personal entry or by causing some third person or thing to enter.
                       Alternatively, it may be found in defendant's failure to leave or remove property after permission has expired.
                           Nonphysical intrusions are treated as nuisance.
                   4. Plaintiff in possession or entitled to immediate possession
                       Actual possession
                           Any person actually in possession may bring an action for trespass. Any possession is a legal possession as against
                           a trespasser. Thus a wrongful occupier (adverse possessor) may maintain a trespass action against an intruder.
                       Right to immediate possession
                           If no one is in actual possession, the person who has a right to immediate possession may maintain the action.
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  Topic            Right to immediate possession
                       If no one is in actual possession, the person who has a right to immediate possession may maintain the action.
                       A dispossessed owner cannot maintain a suit for trespass because the dispossessor is in actual possession. The
                       owner must bring a suit to eject.
                       Lease cases
                           During the term of a lease, the tenant has both actual possession and the right to immediate possession. The
                           landlord has neither.
                           Modern rule
                              Under the modern rule, either the landlord or the tenant can maintain a trespass action. The recovery available
                              depends on who sues:
                                 If the tenant sues some courts only allow recovery for interference with the tenant's interest (exclusive
                                 ownership). Other courts allow the tenant to recover for permanent injury to the property but these damages
                                 must be held in trust for the landlord.
                                 If the landlord sues most courts allow recovery only for the landlord's interest (permanent damage).
                   Extent of possession - Airspace
                       A certain amount of airspace is deemed to be in the occupant's "actual possession."
                       A landowner has no right to airspace at or above normal flight altitude
                       Modern view:
                           "Immediate reaches" standard.
                           R2T suggests less than 50' is clearly within immediate reaches, and more than 500' clearly is not.
                           Invasion of immediate reaches may still be privileged if it does not interfere substantially with the owner's use and
                           enjoyment of his land.
                       Even if the owner has no right of possession to the airspace, he may have a claim on theory of nuisance.
                5. Causation
                   See discussion supra. Remember a trespasser is liable for harm that was not foreseeable.
                Damages
                   It is immaterial whether any actual damages were caused. If a prima facia case is made the trespasser is liable
                   for at least nominal damages.

             Trespass to Chattels
                1. Act by Defendant
                    A volitional movement by the defendant of some part of his body that results in dispossession of or damages to the
                    chattels of another.
                2. Intent
                    It is necessary only that the defendant intended to deal with the chattel in the manner in which he did - Mistake is no
                    defense.
                    The transferred intent doctrine applies.
                3. Invasion of Chattel Interest
                    The defendant's volitional act must have resulted in either a dispossession or an intermeddling with the chattel of
                    another.
                         Dispossession
                            Refers to conduct amounting to the assertion of a proprietary interest in the chattel over the interest of the rightful
                            owner:
                               Theft, destruction, or a barring of the owner's access to it.
                         Intermeddling
                            Conduct that does not challenge the owner's interest in the chattel:
                               Throwing a stone at a car, beating another's animals, stampeding a herd of cattle.
                4. Plaintiff in possession or entitled to immediate possession
                    See discussion supra.
                5. Causation
                    See discussion supra.
                Damages
                    If the conduct amounts to dispossession or the owner is otherwise deprived of the chattel's use, he can sue for loss of
                    possession. (i.e. rental value.)
                    If the conduct amounts to only an intermeddling short of interfering with the plaintiff's possession a trespass action will
                    not lie unless he shows actual damage.

             Conversion of Chattels
               1. Act by Defendant
               2. Intent
                   Same as trespass to chattels, supra.
               3. Invasion of Chattel Interest of Another
                   The invasion required for a conversion claim is greater than that required for a trespass to chattels claim. The following
                   invasions will suffice:
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  Topic        3. Invasion of Chattel Interest of Another
                   The invasion required for a conversion claim is greater than that required for a trespass to chattels claim. The following
                   invasions will suffice:
                       Serious dispossession
                           If a defendant takes a chattel without consent, bars the possessor's access to the chattel, or obtains possession of
                           a chattel by fraud, there is conversion.
                           Intermeddling will not suffice.
                       Destroying or altering
                           If the defendant destroys or materially alters a chattel there is conversion.
                       Unauthorized use by bailee
                           If the defendant receives possession as bailee and uses it in a manner that constitutes a material breach of his
                           authority, there is conversion.
                               An important factor is whether or not any harm was caused to the chattel during the improper use. Even if it was
                               not the fault of the bailee.
                       Buying or receiving stolen property
                           There is conversion if the defendant buys or receives stolen property even if he acts in good faith.
                       Selling or disposing of stolen property
                           There is conversion even if the defendant is acting in good faith.
                       Misdelivering a chattel
                           If the defendant misdelivers a chattel there is conversion even if he acted in good faith.
                               delivered to wrong person
                               violates some condition (i.e. collect money on delivery).
                       Refusing to surrender a chattel on demand
                           Where the acquisition of the chattel was not wrongful there must be a demand for return of the chattel before there
                           can be conversion.
                               However, a bailee (finder) is privileged to make a qualified refusal to deliver for the purpose of investigating the
                               claimant's right to the chattel.
                       Application - Multiple acts of conversion
                           If defendant steals a chattel, sells it to an innocent purchaser, buys it back, then refuses to give it to plaintiff on
                           demand, defendant has committed four separate and distinct acts of conversion.
               4. Plaintiff in Possession or entitled to Immediate possession.
               5. Causation
               Remedies
                   If the defendant's conduct amounts to a dispossession, the plaintiff will often have a choice of actions:
                       Replevin, detinue, or claim and delivery
                           The plaintiff may obtain return of the chattel and collect damages for its detention.
                       Forced Sale damages
                           The plaintiff may obtain the value of the chattel plus damages for the dispossession.
                           Measure of value
                               Generally the market of value of the goods at the time of the conversion, plus interest.
                                  If the property has fluctuating value some courts allow the highest value between the time of conversion and
                                  the trial.
                                  If the property has no market value may recover replacement value, or the actual value to the plaintiff.
                           Effect of Offer to Return
                               Does not effect basic liability but will mitigate damages recoverable if the defendant acquired the property
                               innocently and in good faith and made the offer promptly after learning that the plaintiff was the rightful owner
                               and the chattel was not impaired in value or condition.
             Defenses and Privileged invasion of land and Chattels
               Consent
                   Consent, expressed or implied by conduct, is a complete defense.
                   However, consent may not be effective:
                       As to trespassers that go beyond the scope of consent, or
                       if obtained through fraud, duress, or apparent mistake, or
                       if the person giving consent lacked capacity
               Privileged Invasion of Another's Land to Reclaim Chattels
                   Scope of privilege depends on where the fault lies for the presence of the defendant's chattels on plaintiff's land:
                       Landowner at fault
                           If the plaintiff has tortiously dispossessed the defendant of his chattels, the defendant has a complete privilege to
                           enter the land for the purpose of retaking the chattels.
                               Demand generally required, unless it appears that the demand would be futile or that delay would subject the
                               property to danger of harm.
                               Reasonable entry
                                  At a reasonable time and in a reasonable manner.
                               Extent of Privilege. The privilege is complete - Defendant cannot be held liable for any harm done to the
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                               plaintiff's land in the reasonable exercise of the privilege.
Torts M.O.
                          Reasonable entry                                                                                         12/5/10 9:45:30 PM


  Topic                      At a reasonable time and in a reasonable manner.
                          Extent of Privilege. The privilege is complete - Defendant cannot be held liable for any harm done to the
                          plaintiff's land in the reasonable exercise of the privilege.
                             Limitation - No mistake
                                 Defendant is liable if he breaks and enters the wrong land. An honest mistake will not justify a trespass.
                             Force to person of landowner
                                 If the plaintiff resists the defendant is privileged to use reasonable non-deadly force. The same
                                 conditions apply as in the privilege of recapture of chattel, supra.
                   Chattel Owner at Fault
                      If the defendant's chattels are on the plaintiff's land through the defendant's own fault he has no privilege. He must
                      bring an action for replevin, detinue, claim and delivery, etc.
                   Act of God
                      If neither party is at fault (i.e. wind, etc.) the defendant has an incomplete privilege.
                          Extent of Privilege
                             The defendant is liable for damage done to the plaintiff's property in recapturing his chattels, but done for
                             damage caused solely by the chattel being deposited there.
                          Conditions of privilege
                             Same as when the landowner is at fault (reasonableness).
                          Necessity to determine cause
                             If the chattels are on P's property because of D's negligence, D has no privilege.
                   Third Party at fault
                      If the chattels were tortiously dispossessed by a third party and P does not know of their presence, privilege is
                      again incomplete.
                   No mistake
                      D must in fact be entitled to possession
             Privilege to Exclude or Evict Trespassing Chattels of another
                Conditions
                   A defendant is completely privileged to use reasonable force to evict or exclude another's chattels when such force is
                   reasonably believed to be necessary to protect D's interest in exclusive possession of his land or chattels.
                Determining reasonableness
                   1. The necessity of immediate action to prevent the injury or destruction threatened
                   2. whether the force used was excessive
                   3. The comparative value of the property threatened and the chattels to which the force is applied.
             Privileged Invasion of Another's Land or Chattels as a Public Necessity
                Averting Public Disaster
                   A person is completely privileged to enter land or interfere with chattels if it reasonably appears necessary to avert
                   a public disaster.
                      Extent of Privilege - Complete. D is not liable for any damage that occurs in the proper exercise of the privilege.
                          D may break and enter any fences, buildings, dwellings, etc.
                          D may use whatever force is reasonably necessary including deadly force.
                Detouring around obstructed highway
                   A traveler on a public highway that reasonably appears to be impassable has an incomplete privilege to enter
                   neighboring lands in continuing his journey.
                      Entry must reasonably appear to be necessary. Consider:
                          1. Availability of alternate routes
                          2. The urgency of the travelers business
                          3. Whether the obstruction could have been removed with reasonable efforts.
                      D is liable for any actual harm caused to the land during the proper exercise of the privilege.
                      There is no privilege if the obstruction was caused by the traveler.
                Media
                   The first amendment does not give the media a privilege to enter private land whenever they seek information, no
                   matter how important.
             Privileged Invasion of Another's Land or Chattels as a Private Necessity
                Conditions
                   Privilege to enter land or interfere with chattels of it reasonably appears necessary to protect any person from death
                   or serious bodily harm; or to protect any land or chattels from destruction or injury.
                      Must be reasonable considering the harm it intended to prevent and the harm the invasion is likely to cause.
                Extent of Privilege
                   Force to person or property
                      D may break and enter, and use reasonable force if the plaintiff resists. However, it is doubtful that deadly force
                      would be privileged.
                   Privilege incomplete
                      D is liable for all harm done to land or chattels in the exercise of the privilege.
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