TORTS OUTLINE

I. INTENTIONAL TORTS

*If you see ambiguities in facts, make decision tree* wants us to get into analysis quickly, but wants short definition of the tort law A. GENERAL RULES CONCERNING INTENT

1. Specific intent or general intent will suffice. An actor intends the consequences of his conduct if his goal is to bring about the consequences (specific intent), or knows with substantial certainty that these consequences will result (general intent). Not reckless. 2. Defendant need not intend injury. Intent required is to bring about the consequences that the law will not allow. Lauryn slaps Speech on the back to get his attention. Unexpectedly, Speechs back breaks from the impact. If Lauryns conduct was unprivileged, she will be liable for battery even though she did not intend injury. Intrepid is walking through the woods and accidentally sets foot on property that belongs to Brandy. Intrepid is liable to Brandy for trespass, even if she had no way of knowing that the property belonged to Brandy. The intent to take the step onto Brandys property is all that is required. 3. Transferred intent. This bizarre doctrine applies where the defendant intends to commit a particular tort against A, butsomething goes wrong, and either that tort is committed against B, OR a different tort is committed against A, OR a different tort is committed against B. (Consumer warning: Do not try this doctrine with intentional infliction of emotional distress.) Can transfer intent from battery to assault & from one person to another. Only thing transferring is intent, result (contact) must be made. Beck swings a bat at Sting, intending to frighten him. He misses Sting, who is unaware of the attempt, but strikes Kanye, who was standing next to Sting. Beck is liable to Kanye for battery.

B. BATTERY 1. Definition A prima facie case is established when defendant intends to cause a harmful or offensive contact with plaintiff, or the imminent apprehension of such contact, and such contact results. 2. Harmful (punch) or offensive (spitting, kissing, etc) contact is judged by the ordinary person of ordinary sensibilities, unless the defendant preys on a known susceptibility. 3. Contact may be to the person or something connected to the person, and may be direct or indirect. Grabbing a lunch tray that the plaintiff is holding was considered sufficiently connected to him that the person who grabbed the tray was liable for battery. Dave, intending to get Jay, dug a hole in the road where he expected Jay to walk. Jay obliged, and fell in. Dave is liable for battery. 4. Damages are not required for this tort, and are often absent in cases of offensive battery. Having just lost to Lucky at Parcheesi, Vitriol pushes her and, for good measure, spits on her. Lucky suffers no injury. Nonetheless, Vitriol is liable to Lucky for battery, and will likely collect punitive damages. Battery protects a persons interest in freedom from unwanted bodily contact. To maintain battery action, must establish: 1- acted 2- Act was done w/ intent to cause a harmful or offensive contact w/ another 3- Harmful or offensive contact (can be indirect) actually resulted. o If acted w/ substantial certainty that contact would result, battery occurred. o Parents are not automatically liable for the torts of their children o Accidental contact does not constitute battery See Fisher v. Carousel Motor Hotel (Black engineer getting plate ripped out of hand) See Shaw v. Brown & Williamson Tobacco (manufacturer of cigarettes-lung cancer) 2

See Garratt v. Dailey (5 year old liable for battery-pulling out chair)

C. ASSAULT 1. Definition A prima facie case is established when defendant intends to cause plaintiff either the apprehension of imminent harmful or offensive contact, or harmful or offensive contact, and such apprehension results. 2. Apprehension must be reasonable, unless defendant knows that plaintiff has an unusual susceptibility, and plays on it. Bork points an unloaded gun at Chomsky, who has no way of knowing the gun is unloaded. Since Chomskys apprehension of contact is reasonable, Bork is liable for assault. Sartre points a tuning fork at Camus, and threatens to negate his existence. Sartre is not liable to Camus for assault, except in the (highly unlikely) case that Camus believes that such a result is possible, and Sartre knows of this odd susceptibility. 3. Apprehension is not the same as fear. Fear is not required. (perceive contact will take place) Dr. Ruth is menacingly approaching T,O. waving her comically tiny fist. T.O. is not afraid. Nonetheless, he has a claim for assault if he perceives that she will make contact with him. This is true even if T.O. can avoid the contact, or disable the wily sex therapist in a host of ways. 4. Important distinction between battery and assault requirement of present awareness for assault, not for battery. Prince kisses Sheena while Sheena is asleep. Prince will be liable for battery, because he caused an offensive contact; but not for assault, because Sheena did not apprehend an imminent contact. 5. The majority view continues to be that words are not enough, however threatening. Some overt act is needed. Examine carefully the relation between words and acts, if any. OReilly places his hands in a circle near Frankens neck and says: Your apology or your life. OReilly is liable for assault, even though the threat is conditional. 3

See Holloway v. Wachovia Bank & Trust (repossession of car/battery)

D. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 1. Definition Defendant is liable for extreme and outrageous conduct done with the intent of causing plaintiff emotional distress, where the resulting distress is severe. o Extreme & Outrageous (court will decide-if not, will not allow to proceed) o Intent or Recklessness (conscious disregard of known risk of emotional dist.) o Severe Emotional Distress 2. Extreme and outrageous conduct is usually thought of as conduct exceeding the bounds of civilized society, not mere insults or indignities. This is a question for the court, not for the jury. This requirement may be somewhat relaxed where the defendant knows of plaintiffs unusually sensitive nature. Shirley has spent some time in a mental institution for a psychotic disorder. Knowing this, Bertrand plays a practical joke on her in front of a large group of people. A court may find this sufficient to constitute extreme conduct. 3. Mere insults are generally not enough, even where the plaintiff is unusually sensitive, unless the defendant is a common carrier (can be utility company) or innkeeper. 4. The intent requirement for this tort is satisfied where the defendant acts recklessly in causing the emotional distress. Note that this is a lesser standard than that adopted for the other intentional torts, which require actual intent or knowledge with substantial certainty that the result will occur. 5. Severe emotional distress is required, but physical injury generally is not. As the Maryland cases show, some courts take this requirement very seriously. o Is often a glue-on to other torts. See Figiero-Torres v. Nickel (therapist sleeping w/ clients wife) See Caldor, Inc. v. Bowden (false-imprisonment of minor by employer) 4

E. FALSE IMPRISONMENT 1. Definition Defendant will be liable for false imprisonment when he intends to confine plaintiff to a bounded area, and such confinement results. 2. Confinement, in excruciating detail: a. Although confinement will usually be by physical barriers (such as locking plaintiff in a room), it can also be by physical force against plaintiff or plaintiffs property. In an effort to get Cindy to come home with him, Fred throws her suitcase in the trunk of his car, locks the trunk, and says to her: Hop in my Chrysler! Or at least youd better if you want your suitcase back. When Cindy, thus coerced, climbs into the car, Fred has become liable.

b. Confinement can also be accomplished by threats of physical force, against plaintiff or property, or members of plaintiffs family. c. Defendant will also be held to have confined the plaintiff where defendant has a duty to provide a means of escape to plaintiff, and does not do so. Dr. Moreau invites Socialla to his island for a drink, and provides a boat chauffeur to bring her to the event. When Socialla says she had better get going after the drink, Moreau commits false imprisonment in refusing her request. d. Plaintiff is not confined if he or she has a reasonable means of escape and is aware of such means. Doom locks Sprinter in a large room and locks the door. But there is a 5

large window in the room, and the room is on the first floor. Sprinter steps through the window and strides briskly away. No false imprisonment, assuming that the window was visible to Sprinter. If Sprinter is confined to a wheelchair, different result, because then there is no reasonable means of escape.

If Sprinters clothes have been removed (by him or by Doom), there is also false imprisonment. cant force someone to do something highly embarrassing to leave. e. Confinement must be to a bounded area. Mere restriction on direction of movement generally does not suffice.

3. Since this tort protects dignity, it generally doesnt matter how long the confinement lasts. 4. Most courts hold that plaintiff must be aware of the confinement, unless actual harm results. Saucy is passed out from intoxication. Carrie Nation locks her in a bedroom. Nation will not be liable if she unlocks the door before Saucy wakes up, unless Saucy suffers damage as a result of the confinement. This is true even if Saucy finds out about the confinement later. 5. Special note on Shopkeepers: They have a privilege to detain someone suspected of shoplifting. But the detention must be reasonable as to means and duration. Differs from battery & assault in that it does not protect against contact or apprehension of contact it protects an individuals right to more freely from place to place as she sees fit. See Teichmiller v. Rogers Memorial Hospital (Falsify Med. records-forced resig.)

F. TRESPASS TO LAND 1. Definition Defendant will be liable for a trespass to land for an intentional physical invasion (includes substantial certainty) of plaintiffs real property. Includes fixtures-things on land considered permanent. 2. Physical invasion of land will usually be directly by the defendant entering the property, but it need not be. Mr. Overeasy, wishing to show off his high-powered toaster, fires several well-browned slices at Marmalades property, intending them to land on the property. Overeasy is liable to Marmalade. But contra where Overeasy is unaware of the propensity of his toaster to so propel toast; intent to invade Marmalades property would then be absent. 3. The invasion must be by a physical object or a person. Concussive blasts, smoke and light would be treated as constituting a nuisance. Lately, however, some courts have begun finding that even particulate matter too small to be seen satisfies the physical object requirement.

4. Plaintiff is entitled to bring the action for any invasion not only of the ground, but also of any space above or below the ground that he or she can make beneficial use of.

5. No damages are required for this tort; damage is presumed from entry. But in cases involving microscopic particles, actual damages are required. o Courts tend to look at light cases as being nuisance, not trespass. See Amphitheaters v. Portland Meadows (light interfering w/ drive-in theater) See Bradley v. American Smelting & Refining Co. (particulate emissions)

G. TRESPASS TO CHATTEL AND CONVERSION 1. Definitions and distinctions In general, liability for these torts attaches when the intermeddles with the s chattel so as to cause dispossession of, or damage to, the chattel. Trespass to chattel is the tort appropriate for those interferences that are less serious; i.e., those not serious enough to warrant a forced sale of the chattel. For trespass to chattel, damages for dispossession or harm to the chattel is the remedy; for conversion, a forced sale takes place. Trespass to Chattel: o Dispossesses other of the chattel o Chattel is impaired as to its condition, quality, or value o Possessor is deprived of use of chattel for substantial time OR o Bodily harm caused to possessor or harm caused to some person or thing in which possessor has a legally protected interest. Conversion (factors to consider): o Extent & duration of actors exercise of dominion & control o Extent & duration of resulting interference w/ others right of control o Actors intent to assert right in fact inconsistent w/ others right of control o Actors good faith o Harm done to the chattel o Inconvenience & expense caused to the other

2. Neither tort will lie unless there is a damage, or a dispossession. So, striking s book, e.g., will not give rise to a claim, unless the book is damaged. 3. These torts will lie even if the believes that she is the owner of the chattel, or that some third party owns it. 4. Determining whether an interference is sufficiently serious to warrant a forced sale is a fact-specific inquiry. If the interference resulted in great damage to the chattel, or was for an extended period of time, or was done in bad faith (e.g., theft, as opposed to a good faith error), or if the refuses to return the thing when asked, it is likelier to be considered a conversion. Trespass to chattel is for less serious results. 5. Only tangible personal property, and intangible property that has been reduced to physical form (such as a promissory note) may be converted, or trespassed against. Intangibles, such as goodwill of a business, may not the subject of these actions. o Pets considered personal property. See Compuserve v. Cyber Promotions (internet provider vs. spammer) See Wiseman v. Schaffer (truck was towed & then stolen) II. DEFENSES TO INTENTIONAL TORTS

A. CONSENT 1. As a general matter, the plaintiffs consent to the defendants intentional conduct will negate liability for a tortious act. Questions arise concerning capacity to consent, how consent is expressed, and the limits of consent. 2. Incompetents and young children are deemed incapable of consenting. In such cases, parents or guardians must consent. 3. Consent is typically expressed verbally, but may be implied by conduct such as by entering into a contact sport, or as by holding out ones arm to be vaccinated. 4. Consent may also be implied as a matter of law; for example, in the emergency situation arising out of an accident, consent to perform an operation will be implied where the victim is unconscious.

5. The limits of consent: a. Consent to one activity is not consent to another. One consenting to an operation on her left ear has not consented to a separate operation on her right ear. b. Consent is only effective if the underlying facts are as reasonably assumed by the victim. Paul offers Beauty an apple, but does not disclose that it is poisoned. Beauty has not consented to eating the apple. (A similar situation would arise where one partner has a sexually transmissible disease and does not inform the other of that fact.) o There are no principles of law which allow a court to rule out certain tortuous conduct by reason of general roughness of the game or difficulty administering it. See Peterson v. Sorlien (parents confined cult member) See Hackbart v. Cincinnati Bengals (player injured after play-contact outside scope?) See Mohr v. Williams (surgery on different ear than agreed)

B. SELF-DEFENSE AND DEFENSE OF OTHERS 1. One may use reasonable force to protect oneself from attack when one has a reasonable belief that such force is necessary to protect against the injury. Retaliation is not permitted. 2. One may use force likely to cause death or serious bodily injury only when one reasonably believes such force is needed for protection against the same. 3. Generally, there is no duty to retreat from attack; one may stand ones ground and meet force with force. There is a duty to retreat, though, when selfdefense would require imposing death or serious bodily injury, unless one is ones own home. One may defend a third party against attack. The privilege applies where the actor reasonably believes the person would have the right of self-defense. Courts dont look at consequences of the reasonable force in self-defense cases

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See Roberts v. American Employers Insurance (man shit in jaw by cop) C. DEFENSE OF PROPERTY 1. One is generally entitled to use reasonable force to prevent a trespass or other conduct on ones property. One may not use force that would cause death or serious bodily injury, though, nor a surrogate (mechanical device, dog, gun) that would inflict such injury. 2. One must usually make a request to desist, unless such a request would be futile or dangerous. Warning does not give greater privilege for excessive use of force. (ex-will shoot sign) See Katko v. Briney (shotgun trap to stop break-ins) shotgun trap takes out human element & discretionary use of force.

D. RECAPTURE OF CHATTELS This narrow privilege allows one who is wrongfully dispossessed of a chattel to use reasonable force to recover the chattel, again typically only if a request is made. Recovery is only permissible against the wrongdoer or someone who knows that the chattel was wrongfully obtained (think: the time-tested game of Keep Away.) One important additional requirement is that the privilege only lasts while one is in fresh pursuit of the tortfeasor. E. NECESSITY 1. One has a privilege to interfere with the real or personal property of another if necessary to avert a more serious harm, where one reasonably believes such interference is necessary. 2. When the act is one of public necessity, to benefit the public generally, the defense is absolute provided the act was taken in good faith.
Plaintiff is still to be compensated for the use of her property, but if the property is damaged or destroyed for the greater good, no recovery in most states. A few states have begun analyzing these cases as takings of property which must therefore be compensated for. (Only applies where the government is doing the taking.)

Public nuisance factor determines if govt required to pay for damages.

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See US v. Caltex (govt strategic.destroyed oil facilities) - The safety of the state overrides all consideration of private loss. 3. When the act is one of private necessity, the privilege is qualified in that the actor must pay for any damage he or she causes while on the property, unless the damage occurs because of an act of God. o As a matter of public policy, not allowed to make instant contracts when person in danger who has privilege of private necessity. o Assumes there was good faith See Ploof v. Putnam (family sailing, docked boat during bad storm) See Vincent v. Lake Erie Transp (ship docked during storm, dam. dock)-prob. Contract between the 2 parties o Reasonableness is important factor whether reasonable attempt to avert disaster whether it actually occurs or not. Some harm will come to public A. Is it a private citizen or government acting? -If government -If public nuisance, NO compensation required -If NOT public nuisance, compensation required -If private citizen -If reasonable decision, no compensation or recourse -If not reasonable, compensation required

p.101 summary problem Intentional torts in Farmer Jones suit against Thurston: o Trespass to land need intent to go on the land, which he had o Negligence against Thurston for not checking hyd. Fluid of plane before flying Defenses (either private or public but can plead both) o Private necessity provides qualified privilege to interfere w/ property to protect their own interests, or those of a small group of others. Still must compensate. o Public necessity provides absolute privilege to interfere w/ property of others to avoid public disaster. Do not need to compensate. Intentional torts in Jumbos suit against Spud: o False Imprisonment Intended confinement = yes were not leaving until &

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confinement results; would res. Person have felt confined? Whats reasonable in this emergency situation? o Assault intent to cause apprehension of imminent contact & apprehension results. *Words not enough*, apprehension of contact is what matters, not the respective sizes of the individuals. Only need apparent ability to make contact. Defenses o Self defense or defense of 3rd party pretty weak

II. NEGLIGENCE (BREACH OF DUTY)

To succeed in a negligence action, Plaintiff must prove: 1- Duty of Reasonable Care Person must behave as a reasonably prudent person under the same circumstances 2- Breach of Duty - must prove that the failed to use reasonable care to avoid causing harm. (failure to exercise due care is often called negligence) 3- Causation Has two parts must prove: o Cause in Fact that the s breach of duty (negligent conduct) in some way brought about s injury. was there causal connection? (ex. you 13

hitting someone caused harm) Lots of times there are 1+ causes in fact. o Legal or Proximate Cause that the causal connection between the negligent conduct of the & the s injury was sufficiently close to hold liable. Even if causal connecgtion does exist, its too remote & will not hold liable for it; willing to say it is a legal cause of injury. 4- Damages must prove that actual injury resulted from the s conduct. o Nominal damages are not awarded for negligence that does not cause injury. Rationale - The didnt act intentionally, so dont want him to pay unless damages occurred Duty Standard 1. Reasonably Prudent Person Standard of Care See Vaughan v. Menlove (reasonable person standard)

2.

Minors See Charbonneau v. MacRury (reduced standard for minors)

3.

4.

Elderly o Normally held to ordinary adult standard of care - when , some courts alter standard (more physical disability than age) o Absent evidence that an individual suffered from an age-related disability affecting his cognitive abilities, the individuals age should not be considered when assessing his negligence. Mental Disabilities See Breunig v. American Family Ins. (

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