TORTS OUTLINE PROF.

PIATT, FALL 2010 EMILY CHASE-SOSNOFF

PART 1 - INTENTIONAL TORTS I. INTENT a. Intent is the intent to do the volitional act. It does not matter if D intended the results. The act must be intentional, not the result. b. Notes: i. Age is irrelevant. ii. All that matters is whether D had the requisite knowledge. iii. Subjective test about what D thought, not based on a reasonable person. iv. Objective test - use objective factors to assess what D thought (a subjective thing). v. Everyone is capable of intent. The following are not defenses. 1. Age 2. Insanity 3. Good faith 4. Mistake 5. Fear of a Threat vi. Doctrine of transferred intent it does not matter if D tried to do one thing but another thing happened 1. If D means to punch A but trips and falls on B, D is liable for Bs injuries. 2. If D means to shoot A but the bullet instead smashes As valuable vase, the intent transfers from battery to trespass to chattels. vii. Motive or lack of malice is irrelevant. 1. You must separate motive from intent. 2. Remember the case where the man hugged the woman from behind it does not matter whether or not he meant to harm her. viii. Use objective factors to establish subjective intent did D intend to cause the result, or was he substantially certain that he would cause the result? ix. Intent applies to: 1. Battery 2. Assault 3. False Imprisonment 4. Intentional Infliction of Emotional Distress 5. Trespass to Chattels 6. Trespass to Property 7. Conversion

2. BATTERY Intent + Harmful or Offensive Contact + Absence of Privilege Battery requires: 1. Intent 2. Harmful or Offensive Contact 3. Absence of Privilege A person is liable for battery if (1) she commits an intentional act, (2) a harmful or offensive contact results from that act, and (3) she does not have a privilege. Notes:

Reasonable Person Test 1. Whether or not contact is harmful or offensive is based on an objective test. This uses a reasonable person test. 2. Must look at time, place, and manner when determining if a touch is harmful or offensive. 3. Crowded world theory not every touch is a battery. (Must examine time, place, manner.) Hypersensitive Plaintiffs 4. Hypersensitivity does not award P special damages. 5. But, if D knows P is hypersensitive, this changes things. Types of Touching 6. Generally, any contact that usually hurts people (kicking, hitting, pinching) are batteries. Its the ambiguous touches that are tricky (taps on the shoulder.) Unaware Victims 7. Victim does not have to be aware (surgery). 8. You can have battery without assault (as long as P does not see or is not aware of the impending battery). No Damage Requirement 9. Damages are not required (you do not need to show actual harm).

3. ASSAULT Intent + Imminent Harmful or Offensive Touch + the Apparent Presence of Ds Ability (to complete the battery) + Absence of Privilege Assault requires: 1. Intent 2. Imminent Harmful or Offensive Touch 3. Apparent Presence of Ds Ability (to complete the battery) 4. Absense of Privilege Assault is defined as where (1) the defendant commits an intentional act, (2) the plaintiff is thereby placed in imminent apprehension of a harmful or offensive contact, and (3) the defendant lacks a privilege. Notes: Burden of Proof 1. Privilege is always assumed. P must show that D did not have privilege. This is Ps responsibility in court. Ds Knowledge and Intent 2. D must intend to do the act that causes apprehension; D does not need to intend to cause apprehension. D does not need to know that his actions will cause apprehension. Ps Apprehension is Subjective 3. Apprehension is subjective depends on whether P was actually apprehensive. The reasonable person test does not matter. There is no rule about this, but if P is hypersensitive, the court might decide that apprehension was ridiculous. This is much more common with battery. Apprehension vs. Fear 4. Assault does not require fear, only apprehension. 5. Even if P knows he would win in a fight, he cans still have apprehension that D will strike him. Defendants Ability (to complete harmful contact)

6. Ability you probably cannot sue a 4-year-old for threatening to kick your ass, but you could sue an enormous bouncer. Immanency of Threat 7. Must be imminent danger not a future threat. But if it is in the near future and specific I will bomb your house tomorrow it can be assault. 8. Conditional threats are not imminent If you werent a woman, Id punch you. But I am a woman, so no assault. 9. But, if the condition placed is illegal, this can be an assault. For example, Give me your lunch money or I will beat you up. This is extortion, so it is an assault (see Siliznoff case). Assault Without Battery 10. There can be assault without battery if the battery does not happen (usually at the last minute). Objective Evidence for Each Element 11. Need objective evidence to show each element of the tort (time, place, manner). Practical Warnings Can Be Assault 12. Even if its practical like warning someone of imminent danger this can be an assault.

4. FALSE IMPRISONMENT Intent + Unlawful Active Restraint + Within a Bounded Area + Harm / Aware of Imprisonment (depending on jurisdiction) + Absence of Privilege False Imprisonment requires: 1. Intent 2. Unlawful Active Restraint 3. Within a Bounded Area 4. Harm or Awareness of Imprisonment (depending on jurisdiction) 5. Absence of Privilege A defendant is liable for false imprisonment if (1) she acts intentionally; (2) her conduct directly or indirectly results in the plaintiffs confinement within certain fixed boundaries; (3) the plaintiff is aware of the confinement or harmed by it (depending on jurisdiction); and (4) the defendant lacks privilege. Notes: Kinds of Restraint 1. Duress a physical threat may be sufficient 2. Falsely implied legal authority 3. Moral persuasion is not restraint. The one exception is where family is implicated. This may be considered more than moral persuasion (i.e. someone threatening your children or wife is closer to duress, like the woman kept on the boat). Bounded Area and Subjectivity 4. A person is not bounded if there is a safe escape that she is aware of. 5. If a stupid person did not realize escape mechanisms when a smarter person would have, this is still false imprisonment. It matters only whether the specific plaintiff knew of escape. Harm / Aware of Imprisonment 6. This is a jurisdictional issue. Do not discuss in exam. Absence of Privilege 7. Absence of Privilege must be proven. You can list several types of privilege and show how they do not apply to the case at hand.

5. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED) A defendant is liable for IIED if (1) her actions are extreme and outrageous; (2) she intends to inflict emotional distress; (3) her actions cause the plaintiffs emotional distress; and (4) the plaintiffs emotional distress is severe. IIED requires: 1. Intent (to inflict ED) 2. Extreme and Outrageous Conduct 3. Causation 4. Severe Distress Not on exam (says TA).

6. TRESPASS TO LAND Intent + Intrusion into anothers land which interferes with that persons possessory right + Absence of Privilege Trespass to Land requires: 1. Intent 2. Intrusion into anothers land which interferes with owners possessory right 3. Absence of Privilege A person is subject to liability to another for trespass to land where (1) she intentionally enters onto the land in the possession of another (whether or not she knows it is anothers land is irrelevant), or (2) remains on the land without permission, or (3) fails to remove a thing or object from the land which she is under a duty to remove, and (4) she lacks privilege. Notes: Intent 1. Defendant must have volitional intent to perform the act, not intent to trespass. Property Rights Extend Up and Down 2. How far do these rights extend? It depends on the jurisdiction and the case. Possessor Rights 3. Plaintiff does not have to be the owner of the property to sue for trespass. 4. People who rent can sue. 5. People living on property with permission of the owner can sue. Nuisance is Distinguished from Trespass 6. Nuisance is the invasion of the rights to enjoyment of the land. 7. For nuisance you have to show actual damages. 8. For trespass you do not have to show actual damages the trespass itself is the damage. Permission Has Bounds 9. The failure to remove something after permission expires can be trespass (Kent County case). 10. Permission can also be revoked. Mistake is No Defense 11. If D mistakes land for his own and enters it, she has still trespassed. Damages 12. Damages can be actual and/or nominal.

13. Foreseeable emotional damages D cuts down a tree Ps grandfather planted 30 years ago. Only some jurisdictions permit this. Also, D must be aware that P would be distressed by his actions. No Damage Requirement 14. P does not need to prove actual damages. (The trespass itself is the damage).

7. TRESPASS TO CHATTELS Intent + Interference + Legal Possession of Another + Absence of Privilege Trespass to Chattels requires: 1. Intent 2. Interference with the 3. Legal Possession of Another 4. Absence of Privilege A person is liable for trespass to chattels if she intentionally interferes with the legal possession of another. Notes: Harm 1. Actual harm or damage is not required. Ps Possession 2. Possession can be anything P has a legal interest in Duration 3. Ten seconds is too short. 4. The duration must be significant. 5. The main distinction between trespass and conversion is time. Conversion has more permanency to it. Trespass is when someone temporarily takes something. With conversion D takes it for a longer period or indefinitely.

8. CONVERSION Intent + Complete or Substantial Deprivation + Possessory Right of Another + Absence of Privilege Conversion requires: 1. Intent 2. Complete or Substantial Deprivation of the 3. Possessory Right of Another 4. Absence of Privilege A person is liable for conversion if she completely or substantially deprives another of that persons possessory right. Notes: Conversion is doing any of the following to something thats not yours: 1. Using 2. Stealing 3. Selling 4. Severely Damaging

9. PRIVILEGES Mnemonic Device: Drunk Drivers Dont Really Need Consent Just Some Legal Authority. 1. Defense of Others a. Can use reasonable force b. Deadly force can be considered reasonable. c. Privilege extends only to the extent to which self-defense would extend for the person you are defending. d. Threat must be objectively manifested. e. No privilege if theres a mistake, unless the mistake is reasonable. 2. Defense of Property a. Cannot use deadly force, including serious bodily harm. b. The exception to (a) is if the intruder is threatening violence (to a person). c. If preventative measures are used, there often needs to be a warning (Beware of Dog, Trespassers Will Be Shot). d. Cannot use a force greater than if you were actually present (i.e. no spring guns). e. No privilege if there was a mistake, unless the mistake is a result of fraud on the part of the intruder. 3. Discipline a. Parents, legal guardians, military personnel, anyone in legal authority. b. They can use reasonable force or restraint. c. Reasonability is determined under the circumstances of time, place, and manner. 4. Recovery of Property a. Must be a fresh, hot pursuit. b. Must make a verbal demand before using any force. c. Then, can use reasonable force. d. Again, mistake is only covered if it was caused by the thief (as in through fraud). e. If property is voluntarily surrendered, privilege does not exist. f. Public policy rationale is that it saves money and time to let people handle these things themselves. g. Limited to reasonable force to prevent vigilantism. h. Shopkeepers Privilege: All recovery privileges remain, plus shopkeeper can hold a thief until the police come, and her authority extends to the parking lot. The privilege is on a continuum the farther the thief gets from the store, the less the privilege applies. 5. Necessity a. There is public and private necessity. b. Public Necessity if D successfully claims public necessity, there is no liability. Any private citizen or public official (anyone!) can claim public necessity. c. Private Necessity an incomplete privilege. If D successfully claims private necessity, she is not liable for trespass, but is liable for damages. - Private necessity applies when you act to save yourself. - Look at temporal issues to determine if its reasonable. - Imminent threat - Temporary nature - Reasonable under the circumstance

- This only arises when the result would otherwise be trespass. Must be intentional, not negligent. - Necessity must be shown. - Intrusion into anothers land which interferes with that persons possessory right. 6. Consent a. This is a factual inquiry. b. Competency is required (minors can never consent). c. There is no consent if it was attained through fraud. d. Anyone can withdraw consent. e. Emergency exception for doctors. f. Consent can be explicit or implicit. If it is implicit it must be objectively manifested (i.e. looking at customs and mores). g. If someone is visibly incapacitated (i.e. clearly drunk), he cannot consent. h. Consenting to one thing only covers consenting to that one thing, not open consent to other actions or time periods. 7. Justification a. Look to the reasonableness of the act (usually to protect others or property). b. A nice catch-all for everything. Very little difference between justification and defense of property or others. 8. Self-Defense a. Can use reasonable force, including deadly force. b. Privilege ends when the threat ends. c. Must be objective manifestation of the threat, but perception of the threat is subjective. 8. Legal Authority These are always statutorily-granted privileges (generally involving police officers).

10. THINGS THAT NEGATE PRIVILEGES Mnemonic Device: DIM FBI 1. Duress A threat of force or coercion. 2. Incapacity a. Age b. Infirmity c. Insanity d. D knows or should have known about incapacity 3. Mistake Mistake is generally not a defense for a tort, but it negates most privileges unless its the result of fraud on the part of D. 4. Fraud

If D lies or omits information that he knew or should have known was necessary information, this can bring a mistake into being covered by a privilege. 5. Beyond the Scope (Consent) Consent is always limited by time and context. 6. Illegal Conduct You cannot consent to illegal conduct.