Torts outline
Intentional Torts
Intent: 1) acting for the purpose to bring about a consequence or 2) a substantial certainty of consequences resulting from conduct
-determining intent of act AT THE TIME IT OCCURRED
-CONSEQUENCES of an action are assessed
-actions must be voluntary--even under duress, actions are still intentional if voluntary (Ex. Someone holds gun to your head and makes you punch John, you committed the intentional tort of battery…)
Not considerations: motive (why action was performed), mistake of fact (Ranson v. Kitner-intent to shoot at animal mattered; not important that D was “certain” he was shooting at wild animal ); if act performed in “good faith”; sanity of defendant--McGuire v. Almy (court refused to look into mental faculties when determining intent)
Talmage v. Smith (Can D be civilly liable for damages resulting from a battery when person intended to be hit injured P instead?)
-Yes, D intended to hit somebody and inflict injury upon them, the fact that the injured party was not the intended party is irrelevant…
-transferred intent--when intent can be proved; court will allow the harm threatened to intended party to shift to injured party to recover for damages * the policy behind this is to protect people from harm and hold tortfeasors accountable for endangering others
Battery
1) intent
2) harmful OR offensive contact
-AND-
3) a harmful/offensive contact with the person of the other DIRECTLY or INDIRECTLY results
-person must intend to bring about consequences that follow their action 1) acting with the purpose to batter or 2) acting with substantial certainty that battery will follow
Contact can be direct or indirect:
-direct physical contact with a body part of another (punch, kick)
-shining of light in someone’s face
-blowing smoke in someone’s face
-shooting someone with gun, or hitting them with a projectile
-setting up a wire which person falls over a week after you placed it
-ordering a dog to attack
-an object “intimately connected with your person” (ex. Fisher v Carrousel when employee yanked plate from man’s hand; court ruled battery b/c plate was intimately connected with his person)
-must be in physical control of your person to count
Not all contacts count as battery:
-it is a crowded world, some physical contact is expected, in considering this, must look at circumstances/venue/nature of touch
Offensive contact:
-if offends a reasonable sense of personal dignity
-if reasonable person in circumstances would be offended; depends on nature of relationship; (ex. Two employees at work routinely wrestle or horse-around, thus contact would be more acceptable between them)
-cultural norms are consideration as well--look to objective circumstances
Extent of damages responsible under battery:
-if A trips B trying to embarrass him, but B falls down flight of stairs as result of trip; A would be liable for all of B’s injuries, even though A did not intend to cause those consequences…once a battery is committed by A, A is liable for all the resulting harm…as long as A intended the initial trip, he would be responsible for everything after that, even if some of the consequences were not anticipated
Ex. Lambertson v United States-workers in meat packing plant, inspector jumped on his back and pulled bag over his head, worker fell and hit head on hook; held liable for battery b/c reasonable person would find jumping on another’s back to be offensive, thus inspector had committed battery, and was liable FOR ALL RESULTING INJURY
-battery tort seeks to protect person’s personal autonomy and freedom from being touched
Assault
1) intent
2) unlawful offer to touch another in a rude or angry manner
3) so as to create a well founded fear of an imminent battery (apprehension)
4) apparent present ability to bring action about if not prevented
-person need not be able to carry out the threatened action; as long as threat is of imminent battery--close enough to striking distance that threatened person could be reached almost at once
-words alone cannot constitute assault, they can be used in conjunction with action to qualify what is threatened… “color ambiguous action”
Western Union v. Hill--man behind counter reached for woman, he couldn’t reach her over counter, but she jumped back to avoid his touch…this is manifest that she anticipated an imminent unlawful touch…
-fact he couldn’t reach her is irrelevant, so long as he created imminent apprehension and had the present ability to perform unwanted touch
Not assault: “if you try out for the Olympic team next month, I’ll punch you in the lip”--not imminent
False Imprisonment
1) intent
2) must confine someone (physical restraint or imminent threat)
3) reasonable means of escape are denied (denial of liberty)
* person must be aware of confinement/false imprisonment at time it is occurring
Reasonable means of escape--must not put person in risk of injury/must be apparent at time of false imprisonment; cannot recover damages if injured making an unreasonable escape if no risk of harm during imprisonment (Sindle v. NY City Transit--plaintiff jumped from window of moving bus)
Confinement
-physical force, impediments to leaving (Whittaker v. Sandford--D refused lifeboats where P was on island surrounded by water and no other means to escape), imminent threats to physical force, imminent threat to third party (“I’ll kill your son if you try to leave.”)
-moral suasion is not enough/( Hardy v. LaBelle--P felt compelled to stay--not enough in absence of physical restraint/imminent threat of force compelling her to stay)
Must you help someone who is false imprisoned? NO, you may be a moral monster, but you are not a tortfeasor
-no duty unless part of job/title
-if factually responsible for confinement, a duty is created
Intentional Infliction of Emotional Distress
-standard to prove changes depending on court’s interpretation
State Rubbish Association v. Siliznoff--must show intentional “extreme and outrageous” conduct which results in tangible emotional distress, D is liable for: 1) emotional distress 2) resulting bodily harm
Harris v. Jones--P suffered speech impediment and was routinely mocked/humiliated @ work resulting in worsening of nervous condition
Court used 4 prong test to determine if IIED:
1) conduct must be intentional
2) conduct must be extreme/outrageous
3) wrongful conduct must have caused emotional distress
4) emotional distress must be severe*
* severe--disabling emotional response
-determination of extreme and outrageous--depends on circumstances/venue/time/place/number of occurrences/relationship between parties--beyond all bounds that society accepts
-determination of distress as severe--some jurisdictions require expert testimony/others listen to P and D to determine--courts look at flagrance/nature of seriousness of D’s conduct
Courts are reluctant to allow IIED: flood gates (threat of mass litigation), courts want people to be robust and “get over it”, hard to determine damages
-emotional distress does not need to result in physical symptoms
-mere insults can be enough depending on who you say them towards
-courts do not like to hear cases dealing with family issues
-bosses have a little bit of leeway because they need to be able to discipline employees
Trespass to land
1) intentional unauthorized entry onto property of another
2) ACTUAL and SUBSTANTIAL damages
-interference with possessor’s “exclusive possession of land”
Property--actual soil/land, ground below/air above (excluding air space)
-Herrin v Sutherland--D shot buckshot over P’s premises; court held “air space, at least near the ground is as inviolable as the soil itself” D liable for trespass resulting from buckshot
-particulate matter--invisible former solid substance transmitted through air; leaves condensation/tangible effect…can be used as trespass to land where causes damage to property
Trespass to land can result from an object being left on land (put there with consent of land owner) when that object causes “actual or substantial damage” after overstaying consent period:
Rogers v. Board of Kent County--fence post left on property, owner crashed into post which was supposed to have been removed resulting in his death; post put with consent but remained on property after consent was given; trespass can occur when person “overstays” their welcome and causes injury
Nuisance--actionable invasion of possessor’s interest in the use and QUIET ENJOYMENT of property
-equity action--harm caused by nuisance is balanced with social utility
Trespass to Chattel
Chattel- any kind of personal property that is not affixed to the land or building
1) intentional “physical intermeddling” must:
2) dispossess another of chattel OR
3) impair condition of chattel OR
4) deprive owner of use of chattel for a substantial time OR
5) cause bodily harm to possessor OR to some person in which possessor has legal interest
* damages must be substantial, no protection for NOMINAL DAMAGES *
-courts do not give remedy for harmless intermeddling
-trespass to chattels is a D’s intentional interference with use of a chattel resulting in damage to that interest
-doesn’t matter if D mistakenly believed chattel to be someone elses
-D pays for damages in unlawfully depriving P use of chattel
Compuserve v. Cyber Promotions--D intentionally spammed P’s server with emails/junk mail causing significant burden on equipment including storage capacity and network functioning; D found liable for trespass to chattel because: the resources that were wasted as a result of greater demand for disk space/drain on servers diminished the value of the equipment, even though not physically damaging (third condition met); harm to reputation [slow servers] was significant too
Conversion
1) intent
2) exercise of dominion or control over a chattel
3) serious interference with the right of another to control that it may be required to pay full value of chattel
In determining seriousness of interference:
a) extent and duration of actor’s exercise of dominion or control
b) the actor’s good faith (accidental, done without intent to cause loss of property, ignorance that the property was anothers)
c) extent and duration of the resulting interference with the other’s right of control
d) harm done to chattel
To convert a chattel and make the actor pay full value the following are considered:
a) how was possession acquired? Stolen/ borrowed?
b) damage or alteration to chattel?
c) using it-a bailee wrongfully violating terms of bailment
d) receiving it--obtaining possession after purchase from a thief
e) disposing of it-a bailee wrongfully selling
f) misdelivering-delivery to wrong person so that chattel is lost
g) refusing to surrender it-bailee refuses to return chattel
What may be converted
-real property cannot be converted…real property is land or fixtures to land…however once severance takes place (pulling a branch off a tree) P can maintain the good as a chattel and recover in conversion…
-intangible rights, can be recovered for conversion if merged with an instrument, but can be claimed if goods of the kind are customarily merged with an instrument
Ex. Of merging instruments: bill of lading, promissory note, check, or stock certificate
* * QUALITY OF INTEREFERENCE IS CENTRAL IN DETERMINING IF CONVERSION/TRESPASS TO CHATTEL…
-amount of time property was misplaced
-amount of damage to property
-doesn’t matter if D thought chattel to be someone else’s as long as intent is there
Two cases where definitely conversion:
1) when chattel is completely destroyed
2) when chattel is interfered with, with intent to steal
-D pays for full value of item at time of conversion
* exception: if D converted property in good faith (not knowing it to be P’s) then courts may allow return of property as damages…in this case D would only have to pay for loss of use of chattel in amount of time it was away (similar to damages for tres to chatt)
Privileges
-essentially affirmative defenses
-can be exceeded by time, geography, or purpose
Consent
Express consent--prior to invasion, person agrees to allow something to happen
Problems: has person consented lawfully? (minor with fake ID)
-written, verbal, body language
Implied consent--reasonable person would consent; objective standard what would ORPP under circumstances that D faced decide? Thus if reasonable to assume implied consent, then it exists
-burden is on D to show that their action was acceptable and they were privileged to act a certain way
-consent is invalid if made under false pretenses…if D misrepresents something and P consents, P’s consent might not be valid…P did not appreciate the true nature of the intended contact; misrepresentation must be material (consent given under circumstances of fraud)
-must make sure that scope of consent has not been exceeded ex. Parties consent to slap box, not okay for Hong to put on some brass knuckles and say “we were slap boxing, what?!”
-if implicit in something that is part of a community ritual or standard; can occur through participation, at some point after participation is prolonged, implied consent manifests (Hackbart v. Cin. Bengals--D found liable for battery for intentionally striking another player with fist; court reasoned this action overstepped the “general customs” of the game and thus was not protected by implied consent that each football player is part of normally)
-can occur by P’s words, gestures, or conduct (O’Brien v. Cunard--woman watched those in front of her get shot, stuck her arm in the air as doctor walked by; the court found the doctor “justified in his acts whatever her unexpressed feelings might have been; in determining consent, doctor could only be guided by her overt acts”
Consent to medical treatment
-if doctor gets consent for surgery on right ear, but upon operation finds out it is the left ear and operates there instead, he could be committing battery by not performing action patient consented to (Mohr v. Williams)
-often times, doctors run into situations where upon surgery an unexpected situation arises, but it is impossible/dangerous to stop and revive patient to get consent…often before surgery doctor will have patient sign consent forms that include various predictable scenarios
-often family members can step in and make decision for a family member in surgery “substituted consent” ; law recognizes this as legitimate
Emergency privilege
-imminent threat of loss of life
1) if reasonable person would consent
2) no reason to believe particular patient would not consent
3) delay would involve a risk of death or serious bodily harm
Self defense
-most courts hold there is some duty to flee if available
-in home, you can stand your ground [no need to flee]
-verbal threats generally not enough in absence of imminent threat
1) existence of privilege: anyone is privileged to use reasonable force to defend himself against a threatened battery
-trial judge will make decision if self-defense was warranted
2) retaliation: when the battery is no longer threatened, the privilege terminates: and thereafter the original victim becomes liable for battery
-even if person was initially an agressor,once he has retreated he has a right to self-defense against the person he initially threatened
3) reasonable belief-privilege exists when the defendant reasonably believes that the force is necessary to protect himself against battery, even if not necessary; reasonable belief is enough, the court upholds this because: “self preservation is the first law of nature”
4) Provocation-insults, verbal threats, nasty language does not justify self-defense; depends on the context of the dispute: if abusive words are accompanied with threat of violence reasonably warranting immediate apprehension of bodily harm, the privilege to defend could exist
5) amount of force-the privilege is limited to use of force that is reasonable to be necessary for protection against a threatened battery
-differences in sizes of people count; ie 5” woman v 6” 300 lb body builder
-to justify use of a deadly weapon: D must have a reasonable apprehension of loss of life or great bodily injury
-D has burden of proof in proving use of force was necessary
6) retreat-big disagreement; must a D have retreated to avoid potential danger? D may stand his ground and use any force short of that likely to cause serious injury
-in home--this is different, one is not required to retreat
7) injury to third party-privilege of self defense is carried over via “transferred intent” negligence can be considered on part of D, in which case the emergency and necessity of defense is considered…
Defense of Others
-courts not as interested in helping good samaritans or vigilantes who step in to protect another person
1) Nature of privilege--a privilege similar to that of self-defense is recognized for the defense of 3rd persons
2) courts differ on the issue of reasonable mistake in third party “self’defense”
Some hold: the intervenor steps into the shoes of the person he is defending; gaining privilege where that person would have been privileged to defend himself
Others: defendant is privileged to use reasonable force to defend another even when he is mistaken in his belief that intervention is necessary, AS LONG AS MISTAKE WAS REASONABLE
Defense of Property
-deadly force not allowed when privilege rests on property interest
-when protecting property, reasonable force is allowed, not deadly force
Katko v. Briney--D set up a shotgun trap to protect an abandoned house on his property from trespassers; gun was set up and was not visible to P who broke in to steal some glasses; D was not entitled to use deadly force (shotgun) to protect his property…if D had been living in that house he would have been able to…
Recovery of Property
-when an owner is displaced of a chattel he is privileged to use force to retrieve it when there has been a momentary interruption of possession
-fresh pursuit--limited to prompt discovery of dispossession and prompt and persistent efforts to recover chattel
-if an undue lapse of time--the owner is no longer privileged to fight himself back into possession, must resort to the law
-first a demand for return of property must be made before force can be used
-force limited to reasonable force under the circumstances; cannot use force to inflict serious bodily harm
Shoplifting privilege
-request to stay must be made if applicable
-reasonable force
-tough situation because stores run the risk of false imprisonment if no theft; reasonable mistake is allowed
-did D take too long to complete the investigation (into seeing if P actually shoplifted)--10 minutes is usually allowed
-does privilege extend beyond premises say into parking lot?