Intentional Torts: Battery, Assault, False Imprisonment, IIED

Intentional Torts: battery, assault, false imprisonment, IIED

Intentional Torts =

Volitional act +
Intent(purpose or knowledge—substantial certainty of result, Garratt, even if unlikely to occur, e.g. throwing rock at far-off person)+
Transferred intent- 1) A intends a tort on B, but commits a tort on C OR 2) A intends one tort, but accomplishes another= STILL LIABLE
available in assault, battery and false imprisonment (limited in IIED)
Causation (conduct of D is substantial factor in bringing about injury)

Liability:

Insane NOT excused
Children generally NOT excused if P can prove elements, incl intent

EXC: not liable in some states where young children (usually <7) are held to be incapable of intent or tort generally
Parents: NOT liable for children’s torts

i. EXC: where statute imposes liability (in most states, but limited to kids’ willful/wanton acts and damages capped at low amt)

Respondeat superior: employers sometimes liable for employee torts committed in course of employment. If worker is injured, worker’s comp usually covers (except intentional torts, Bruce, unless in furtherance of company)

Battery

An act by the D with…
Intent to cause
Purpose/knowledge (Garratt)
RULE CHOICE: dual intent (majority)- intent to cause a harmful or offensive contact via a touching vs. single intent (minority)- intent to touch
Transferred intent applies (Stoshak, hit teacher), but SOL remains same (Baska)
Tortfeasor need not be rational (Polmatier, crazy son in law)
H/O(“would offend a reasonable sense of personal dignity”, RS 19, Turk) contact, or imminent apprehension of such a contact, AND
Offensive contact (no injury necessary)
offends a reasonable sense of personal dignity, Turk OR
via prior knowledge, defendant knows plaintiff will be offended by the contact
Dual vs. Single Intent
Dual: intent to make contact + intent that contact be H/O (White, old lady hitting). Rationale: more subjective, refocus punishment on those meaning to harm.
Single: intent to make contact--which ct determines was H/O (Wagner, mental patient attack). Rationale: practical consequences of dual intent unworkable/insufficiently protective, makes unwanted kiss ok.
H/O contact occurs

Victim need not realize H/O contact at time (e.g. asleep)
Medical care over objection always = battery (Cohen, naked C-section)

EXC: if provider doesn’t know of objection (VanHoey)

Causation- liable for…
Direct contact of P (or extension of P, e.g. cane)
Indirect contact- not necessarily touching P (i.e. throwing object at P, Leichtman, smoke particles)
Sufficient if defendant sets in motion a force that brings about harmful or offensive contact
i.e. Plaintiff falls in hole dug by defendant
i.e. Defendant was angry and broke a glass door. Plaintiff later cut by glass.
Damages: don’t need to prove actual damages, can be nominal (Elkin, sexual abuser dad)

Assault

1)Intent (knowledge/purpose) to put P in apprehension of an immediate H/O contact AND

2)Reasonableand imminent apprehension of battery results, Cullison, trailer visit, vs. Koffman (student tackled by coach, didn’t have apprehension beforehand, battery)

Reasonable based on D’s apparent ability (e.g. gun, even if unloaded) OR based on unreasonable fear D knows of

--Words alone not reasonable unless accompanied by more and may negate apprehension (e.g. “I’d punch you if I weren’t so nice”)

--P must be aware of threatened contact, contrast to battery

Imminent=“no significant delay”, D has present ability to carry out threat
threats of future contact insufficient (i.e. “beat you up tomorrow” not assault)
also no assault if D is too far away to do any harm or merely preparing for future harmful act

Conditional threat:
Liable if actor gives the other an option to escape the contact by obedience to a command unless command is one which the actor is privileged/has a legal right to enforce
EX: Burglar P enters D’s house. D says, “If you don’t leave, I’ll throw you out.” No assault on P b/c D has legal right to force P to leave.

Actual damages not required; can recover for nominal damages

False Imprisonment

1)Intent to confine (knowledge or purpose)

2)Confinement

Physical barrier/force (held within certain limits, not that P is prevented/excluded from entering certain places, e.g. restaurant)
Force can be directed at him, member of his immediate family, or his property
EX: P cannot leave building because D has her purse.
By threat offorce/duress/invoking legal authority
Must be plausible threat (reasonable person standard)
E.g. NO, Hardy, didn’t ask to leave/not told she had to stay, vs. McCann, reasonable people would’ve thought Wal-Mart would use force/had authority
Complete = even if there’s a way to escape, UNLESS P knows of escape (required to pursue reasonable means of escape, but liable if escape would offend reasonable dignity)

3)P= aware of confinement ORharmed by it

E.g.: baby locked in bank vault false imprisonment
E.g.: sleeping person locked in room, learns later that door was locked not false imprisonment

4)Damages: not limited to actual compensatory damages, exc. in case of “harm” not “awareness”

5)Similar act not done w/intention to confine is NOT false imprisonment, but may be negligent/reckless if risk threatened bodily harm (e.g. accidentally locking grocery employee in cold vault)

Intentional Infliction of Emotional Distress (IIED)

1)D intentionally or recklessly

2)Byextreme and outrageousconduct- beyond bounds of decency

Two factors that help establish this
Relationship between the parties (esp abuse of power)
D is aware of P’s particular sensitivities and exploits them
Also look to severity and regularity of the conduct (Bruce, abusive boss, not Jones)
Mere insult is not sufficient

3)Causes emotional harm to D

4)That is severe (beyond what reasonable person can be expected to endure, not for harm to esp vulnerable P unless D knows, usually must be severe enough that P sought medical attn, SOME cts: distress must cause physical manifestation)

Does NOT apply when exercising legal right (e.g. divorce)
Limited transferred intent: Third party/bystander IIED (NOT Long, wife seduced, failed “presence requirement”)
P can recover if
A) present (and defendant knows that P is present…because defendant must be substantially certain he will cause severe emotional distress to P )
B) related to party OR suffers actual bodily harm

Courts reluctant to recognize this tort- high standards
Actual damages are required- nominal damages will not suffice

Affirmative Defenses to Intentional Torts

“Privileges” based on P’s conduct

RS § 63: Self-Defense by Force NOT Threatening Death/Serious Bodily Harm:

(1)Actor can use:

reasonable force (must be proportional)
not intended to inflict death/serious harm
to defend against H/O conduct which he reasonably believes another is about to inflict intentionally upon him (or 3rd party, RS 76, if D (1) reasonably believes 3rd party would have self-defense privilege and (2) D’s intervention is necessary for 3rd party’s protection) (Touchet, words not sufficient threat)
NO duty to retreat (majority)
NO need to comply w/command to escape injury
NOTE: applies to cover “discipline” privilege in schools, as long as shown corporal punishment wasn’t unreasonable/excessive

RS § 65: Self-Defense by Force Threatening D/SBH

(1)Privileged if actor reasonably believes that:

Other about to inflict intentional contact/bodily harm AND that
He is thereby in peril of death/serious injury which can ONLY be safely prevented by immediate use of such force.

(2)Privilege DOES exist even if actor believes he can avoid injury by:

Retreating if attacked within his dwelling place

EXC: if it’s the dwelling of other too;

Permitting other to intrude in his dwelling place; or
Abandoning an attempt to effect lawful arrest.

(3)Privilege does NOT exist if actor believes he can avoid injury by:

Retreating if attacked in place OTHER than dwelling; or
Relinquishing exercise of any right/privilege OTHER than his privilege to prevent intrusion of dwelling or to effect lawful arrest.

Arrest and Detention: RULE CHOICE, up to legislature—

Trad. Common Law: prop owner can detain thief “at his peril” (liable for false imprisonment if turns out they didn’t commit crime). Firm rule

RS 2d:prop. owner can detain thief on “reasonable belief” in reas manner for reas time but must be “on premises”. Raises question but “remains silent” on whether detaining can include off-premises vicinity. Flex standard

Statutory: e.g. WI statute allowing off-premises chase if “reasonableness” requirements are met (Menard, Inc)

Defense of property: NOTE: trumped by necessity (e.g. docking boat)

RS § 77: Defense of Possession by REASONABLE Force NOT Threatening D/SBH if:

Intrusion isn’t privileged or other intentionally/negligently causes actor to believe it’s not privileged; AND
Actor believes intrusion only preventable by force used, AND
Actor has 1strequested other to desist or believes request will be useless/substantial harm will be done before request can be made.

RS § 84: Use of Mechanical DeviceNOT Threatening D/SBH if:

Use of device is reasonably necessary to protect from intrusion; and
Use of device reasonable under circumstances, and
Device is one customarily used for such purpose OR reasonable care is taken to make its use known to intruders.

RS § 85: Use of Mechanical Device Threatening D/SBH: Privilege exists only when ACTOR would have privilege to prevent intrusion by intentional infliction of such harm if present. Graves/Katko (deadly/SBH force by act or device only ok if intruder threatens w/same, making force “reasonable”/proportionate).

Effect of reasonable mistake by D varies
Mistake as to danger- if D’s mistake is about whether force is necessary, D is protected by reasonable mistake
Privilege- but if the owner’s mistake is about whether the intruder has right to be there, the use of force will not be privileged
Deadly force
May use deadly force only where:
Non-deadly force will not suffice
AND the owner reasonable believes that without deadly force, death or serious bodily harm will occur
i.e. use of deadly force allowed against a burglar

Consent

Express and conduct complies with terms
Implied from “reasonable person” standard and conduct

EXC if person has taken steps to make contrary intention known (e.g. posting “no trespass” sign = no RP consent to solicitors)
May disadvantage those w/limited cultural/linguistic knowledge (O’Brien, vaccination)
Medical consent implied usually in emergency situations where consent can’t be obtained (Miller, resuscitated baby, Miller, drunk patient)

Substituted consent: may be a jury Q (e.g. Harvey, mother consenting for adult son under anesthesia)
Scope: what’s “reasonably expected” in course of what is agreed to (e.g. medical procedure, Kennedy: reasonable physician intervention for wellbeing within area of “original incision”, NOT stomping on foot after basketball game)

Does NOT apply when:

(1) Duress (may be jury question, e.g. student/professor)

(2) Fraud (Johnson, STD where D knows other doesn’t know)

(3) Lack of capacity (minors, mentally disabled, under influence)

(4) Conditional and condition exceeded (e.g. Ashcraft, non-family blood transfusion, Duncan, non-authorized drug given)

(5) Policy decision to preclude (Robins, discussion of whether to omit for inmates toward jailors)

(6) Revoked (must be while D still has time to alter conduct)

Privileges Not Based on Plf Conduct

Arrests/searches: officers may enter land to execute searches/warrants, does not incl privilege to invite media
Public rights: user of public utilities; public accommodations laws, privilege to enter land to reclaim one’s own goods, and limited privilege of free speech in shopping malls
Necessity

RS § 196: Public Necessity:Private party has privilege to enter land in possession of another if actor reasonably believes it to be necessary to avert imminent public disaster.

*May involve breaking/entering or reasonable force against possessor if it appears reasonably necessary

*Does not involve compensating owner, Surocco; however, when govt authorities acting in official capacity cause property damage in emergency to mitigate disaster, they may have to compensate for “taking” (differs by state), e.g. Wegner (Mpls policy grenading house)

RS § 197: Private Necessity: In case of emergency, private actor has:

(1)Privilege to enter land of other if it appears necessary to prevent serious harm to:

Actor or his land/chattels (Ploof)
Other or a 3rd party UNLESS knows 3rd party wouldn’t want him to

(2)If entry is done for benefit of actor/3rd party, actor liable for any damageunless entry is caused by tortious conduct/contributory negligence of possessor.

--Rationale: forcing party to internalize the externality cost, deterrent/economic goal of rule (sacrifice cheaper asset to make efficient choice), Vincent.

Negligence

Generally, imposing on others an unacceptable degree of risk of injury, failure to take precautions moral blameworthiness

ELEMENTS OF NEGLIGENCE

1)Duty

2)Breach (small “n” negligence)

3)Factual cause

4)Proximate cause

5)Damages

Institutions of Negligence Practice:

(1)Litigation finance—the attorney fee is contingent, usually 25-50%. In large, time-consuming cases, there must be high pain/suffering or punitive damages to make it worth atty time.

(2) Liability insurance—though auto insurance may be compulsory, policy limit (sum to pay for injuries) likely too low to cover most serious injuries.

(3) Role of settlement: few trials, but lawyers must have sense of what could be awarded to ensure good settlements

Duty

Duty to behave like a RPPUTC (to all foreseeable Ps)

The standard of care remains the same under all circumstances (Stewart)
But if the danger is high, the reasonable person will ordinarily exercise care greater than if danger is low
Dangerous instrumentalities: standard remains the same (RPP), but amt of care so provided changes (Stewart, gas tank blew up)
Sudden emergency doctrine- in midst of crisis, a RPP may not be thinking clearly, might do things that one cannot do under normal circumstances but standard remains the same (Bjorndal, car crash)

-- Varies by state but most recognize different instruction rarely appropriate

Reasonable person- objective standard
Has same physical characteristics/disabilities as defendant
Yet expected to know your handicaps and exercise the care of a person with such knowledge (i.e. someone with epilepsy shouldn’t drive)
Average mental ability (not deemed to have mental capacity of defendant)
Individual mental handicaps are not considered (i.e. low IQ no excuse)
Same knowledge as average member of community
Yet defendant with knowledge superior to that of the average person to required to use that knowledge

Particular Standards of Conduct: Exceptions to General Rule (specialized trumps general)

What Circumstances Count? (constitute a defense/specialized rule)

Counts / Does Not Count
Children
Superior skill
Physical disabilities
Emergencies / Child doing adult things
Insanity
Intoxication
Mental disabilities

Child standard of care- specialized rule

Duty for a child is to exercise the same care as a reasonably carefulchild of like age, intelligence, experience, acting under similar circumstances
Subjective standard used for children is more pro-defendant than adult standard, evid of mental/emotional deficit considered (unlike adults)
EXC: children are held to adult standards if child engages in adult activity (Robinson, snowmobile, vs. Putney, golf cart: determine “adult activity” by who does it/danger level)
EXC: Some courts say that children of very young age (under 3, RS 10 says 5) are incapable of negligence
EXC: minority approach: where children > 14 = rebuttable presumption in favor of negligence, children 7-14= rebuttable presumption against capacity, children < 7 = incapable of negligence

Knowledge and Skills (RS 12):

If actor has knowledge/skills exceeding those of others, they must be taken into account in determining whether he/she acted as a reasonably careful person, though instruction remains same (Cervelli, professional trucker, Hill, tractor operation, drs must report own symptoms properly). If actor is below avg judgment/knowledge, it’s generally ignored.

IntoxicationNOT an excuse
EXC: sometimes for adult learners who cause harm to teachers

Disability (RS 11):

(a)Conduct of physically disabled actor negligent only if conduct doesn’t conform to that of a reasonably careful person w/ same disability (NOTE: old age not in and of itself considered a disability).

(b)Conduct during period of sudden incapacitation resulting from physical illness negligent only if sudden incapacitation was reasonably foreseeable (e.g. seizure/didn’t take meds, foreseeability often a jury question)

(c)Actor’s mental/emotional disability not considered

Mental Disabilities- no specialized rule

Held liable for intentional AND negligent torts
Policy reasoning
Allocates losses between two innocent parties to one who caused the loss
Provides incentive to those responsible for people with disabilities and interested in their estates to prevent them from causing harm to others and restrain those who are potentially dangerous
Removes inducements to fake mental disability
Avoids administrative problems involved in courts and juries attempting to identify and assess significance of actor’s disability- too difficult to draw line between mental deficiency and variations of temperament, intellect and emotional balance
Forces people with disabilities to pay for damage they do if they “are to live in the world”
EXC: If someone is mentally disabled, institutionalized, and hurts a caregiver not liable (Rusk)

Insanity- no specialized rule

MAJORITY rule= Mental illness is never a defense. Insane are held to same standard as everyone else.
MINORITY rule- treat sudden insanity same as sudden physical incapacity (Breunig (sudden delusion while driving)

Using Statutes to Define Duty: Statutory Standard of Care (RS 14)

Negligence per se: When a safety statute has sufficiently close application to the facts of the case at hand, an unexcused violation of statute by defendant is “negligence per se” and that conclusively establishes that D was negligent (breach and duty of care satisfied (some states: only breach satisfied); still need to establish causation and damages).

Used when:

1)P is in class of persons that statute protects(not usually gen pop but sometimes, e.g. person bit by non-quarantined dog whether actually rabid or not) AND

2)P’s injury is class of harms statute was designed to prevent (e.g. not selling ammo to someone <21 who commits suicide)

3)[Inferred by cts to allow civil COA when statute itself is silent as to civil liability on top of public-law penalty, so somewhat discretionary, O’Guin: read “protecting health” to cover “safety” of landfill]

EXC: D’s violation of statute is excused when:
Violation is reasonable due to incapacity (i.e. youth, blindness)
Actor neither knows nor should know of the occasion for compliance (i.e. tail light goes out without driver’s knowledge)
Actor is confronted by emergency not due to his own misconduct
Compliance would involved greater risk of harm to the actor or to others
Violation due to confusing way requirements of statute were presented to public
Actor DOES exercise reasonable care in trying to comply w/statute
NOT an excuse that D is unaware, careless (Impson, forgetting intersection) or thinks it’s unwise
Statute prescribes precise contours of reasonableness
Rather than, D has duty to act like a reasonably prudent person unlike like circumstances, now, D has duty not to sell ammo to anyone under 21 (in this case, only issue is age- if P is under 21, D is negligent)
Licensing: may or may not be neg per se (e.g. YES furnace permit when fumes harm someone, NO motorist moving and not having new license yet). Look to whether regulation represents legislation on “how to do something” (usually not met).

Alternative Duty Standards