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TORTS OUTLINE – Gomez-Arrostegui – Fall 2011
A. PRINCILES
I. What is a Tort? -- a civil wrong, arising from a breach of duty imposed outside of a contractual obligation,* for which the law provides a remedy
II. Three major classes of torts:
a. Intentional/Fault required
b. Negligence/Fault required
c. Strict Liability/No fault required
III. Sources of duties under tort law:
a. Corrective justice: aim or tort law to hold Ds liable for harms they wrongfully cause and no others; liability imposed when Ds hurt someone else, & if it’s the “right & moral” thing to do to, regardless of whether liability yields social good; wrongdoer should compensate P to put accounts right between the parties
b. Distributive justice: tort liability should be expansive to secure compensation for injured persons; some Ds should be liable for harm they cause regardless of fault b/c they can distribute costs to recoup losses from liability (ex. by raising prices); liability supposed to be good for society as a whole
i. strict liability: party held accountable for wrongdoing even if they did not act intentionally AND exercised reasonable care in preventing wrong
1. products liability: manufacturer held liable for any injury product causes, even if manufacturer acted w/ car & did not intend to cause harm
2. respondiac superior: employers liable for torts employees commit within scope of their employment, even if employer’s policy aimed to prevent employee’s wrong b/c employer better equipped than employees to handle losses from liability
c. Deterrence: aim of tort law to deter conduct by imposing liability when that tortious conduct causes harm, as preventative measure
d. Process: tort rules should be made to actually work in real world, be pragmatic for judges, lawyers, juries to understand & apply
i. Rule: specifically sets standard of care – easy to apply (ex. Do not exceed speed limit)
ii. Standard: broad, difficult to apply (ex. “Drive at safe speed relative to traffic conditions.”)
B. INTENTIONAL TORTS
1) BATTERY - A P must demonstrate both the intent and action/result elements.
I. INTENT: P must intend [A] OR [B]:
[A] To [1] cause a contact with the P [2] that is harmful or offensive; OR
SINGLE INTENT = [1] only; DUAL INTENT = [1] + [2]
[1]. The intent to contact is satisfied if the D either:
[a]. Desires to cause the contact; OR
-[maybe only avenue for particulate matter cases – smoking, int’l exposure to loud music]
[b]. Knows with substantial certainty that the contact will occur.
[2]. An intent to cause a contact that is [a] harmful OR [b] offensive is shown if the D either:
[a]. Desires to harm, OR is substantially certain the contact will harm, the P; OR
[i]. For the definition of harm, see below.
[b]. Desires to offend, OR is substantially certain the contact will offend a reasonable sense of personal dignity (i.e. it would be offensive to an ordinary, reasonable person under the circumstances.)
[i]. For the definition of offensive, see below.
[B] To put the P OR a 3rd person in imminent apprehension of such contact.
[1] The intent is satisfied if the D:
[a] desires to cause the apprehension; or
[b] knows w/ substantial certainty that the apprehension will result.
II. ACTION/RESULT: The D must actually [1] cause the contact to result and [2] the contact must be harmful or offensive.
[1]. The D can cause the contact either directly OR indirectly.
[2]. An actual contact must occur with the P’s body OR with items closely associated with the Ps body or personhood.
[3]. The contact must be [a] harmful or [b] offensive; [and [c] tangible?].
….CONTD p. 3…..
[a]. A contact is harmful if it is a physical impairment of the condition of the P’s body, including physical injury, illness, or death.
[b]. A contact is offensive if it would offend a reasonable sense of personal dignity, i.e., it must be one which would offend the ordinary person and as such one not unduly sensitive as to his personal dignity.
[i]. Exception: If the contact would not offend a reasonable person’s sense of personal dignity, and the P is simply hypersensitive, the contact nevertheless becomes “offensive” if the D is aware of the P’s hypersensitivity.
2) ASSAULT –
[1] INTENT REQUIREMENT; AND
Intent to put the P OR a 3rd person in imminent apprehension of [1] contact that is [2] harmful or offensive contact. ( DUAL INTENT = [1] + [2] ) AND [3][a] actual AND [b] reasonable imminent apprehension of contact that is harmful or offensive contact results.
The intent is satisfied if D: [establish both simultaneously just by addressing [2] ]
[1] intends to put P or 3rd party in imminent apprehension of contact- est. by either:
[a] D desires to cause the apprehension of contact; or
[b] knows w/ substantial certainty that the apprehension of contact will result; AND
[2] intends to put P or 3rd party in imminent apprehension of contact that is harmful or offensive
[a] D desires to cause apprehension of contact that is harmful or offensive; or
[b] D knows w/ substantial certainty that the apprehension of harmful or offensive contact will result;
-If D’s act seems threatening, but threat is countered by words, may negate intent element. (Ex. “If cop weren’t here, I’d punch you.” )
[2] ACTION/ RESULT
[1] P must [a] actually and [b] reasonably apprehend an imminent harmful or offensive contact.
[3] Assault Definitions
[a] apprehension: awareness of an imminent touching that would be a battery if completed.
[b] imminent: no significant delay (as opp. to immediate)
[c] harmful, offensive: See II(3) under Battery above)
3) FALSE IMPRISONMENT
[SINGLE INTENT – just intend to confine, NOT intent to confine wrongfully]
(1) An actor is subject to liability to another for F.I. if:
a. He acts intending to confine* the other OR a 3rd person within boundaries fixed by the actor; AND
b. His act directly or indirectly results in such a confinement of the other; AND
c. The other is conscious of the confinement OR is harmed by it
* F.I. is a continuing tort. For every min. person/P confined, new tort created for each time increment. This means “intent to confine” is not limited to actor’s mindset at time confinement actually occurred, but rather it extends throughout duration of the confinement
· What constitutes “confinement?”
(1) to make the actor liable for F.I., the other’s confinement within the boundaries fixed by the actor must be complete – fact sensitive
a. Doesn’t necc. mean phys. boundaries
b. Ex. someone steal’s P’s wallet – they in effect are confined, can’t leave without it
c. Ex. 2 someone steals P’s clothes while they’re in dressing room; in effect they’re confined
(2) The confinement is complete although [even if] there is a reasonable means of escape, UNLESS the other knows of it --– fact sensitive
a. Ex. open window on 17th floor is NOT “reasonable” means of escape
b. Ex. 2- first floor open window on 1st floor may be “reasonable” means of escape for me, but not for 80-yr. old
(3) The actor does not become liable for F.I. by intentionally preventing another from going in a particular direction in which he has a right or privilege to go.
Intentional Torts To Property: TTL, TTC, Conversion
4) TRESPASS TO LAND
-Basic rule: When D [1] intentionally [2] enters land possessed by P w/o consent.
- single intent – intent to enter land ONLY
-Transferred intent APPLIES
5) TRESPASS TO CHATTLES
RST §217: Ways of Committing TTC:
A trespass to chattel may be committed by intentionally:*
· (a) dispossessing another of the chattel, OR
· (b) using or intermeddling with a chattel in the possession of another
· *Intentionally = SINGLE INTENT (just intent to do (a) or (b), not intent to do it wrongfully will fulfill p.f. case)
o desire to do (a) or (b) OR
o knowledge w/ substantial certainty that (a) or (b) will result.
RST §218: Liability to Person in Possession – One who commits a TTC is subject to liability to the possessor of the chattel if, but only if:
· a. Actor dispossess another of the chattel; OR
· b. the chattel is impaired as to its condition, quality, or value; OR
· c. Possessor is deprived of use of chattel for a substantial time; OR
· d. Bodily harm is caused to the possessor*, OR
· e. Harm is caused to some person or thing in which the possessor has a legally protected interest [ex. business goodwill and reputation]
· TTC - Contrast w/ conversion (See 6) below)
o Less serious interference w/ chattel than conversion
o Remedy: actual damages = orig. price – what it’s worth after TTC occurs
o P who can successfully bring TTC claim cannot also bring more severe claim of conversion.
o Transferred intent applies (see below)
· Intangible, electronic activities by D (i.e. spam mail attacking P’s computer equipment) can be actionable as TTC tort.
6) CONVERSION
RST §222A: what constitutes conversion:
(1) Conversion is an [2] intentional [3] exercise of dominion or control over a chattel [3] which so seriously interferes w/ the right of another to control it that the actor may justly be required to pay the full value of the chattel.
a. Like TTC, also SINGLE INTENT – D doesn’t have to intend to exercise dominion or control over P’s chattel which so seriously interferes w/ P’s ability to control it wrongfully – just the first part.
(2) In determining the seriousness of the interference and the justice of requiring the actor to pay the full price, the following factors are important:
o (a) Extent & duration of D’s exercise of dominion or control (b) D’s intent to assert a right to the property
o (c) D’s good faith
o (d) extent & duration of the resulting interference w/ the other’s right of control;
o (e) the harm done to the chattel
o (f) Expense or inconvenienced for P caused
· Contrast w/ TTC:
o More serious interference w/ P’s chattel than TTC.
o Remedy: can be much higher than actual damages – can be full value of converted chattel (or replevin - return of chattel itself)
o P who can successfully bring conversion claim can by default also claim less severe TTC
o Intent to convert NOT transferrable
· Information (intangible property) can be converted (ex. domain name, lit. works)
· All conversion claims can also be brought as TTC claims.
Other points Intent. Torts:
Transf. intent - applies to all intentional torts except conversion:
o Battery
o Assault
o False Imprisonment
o Trespass to chattels
o Trespass to land
Child liability for intentional torts
o Most states recognize that children may be liable for torts they commit, as long as injured P can prove required elements, incl. intent
o Some states: very young children presumed to be incapable of harmful intent
o Parents NOT vicariously liable for torts of their children just by virtue of being their parents.
Thin skull rule – applies to intentional torts
o Assuming D satisfies each element of the intentional tort…
o If harm to P was way more extensive than D could’ve imagined (considering P’s preexisting med. condition, or high value of P’s damaged chattle) , D still liable for entire extent of P’s harm b/c extent of P’s harm
o
Defenses to Intentional Torts
· Intro: affirmative defenses vs. prima facie
o Prima facie case: things P has burden of proof to prove at trial.
o Affirmative defense: things D has burden of proof to prove at trial (see handout)
§ (Additionally, D can attack P on basis that P did not address all elements of claim)
1) SELF-DEFENSE (AND DEFENSE OF OTHERS/3rd persons)
Overview - D may intentionally:
1. use force against another person [batter] (P)
2. cause an apprehension of imminent harmful or offensive contact to another person [assault] (P); OR
3. imprison or confine another person [falsely imprison] (P)
I. When Privilege is triggered:
IF D actually AND reasonably believe that the other person (P) is intentionally or negligently either:
1. Imminently going to cause a harmful or offensive contact [battery] to yourself OR a 3rd person; OR
2. Imminently going to confine or imprison [F.I.] your self OR a 3rd person
II. Force that may be used:
· You may only use an amount of force /confinement that is reasonably necessary to prevent or repel the impending contact or confinement.
o Exception - You may threaten to use (but NOT actually use) amt. of force or confinement that would exceed what is reasonably necessary (as long as you lack tortuous intent & there’s no transferred tortious intent)
III. When Retreat Necessary: In some cases, if a safe and reasonable retreat is available, you must retreat, rather than stand and defend yourself.
1. If the impending threat is one that would not—in the mind of a reasonable person—cause death OR serious bodily injury:
· you may stand your ground and defend yourself with whatever is permitted under §II above;
· you are not obligated to use a safe and reasonable retreat
2. If impending threat is one that could cause death OR serious bodily injury—in the mind of a reasonable person—and there is a safe and reasonable retreat available, then:
a. In most jurisdics., you must:
i. Use that escape; OR
ii. Limit your actions to threats intended to cause apprehension [assault], see II exception above; OR
iii. Limit your use of actual force or confinement to something less than that intended or likely to cause death or serious bodily harm
1. Exception to a.: Unless you are in your home, in which case you may use force or confinement intended OR likely to cause death or serious bodily harm.
b. In some “frontier” jurisdics., you may stand your ground and defend yourself and use force or confinement intended OR likely to cause death or serious bodily harm.
2) DEFENSE OF PROPERTY
· No self-def. privilege to use force to cause serious bodily injury or death against intruder to protect property if intrusion didn’t threaten death or serious bodily harm to occupiers