TORTS THEMIS

Intentional Infliction of Emotional Distress (IIED)

A defendant is liable for intentionally or recklessly acting with extreme and outrageous conduct that causes the plaintiff severe emotional distress.

Defense - Parental Discipline

A parent may use reasonable force or impose reasonable confinement as is necessary to discipline a child, taking into consideration the age of the child and the gravity of the behavior. An educator has the same privilege unless the parent places restrictions on that privilege.

INTENTIONAL TORTS INVOLVING PERSONAL INJURY

A prima facie case for any intentional tort, including those not involving personal injury, must include proof of an act, intent, and causation. 1. Act The act must be voluntary, meaning that the defendant must have directed the physical muscular movement. 2. Intent The defendant acts intentionally if: i) He acts with the purpose of causing the consequences of his act; or ii) He acts knowing that the consequence is substantially certainto result.

False Imprisonment - Shopkeeper's Privilege:

A shopkeeper's reasonable (in both duration and manner) detention of a suspected shoplifter is not an invalid use of authority and hence is not a false imprisonment. Furthermore, a court may find that the defendant has confined the plaintiff when he has refused to perform a duty to release the plaintiff from an existing confinement or provide a means of escape. Example: If a child accidentally locks herself in a restroom in a restaurant, the restaurant may be liable if it intentionally fails to assist her in unlocking the door to obtain her release.

Defense - Defense of Others

One is justified in using reasonable force in defense of others upon a reasonable belief that the defended party would be entitled to use self-defense. It is no longer required that the force be used to defend a member of the defendant's own family or someone otherwise under the defendant's legal protection. The defender may use force that is proportionate to the anticipated harm to the other party. He is not liable for acting on a mistaken belief that the third party is in danger as long as his belief is reasonable.

Conversion - Interference

The defendant interferes with the plaintiff's chattel by exercising dominion or control over it. Examples of acts of conversion include wrongfully acquiring, transferring, or detaining; substantially changing; severely damaging or destroying; or misusing the chattel. Note that if the original acquisition of the chattel was not wrongful, then the plaintiff must demand the return of the chattel before she sues for conversion.

Children and the mentally incompetent

A majority of courts hold that both children and those who are mentally incompetent can be held liable for intentional torts if they either act with a purpose or know the consequences of their acts with a substantial certainty.

IIED - Public Figures

- Public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publication without showing in addition that the publication contains a false statement of fact that was made with "actual malice," i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. - In addition, the U.S. Supreme Court has suggested that private plaintiffs cannot recover for IIED if the conduct at issue was speech on a matter of public concern because that conduct may be protected by the First Amendment.

IIED - Third-Party Victims

- A defendant may be liable to a third-party victim if he intentionally or recklessly causes severe emotional distress to: i) A member of the victim's immediate family who contemporaneously perceives the defendant's extreme and outrageous conduct, whether or not such distress results in bodily injury; or ii) Any other bystander who contemporaneously perceives the conduct, if the distress results in bodily injury. - If the defendant's design or purpose was to cause severe distress to the third-party victim, the victim need not have contemporaneously perceived the conduct. Example: If the defendant draws a pistol and threatens to shoot a woman in her husband's presence, and the husband suffers severe emotional distress, he may recover.

ASSULT

- An assault is the plaintiff's reasonable apprehension of an imminent harmful or offensive bodily contact caused by the defendant's action or threat with the intent to cause either the apprehension of such contact or the contact itself. - Bodily contact is not required for assault. - A plaintiff's apprehension must be reasonable. Unlike with battery, the plaintiff must be aware of or have knowledge of the defendant's act of threat. - The defendant's apparent ability to cause harm (e.g., a "real-looking" toy gun) can be sufficient to place the plaintiff in apprehension of harm. Even if the victim is confident that he can prevent the threatened harm, there may still be an assault. - Imminence: the threatened bodily harm or offensive contact must be imminent, i.e., without significant delay. Threats of future harm are insufficient, as are threats made by a defendant too far away to inflict any harm. - Mere Words: It is sometimes said that "mere words alone do not constitute an assault." However, words coupled with conduct or other circumstances may be sufficient. If the defendant is able to carry out the threat imminently and takes action designed to put the victim in a state of apprehension, then there may be an assault.

IIED - Extreme and Outrageous Conduct

- Conduct is extreme and outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society. The character of the conduct must be outrageous and the conduct must be sufficiently unusual to be extreme. - While liability generally does not extend to mere insults, threats, or indignities, a defendant's abusive language and conduct may be sufficiently "extreme and outrageous" if either: i) The defendant is in a position of authority or influence over the plaintiff, such as a police officer, employer, or school official, or traditionally an innkeeper or an employee of a common carrier; or ii) The plaintiff is a member of a group with a known heightened sensitivity (e.g., young children, pregnant women, or elderly persons).

Battery Harmful or Offensive Contact

- Contact is harmful when it causes injury, physical impairment, pain, or illness. - Contact is offensive when a person of ordinary sensibilities (i.e., a reasonable person) would find the contact offensive (objective test). --- Note that a defendant may be liable if he is aware that the victim is hypersensitive but proceeds to act nonetheless. In such a case, the fact that a reasonable person would not find the contact offensive is not a defense. - The plaintiff need not be aware of the contact when it occurs in order to recover. - Plaintiff's Person: contact with anything connected to the plaintiff's person qualifies as contact with the plaintiff's person for the purposes of battery (e.g., a person's clothing, a pet held on a leash, a bicycle ridden by the plaintiff).

Defense - Defense of Property

- Reasonable Force Allowed: A person may use reasonable force to defend her property if she reasonably believes it is necessary to prevent tortious harm to her property. - Use of Deadly Force Not Allowed: Deadly force may not be used merely in defense of property. A person may never use a deadly mechanical device (e.g., a spring-loaded gun) to defend her property. - Reasonable Force to Prevent Intrusion Upon Real Property: A possessor of land generally may use reasonable force to prevent or terminate another's intrusion upon her land. However, the possessor may not use force to prevent or terminate the visitor's intrusion on her land if the visitor is acting under necessity. -- In addition, a landowner is generally entitled to use reasonable force only after making a request that the trespasser desist and the trespasser ignores the request. Such a request is not required if the landowner reasonably believes that a request will be useless or that substantial harm will be done before it can be made. - The land possessor is not liable for using force if she makes a reasonable mistake with respect to an intrusion occurring on her land. - Recapture of Chattels: A person may use reasonable force to reclaim her personal property that another has wrongfully taken. Before using reasonable force, the person must request the return of the chattel unless the request would be futile. If the original taking was lawful (e.g., a bailment) and the current possessor of the property has merely retained possession beyond the period of time to which the owner consented, then only peaceful means may be used to reclaim the chattel. - Force to Regain Possession of Land: At common law, an owner or a possessor of land was permitted to use reasonable force to regain possession of that land from one who had wrongfully taken possession of it. -- However, modern statutes provide procedures for recovery of realty; therefore, the use of force is no longer allowed.

IIED - Intent

- The defendant must intend to cause severe emotional distress or must act with recklessness as to the risk of causing such distress. - The traditional doctrine of transferred intent does not apply to intentional infliction of emotional distress when the defendant intended to commit a different intentional tort (such as a battery) against a different victim. Instead, this situation is governed by the rules for third-party victims. However, transferred intent may apply to intentional infliction of emotional distress if, instead of harming the intended person, the defendant's extreme conduct harms another.

Assault - Intent

- The defendant must intend to cause the plaintiff's apprehension of an imminent harmful or offensive contact or intend to cause harmful or offensive bodily contact with the victim. The defendant's own words, however, can negate the intent. Example: If the defendant says, "If you were not such a good friend, I would punch you," then there is no assault. - The doctrine of transferred intent applies to assault.

Private Nuisance VS Trespass

1) Physical invasion: Trespass requires a physical invasion of the plaintiff's property. Nuisance does not require physical invasion, but physical invasion may constitute a nuisance. Example: If the defendant's factory emits particulates that settle on the plaintiff's property, then the defendant may be liable for both trespass and private nuisance. 2) Substantial interference: Private nuisance requires substantial interference with the plaintiff's use and enjoyment of her property. Trespass, however, does not require a substantial intrusion. Example: A defendant's merely walking onto the plaintiff's land, if unprivileged and not consented to, is a trespass. 3) Duration: Generally, a nuisance is continuous. A trespass may be a one-time event, episodic, or continuous. -- Access to light: Historically, courts have refused to find the obstruction of sunlight as creating a private nuisance.

DEFENSES TO INTENTIONAL TORTS INVOLVING PERSONAL INJURY

1. Consent 2. Self Defense 3. Defense of Others 4. Defense of Property 5. Parental Discipline 6. Privilege of Arrest

Trespass to Chattle

1. Definition: A defendant is liable for trespass to chattels (i.e., tangible personal property) if he intentionally interferes with the plaintiff's right of possession by either: i) Dispossessing the plaintiff of the chattel; or ii) Using or intermeddling with the plaintiff's chattel. Trespass to chattels requires that the plaintiff show actual harm to or deprivation of the use of the chattel for a substantial time.

Battery

1. Elements i) A harmful or offensive contact with the person of another; and ii) Acts with the intent to cause such contact or the apprehension of such contact. 2. Lack of Consent There is no battery if the plaintiff consented to the act, either expressly or by virtue of participating in a particular event or situation (such as being bumped on a crowded subway or playing in a football game).

Defense - Consent

1. Express Consent: The plaintiff expressly consents if she, by words or actions, manifests the willingness to submit to the defendant's conduct. The defendant's conduct may not exceed the scope of the consent. a. Mistake Consent by mistake is valid consent unless the defendant caused the mistake or knew of it and took advantage of it. b. Fraud Consent induced by fraud is invalid if it goes to an essential matter. If the fraud that induced the consent goes only to a collateral matter, then the consent is still valid. c. Duress Consent given while under duress (physical force or threats) is not valid. The threat, however, must be of present action, not of future action. 2. Implied Consent The plaintiff's consent is implied when the plaintiff is silent (or otherwise nonresponsive) in a situation in which a reasonable person would object to the defendant's actions. a. Emergency situation When immediate action is required to save the life or health of a patient who is incapable of consenting to treatment, such consent is ordinarily unnecessary. Courts generally say that consent is "implied in fact," but it probably is more accurate to say that the treatment is privileged. -Even in an emergency situation, however, a competent and conscious patient's right to refuse treatment cannot be overridden. b. Injuries arising from athletic contests: Consent may also be implied by custom or usage (e.g., participation in a contact sport). The majority of jurisdictions that have considered the issue of when a participant in an athletic contest can recover have concluded that the injured player can recover only for a reckless disregard of a player's safety, such as a violation of a safety rule designed primarily to protect participants from serious injury. c. Mutual consent to combat: In the case of boxing or prizefighting, most courts hold that the plaintiff consents to intentional torts when he engages in the fighting, and he is therefore precluded from recovering for any injuries sustained. - In the case of street fighting and other illegal activities, the courts are divided. A majority holds that consent to such acts is not a defense because one cannot consent to a criminal act. The Second Restatement and a significant minority of courts now hold to the contrary. Lack of Capacity: A plaintiff's lack of capacity due to youth, intoxication, or incompetence may negate the validity of her consent.

Defense - Privilage of Arrest

1. Felony a. Arrest by private citizen: - A private citizen is privileged to use force (e.g., commit a battery or false imprisonment tort) to make an arrest in the case of a felony if the felony has in fact been committed and the arresting party has reasonable grounds to suspect that the person being arrested committed it. - It is a defense to make a reasonable mistake as to the identity of the felon but not as to the commission of the felony. b. Arrest by police officer: - A police officer must reasonably believe that a felony has been committed and that the person she arrests committed it. Unlike a private citizen, a police officer who makes a mistake as to the commission of a felony is not subject to tort liability. 2. Misdemeanor: In the case of a misdemeanor, a police officer may make an arrest if the misdemeanor is being committed or reasonably appears about to be committed in the presence of the officer. When the person effecting the arrest is a private citizen, the misdemeanor must also be a breach of the peace.

Defense - Self Defense

1. Use of Reasonable Force: A person may use reasonable force to defend against an offensive contact or bodily harm that he reasonably believes is about to be intentionally inflicted upon him. - The force used in self-defense must be reasonably proportionate to the anticipated harm. - A person's mistaken belief that he is in danger, so long as it is a reasonable mistake, does not invalidate the defense. 2. Use of Deadly Force: The defendant may use deadly force only if he has a reasonable belief that force sufficient to cause serious bodily injury or death is about to be intentionally inflicted upon him. 3. No Obligation to Retreat: In a majority of states, by judicial decision or a "stand your ground" statute, a person is not required to retreat before using force, including deadly force, in defense. VS. In a minority of states, a person has a duty to retreat before she may use deadly force in defense, if she can do so safely, but this duty does not apply if the defendant is in (or within the curtilage of) her own home. 4. Initial Aggressor: The initial aggressor is not entitled to claim self-defense unless the other party has responded to nondeadly force with deadly force. 5. Third-Party Injuries: The actor is not liable for injuries to bystanders that occur while he is acting in self-defense, so long as those injuries were accidental, rather than deliberate, and the actor was not negligent with respect to the bystander.

Transferred intent

: Transferred intent exists when a person intends to commit an intentional tort against one person but instead commits: i) A different intentional tort against that person; ii) The intended tort against a different person; or iii) A different intentional tort against a different person. EXAM NOTE: Transferred intent applies only to the following intentional torts: battery, assault, false imprisonment, trespass to chattels, and trespass to land. It generally does not apply to intentional infliction of emotional distress or conversion.

Trespass to Chattle - Appropriate plaintiffs

An action for trespass to chattels may be brought by anyone with possession or the immediate right to possession of the chattel.

Defenses to private nuisance

Apart from challenging the elements of nuisance, the defenses available to a defendant turn on whether the defendant's conduct is intentional, reckless, negligent, or abnormally dangerous. For example, the plaintiff's negligence or assumption of the risk may be a defense to a nuisance (or reduce recovery in a comparative-fault jurisdiction). 1) Regulatory compliance: The fact that a defendant complies with a statute, local ordinance, or administrative regulation is not a complete defense to a nuisance action. However, such statutory or regulatory compliance may be admitted as evidence as to whether the interference with the plaintiff's use and enjoyment of her land is unreasonable. For example, zoning regulations are typically regarded as admissible evidence in actions for nuisance, but they are not determinative. 2) Coming to the nuisance: It is generally not a defense that the plaintiff "came to the nuisance" by purchasing property in the vicinity of the defendant's premises with knowledge of the nuisance operated by the defendant. However, the fact that the plaintiff moved to the nuisance is not irrelevant; it may be considered by the jury in determining whether the plaintiff can recover for the nuisance. -- In other words, the plaintiff's coming to the nuisance does not entitle the defendant to judgment as a matter of law, but it is evidence that the jury may consider. -- Conversely, ownership of land prior to the defendant's entry into the neighborhood will not, by itself, make the defendant's action a nuisance. The test is whether the defendant's action is unreasonable.

Intentional Torts Against Persons

Assault Battery False Imprisonment Infliction of Emotional Distress (IIED) Defamation Invasion of Privacy Business Torts

Trespass to land - Appropriate Plaintiffs

Because it is the right to possession that is being protected, anyone in actual or constructive possession of land may bring an action for trespass (e.g., owner, lessee, adverse possessor).

NUISANCE: Public Nuisance

Definition: - A public nuisance is an unreasonable interference with a right common to the general public. (Note: Public nuisance does not necessarily involve land, but it is included in this part of the outline because of its common historical roots with private nuisance.) - Typical examples of public nuisance include air pollution, pollution of navigable waterways, interference with the use of public highways, and interference with the public's use of parks or other public property. - A private citizen has a claim for public nuisance only if she suffers harm that is different in kind from that suffered by members of the general public. Example 1: If the defendant pollutes a river, a plaintiff who fishes in the river cannot bring a claim for public nuisance. However, a plaintiff who operates a fishing camp on the banks of the river and suffers a substantial economic loss may do so. Example 2: A dynamiting operation causes rocks to block a public highway. All members of the community are harmed by the nuisance. Consequently, a driver who suffers economic harm, such as a loss of business, due to the blockage cannot recover. Example 3: Same facts as in Example 2, but in this case, a rock strikes the driver's car, cracking the windshield. The driver has suffered harm different from the general community and may bring an action in public nuisance. In most instances, state statutes or local ordinances specifically declare something to be a public nuisance, such as running a house of ill repute or a disorderly tavern, gambling on Sundays, or growing certain types of thorny bushes. Public authorities can either (i) seek injunctive relief to abate (prevent the continuation of) the public nuisance or (ii) criminally prosecute the defendant. The law of public nuisance is extremely vague and varies greatly from one jurisdiction to another. However, the modern trend is to transpose much of the law governing private nuisance onto the law of public nuisance, including the required nature of a defendant's conduct and available defenses.

CONVERSION

Definition: A defendant is liable for conversion if he intentionally commits an act depriving the plaintiff of possession of her chattel or interfering with the plaintiff's chattel in a manner so serious as to deprive the plaintiff of the use of the chattel. The plaintiff's damages are the chattel's full value at the time of the conversion. Only personal property and intangibles that have been reduced to physical form (e.g., a promissory note) can be converted.

NUISANCE: Private Nuisance

EXAM NOTE: Although most Torts classes devote little time to this topic, the law of nuisance, particularly private nuisance, is tested frequently on the MBE. - Definition: A private nuisance is a thing or activity that substantially and unreasonably interferes with another individual's use or enjoyment of his land. - The interference must be intentional, negligent, reckless, or the result of abnormally dangerous conduct to constitute nuisance. - Appropriate plaintiffs: Anyone with possessory rights in real property may bring a nuisance claim. - Substantial interference: A substantial interference is one that would be offensive, inconvenient, or annoying to a normal, reasonable person in the community. A person with special sensitivities can recover only if the average person would be offended, inconvenienced, or annoyed. Conversely, a "thick-skinned" plaintiff who is not offended, inconvenienced, or annoyed is nevertheless entitled to recover if an average reasonable person would be, although the amount of damages may be affected. - Unreasonable interference: The interference is unreasonable if the injury caused by the defendant outweighs the usefulness of his actions.

False Imprisonment

False imprisonment results when a defendant acts: i) Intending to confine or restrain the plaintiff within boundaries fixed by the defendant; ii) Those actions directly or indirectly result in such confinement; and iii) The plaintiff is conscious of the confinement or is harmed by it. - Confined Within Boundaries: The plaintiff must be confined within a bounded area in which the plaintiff's freedom of movement in all directions is limited. The bounded area may be large and need not be stationary. An area is not bounded if there is a reasonable means of safe escape. - Methods of Confinement: The defendant may confine or restrain the plaintiff by the use of physical barriers, physical force, direct or indirect threats (to the plaintiff, a third party, or the plaintiff's property), or by the invalid use of legal authority, duress, or the failure to provide a reasonable means of safe escape. - The defendant's use of moral pressure or future threats does not constitute confinement or restraint. The plaintiff is not imprisoned if she submitted willingly to confinement. - Time: The length of time of the confinement or restraint is immaterial, except as to the determination of the extent of damages.

Trespass to Chattle - Damages and Remedies

In a case of dispossession, a plaintiff may recover for: i) The actual damages caused by the interference; AND ii) The loss of use. In circumstances of use or intermeddling, the plaintiff may recover only when there are actual damages. Remedy: The plaintiff may be entitled to compensation for the diminution in value or the cost of repair.

False Imprisonment - Damages

It is not necessary to prove actual damages (except when the plaintiff is unaware of the confinement). Punitive damages may be imposed in appropriate cases.

Trespass to Chattle - Mistake

Mistake of law or fact by the defendant about the legality of his actions is not a defense.

Trespass to land - Damages

No proof of actual damages is required.

Assault - Damages

No proof of actual damages is required. The victim can recover nominal damagesand, in appropriate cases, punitive damages. If the plaintiff sustains damages from physical harm, such as a heart attack resulting from the assault, then he may recover these as well.

Battery - Damages

No proof of actual harm is required; the plaintiff may recover nominal damages even though no actual damage occurred (to vindicate his right to physical autonomy). Many states allow recovery of punitive damages if the defendant acted outrageously or with malice (i.e., a wrongful motive, or a conscious or deliberate disregard of a high probability of harm). Under the thin-skull rule (also known as the "eggshell-plaintiff" rule), the defendant is not required to foresee the extent of damages in order to be held liable for all damages.

Trespass to Chattle - intent

Only the intent to do the interfering act is necessary; the defendant need not have intended to interfere with another's possession of tangible property. The doctrine of transferred intent applies to trespass to chattels.

Battery - Causation

The act must in fact result in contact of a harmful or offensive nature. A defendant who sets in motion a chain of events that causes contact with the plaintiff, whether the contact is direct or indirect, is liable (e.g., a tripwire set by the defendant that causes the plaintiff to fall).

False Imprisonment - Intent

The defendant must act with the purpose of confining the plaintiff or act knowing that the plaintiff's confinement is substantially certain to result. If the confinement is due to the defendant's negligence rather than his intentional acts, then the defendant may be liable under the rules governing negligence but not under the intentional tort of false imprisonment. If the imprisonment occurs by pure accident and involves neither the defendant's intent nor his negligence, then there is no recovery. - The doctrine of transferred intent applies to false imprisonment.

Conversion - Intent

The defendant must only intend to commit the act that interferes; intent to cause damage is not necessary. Mistake of law or fact is no defense (e.g., a purchaser of stolen goods is liable to the rightful owner). Transferred intent does not apply to conversion. The defendant must have intended to exercise control over the particular piece of property. Accidentally damaging the plaintiff's chattel is not conversion if the defendant had permission to use the property.

Trespass to land - Physical Invasion

The defendant need not personally enter onto the plaintiff's land; intentionally flooding the plaintiff's land, throwing rocks onto it, or intentionally emitting particulates into the air over the land will each suffice. Additionally, the defendant's failure to leave the plaintiff's property after his lawful right of entry has expired constitutes a physical invasion. A trespass may be committed on, above, or below the surface of the plaintiff's land.

Trespass to land - Intent

The defendant need only have the intent to enter the land (or to cause a physical invasion), not the intent to commit a wrongful trespass. In other words, the defendant need not know that the land belongs to another. Mistake of fact is not a defense. Example: An erroneous survey of the defendant's property leads the defendant to believe that an annoying cherry tree is on her property when in fact it is on her neighbor's property. She intentionally enters her neighbor's land and cuts down the tree. Even though she reasonably believed that the tree was on her property, she is liable for trespass to land. The doctrine of transferred intent applies to trespass to land.

IIED-Causation

The plaintiff may establish causation by a showing that the defendant's actions were a factual cause of the plaintiff's distress.

Conversion - Damages

The plaintiff may recover damages in the amount of the full value of the converted property at the time of the conversion. Alternatively, the plaintiff may bring an action for replevin to recover the chattel.

IIED-Damages

The plaintiff must prove severe emotional distress beyond what a reasonable person could endure. In many cases, the very extreme and outrageous character of the defendant's conduct itself provides evidence that the plaintiff experienced severe mental distress. In other words, the more extreme the defendant's conduct, the less evidence is required of the severity of the plaintiff's emotional distress. If the plaintiff is hypersensitive, however, and experiences severe emotional distress unreasonably, then there is no liability unless the defendant knew of the plaintiff's heightened sensitivity. Most courts do not require the plaintiff to prove physical injury except in the case of bystander recovery when the plaintiff is not a member of the immediate family of the person toward whom the defendant's extreme and outrageous conduct is personally directed EXAM NOTE: The distinction between intentional and negligent infliction of emotional distress is often tested on the MBE.

Trespass to Land vs. Nuisance

Trespass always requires an invasion or intrusion of land; nuisance may or may not involve intrusion. Trespass protects the possessor's interests in the land; nuisance protects the use and enjoyment of land. If no physical object enters onto the plaintiff's land (e.g., the defendant's floodlights project onto the plaintiff's land, or damage results from the defendant's blasting), then the case is generally treated as a nuisance or strict liability action

Harms to Personal Property and Land

Trespass to Chattels Conversion Trespass to Land Nuisance

Trespass to land - Necessity as a Defense

The privilege of necessity is available to a person who enters or remains on the land of another (or interferes with another's personal property) to prevent serious harm, which typically is substantially more serious than the invasion or interference itself. The privilege of necessity applies only to intentional torts to property, including trespass to land, trespass to chattels, and conversion. a. Private necessity: - Private necessity is a qualified privilege to protect an interest of the defendant or a limited number of other persons from serious harm. The privilege applies if the interference was reasonably necessary to prevent a serious injury from nature or another force not connected with the property owner. - A defendant is not entitled to exercise this privilege on behalf of another if the defendant knows or has reason to know that the other person is unwilling for the defendant to take such action. Despite this privilege, the property owner is entitled to recover actual damages, but cannot recover nominal or punitive damages nor use force to eject the defendant. - Example: During a severe storm, the owner of a boat secures the boat to a dock to prevent the destruction of the boat. The storm winds knock the boat against the dock, causing damage to the dock. The defendant is not liable as a trespasser to the plaintiff for nominal damages, but is liable to the dock owner for the actual damages to the dock. **EXAM NOTE: Private necessity, often referred to simply as "necessity," has been tested frequently on the MBE. b. Public necessity: - Under the doctrine of public necessity, private property may be intruded upon or destroyed when necessary to protect a large number of people from public calamities, such as the spread of a fire, the spread of a disease, or the advance of a hostile military force. - The privilege is absolute. As long as the defendant acts reasonably, he is not liable for any damage to the property. He is not liable even if the original entry was not necessary, as long as he reasonably believed that the necessity existed. The privilege lasts only as long as the emergency continues. The privilege is available to private citizens or public officials, should the plaintiff seek to hold a public official personally liable.

Conversion vs. Trespass to Chattels

There is no specific rule as to what behavior constitutes conversion, as opposed to trespass to chattels; it is a matter of degree of seriousness. The following factors are considered: i) The duration and extent of the interference; ii) The defendant's intent to assert a right inconsistent with the rightful possessor; iii) The defendant's lack of good faith; iv) The expense or inconvenience to the plaintiff; and v) The extent of the harm to the chattel. Generally, the greater the degree of these factors, the greater the likelihood that a conversion has occurred. Conversion is an exercise of dominion or control over the plaintiff's personal property such that the court is justified in requiring the defendant to pay the plaintiff the full value of the property. Example: If an embittered defendant steals his ex-girlfriend's car and drives it into a lake, then that is conversion. If he merely hits the hood of her car once with a hammer, that is trespass to chattels.

Battery - Intent

To act intentionally, a defendant must act with either (i) the purpose of bringing about the consequences of that act or (ii) the knowledge that the consequences are substantially certain to occur. - In many jurisdictions (MAJORITY), while the contact must be harmful or offensive, the defendant need not intend that result (single-intent rule) - VS - In other jurisdictions, a defendant may be required not only to intend to bring about a contact, but also to intend that the contact be harmful or offensive (dual-intent rule). *The doctrine of transferred intent applies to battery.

Trespass to Land

Trespass to land occurs when the defendant's intentional act causes a physical invasion of the plaintiff's land.

3. Remedies for Public Nuisance

a. Damages: The usual remedy for nuisance is damages. All resulting harm is recoverable, including damages for reduction in the value of real property, personal injury, and harm to personal property. 1) Utility of the defendant's conduct: Even if the utility of the defendant's conduct outweighs the gravity of the harm, damages (but not injunctive relief) may be available if the harm is serious and the financial burden of compensating for the harm would not make the defendant's continuing conduct unfeasible. In other words, while it may be reasonable for the defendant to engage in the conduct, it is unreasonable for the defendant to do so without paying for the harm done. 2) Continuing nuisance If the nuisance is a continuing one and the court deems it "permanent," then the court will award the plaintiff all past and future damages, which prevents plaintiffs from returning to the court to collect damages in the future. Occasionally, courts award temporary damages measured by the damages that have occurred prior to trial and within the statute of limitations. In these instances, plaintiffs may return to the court in the future to collect additional temporary damages if the nuisance continues. b. Injunctive relief If monetary damages are inadequate and the nuisance would otherwise continue, then courts may grant injunctive relief. In determining whether an injunction is appropriate, the courts will "balance the equities"; that is, weigh the social utility of the defendant's conduct against the harm caused to the plaintiff and others. However, the court need not consider the relative hardships if the defendant's sole purpose was to cause harm to the plaintiff or to violate the common standards of decency (sometimes called a "spite nuisance").

Nuisance - Abatement

a. Private nuisance A person may enter another's land to abate a private nuisance after giving the defendant notice of the nuisance and the defendant refuses to act. The amount of force used may be only that which is reasonable to abate the nuisance; the plaintiff is liable for any additional damage. b. Public nuisance One who is entitled to recover for a public nuisance has the right to abate that nuisance by self-help, as one would with a private nuisance. However, in the absence of unique injury, a public nuisance may be abated only by a public authority.