Torts I

Harmful or offensive

"Contact which is offensive to a reasonable sense of personal dignity is offensive contact." Snyder v. Turk

Trespass to Chattels: Harm: Liability is based on actual damage, either in the form of

(1) actual harm to the chattel or (2) interference with P's access or use.

Assault elements

1) Act 2) Intent to cause or threaten harmful or offensive contact 3) Apprehension of imminent harmful or offensive contact

Trespass to Chattels: Elements

1) Intentional 2) Without justification or consent 3) Physical interference with use and enjoyment of plaintiff's personal property 4) Harm to plaintiff

Conversion: Elements

1) Intentionally 2) Exercising substantial dominion over a chattel (personal property) 3) Of another

Trespass to Land: elements

1) P has possessory or ownership interest. 2) Tangible invasion, intrusion, or entry by D onto that land interfering with P's exclusive possession 3) That is intentional

Public Necessity: Elements

1) Public interests are at risk of harm (not merely private interests); 2) Defendant had a reasonable belief that the action was needed; 3) Defendant's actions were a reasonable response to that need.

Shopkeeper's Privilege: Elements

1) Reasonable cause (belief) that the plaintiff had taken goods without paying. BUT ONLY IF: 2) Limited to questioning or summoning police; and 3) Carried out in a reasonable manner and for a reasonable length of time

Elements of Self-Defense

1. Actual or reasonably apparent threat to safety 2. Force employed was not excessive in degree or kind as compared to the threat

Intentional Infliction of Emotional Distress: elements

1. Extreme or outrageous conduct 2. Intentionally or recklessly causing 3. Severe emotional harm to another person

False Imprisonment Look for Intent + Act + Harm

1. INTENT - The actor acts intending to confine the other person within boundaries fixed by the actor 2. ACT - His act directly or indirectly results in such confinement 3. HARM - The person is conscious of the confinement OR is harmed by it

Intentional conduct requires that Defendant either...

1. Intend the act and the result 2. Intend the act with knowledge amounting to a substantial certainty that the result will occur

False Imprisonment: Prima Facie Elements

1. Intentional 2. Confining of another to a limited area for an appreciable amount of time 3. Without lawful privilege 4. Against the other's consent 5. With awareness by the other or actual harm

ELEMENTS OF PUBLIC NECESSITY DEFENSE

1. Public Interests Are at Risk of Harm 2. Defendant Had Reasonable Belief Action Was Needed 3. Defendant's Actions Were Reasonable Response to that Need

Private Necessity

A risk to one party's person or property justifies entries upon another's land and interferences with another's personal property that would otherwise have been trespasses. - Ploof v. Putnam

Intentional Infliction of Emotional Distress: Does an actor who commits a battery also act in an extreme and outrageous manner?

An actor who commits battery does not necessarily act in an extreme and outrageous manner. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"

Transferred intent applies to

Assault, Battery, false imprisonment, trespass to chattels, and trespass to land

Apparent Consent -

Circumstances give the impression that the person consents. •When P's words, gestures, or conduct reasonably manifest consent, even if the P is not actually willing. •Best method is to atlas be verbal about what you are actually consenting to (but that's too easy)

Trespass to Chattels: What is a chattel?

Comes from property law, pieces of tangible/movable personal property, as opposed to land

False Imprisonment: Confinement: Is it confinement if D only restricts the movement of P in one particular direction?

Confinement does NOT mean simply restricting a person's means of moving or inconveniencing a person.

Consent • Remember:

Consent can be revoked at any time, and if the conduct continues, then tort liability. • A person may consent to one touching, but not another.

Battery: Harm or Offense

Contact which is offensive to a reasonable sense of personal dignity is offensive contact • Look to social norms for offensive contact. •Contact is offensive because it invades personal, intimate, or erotic space.

Trespass to chattels involves something short of conversion.

Conversion is making it mine, trespass is harming it in some way, but not necessarily taking it.

Think of IIED as a catch-all for when the common law torts would not allow recovery in narrow instances when

D's conduct exceeded all permissible bounds of a civilized society.

Assault damages

Damages recoverable for mental trauma and distress.

Battery's elements

Elements: 1) Contact 2) Harm or Offense 3) Intent

False Imprisonment

Falseimprisonmentoccurswhenapersonintentionallyconfinesanotherpersonwithout lawful privilege and against his consent within a limited area for any appreciable time, however short

Assault: Apprehension: Does a person have to be fearful or afraid to constitute apprehension?

Fear can constitute apprehension, but person doesn't have to be fearful of contact to be in apprehension

A COURT WILL AFFIRM FOR DEFENDANT ON APPEAL IF:

From a judge's grant of motion to dismiss in favor of the defendant: plaintiff has no valid legal claim even assuming that everything in the complaint is true; From a judge's grant of summary judgment or JMOL/directed verdict/JNOV for the defendant: A reasonable jury only could find for the defendant ; or From a jury verdict for the defendant: A reasonable jury could find for the defendant

Assault: Mere Words: Are words alone enough to reasonably place P in apprehension of harmful or offensive contact?

Generally, words alone are not enough, there must also be apparent present ability to effectuate the contact. • D must have apparent ability to the objective observer that D had the capacity to carry out the act. • Words alone do not make the actor liable for assault unless together with other acts or circumstances they put the victim in reasonable apprehension of imminent contact.

Intentional Infliction of Emotional Distress: Severe Emotional Harm

If the resulting harm from outrageous and extreme conduct is not sufficiently severe, then P will NOT be able to recover for emotional distress.

Defense of Others • When are you privileged to act in defense of another person?

If threat of death or serious bodily injury to self or others.

Public Necessity: Takings Clause

Imminent domain/public condemnation: government takes property for good of public but you have to get just compensation for value of your property.

Provocation is usually insufficient to raise self-defense.

Insultsandargumentsdonotjustifyphysicalattackbytheinsultedperson.

Dual Intent (White)

Intend for both the Contact and Harm or Offense •D must intend both the act AND that the act cause harmful or offensive contact. • Could protect a creeper who gives a stranger a kiss because he didn't intend to offend her with his "gift of affection."

What is intent?

Intent is acting with the purpose to produce a consequence or knowledge that the consequence is substantially certain to result.

Conversion: Intent • What intent is required for conversion?

Intent to exercise dominion or control over the property.

The court is reluctant to award damages for emotional distress

Intentional infliction of emotional distress is "sharply limited to cases involving particularly egregious facts" and that a "high threshold standard of proof" is required to submit the claim to a jury.

Intentional Infliction of Emotional Distress: Extreme or Outrageous Conduct

Must go beyond all possible bounds of decency and be atrocious and intolerable. The extreme and outrageous character of the conduct may arise from the actor's knowledge that the victim is particularly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity.

Assault. What must the D intend to do?

Must intend to commit or threaten a battery

Assault: Does imminent mean instantaneous?

No, just no significant delay.

Battery: Contact

Not necessary that the contact be with the person, can be contact with something "intimately associated" with the person.

Assault: Apprehension: Judged by what standard

Objective standard

Single Intent (Wagner)

Only intend Contact • D must merely intend the act. •Most consistent with case law and view that person's right to avoid unwanted touching is right of autonomy. (protects victim more than dual intent) • Consent may be defense under single intent, but result may be the same as stricter dual intent test.

INTENT

PURPOSE TO PRODUCE A CONSEQUENCE OR KNOWLEDGE THAT THE CONSEQUENCE IS SUBSTANTIALLY CERTAIN TO RESULT

False imprisonment: policy

Policy - Protects the individual's freedom of movement and right to not be confined against her will. Can confine someone by forcing them to submit to your authority or with consequences that would lead a reasonable person to think they could not leave.

Conversion of Chattels: policy

Policy: Protect plaintiff's interest in exclusive possession of personal property.

Intentional Infliction of Emotional Distress: policy

Policy: Protect plaintiff's mental peace not arising from physical force or confinement • Protectinterestinfreedomfromemotionaldistress. • Mustcausesevereemotionalormentaldistress

Consent• What was the relationship between the parties?

Power Relationship between the parties affects the issue of consent.

Trespass to Chattels: Policy:

Protect possessor's interest in exclusive possession of personal property. • Provides a remedy for damage to personal property, or temporary interference with its use, even though the possessor is not permanently deprived of the property.

Does public necessity only protect public actors?

Protects both public officials AND private actors who act in public interest.

Trespass to Land: Policy:

Protects the individual's right to exclusive possession of property.

Public Necessity:

Sacrifice for the greater good of the entire city. (Protect against fire, disease, etc...) •As long as actions were reasonable, they don't have to be successful to assert the privilege.

Assault: Apprehension: How does the surrounding area affect the P's expectation of harmful or offensive contact?

Small/confined space or private/secluded area can make it more reasonable to expect harmful or offensive contact.

False Imprisonment: Confinement

The act must confine the P within boundaries fixed by the actor: • Barriers can be physical barriers or physical force. • Threat of physical force may suffice. • Or other unspecified means of duress. • intimidated into compliance with orders.

Transferred Intent

The actor must have intent before you can transfer that intent. • Intent can transfer either (1) from intended victim to actual victim or (2) from one tort to another tort.

Self Defense • NO RETALIATION

The law does not permit retaliation. • Oncefightends,youcan'tclaimself-defensetoretaliate.

Private Necessity - BUT:

The trespasser must compensate the trespassed for any harm done.

Trespass to Chattels: Harm • Does the P have to suffer actual harm to recover for trespass to chattels?

Trespass to chattels occurs when an actor intentionally damages or temporarily deprives an owner of personal property.

NO tort liability if:

Value of risky activity is MORE than cost of the injury

Tort Liability If:

Value of risky activity is less than cost of the injury

In cases of emergency, the normal rule regarding consent/scope of consent may not apply if obtaining consent is impossible.

When P is unable to understand the nature of the treatment (due to intoxication), doctors were not required to attempt to obtain consent.

To determine whether certain conduct is extreme and outrageous

consider the context and relationship between the parties.

As trespass to chattels extends to new types of property, interference can include things like

damaging business reputation and adversely affecting computer systems.

Actual Consent -

expressly communicated, usually written or spoken.

Conversion of Chattels: Conversion is the...

intentional exercise of substantial dominion or control over the chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.

Exceeding Scope of Consent • Medical Battery -

when doctors exceed the scope of a patient's consent. • Competence to give or withhold consent depends on P's ability to understand the condition, nature, and effect of accepting or rejecting the proposed treatment.

Is the conduct a regular pattern of repeated behavior that continues despite the victim's objection and attempts to remedy the situation?

• Abuse of power by a person with some authority over P; •Conduct directed at a person known to be especially vulnerable; • Repeated requests for sexual attention

What must the D intend?

• Act does not have to inflict physical injury to be a battery. • P does NOT need to suffer harm, intrusion alone is actionable.

Serial Conversions/ Bona Fide Purchaser: Who can the P recover against when more than one person "converts" the purchaser?

• BUYER BEWARE •As long as the original converter and the buyer both exercise substantial dominion and intend to do so. • P can recover against either for conversion, but not both.

Why do shopkeepers need a special privilege, instead of the CL "fresh pursuit" privilege?

• Because it protects the shopkeeper who has made a reasonable mistake regarding the guilt of the suspect. • BUT, some states require merchant to be right about suspect taking property.

Trespass to Land: Entry

• Can be personal entry, but can also be by causing an object to enter land. • Can be entry below surface (digging) or a reasonable height above the ground (flying low). • Unintentional entry followed by a refusal to leave is still entry.

Arrest & Detention

• Common Law Privilege to arrest another for a misdemeanor was very limited. • Misdemeanor must constitute a breach of the peace to justify privilege of arrest without a warrant. No common law privilege to arrest for shoplifting.

Trespass to Land: Remedies

• Compensatory Damages for harm resulting from trespass. • Injunctive Relief - when damages are inadequate, may be entitled to injunction to stop trespassing, force trespasser to leave, or remove something placed on land. • Punitive Damages - when deliberate or "malicious."

Defenses/Privileges

• Defenses don't usually challenge the elements of the P's prima facie case, but instead supply a legal reason or justification for D's actions, rendering those actions non-tortious. • Privileges are mostly affirmative defenses, so D must plead and has burden of proof on those.

Shopkeeper's Privilege

• Developing common law privilege that was incorporated into Restatement 2nd of Torts. • BUT, a narrow privilege "confined to what is reasonably necessary for its limited purpose."

Self Defense• Cannot use excessive force.

• Excessive force depends heavily on facts of each case. • Excessive force is unprivileged and D is liable for it. • The defender must be placed in reasonable apprehension of a harmful or offensive contact in order to prevail on theory of self- defense.

Conversion: • SUBSTANTIAL DOMINION FACTORS

• Extent and duration of control • D's intent to assert a right to the property • D's good faith • Harm done • Expense or inconvenience caused

A COURT WILL AFFIRM FOR PLAINTIFF ON APPEAL IF:

• From a judge's grant of summary judgment or JMOL/directed verdict/JNOV for the plaintiff because A reasonable jury only could find for the plaintiff. OR: From a jury verdict for the plaintiff:because A reasonable jury could find for the plaintiff

Are there circumstances under an otherwise offensive touching would be allowed because of consent?

• If consent exists, it takes away the wrongful intent.

Defense of Property • Privilege to regain chattels or real property is quite limited.

• In general, owner must resort to courts - not self-help. • "Fresh Pursuit" • Common Law Privilege to recapture chattel while in "fresh pursuit," but property owner must be correct that the person has stolen the chattel. • If D is wrong and P didn't actually take the chattel, then no privilege

Types of Damages

• Lost Wages (past or future) • Pain and Suffering • Special or Particularized Damages • E.g., Medical monitoring • E.g., Property damage • Punitive Damages

Defense of Others• What is the standard to determine whether there was a threat of harm?

• MINORITY _ Subjective Test: the intervener has no greater right than the other person would have to defend himself. •In order to act in defense of a third person, D must have the same right as the would-be victim (i.e. step into the shoes of the third person). • MAJORITY _ Objective Test: : the intervener may act to defend a third person if it appears to the reasonable mind (RPP) that there is a threat of force.

• Conversion provides a remedy for deprivation sufficiently serious that the tortfeasor is liable for the full value of the property.

• Mere damage or interference with possession usually constitute trespass to chattel, not conversion.

Shopkeeper's Privilege: Purpose of Detention

• Must be for express and limited purpose of investigation by either 1) questioning suspect or 2) calling the police.

Shopkeeper's Privilege: Reasonableness of Detention

• Must be in a reasonable manner for a reasonable time. • Reasonable force may be used to detain, but use of force intended or likely to cause SBI is NEVER privileged for sole purpose of detention. • Must request suspect remain if you can, and if no time to request or request would be obviously futile, then reasonable force is justified.

Shopkeeper's Privilege: Reasonable Cause

• One may act on what proves to be an incorrect belief provided the facts show that the belief was reasonable. • The merchant, his agent or employee, with reasonable cause, may detain on the premises in a reasonable manner and for a reasonable time for questioning or summoning law enforcement.

Self Defense: • Force Must Be Reasonable

• Privilege of Self-Defense requires a reasonable belief that self defense is necessary to PREVENT what would be a battery, assault, or other tort.

Defense of Property

• The force used must be of a kind appropriate to the defense of the property. • ONLY the force reasonably necessary to overcome resistance and expel the intruder. • NEVER to use any force calculated to cause death or serious bodily injury where ONLY property is threatened.

Defense of Property • Actor CANNOT use deadly force to defend only chattels/property.

• The law does not value property over life. • No spring guns to protect stuff when you're not home.

Self Defense: Prior Threats

• The prior threat can color the reasonableness of believing that you would do harm. • Prior threats are considered under the circumstances, but still can't retaliate once self-defense is over.

Trespass v. Nuisance

• Trespass: invasion of P's interest in the exclusive possession of his land. • Nuisance: interference with use and enjoyment of his land.

Trespass to Land: Extended Liability

• Trespasser is liable for damages directly caused by his trespass, even if he did not intend and could not foresee the harm

Intentional Infliction of Emotional Distress: Intent

• True Intent: D acts with the purpose of causing severe emotional harm • Substantial Certainty: D acts knowing that severe emotional harm is substantially certain to occur • Recklessness: D acts with utter disregard for the effect of his actions

Trespass to Chattels: Intent • What must the D intend to do?

• True Intent: act with the purpose of causing the trespass • Substantial Certainty: act with substantial certainty that the trespass will result.

Conversion: Remedies

• Usual remedy for conversion is damages measured by the value of the chattel at the time of conversion. • If the value of the chattel fluctuates, then P may recover for the highest market value of the chattel that occurs within a reasonable time for replacement. • Plaintiff may also seek injunctive relief called "replevin" or "claim and delivery," if possible.

Is it reasonable for someone to assume silence = consent?

• What happens when your words say no, but actions say yes.

Does the person have the capacity to consent?

•Courts sometimes look at the individual facts to determine whether minors have the experience and intelligence to consent to the particular act. •Minor's consent to sexual conduct is ineffective and provides no defense.

Is it fair to allocate the entire risk of loss on an innocent homeowner for the good of the public?

•Policy: Courts favor buying insurance: we want people to get insured because it avoids lawsuits, homelessness, need for public assistance, and is a loss spreading device. •We all get insurance and then the pool helps pay the individual loss.

Self Defense • Rule of Proportionality

•The force used must be proportional to the actual or reasonably apparent threat of harm. • Threat of non deadly or deadly force will affect the proportionality of the response. •The amount of force used must be reasonably necessary under the circumstances. • BUT, can use self-defense if threat of death or serious bodily injury to self or others.