Torts Outline

Tuesday, September 21, 2010

intentional
Reckless
Negligent
Without Fault
Intentional Torts (deliberate choice to invade someone's rights)
 
Intent: intent to produce consequence.
 
Purposeful Intent: Act with purpose or desire to cause consequence of act
 
Knowledge Intent: know or believe consequence is substantially certain (90%) to result
 
Subjective Test: what the particular defendant believed/desired
 
(Intent doesn't mean intent to do harm; just consequences)
 
Circumstantial Evidence: (Objective Evidence to prove defendants state of mind)
 
Motive is irrelevant.
 
Diminished Capacity: held to same standard; as long as they are capable of formulating in their mind the
intent set forth.
 
Majority position is "mere intent to contact rule" not dual intent
 
Battery (Essence is Contact)
Harmful or offensive contact either direct or indirect by the plaintiffs person caused by the
defendant
 
Elements
1. Act: defendant must do some intentional act
2. Intent: Only intent to cause contact
3. Harmful/offensive contact:
Harmful: physical bodily contact must occur (even beneficial harmful contact i.g. surgery)
Offensive Contact: objective test; one that offends a reasonable sense of personal dignity
(person of ordinary sensitivity)
1. Contact with plaintiffs person: must cause actual physical contact to body or something
a "part" of a person's body. (object held in hand, horse plaintiff riding on, clothing) E.g. grab
someone's clothing or tray out of someone's hand.
2. Caused by defendant: needs to be caused by defendant. Direct/Indirect
(i.g. poison in someone's food, pit fall, setting up trip wire, telling dog to attack)
  
 Plaintiff does not need to be aware of contact at the time.
 
Assault (right to be free from fear or apprehension from unwanted contact)
Intentional act by defendant that arouses a reasonable apprehension of an imminent battery in the
plaintiff
 
Elements
1. Intent: to cause harmful or offensive contact; or imminent apprehension of contact
2. Act: any sort of act likely to give rise to apprehension of battery. (i.g. shaking fist, aiming
weapon)
Offer to use force
Apparent Ability: actual ability not needed.
3. Apprehension of imminent battery: must be aware of threat at the time. Apprehension is
perception or anticipation of contact. Not fear! Split between subjective or objective reasonable
apprehension.
 Threat of future harm is not enough
 Imminent means no significant delay. Immediate threat in terms of time
4. Causation
 
 Most of times words are not enough. Words can also explain away intent (if you weren't an old
man I would hit you) Words need to be used together with other acts to constitute an assault.
 
 Conditional Threat: If you are privileged to make threat/defend it is assault. Defending house for
example.
 
False Imprisonment:
 
Defendant with intent to confine plaintiff/other within fixed boundaries and person is conscious or
harmed by confinement.
 
Elements
 
1. Act: words alone can satisfy act requirement (submission of person or show of authority)
2. Intent: confine plaintiff/other person (transferred intent) Good faith does not defeat. Exclusively
Intentional. For negligent actual damages need to occur.
3. Confinement: restricted to given area without reasonable knowledge of escape
 No duty by person to risk harm or search for means of escape.
 Means of confinement: actual or apparent
 Compelled to go with defendant. Total restraint; not merely obstruction.
 Time of confinement can be only momentary (question of damages)
 Physical barrier (removing ladder/wheel chair)
 Physical force can also be used or person's immediate family.
 Issue is submission, not whether someone can win fight.
 Submission to threats or duress: imminent threat person/property
 Economic/moral/social not enough: (firing not enough for employees or social pressure)
 Duty to release is breached (prison warden who refuses to release prisoner when sentence is
up)
  Assertion of legal authority (false arrest) Issue is submission!
 
4. Causation: Confinement must be caused by defendants intentional act or force defendant set in
motion.
 
Must be aware of confinement or physical harm needs to occur.
 
Shop Keepers Defense: person who reasonably believes person has stolen is privileged to detain
person in reasonable manner and for a reasonable time to investigate ownership of property.
 
Intentional Infliction of Emotional Distress
Defendant by extreme or outrageous conduct, intentional or recklessly causes severe emotional distress;
defendant is liable for emotional and physical harm caused.
 
Elements
1. Act Extreme and outrageous conduct: recognize it when you see it. (intolerable in a civilized
society. Words are not enough (First amendment restricts)
Factor: Vulnerability: Young child v young adult
Plaintiff with special sensitivity; conduct can be extreme if defendant is aware
Relationship between defendant/plaintiff (employer/employee, landlord/tenant, etc) Abuse of
power.
2. Intent: to cause severe emotional distress; recovery may be allowed if act is recklessness (high
probability of emotional distress resulting)
3. Causation: no physical manifestation in most states.
Thin skull plaintiff rule: liable for all physical consequences that result from conduct. Rule not
apply from emotional reaction.
4. Severe emotional distress: need SEVERE. Objective standard; would a reasonable person of
ordinary sensitivity experience severe distress.
Severity: linked to liability and damages
Third Person Claims: 1. 3rd party is present and witnesses conduct. 2. immediate member of
family. 3. Defendant aware of 3rd party. 4. some sort of bodily harm results. (Not case of
transferred intent as not one of 5 historical intentional torts)
 
Special Rule for Innkeepers/Carriers: rules are relaxed for persons of service
 
Trespass to Land
Defendant intentionally without privilege enters land himself or causes thing/other person to enter; or
remains on land after privileged has expired, or fails to remove items from land.
 
Elements:
1. Act: movement that results into an intrusion onto another person's land.
Ex: If able pushes baker onto land; baker did not act.
2. Intentional: Be at that place on the land; cause thing or land; merely to enter or remain (good
faith not defense) (Transferred intent applies)
3. Unprivileged Entry: 1. any physical entry onto land. 2. causes someone else to come onto land
(carrying, inducing, false representation) 3. something to enter. (rock) 4. Remaining on land after
privileged has expired. (go beyond scope of purpose. 5. Failing to remove something you have a
duty to remove
 4. Entry of land of plaintiff's possession; actual possession (occupying land with intent to control)
Possession not ownership (ex: wrongful occupier can maintain trespass action against wrongful
intruder) Extent of possession is not limited to the surface. Boundaries extend above and below.
(over hanging structure, hand over fence, firing shot over property) Limits: various theories;
General Theory: you own airspace which is in your effective possession.
5. Causation: must be caused by intentional act or some sort of force. Actual damages are not
necessary.
 
Liability: Unforeseeable harm. Strictly intentional tort; in negligence physical harm needs to occur.
If intrusion is not intentional, reckless or negligent; walking down street and slip on ice and fall onto
property there is no tort.
 
Trespass to Chattels and Conversion
 
Degree
Both protect personal property from wrongful interference.
 
Trespass to Chattels: relatively minor
 
Intentional inference with a chattel by physical contact, using or intermeddling; or by dispossession
 
Elements:
1. Act: act or dispossession
2. Intent: act on or deal with the chattel. No wrongful motive is necessary. Good faith is again not a
defense. Transferred intent applies.
3. Invasion of Plaintiff's interest in chattel
Dispossession: assertion over chattel without consent of owner. (borrowing access, taking into
custody of law)
Degree: Moving 10 feet down the street or taking car away for long period of time.
Physical Contact: using or intermeddling. Directly or indirectly impairs condition, quality or chattel.
Doing some relatively minor damage to chattel.
4. Plaintiff possessor of chattel: actual possession or have right to immediate possession.
Possession is sufficient title against wrong doer.
5. Damages may be necessary: Dispossession: at least nominal. Physical: actual damages
necessary= amount chattel is diminished.
Liable
 
Conversion
Intentional exercise of dominion or control of plaintiff's chattel to such an extent that defendant is justly
required to pay full value. Major interference of chattel. Forced judicial sale. "You break it you pay for it"
 
1. Act: Some sort of interference of possession of chattel. Affirmative act that is inconsistent with
ownership.
2. Intent: Exercise dominion and control over chattel that inconsistent with plaintiff's rights. Good
faith is no defense. Defendants belief and motive may be relevant in determining seriousness of
interference.
3. Invasion of plaintiff's interest in chattel: Limits on conversion; Intangible rights of a tangible
item.
 Scale of Seriousness
Factors: Extent and duration
Intent to assert a right
Defendants good faith
Extent and duration of actual interference with actual plaintiffs right of control
Harm; minor damage or destruction
Expense or inconvenience of plaintiff
4. Ways Conversion can be committed
a. Stealing
b. Moving: amount of inconvenience and expense to plaintiff
c. Unauthorized transfer or delivery of chattel
d. With holding possession; exception: qualified refusal is justified. Defendant refuses to give it
back immediately without conducting investigation that the plaintiff is entitled to the chattel.
e. Damage to chattel; total destruction, materially alter (cut a size off the coat) Mere damage is
not a conversion.
f. Mere use of chattel: serious violation of right to control chattel; exceeding the use of the chattel
(permission to drive 5 miles but 100 mile roadtrip ensues)
5. Plaintiff's Possession: possession is sufficient title. Theoretically thief can bring conversion
against another thief.
6. Causation
 
Remedy
Replevin
Right to Sue for damages: Full market value of chattel. (willing buyer would sell to willing seller)
If defendant tries to return chattel; plaintiff does not have to accept.
 
Defenses to Intentional Torts
 
Two Main Categories: Consent and Privileges
 
 Consent bars recovery for anyone of these intentional torts.
 
 Consent is treated as an affirmative defense. (burden on defendant)
 
 Actual willingness (subjective state of mind)
 
 Consent is valid whether or not is communicated to the defendant.
 
1. Actual/Express Consent: Plaintiff's consents willingness
2. Apparent or implied consent: outward manifestation of consent on which defendant
reasonably relies
 Knod, Silence or Inaction sometimes enough (if reasonable person would speak up)
 Practical joke/Local Custom/Contact Sports (consenting to conduct with the sport)
 Consent can be complied by law: unconscious and patient in danger of dying.
 
Exceptions to Consent
 Incapacity: Infant legally not capable of consent
 Insane Person or other legally incompetent
  Duress: Threat of immediate harm submitting/yield to threat (Economic pressure usually not
enough to negate)
(e.g. shoplifting employee sent to manager's office or fired is generally consent)
 
3. Whether consent to crime is valid. Split
Traditional: Consent is not effective when breach of peace has been committed. (street fighting)
Minority/Restatement: consent is valid. Exception: If you have statute that protects group of
people irrespective of consent (Statutory Rape not consent).
 
Beyond Scope of Consent: Unforeseen consequences are not valid, but there are limits. Consent is
limited to scope of consent (Brass knuckles in a boxing match is not consent)
 
Consent is effective even if given in mistake, unless defendant knows of mistake or induces
mistake by misrepresentation. (Ig; if defendant gives poisoned candy to plaintiff). If defendant
didn't know candy was poisoned, then consent valid. Mistake has to extend to essential character
of act, not collateral matter. (i.g: 20 bucks to punch in nose, paid in counterfeit bill; still consent,
you were aware and consented to being punched in nose unless defendant intentionally mis
represented.
 
Informed Consent
 Treated as law of negligence not intentional torts
 If there is actual deceit then it negates consent
 Medical Malpractice
 
Non disclosure
Breach of a duty to inform
 Consent has to be based on the professional disclosure based on the material risk or alternatives
 Duty to inform of risks to allow patient to make intelligent informed decision
 
Splits on Issues
Standard of Disclosure
Two Standards
 
Professional Standard
Reasonable Physician standard- whether a reasonable doctor would inform patient of particular
risk.
Material Risk standard
reasonable patient standard- what a reasonable patient would want to be informed of. Something
relevant to the decision in the plaintiffs position would attach significance to. If court adopts it is
distinct from malpractice.
 
Causation Standard
Plaintiff has to show the lack of disclosure caused him to undertake the treatment with the resulting
injury
Two Elements
1. Decision Causation- would the plaintiff have chosen to do something different? If Plaintiff would
have chosen the same treatment then there is no negligence.
Two Tests
 A. Objective Test-Majority Position- Would reasonable patient in the position have made a
different decision?
B. Subjective Test- Would this actual plaintiff have chosen another course of action if information
disclosed?
2. Injury must have occurred.
 
Exceptions
 Medical emergency
 Risk of infection or something obvious
 In material risks or slight risks
 General Rule: If disclosure is harmful to patients best interest then doctor is privileged. Burden
of proof on doctor.
 
Privileges
 
Self Defense
privilege to defend self with So much force as reasonable appears to be reasonably necessary to protect
yourself against imminent physical harm against intentional or negligent conduct.
 Force can be deadly conduct if necessary for defense.
 No privilege of offense or retaliation or excessive force. Threats of greater force is justified
 No duty to retreat.
Deadly Force
Reasonably believe you are in serious harm your force has to be proportionally reasonably
To threat.
Majority View- No duty to retreat
Minority View- duty to retreat if safe to do so.
 
 Reasonable belief that self defense is necessary even if mistaken; Objective standard applied.
What happens if you injure a 3rd person while defending self?
 If intentional then you are liable, unintentional then only liable if negligent.
 
Self Defense of Others
 Same privilege as if defending yourself.
 
Mistaken self defense Split
Majority View- privilege exists only to the extent actually had self defense
Reasonable mistakes are still liable
Minority and restatement view- if you make a reasonable mistake you are privileged
 
Affirmative Duty to protect someone else or property
 Privilege to use reasonable force or confine
 Common carrier has duty to protect passengers and people on train are attacking passengers.
Railroad has privilege to use reasonable force to stop/confine.
 
Defense of Property (Real and Personal)
 Privilege to use reasonable force. Deadly force or serious harm is not acceptable.
Real Property Defense- right to defend property, exclude trespassers
Mechanical/watchdogs- okay if reasonable. Not likely or intended to cause serious harm of death
Barbed wire fence, broken glass are usually privileged if it is not concealed under circumstances
 
Privilege of recapture of chattels
when you are dispossessed of chattel by force or duress, privileged to use non deadly force reasonable
force
1. Fresh Pursuit- reasonably diligent in discovering loss and retake chattel without interruption.
2. Demand chattel
3. Be entitled to immediate possession
 
 Reasonable mistake not a defense.
 Privileged to enter someone else's land if acting reasonably
 
Shop Keepers Privilege- statutory/common law privilege- reasonable suspicion that person has stolen.
Reasonable mistake is a defense. Reasonable confinement (time, manner, investigation)
 
Privilege of Necessity
Defendant is defending himself or property of threat of imminent serious harm in which plaintiff is not
responsible. Defendant intentional acts to reasonably deems necessary that results in plaintiffs property.
 
Two Distinct privileges
 
Public Necessity
 Privilege to enter plaintiffs land or chattels if necessary or reasonably appears necessary to avert
public disaster. Doesn't need to be public official. Private citizen can act.
 Line between public interest and private interest is often unclear.
 Public necessity is a complete privilege. No responsibility for damage.
 
Private Necessity
 Protect person/land/chattel from harm or injury. Harm is only to defendants interest.
Incomplete privilege; defendant is privileged to complete act but is liable for damages sustained.
 In order to trigger privilege you need reasonable belief act is necessary or appears to be and
conduct needs to be reasonable.