Ophir FinkelthalTorts Outline/Prof. Nockelby/F 03

Part I Intentional Torts

Intent = knowledge with substantial certainty (generally speaking)

  1. Assault

Liability if Actor:

(1)Acts

(2)Intending to cause a harmful or offensive contact with the person of another or a third person, OR an imminent apprehension of such contact.

(3)The other is thereby put in such imminent apprehension.

a. Acts

Threat or attempt to strike another, without actually touching them.

However, mere words not enough if it is not reasonable that you can back it up.

Examples:

(i) I de S. Man attempted to strike innkeeper’s wife with hatchet. Even if he hadn’t swung the hatchet, but had it out and threatened, the words would have satisfied “Acts” because reasonable he could back it up.

Note: Act and intent are closely linked in this tort, because the act does not have a tangible consequence (that is, battery is a “successful” assault, where the act causes physical harm).

  1. Intending to cause a harmful or offensive contact with the person of another or a third person, OR an imminent apprehension of such contact.

Intent is in mind of defendant.

In some states harmful or offensive is not necessary. Intent does not necessarily mean deliberate, purposeful; knowledge with substantial certainty qualifies.

OR if you intend to make the other person fear that you might hit them, even though you do not at all intend to actually do so (ex: shadow boxing).

If no imminence, then assault not sustained: Tuberville: aggressor’s words negate the present intent to harm that person, danger not imminent, “If the judges were not in town, I would not take such words from you,” said with hand on sword in sheath.

Can a Kid have intent? Yes, Garrat v. Dailey kid of 6 had intent for battery (intent defined the same for battery and assault) due to substantial certainty Dailey would fall.

  1. The other is thereby put in such imminent apprehension.

Apprehension is in mind of plaintiff.

The person does perceive they might be hit, but right away, not in a day or an hour. Ability to have effectuated violence need only exist realistically/reasonably in the other’s mind – apprehension of imminent harm. Allan: Words and gun in hand = apprehension, doesn’t matter if gun was loaded or not.

Apprehension does not require fear. Just because Gary Coleman is threatening the Terminator, doesn’t negate the tort of assault if Gary’s conduct satisfies all three elements. Other might not fear success of threat due to their self-defensive prowess or prospective intercession by other(s) on the scene. Yet, assault is still proven by the apprehension of the threat as being possibly essayed. Therefore, even a threat of attack that could easily have been warded of is actionable.

  1. Battery (Shorthand = Act, intent, contact)
  2. Defendant Acts

Doesn’t have to be direct action. Could be setting in motion chain of action. Ex. You know that the bowling ball is likely to hit the pins, which will hit the person working behind the pins. Garrat v. Dailey fits under this as well; the act of removing the chair set off the woman’s contact with the ground.

Involuntary acts generally do not count. Ex: If I sneeze in someone’s face, act element not satisfied, unless I was holding in the sneeze until I got up in her face.

  1. With intent to cause harmful or offensive contact with the person of another or a third person, or apprehension of immediate harmful or offensive contact, And

Again, intent is satisfied by knowledge w/substantial certainty. Ex. If your acts causes the person to back up and fall off the cliff, you were reasonably certain your act would cause this to happen.

Malice can turn a non-injurious act into one that is “offensive contact.” Ex: Alcorn, person spit into other person’s face after trial.

Intent can also be satisfied by contact that is unlawful/without consent. Vosburg, one kid touched other above the knee, did not intend harm or even really apprehend the contact would be harmful, but as it was w/out the other kid’s consent it was deemed unlawful even though no statute prohibited the touching.

Hypo: If they were playing “King of the Hill” on the playground and the injury happened, probably would not have been intent, because there would have been implied consent aka implied license. NB: The Court would have made the judgment that there was implied license, after all the kid who got hurt wouldn’t have given the one who hurt him a signed waiver that it’s okay to hurt him while they’re playing the game. THE WORD IMPLIED ALWAYS MEANS COURT/JUDGE DECIDING ONE PARTY CONSENTED!

Implied consent is tricky. Mohr v. Williams ruled Dr. did not have implied consent to perform operation on second ear because patient had agreed to surgery on first ear, nor was it an emergency situation. However, Kennedy v. Parrot Dr. treats ovarian cysts during appendix surgery, ct. finds implied consent as within the doctor’s best judgment another surgery is necessary as part of the procedure. Trend is towards latter ruling.

When does the EXCEPTION OF CONSENT to contact not serve as a privilege/work as defense? When the ct. must step in to protect a class of people that cannot protect themselves and have been taken advantage of. Hudson v. Craft, 2 young boxers agreed to an unregulated match at a carnival, they can sue the promoter. They could not know that he was asking them to forego rights and what the consequences would be, therefore their consent should not be binding.

  1. A harmful or offensive contact with the person of the other results.

Also, if you contact something that is closely associated with a person, this counts too: Ex. (i) You knock the tray a person is holding, this counts as contact. (ii) You rear-end someone’s car, it also jolts the person sitting in their car.

Hypo: Let’s say someone dodges what you throw at them, but in dodging it, they slam into the wall – that would be battery, because your throw causes the apprehension of harmful contact, which did in fact result in offensive contact with the wall (even though contact wasn’t by the item you threw).

Note: D is liable for all consequences of a battery whether s/he could have foreseen them or not (Vosburg).

  1. False Imprisonment

Actor liable if:

  1. Acts

The act does not have to physically restrain the person. If you cause someone to fall into a trap door, you have committed an act.

  1. Intending to confine the other, and

Substantial certainty, again, qualifies as consent.

  1. His act results in such confinement

If boundaries are imposed by Defendant, confinement is satisfied, no matter how wide or luxurious. Ex: D has a palatial estate on a Greek Island and transports person there w/out their consent. Doesn’t matter how nice it is, if P can’t leave.

Additionally, the overcoming of the will of P also counts as confinement (Coblyn v. Kennedy); mental confinement through duress – physical power which can only be avoided by submission: a large security guard asked a frail old man to come with him.

D holds onto something valuable belonging to P. Doesn’t have to be of great value, as long as D holds something the P couldn’t reasonably leave behind, D has confined P because P’s right to freedom of motion is restrained.

Some jurisdictions:

  1. The other is conscious of confinement and is harmed by it.

If the P isn’t aware of the confinement it doesn’t count. Again, only some jdx require the P to be aware of confinement. Exception to this element: If P is injured, may sue even if they didn’t know were imprisoned at the time.

Overall Exceptions:

If there is a reasonable way for P to escape. Bird v. Jones, P could have gotten to the part of the road they wanted to get to by walking around the area D had roped off, was not restrained by D from doing so. Hypo: If frat brothers stole Dean’s clothes while she was in the shower, but left a window open for her to leave by running past them, the ct. would likely find she was confined, as streaking past the boys is not a reasonable way to escape.

Merchants Defense to False Imprisonment:

-Detained in a reasonable manner.

-For a reasonable amount of time

-By person authorized to make arrests: merchant or authorized agent.

-Reasonable grounds (objective standard) to believe goods weren’t purchased and were concealed.

Coblyn no reasonable grounds to detain the old man, by the RPP standard.

Protection of property (bus w/rowdy passengers drove to police station after abandoning ordinary route, p.74)

Teachers/parents and children (p.73)

Consent (miner went into mine and wanted to leave but had been told earlier they would not return to surface until later in day p.75).

  1. IIED (Intentional Infliction of Emotional Distress)
  2. Engages in extreme and outrageous conduct

Something that would make the average person exclaim, “Outrageous!” Cannot be petty insults or daily excesses one suffers. Can be a pattern of conduct. Ex: Bill collecting company calling P at Midnight or 6 am and calling P’s employers. Extreme and outrageous is a standard not a rule, so is more vague that intentional torts above. Wilkinson, D calls P to tell her that her husband has been injured when he hasn’t.

  1. Intentionally or recklessly, AND

Does not need to be knowledge with substantial certainty, reckless satisfies this tort. EX: Reckless could be if you know something about a person’s vulnerability and use that against them, like you know they’re close to their mom and tell them she died, though she didn’t.

  1. Which conduct causes severe emotional distress to another

Also a standard, judged case-by-case. Proof of physiological harm generally not required. If it is reasonably likely that the outrageous conduct would result in the emotional injury, then causation is proved.

Transferred intent (S46 (2)) – where the conduct is directed at a 3rd person. If the emotionally distressed person is a close family member just needs to prove standard in “c” above; living in the household of the 3rd person, if can prove bodily injury, s/he can collect.

Parasitic damages: Boullion, D forced his way into P’s house to read gas meter. He caused P to have a miscarriage. A trespasser is liable for damages that result naturally, necessarily, directly and proximately from his wrong.

Again note, this tort recognizes that some emotional distress is part of society, and normal outbursts are allowed.

  1. Trespass (to land) [shorthand = unconsented entry on land of another]
  2. Act

Voluntary act. If someone picks you up and puts you on the other’s property, the act was not voluntary, does not satisfy the act element.

  1. With intent to enter

Intent is merely to enter. If you didn’t know you had trespassed, thought you were still on your own land, that doesn’t matter, you have intentionally trespassed by entering the other person’s land (w/out consent). Ex: P accidentally pulls into D’s driveway, which is identical to her friend’s (next door)…she is trespassing.

Hypo: Driving in his car, Enrique slams on his brakes to avoid a deer in the road. His body is propelled out of the car and slams through the window of Owner’s house. No intent to enter, as his act of slamming on the breaks was not to enter land.

D remains on P’s land w/o the right to be there, even if he initially entered rightfully = intent.

Transferred Intent  Transferred intent from trespass to chattel to trespass to land. Ex: A man throws shoe at neighbor’s cat on the fence. The shoe goes over the fence to another property.

  1. And does enter the land (of another)

Harm to the land is no longer required in most jurisdictions.

Below or above the land also counts, entry does not need to be by the D himself, as long as their act causes the entry by something else. Ex: Drilling below someone else’s land or flying a model airplane over their land.

  1. Trespass to Chattels

Normally when we use the term “Trespass” we mean to land. If chattels is meant, this will normally be explicitly stated.

Land = things that are attached to the land (buildings, light fixtures) as well as the actual land.

Chattels = things that can be picked up and moved around (pictures on walls, even if they are nailed to wall).

  1. Act
  2. Intentional Interference
  3. with chattel of another
  4. resulting in either dispossession, or causing damage to the chattel.

Unlike Trespass to land, some sort of harm does need to result from the intentional act of interfering with the other’s chattel. However, do not need to damage the chattel; dispossession qualifies. Ex: If I take your car for a few minutes, and don’t damage it, there is still dispossession, as you couldn’t use it for that time. Liability is only for partial value of chattel based on: duration of time it was used by D; or cost for fixing the damage caused by D’s interference.

However, Intel, just because D sent messages via Intel’s computer system thereby “touching,” even “interfering” with their system, there is no tort because he did not damage the servers nor did he cause the email system to stop or even appreciably slow down. In other words, the chattel continued to function normally during D’s interference and there was no discernable harm to it, so there is no sustainable action of T to C. Dissent in Intel: unauthorized use of another’s property establishes trespass, even w/out a showing of physical damage

Conversion of Chattels = a more than temporary dispossession of the chattel. Usually P sues for both, because it is a matter of degree between the two. If the higher bar of damages satisfying Conversion is met, D must pay P the full value of the chattel. In car ex: if you keep the car for a week when the person needed to take the car to NYC, then this might become a substantial dispossession, the full value of car must be paid to P by D. Courts consider several factors in determining whether D’s interference w/ P’s possessory rights is severe enough to be conversion or just trespass to chattels.

  1. Duration of D’s dominion over property
  2. D’s good or bad faith
  3. The harm done to the property
  4. The inconvenience caused to P.

Intent does not require knowledge, the conversion alone can satisfy intent. Maye, P told D this is not my land and to ago ahead and dig. Later P realized it was his land and brought suit against D to recover gold. (a) The right of the P to recover damages is not affected by the fact that the trespass was not willful or intentional in nature. However, D deducts the value of the work they did from the damages owed to P.

Ways to commit conversion:

  1. Acquiring possession – D takes possession of chattel from P.
  2. Transfer to a 3rd person – transferring a chattel to one who is not entitled to it.
  3. Withholding goods – if D refuses to return goods to their owner, if the refusal lasts for a substantial time.
  4. D destroys or fundamentally alters goods.
  1. California Stalking Statute

NB: WE DO NOT NEED TO MEMORIZE THIS (OR ANY OTHER STATUTE) FOR TEST. IF IT IS ON THE TEST, THEN WILL GIVE US COPY OF IT

(1)Defendant engaged in a series of acts over a period of enough time to show a continuity of purpose to the act AND

(2)Said acts were engaged in by D toward the person of another with the intention of knowingly and willfully alarming, tormenting or following them with no legitimate purpose AND

(3)A (i) D made a credible written or verbal threat (including threats made by electronic communication) against P or immediate family (as defined by the statute to include any members of P’s household during any of the 6 months preceding the action), said threat being shown to be made with

  1. Intent to cause the P to be reasonably afraid for their or Immediate Family’s safety by said threat AND
  2. Ability to be carried out AND

A (ii) D continued their pattern of conduct even though P clearly and definitively demanded at least once that D cease or abate said pattern of conduct

OR

B. D violated a restraining order prohibiting any act against P described above

AND

(4)As a result of the act proved in elements 1-3 above, P reasonably feared for their own safety or that of an immediate family member to the extent that they could reasonably suffer substantial emotional distress by those acts. RPP standard?

(5)[P or immediate family member did, in fact, suffer such emotional harm (this is ambiguous, but probably only is required if “harass” is used by P as posed to follow or alarm).]

Exception: Judgment against D for the tort of Stalking is proscribed for any constitutionally protected activity such as freedom of speech, protest or assembly.

Part II. DEFENSES TO INTENTIONAL TORTS

Privilege

When privilege is proven by D, the prima facie case for Intentional Tort has not been proven by the P. Therefore, we are lumping Privilege in with affirmative defenses, mainly because the burden of proof for both is shifted to the D.

  1. Consent

Consent is ordinarily a defense to any tort. Consent = D can show her act was privileged. Ex. If one consents to surgery, there is no case for battery against the Dr because the action was privileged. Consent has already been touched on in this outline. PER JTN, TREAT CONSENT AS AN AFFIRMATIVE DEFENSE, REFUTING A PROVEN INTENTIONAL TORT. Issues of determining consent:

  1. When can a ct. infer implied consent? What manifestation of consent is required under what circumstances? Ex. Vaccination, holding up the arm is held to be enough. But law may, under other circumstances require a writing or informed knowledgeable consent. If you are not aware what you are consenting to, that may not be consent.
  2. P’s conduct due to reasonable interpretation of circumstances or custom may prove implied consent.
  3. Under conditions of emergency, a physician need not obtain patient’s consent prior to treatment.
  4. When should exceptions or limits on consent be applied? Consent procured by fraud or duress or misrepresentation or threats is invalid. But, what activities by D constitute fraud or duress? And what types of representations are misleading? Ex: Hudson boxing match case [supra] (misrepresentation?). Date rape = duress, consent to have sex not truly given.
  5. Person cannot give consent to the commission of an illegal act against herself.
  6. Substituted consent. Following types of people cannot give consent: Incapacity, insanity, infancy. But guardians can give consent for them (?)
  1. Privilege of Necessity

Note: In this class, we are focused on the Incomplete Privilegeof necessity, where D still has to pay for the damage he caused. Privilege can be invoked when: