TORTS OUTLINE PROF.

PIATT, FALL 2010 EMILY CHASE-SOSNOFF

PART 1 - INTENTIONAL TORTS I. INTENT a. Intent is the intent to do the volitional act. It does not matter if D intended the results. The act must be intentional, not the result. b. Notes: i. Age is irrelevant. ii. All that matters is whether D had the requisite knowledge. iii. Subjective test – about what D thought, not based on a reasonable person. iv. Objective test - use objective factors to assess what D thought (a subjective thing). v. Everyone is capable of intent. The following are not defenses. 1. Age 2. Insanity 3. Good faith 4. Mistake 5. Fear of a Threat vi. Doctrine of transferred intent – it does not matter if D tried to do one thing but another thing happened 1. If D means to punch A but trips and falls on B, D is liable for B’s injuries. 2. If D means to shoot A but the bullet instead smashes A’s valuable vase, the intent transfers from battery to trespass to chattels. vii. Motive or lack of malice is irrelevant. 1. You must separate motive from intent. 2. Remember the case where the man hugged the woman from behind – it does not matter whether or not he meant to harm her. viii. Use objective factors to establish subjective intent – did D intend to cause the result, or was he substantially certain that he would cause the result? ix. Intent applies to: 1. Battery 2. Assault 3. False Imprisonment 4. Intentional Infliction of Emotional Distress 5. Trespass to Chattels 6. Trespass to Property 7. Conversion

2. BATTERY Intent + Harmful or Offensive Contact + Absence of Privilege Battery requires: 1. Intent 2. Harmful or Offensive Contact 3. Absence of Privilege A person is liable for battery if (1) she commits an intentional act, (2) a harmful or offensive contact results from that act, and (3) she does not have a privilege. Notes:

Generally. Fear 4. pinching) are batteries. This is P’s responsibility in court. 5. Privilege is always assumed. place. (Must examine time. Hypersensitivity does not award P special damages. The reasonable person test does not matter. 5.) Unaware Victims 7. Apparent Presence of D’s Ability (to complete the battery) 4. No Damage Requirement 9. Victim does not have to be aware (surgery). (2) the plaintiff is thereby placed in imminent apprehension of a harmful or offensive contact. D does not need to intend to cause apprehension. This uses a reasonable person test. ASSAULT Intent + Imminent Harmful or Offensive Touch + the Apparent Presence of D’s Ability (to complete the battery) + Absence of Privilege Assault requires: 1. Notes: Burden of Proof 1. Must look at time. There is no rule about this. the court might decide that apprehension was ridiculous. D must intend to do the act that causes apprehension. any contact that usually hurts people (kicking. It’s the ambiguous touches that are tricky (taps on the shoulder. Intent 2. 3. Whether or not contact is “harmful or offensive” is based on an objective test. P must show that D did not have privilege. and manner when determining if a touch is harmful or offensive. But. Damages are not required (you do not need to show actual harm). Absense of Privilege Assault is defined as where (1) the defendant commits an intentional act. 2. only apprehension. 8. Defendant’s Ability (to complete harmful contact) .Reasonable Person Test 1. Crowded world theory – not every touch is a battery. This is much more common with battery. he cans still have apprehension that D will strike him. manner. D does not need to know that his actions will cause apprehension. D’s Knowledge and Intent 2. Even if P knows he would win in a fight. place. this changes things. Assault does not require fear. if D knows P is hypersensitive. P’s Apprehension is Subjective 3. hitting. but if P is hypersensitive. Apprehension is subjective – depends on whether P was actually apprehensive. Types of Touching 6. Apprehension vs. You can have battery without assault (as long as P does not see or is not aware of the impending battery). 3.) Hypersensitive Plaintiffs 4. and (3) the defendant lacks a privilege. Imminent Harmful or Offensive Touch 3.

Duress – a physical threat may be sufficient 2. Conditional threats are not imminent – “If you weren’t a woman. Practical Warnings Can Be Assault 12. Immanency of Threat 7. Absence of Privilege 7. I’d punch you. 9. Harm / Aware of Imprisonment 6. Intent 2. Assault Without Battery 10. Harm or Awareness of Imprisonment (depending on jurisdiction) 5. There can be assault without battery if the battery does not happen (usually at the last minute). (2) her conduct directly or indirectly results in the plaintiff’s confinement within certain fixed boundaries. 8. Absence of Privilege must be proven. so no assault. 4. Must be imminent danger – not a future threat. It matters only whether the specific plaintiff knew of escape. But if it is in the near future and specific – “I will bomb your house tomorrow” – it can be assault. This may be considered more than moral persuasion (i. if the condition placed is illegal. so it is an assault (see Siliznoff case). this is still false imprisonment. A person is not bounded if there is a safe escape that she is aware of. Need objective evidence to show each element of the tort (time. The one exception is where family is implicated. but you could sue an enormous bouncer. Objective Evidence for Each Element 11.e. 5. manner). Do not discuss in exam. Ability – you probably cannot sue a 4-year-old for threatening to kick your ass. this can be an assault.6. This is a jurisdictional issue. FALSE IMPRISONMENT Intent + Unlawful Active Restraint + Within a Bounded Area + Harm / Aware of Imprisonment (depending on jurisdiction) + Absence of Privilege False Imprisonment requires: 1.” But I am a woman. Notes: Kinds of Restraint 1. If a stupid person did not realize escape mechanisms when a smarter person would have. place.” This is extortion. Moral persuasion is not restraint. Bounded Area and Subjectivity 4. But. “Give me your lunch money or I will beat you up. someone threatening your children or wife is closer to duress. You can list several types of privilege and show how they do not apply to the case at hand. For example. Falsely implied legal authority 3. . Within a Bounded Area 4. Absence of Privilege A defendant is liable for false imprisonment if (1) she acts intentionally. and (4) the defendant lacks privilege. (3) the plaintiff is aware of the confinement or harmed by it (depending on jurisdiction). Even if it’s practical – like warning someone of imminent danger – this can be an assault. Unlawful Active Restraint 3. like the woman kept on the boat).

5. How far do these rights extend? It depends on the jurisdiction and the case. Damages 12. Defendant must have volitional intent to perform the act. The failure to remove something after permission expires can be trespass (Kent County case). For nuisance you have to show actual damages. For trespass you do not have to show actual damages – the trespass itself is the damage. 7. Nuisance is the invasion of the rights to enjoyment of the land. . 5. Intent 2. or (3) fails to remove a thing or object from the land which she is under a duty to remove. Absence of Privilege A person is subject to liability to another for trespass to land where (1) she intentionally enters onto the land in the possession of another (whether or not she knows it is another’s land is irrelevant). and (4) she lacks privilege. Permission Has Bounds 9. People who rent can sue. Extreme and Outrageous Conduct 3. If D mistakes land for his own and enters it. Plaintiff does not have to be the owner of the property to sue for trespass. People living on property with permission of the owner can sue. (2) she intends to inflict emotional distress. Nuisance is Distinguished from Trespass 6. Permission can also be revoked. and (4) the plaintiff’s emotional distress is severe. Intrusion into another’s land which interferes with owner’s possessory right 3. Damages can be actual and/or nominal. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED) A defendant is liable for IIED if (1) her actions are extreme and outrageous. Property Rights Extend Up and Down 2. 10. Severe Distress Not on exam (says TA). or (2) remains on the land without permission. 8. Causation 4. 4. Possessor Rights 3. Intent (to inflict ED) 2. Notes: Intent 1. TRESPASS TO LAND Intent + Intrusion into another’s land which interferes with that person’s possessory right + Absence of Privilege Trespass to Land requires: 1. 6. Mistake is No Defense 11. IIED requires: 1. not intent to trespass. (3) her actions cause the plaintiff’s emotional distress. she has still trespassed.

The main distinction between trespass and conversion is time. Possessory Right of Another 4. Selling 4. Intent 2. Also. TRESPASS TO CHATTELS Intent + Interference + Legal Possession of Another + Absence of Privilege Trespass to Chattels requires: 1. No Damage Requirement 14. Legal Possession of Another 4. Absence of Privilege A person is liable for trespass to chattels if she intentionally interferes with the legal possession of another. Notes: Harm 1. Severely Damaging . Trespass is when someone temporarily takes something. Interference with the… 3. 8. P does not need to prove actual damages. Intent 2. D must be aware that P would be distressed by his actions.13. Using 2. P’s Possession 2. CONVERSION Intent + Complete or Substantial Deprivation + Possessory Right of Another + Absence of Privilege Conversion requires: 1. Actual harm or damage is not required. With conversion D takes it for a longer period or indefinitely. Complete or Substantial Deprivation of the… 3. Possession can be anything P has a legal interest in Duration 3. Absence of Privilege A person is liable for conversion if she completely or substantially deprives another of that person’s possessory right. Stealing 3. The duration must be significant. 5. Ten seconds is too short. (The trespass itself is the damage). Conversion has more permanency to it. Notes: Conversion is doing any of the following to something that’s not yours: 1. 4. Foreseeable emotional damages – D cuts down a tree P’s grandfather planted 30 years ago. 7. Only some jurisdictions permit this.

c. e. PRIVILEGES Mnemonic Device: Drunk Drivers Don’t Really Need Consent Just Some Legal Authority. c. mistake is only covered if it was caused by the thief (as in through fraud). Then. No privilege if there’s a mistake. Can use reasonable force b. b. They can use reasonable force or restraint. and manner. d. hot pursuit. Again. there often needs to be a warning (“Beware of Dog. there is no liability. f. no spring guns). b. legal guardians. Private Necessity – an incomplete privilege. 4. c. . . Reasonability is determined under the circumstances of time. Defense of Others a. 1. No privilege if there was a mistake. The privilege is on a continuum – the farther the thief gets from the store. d. e. c. 2. Threat must be objectively manifested. Cannot use a force greater than if you were actually present (i. Privilege extends only to the extent to which self-defense would extend for the person you are defending.Look at temporal issues to determine if it’s reasonable. she is not liable for trespass.” “Trespassers Will Be Shot”).Temporary nature .Private necessity applies when you act to save yourself. and her authority extends to the parking lot.Imminent threat . Limited to reasonable force to prevent vigilantism. place. b. b. anyone in legal authority. g. military personnel. Deadly force can be considered reasonable. unless the mistake is a result of fraud on the part of the intruder. including serious bodily harm. h.e.Reasonable under the circumstance . Parents. privilege does not exist. Recovery of Property a. unless the mistake is reasonable. Shopkeeper’s Privilege: All “recovery” privileges remain. . There is public and private necessity. Public policy rationale is that it saves money and time to let people handle these things themselves.9. 5. Cannot use deadly force. Must be a fresh. plus shopkeeper can hold a thief until the police come. 3. If preventative measures are used. Public Necessity – if D successfully claims public necessity. The exception to (a) is if the intruder is threatening violence (to a person). but is liable for damages. Necessity a. e. Defense of Property a. If property is voluntarily surrendered. the less the privilege applies. Any private citizen or public official (anyone!) can claim public necessity. Must make a verbal demand before using any force. c. can use reasonable force. If D successfully claims private necessity. d. Discipline a.

. THINGS THAT NEGATE PRIVILEGES Mnemonic Device: DIM FBI 1. including deadly force. Consenting to one thing only covers consenting to that one thing. There is no consent if it was attained through fraud. Justification a. Infirmity c. Legal Authority These are always statutorily-granted privileges (generally involving police officers). A nice catch-all for everything. Very little difference between justification and defense of property or others. This is a factual inquiry. 8.. Incapacity a. Privilege ends when the threat ends. If it is implicit it must be objectively manifested (i. b. Consent can be explicit or implicit. Insanity d. looking at customs and mores). 10. 6. f. but perception of the threat is subjective.Intrusion into another’s land which interferes with that person’s possessory right. Emergency exception for doctors. Self-Defense a.e. not open consent to other actions or time periods. b. Mistake Mistake is generally not a defense for a tort. d. not negligent. 4. Competency is required (minors can never consent). Must be intentional.This only arises when the result would otherwise be trespass. 2. clearly drunk). If someone is visibly incapacitated (i. h. b. Look to the reasonableness of the act (usually to protect others or property).e. he cannot consent. Fraud . Must be objective manifestation of the threat. D knows or should have known about incapacity 3.Necessity must be shown. Age b. c. 7. Duress A threat of force or coercion. . 8. Can use reasonable force. Consent a. e. c. g. but it negates most privileges unless it’s the result of fraud on the part of D. Anyone can withdraw consent.

this can bring a mistake into being covered by a privilege. Beyond the Scope (Consent) Consent is always limited by time and context. Illegal Conduct You cannot consent to illegal conduct. 5. . 6.If D lies or omits information that he knew or should have known was necessary information.

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