Torts

Tort

A civil wrong or injury not arising from a K

Major ways to understand tort law

Deterrence

Individualized Justice

Compensation

Modern majority way to understand tort law

Either deterrence or individualized justice, or both

Deterrence

Try to keep torts from happening using threat of liability or failure to recover damages

What kind of tort makes up 2/3 of tort law

Automobile accidents

Can there be too much deterrence in tort law?

Yes

Individualized justice

What really matters is between D and PL, not deterrence

Compensation

old-fashioned way of thinking; loss spreading, using tort law as insurance for lost wages, medical bills, etc.

3 major types of torts

Intentional torts

Negligence

Strict Liability

Types of intentional torts

Battery

Assault

False Imprisonment

Intentional infliction of emotional distress

Property

Property torts

Trespass to land

Trespass to chattels (personal property)

Conversion (destroyed or stolen property)

Defenses to intentional torts

Consent

Self-defense

Defense of others

Defense of property

Recovery of property

Necessity

Strict liability torts

Animals

Abnormally dangerous activities

Animal torts

Trespassing animals

Wild animals

Domestic animals

Negligence

Duty

Standard / breach

Causation

1. Cause in fact

2. Proximate cause

Damages

Defenses to negligence

Comparative fault

Assumption of risk

Vicarious liability

Being responsible for someone else’s torts

Garrett v. Dailey

5 year-old pulls chair out from under woman as she is trying to sit down. She breaks hip. Court ultimately held that he had intent because he had substantial certainty

Battery definition

Intentional affliction of harmful bodily contact upon another

2 ways to prove intent

Purpose

Substantial certainty

Substantial certainty

Knows it is likely to happen to a near certainty

Is intent objective or subjective

Subjective

Single intent for battery

Only need the intent to contact

Dual intent for battery

Intent to contact

Intent to harm or offend

Intent requirement for battery

The jx are split on this issue. Some require single, some require dual.

Intent analysis for battery in a single intent jurisdiction

Did D have purpose to contact?

Did D have substantial certainty re contact?

Intent analysis for battery in a dual intent jurisdiction

Did D have purpose to contact?

Did D have substantial certainty re contact?

Did D have purpose to harm or offend?

Did D have substantial certainty re harm or offense?

If there is a risk for harm but no purpose or substantial certainty, is there intent?

No

Are motives relevant for intent

No

Are people with mental illness treated the same with respect to intent?

Yes

Do the court’s look at the person’s mental illness re intent?

No

How can intent be transferred?

Person to person

Tort to tort as long as the torts are within the old writ of trespass

Which torts are within the old writ of trespass

Battery

Assault

False imprisonment

Trespass to land

Trespass to chattels

General rule for minor’s torts

Split among jurisdictions. Some allow minors to be held liable for intentional torts, the age also differs.

If there is substantial certainty that harm will result, is there intent?

No, the actor must know of the substantial certainty.

California rule for battery intent

Requires dual intent

Recovery of property general rule

You may use a reasonable force to recover chattels taken by force or fraud

Battery elements

Intentional

Touching

That is harmful or offensive

Without Consent (only some states add this)

Battery element - touching rule

Touching of the body or something intimately connected with the body. Spitting at someone or blowing smoke in their face also can be touching.

Does the PL need to be aware of the touching to constitute a battery?

No

There can not be an assault without what?

Apparent ability to make harmful or offensive bodily contact

What type of touching is always offensive?

Sexual

Assault elements

Intentional act

To cause a harmful or offensive contact with another or imminent apprehension of such contact

The other experiences the imminent apprehension

Intent requirement for assault

Intent for the act

Intent to cause a harmful or offensive contact with another or imminent apprehension of such contact

Intent analysis for assault

Was there purpose for the act?

Was there substantial certainty that the act would occur?

Was there purpose to cause the apprehension?

Was there substantial certainty that the apprehension would occur?

Assault element - the other experiences the imminent apprehension analysis

Subjective approach

Was the PL subjectively aware of the imminent apprehension?

Mere preparation rule re assault

Mere preparation is not enough, but a gun being present may bring an assault tort

Future threats rule re assault

Future threats are not enough to constitute assault

Fear rule re assault

Fear is not required for an assault tort but can increase damages

Conditional statements rule re assault

Conditions stating why someone won’t commit harm will not constitute assault because they are explaining that they will not be doing harm.

If someone maliciously warns another of harm that does not exist, is it assault?

Yes, if they know the harm does not exist.

Merger and attempt with torts

Assault and battery do not merge.

There are no attempted torts at all

False imprisonment elements

An intentional

Restraint

That is unjustified

Intent requirement for false imprisonment

Intent to restrain

Intent analysis for false imprisonment

Purpose to restrain?

Substantial certainty to restrain?

False imprisonment element - how do you analyze the is it justified element?

Objective approach. Fact specific.

When is someone not restrained?

When there is a reasonable means of exit

What is not a reasonable means of exit?

When PL does not know about the exit and it is not apparent

When the person will be exposed or material harm will come to their clothing

When there is danger of substantial harm to them

Does PL need to be aware of the restraint for a false imprisonment claim?

Yes

Does fear of losing a job count as as excuse for restraint?

No

Methods of restraint

Actual or apparent physical barriers

Overpowering physical force or submission to physical force

Submission to threats of physical force

Other duress (threats to family)

Asserted legal authority

Who can assert legal authority for restraint?

Anyone

What is a full defense to false arrest

If the person is convicted of the crime they were ‘falsely’ arrested for

Elements for IIED

Intentional (or reckless)

Extreme and outrageous conduct

That causes

Severe emotional distress

Intent requirement for IIED

Intent for the extreme and outrageous conduct

Intent for severe emotional distress

Or recklessness

Intent / reckless analysis for IIED

Purpose for the extreme and outrageous conduct?

Substantial certainty re extreme and outrageous conduct?

Purpose for the emotional distress?

Substantial certainty for the emotional distress?

Disregard for or indifference to the fairly significant consequences?

5 factors to weigh for extreme and outrageous conduct

Relationship of the parties

Abuse of position of power

Known vulnerability of PL

Motivations of Defendant

Repeated or prolonged conduct

IIED - analysis to prove severe emotional distress

conduct, subjective testimony, physical symptoms, objective evidence, expert testimony

Are mere insults enough for IIED?

No

Is it outrageous or extreme to merely illicit intercourse from another?

No

When can a third party make an emotional distress claim?

If there is an intimate family relationship and awareness of the third party being present

or if the conduct was done with the intent to inflict emotional distress on the third party

Intent requirement for trespass to land

Intent to step onto the land

Who has the claim for trespass to land?

The possessor of the land. The owner only has an action for reversionary interest if they do not possess.

Trespass to land elements

Intent to

Enter land in possession of another

or cause a thing or another person to enter the land of another

or remain on the land / overextend the purpose for being on the land

or failure to remove a thing from the land that they are under the duty to remove

Trespass to chattels definition

One without consent or privilege uses or intentionally intermeddles with a chattel which is in the possession of another.

Intent requirement for trespass to chattels

Intent to use or intermeddle

Self defense elements

D has a subjective belief in danger

There are objective circumstances that back the belief in danger

The force used is proportional to the threat

Is there a duty to retreat for self defense?

In common law, yes, unless it is not safe or they are in their own home/area around the home

Modern - no

What does using deadly force in self defense require?

Fearing for one’s life in any way

When can deadly force never be used?

To protect mere property.

If someone is inside a home, this changes things.

Consent analysis steps

Actual consent

Apparent consent

Presumed consent

Sexual consent

Actual consent factors

Did PL have the capacity to consent?

Was the consent free of duress or substantial material mistake?

Was PL subjectively willing for the conduct to occur?

Was the action within the scope of consent?

Actual consent definition

PL in fact was willing to allow the action to occur

Apparent consent elements

Did D subjectively believe PL consented?

Are there objective circumstances to support the belief?

Did D exceed the scope of consent?

Presumed consent elements

D is justified in engaging in the conduct because of prevailing social norms

D has no reason to believe the person would not have consented if consent was requested

Sexual consent rules

Non-consensual sexual contact satisfies the offensiveness requirement of battery

Neither verbal nor physical resistance is required to demonstrate absence of consent

Consent to a specific sexual act does not transfer to another sexual act

Presumed consent - emergency exception - when can a doctor act without express consent?

Patient is unable to give consent

Risk of serious bodily harm if treatment is delayed

A reasonable person would consent under the circumstances

Doctor has no reason to believe that this patient would refuse the treatment under the circumstances

Is it consent if obtained through fraud or deceit?

No

Factors to consider when distinguishing conversion and trespass to chattels

Extent and duration of actor’s control

Actor’s intent to assert a right inconsistent with the other’s right to control

Actor’s good faith

Extent and duration of resulting interference with other’s right to control

Harm done to the chattel

Inconvenience and expense caused to the other person

Conversion definition

An intentional exercise of dominion or control over a chattel which seriously interferes with the right of another to control it

Are ideas subject to legal protection?

Generally, no, but there are exceptions for literary property, scientific investigation, and secret plans for conduct of commerce

Intent requirement for conversion

Intent to exercise dominion or control the chattel

Is mistake a defense for conversion?

No

Ways something can be converted

Acquiring possession of it

Damaging or altering it

Using it

Receiving it from a thief

Disposing of it

Mis-delivering it

Refusing to return it

Can damages be recovered for sentiment alone?

No

Are punitive damages allowed for conversion?

Yes, for malicious conversion only, not innocent

Who can bring a conversion claim

Anyone in possession of a chattel at the time of conversion, even if they were not the owner

Differences in damages between conversion and trespass to chattels

Trespass to chattels requires actual damages

Limits to recovery of property

Fresh pursuit - can’t be delay in pursuit

Make a demand before using force

Reasonable force - no deadly force allowed

Effect of a mistake - no privilege for a mistake unless the mistake was induced by PL

Citizen’s arrest

A citizen may arrest without a warrant to prevent a felony that is being committed or reasonably appears to be committed in his presence

Authority depends on the fact of the crime, citizen takes full risk if no crime has been comitted