Torts: ITs and Defenses

Two types of injuries torts provides redress for:

(1) Bodily injuries;

(2) Injuries to personal or real property.

Tort law

Addresses civil wrongs and provides remedies for harm caused to individuals or their property.

Tort

A civil wrong, not arising in contract, for which the law provides a remedy.

Tort law is influenced by five things:

(1) Moral balance between an innocently injured person and a wrongdoer;

(2) Compensation;

(3) Deterrence;

(4) Redress of social grievances;

(5) Loss distribution

Common law

Law developed through judicial decisions and precedent rather than legislative statutes.

Weaver rule

∆s are liable for their torts, even if it is an accident, unless they are wholly without fault.

Exception to the Weaver rule

If ∆ is being held liable under the doctrine of strict liability, remedy will be granted regardless of fault or intent.

Brown rule

π has the burden of proof to establish ∆’s fault in causing the alleged harm.

Public policy influence over the Brown rule

(1) Ensures both parties are aware of who is responsible for producing evidence to support the claims/defenses;

(2) Determines the burden of proof and risk of failure;

(3) Impacts legal presumptions, settlement discussions, and possibilities of appeals or reversals.

Five types of acts:

(1) Voluntary act

(2) Intentional act

(3) Unintentional act

(4) Involuntary act

(5) Ordinary care

Voluntary act

A conscious, willful action that is under the individual’s control.

Intentional act

The act is performed with a specific purpose or goal in mind; a deliberate choice to perform a certain action.

Unintentional act

Act that occurs without conscious intent.

Involuntary act

Act that happens without conscious control, often due to reflexes or external influences.

Ordinary care

The kind and degree of care that a prudent and cautious person would use.

Spano rule

Under strict liability, ∆s can be held liable in tort without proof of unreasonable conduct or intent.

Four elements of an intentional tort:

(1) Intent

(2) Act

(3) Causation

(4) Injury

Two types of intent:

(1) General intent;

(2) Specific intent.

General intent

∆ had knowledge to a substantial certainty that such harm would be caused by his actions.

Even if ∆ doesn’t intend to cause actual injury, he is considered to intend what is substantially certain to result from the act(s).

Specific intent

∆ desired to bring about the harm to π.

Intent analysis:

(1) Was ∆’s act voluntary?

(2) Did ∆ have intent to do the act? Which type?

(3) Is there any evidence of transferred intent being at play?

Dailey rule

Children can have intent and are generally liable for their intentional torts (i.e. age doesn’t negate intent to act).

Battaglia rule

∆ is liable for his intentional tort even if the π suffers a bizarre or unanticipated harm.

The intentional tort itself is the injury, the result of the act doesn’t have to be an actual injury or damage.

McGuire rule

Legally insane people are held to the same standard as legally sane people, and will be held liable for their intentional torts (i.e. mental illness doesn’t negate intent to act).

Ranson rule

∆ will be held liable for his intentional tort even if the tort was a good faith mistake (i.e. good faith doesn’t negate intent to act).

Transferred intent

The ability for ∆’s intent to commit a certain act against a certain person to transfer to another type of act or another person so long as it is within the parameters of the rule.

Five transferable intentional torts:

(1) Battery

(2) Assault

(3) False imprisonment

(4) Trespass to land

(5) Trespass to chattel

Transferred intent analysis:

(1) Does ∆ commit one of the five transferable intentional torts? AND

(2)(a) Does a harm result to a person not the intended person?

(2)(b) Does a different harm result to the intended person?

(2)(c) Does a different harm result to a different person?

Altieri rule

Intent will be transferred if the ∆ harms another person, even if that person is unforeseeable.

Battery analysis:

(1) Intent

(2) To cause

(3) Harmful or offensive contact

(4) Directly or indirectly

(5) To another person.

Two types of contact:

(1) Harmful contact

(2) Offensive contact

Harmful contact

Bodily contact resulting in any physical impairment of the condition of another’s body or physical pain or illness.

Offensive contact

Bodily contact offending a reasonable sense of personal dignity.

Wallace rule

An action for battery cannot be sustained in circumstances where there are reasonably unavoidable amounts of contact.

Fisher rule

∆ is liable for damages for an intentional offensive touching of anything connected with another individual.

Assault analysis:

(1) Intent

(2) To cause

(3) Apprehension or fear

(4) Of imminent harmful or offensive contact (i.e. BATTERY)

Western Union rule

Mere words, no matter how threatening do not constitute assault.

Assault needs both an action from ∆ and a reaction by π.

Assault depends on ∆’s apparent ability to carry out a battery, not his actual ability.

False imprisonment analysis:

(1) Intent to confine another or others within boundaries fixed by himself.

(2) Act directly or indirectly resulting in the confinement of another.

(3) Person confined was aware of the confinement OR harmed by it.

General rule (False imprisonment)

Moral persuasion or pressure from ∆ is insufficient to constitute force or threat of force.

Big Town Nursing rule

The time and space of confinement are not relevant to the tort, but are relevant in damages.

Exception to the Big Town Nursing rule

False imprisonment may not be satisfied if the person was confined to a country or continent.

Parvi rule

Prong 3 of false imprisonment analysis.

Hardy rule

If someone is free to leave, false imprisonment does not arise.

Exception to the Hardy rule

If the evidence shows that π felt compelled to stay, it will constitute false imprisonment.

Enright rule

∆ police officer will be held liable for false imprisonment if the π is convicted of a different crime than what he was arrested for.

Shopkeeper’s privilege

A shopkeeper is allowed to detain a shopper for reasonable investigation if he reasonably believes the shopper has stolen store property or goods.

Trespass to land analysis:

(1) Intent; AND

(2)(a) To enter land in the possession of another, or cause a thing or third person to do so.

(2)(b) To remain on the land of another.

(2)(c) Failed to remove from the land something he was under a duty to remove.

General rule (Trespass to land)

Nominal damages are available for trespass to land actions.

Nominal damages

A small amount of money awarded to a π in a lawsuit to show he was right but suffered no substantial harm.

Dougherty rule

The harm of trespass is entering the land, so π doesn’t need to show actual damages beyond the trespass.

Doesn’t matter if ∆ mistakenly believed that he walked on his land.

Herrin rule

An owner’s right to the land extends upward to the sky to a reasonable extent.

Rogers rule

Prong (2)(b)

Performing an action which caused tangible entry onto the land can qualify as entry onto the land.

Tangible

∆ entered the land, but there was a physical remnant of the entry that remained on the land.

Bradley rule

Chemical deposits can qualify as trespass to land only if there is actual damage (i.e. exception to the nominal damages rule).

Trespass to chattel analysis:

(1) Intent to;

(2)(a) Dispossess π of the chattel; OR

(2)(b) Impair the chattel as to its condition, quality or value; OR

(2)(c) Deprive π of the use of the chattel for a substantial time; OR

(2)(d) Cause harm to π or the chattel which π had a legally protected interest?

Glidden rule

Sometimes children cannot form the requisite intent for trespass to chattel (no hard rule for age for this particular intentional tort).

An action for trespass to chattel cannot be sustained without actual damages.

CompuServe rule

One who intentionally inter-meddles with another’s chattel is subject to liability only if the intermeddling is harmful.

Trespass intermeddling analysis:

(1)(a) Intermeddling was harmful to π’s materially valuable interest in the physical condition, quality or value of the chattel; OR

(1)(b) π was deprived of the use for a substantial time; OR

(1)(c) π’s legally protected interest was affected.

Conversion analysis:

(1) Intent;

(2) To exercise dominion or control over the chattel;

(3) That seriously interferes with π’s right to control their chattel;

(4) That requires ∆ to justly pay the full value of the chattel.

Six factors for interference:

(1) Extent and duration of ∆’s dominion or control;

(2) ∆’s intent to assert a right-in-fact inconsistent with π’s right of control;

(3) ∆’s good faith;

(4) Extent and duration of the resulting interference;

(5) Harm done to the chattel;

(6) Inconvenience and expense caused to π.

Pearson rule

Conversion is when ∆ treats the chattel as if it were his own.

Nominal damages are usually not available for conversion.

Exception to the Pearson rule

Conversion claims for sentimental/irreplaceable items are likely to get nominal damages.

Intentional infliction of emotional distress analysis:

(1) Intent

(2) To act with extreme and outrageous conduct, beyond human bounds of decency;

(3) Directly resulting in π’s distress;

(4) Which was so severe, going beyond what an average person may endure.

Slocum rule

Mere words alone can be enough to satisfy IIED if they are calculated to cause severe emotional distress.

Taylor rule

A third party can sue for IIED, but ∆ must know that they are on-the-scene.

Consent analysis:

(1) Did π give ∆ permission to commit the tort?

Koffman rule

Sovereign immunity applies to consent (i.e. π cannot sue the government unless it allows itself to be sued).

Mohr rule

Consent must be given in the medical field.

Exception to the Mohr rule

Consent may be implied if (1) an injured π is suffering and needs immediate medical attention, (2) a reasonable person would consent in the circumstances, and (3) ∆ has no reason to believe π would not consent.

De May rule

Fraud always invalidates consent.

Self-defense analysis:

(1) Reasonable belief that infliction of intentional contact or other bodily harm is imminent (i.e. BATTERY ONLY);

(2) Person was put in peril of death or serious bodily harm which can safely be prevented only by the immediate use of such force.

Self-defense

Provides a person with the privilege to use reasonable force to defend against a threatened battery.

Exception to self-defense

An initial aggressor cannot use self-defense (unless he has retreated OR communicated his intent to abandon the altercation).

If the actor reasonably believes he can avoid the necessity of defense by retreating into any place other than his own dwelling.

Actor avoids the necessity of defense by relinquishing the rights and privileges he has other than the privilege to prevent intrusion or dispossession of his dwelling place, or to effect a lawful arrest.

Poliak rule

Mere words alone are insufficient, an act must be present.

Deadly force can only be used if it is reasonable and proportionate to the tort being committed or about to be committed.

Four factors for amount of force:

(1) Amount of force;

(2) Means or the object;

(3) Manner or method;

(4) Surrounding circumstances

Defense of others analysis:

(1) ∆ reasonably believed the other person would have used self-defense to protect himself from the immediate threat of harm.

Defense of real property analysis:

(1) π trespassed onto ∆’s property;

(2) ∆ reasonably believed the force used on π was necessary;

(3) ∆ first asked π to leave and π refused, OR ∆ reasonably believed such attempt would have been useless or caused substantial harm.

Katko rule

Deadly force cannot be used when the homeowner is not in the home.

Defense and recovery of personal property analysis:

(1) Recovery was done without unnecessary violence or breach of the peace.

Hodgden rule

∆ can use force if it is reasonable within the circumstances.

Donkowski rule

A merchant must (1) reasonably believe a shopper took the chattel unlawfully, (2) the retaking must occur immediately after the dispossession, and (3) the retaking is done without violence and breach of peace.

Necessity analysis:

(1) Intentional tort was trespass to land, trespass to chattel, or conversion;

(2) ∆ sought to prevent a threatened injury/harm from some force of nature OR independent cause not connected with π.

Necessity

Allows a person to interfere with property of another where it is reasonably and apparently necessary to avoid threatened injury from a natural or other force, and where the threatened injury is substantially more serious than the invasion that seeks to avert it.

Two types of necessity defenses:

(1) Public necessity;

(2) Private necessity.

Public necessity

Protects the community from greater harm, and is a complete bar for liability.

Private necessity

Protects an individual’s own interests, and is an incomplete bar to liability.

Vincent rule

Necessity trumps the landowner’s right to exclude from his property, but ∆ still pays for the actual harm caused to the property when exercising private necessity defense.

Surocco rule

Anyone can assert the defense of public necessity.

Justification

A privilege that protects ∆ from liability only if the acts are done for the purpose of protecting or advancing the interest in question.