Master Set: Intentional Torts

How many intentional torts are there and what are they?

BAF ITTC
Battery, Assault, False Imprisonment, IIED, Trespass, Trespass to Chattels, Conversion

True or false: Transferred intent applies to both intentional torts and non-intentional torts.

False. Only intentional (transferred INTENT).

What is transferred intent?

When someone intends to harm one person, but actually harms another, making the defendant guilty of the same crime as if the intended victim had been hurt

Define bodily harm in Assault or Battery 

Physical impairment of the human body (physical injury, illness, disease, impairment, death)

Under a dual intent jurisdiction, is intent to cause battery subjective or objective?

Subjective, but up to fact-finder to determine subjective state of mind of Defendant

Define offensive contact in Assault or Battery

1. Offensive to a reasonable sense of personal dignity OR

2. Is highly offensive to the plaintiff’s particular sensitivities and the defendant knows about those sensitivities
   (Liability won’t be imposed for 2 if it requires actor to do something unduly burdensome to avoid contact)

What interests does Battery protect?

Bodily integrity and autonomy

Does battery actually create contact from the actor on the victim?

Yes

Per Restatement 3rd, the elements of battery are:

1. Intends to have contact

2. Contact causes bodily harm or is offensive

3. Actor doesn’t provide consent

Jack bumped Dave on the subway while rushing to his seat. Battery?

No. Crowded World Theory or Implied in Law/Constructive Consent.

How does the Restatement 3rd change Battery?

Shifts burden of proof for consent.
Restatement 2nd: D needs to prove P gave consent.
Restatement 3rd: P needs to prove no consent was given.

Battery: Single Intent Jurisdiction

Only requires intent of contact followed by harmful/offensive contact occurring
Does not require knowledge of contact

Battery: Dual Intent

Requires intent to cause contact AND knowing the resulting contact will be harmful or offensive

True or false: Intent to cause future bodily injury by setting events in motion still counts as battery.

True

What is mistaken intent? Does it negate intent?

No. the actor intends the contact, but is mistaken about some fact (e.g. mistaken identity)

As established, battery requires intent of contact (both in single and dual intent jurisdictions). Is reckless conduct enough to form the intent for battery? Provide an example hypothetical.

No. For example, Jack throws a baseball towards a group believing he won’t hit anyone. He’s acting recklessly, but not with intent for battery because they’re not acting with substantial certainty that the harm will result.

True or false: The occurrence of battery guarantees occurrence of assault. Provide an example.

False. Jack slaps James while he’s sleeping. Battery, but not assault.

What societal interest does Assault protect?

Mental tranquility

Under the Restatement 3rd, an actor is subject to liability for ASSAULT if…

1. The actor intends the other to anticipate an imminent, and harmful or offensive contact, with his or her person

2. The other doesn’t consent

True or false: Words alone DON’T mean assault.

True

Jack saw James is about to slap him in the face, but wasn’t afraid. Assault?

Yes, no need for fear. Only anticipation of contact.

Why are threats for future contact not assault?

Not imminent

Defendant threatens to hurt someone else to force you to act. Assault?

No

Alex points a gun at Blake’s child and says to Blake, “Give me your wallet or I’ll shoot your kid.” Blake is terrified. Assault?

No. Blake is not anticipating imminent contact with Blake’s own body, so Blake has no assault claim.

2nd Restatement vs 3rd Restatement: What’s the difference for assault?

Crowded World Theory & Anticipation rather than fear

False imprisonment requires…

Intent to confine (even if intent is pure)
WITHOUT consent of the victim
Victim is aware of the confinement OR suffers bodily harm as result of the confinement

For False Imprisonment §8, what is a confinement?

Physical barriers that preclude, or appear to preclude, the other from exiting confinement

Unaware of a known, safe, reasonable means of exit

Actor employs physical force/threat and other submits to force rather than exiting

OR the other submits to the actor's assertion of legal authority

When is assertion of legal authority legally justified for confinement?

Determined by privilege:
Police officers
Airline pilots

Need to determine if there was a duty to let them go

For False Imprisonment, it’s not required to take a known escape if it’s offensive to a reasonable sense of personal dignity by either harm to the victim or their chattels. Why?

To protect the victim's autonomy and physical security

Avoiding liability to third parties

True or false: Confinement can be in entire state.

True

True or false: Confinement can be in the entire USA.

False

How does duress work in False Imprisonment?

Defendant takes something from Plaintiff and says “You must come with me”

Does amount of time in false imprisonment matter?

No. Only for damages.

What are the elements of Intentional Infliction of Emotional Distress

1. Voluntary Extreme and Outrageous Conduct

2. Intentional or Reckless Causation

3. Severe Emotional Harm

Is transferred intent allowed for IIED?

No

What is extreme or outrageous conduct?

Conduct that rises beyond what’s tolerable within society (where an average person would exclaim, “Outrageous!”

Are mere insults extreme or outrageous conduct?

No

To prove IIED, you typically will need…

a testifying psych or therapist

What factors should be considered when determining E/O conduct? Do these factors lead to a lower standard or higher standard for proving IIED?

Employment supervisor

Situation with knowledge

Common carrier (e.g. trains buses, or airplanes) for profit

Lower standard (people under tunnel may say “F you” and there’s no liability there, but employer may be held to a higher standard)

Is intent to cause assault subjective or objective?

Subjective, but up to fact-finder to determine subjective state of mind of Defendant

What’s the main difference between IIED and NIED?

IIED is intentional. NIED is negligent.

What’s the bystander rule for IIED for immediate family members?

Bystander must be physically present and experience severe emotional distress (SED) caused by act/conduct on the victim. Bodily harm is not required.

What’s the bystander rule for IIED for anyone/non-family members?

Bystander must experience bodily harm

True or false: The intent required for any intentional tort, including IIED, is fundamentally subjective. Subjectiveness is determined by the fact finder.

True

Defendant walks up with a gun to Mr. B. Mr. B is trembling with his daughter next to him. Mr. B started experiencing sleepless nights and severe emotional distress. Likewise, his daughter experiences severe emotional distress. Mr. A says, "I never intended to cause severe emotional distress to your daughter or yourself. I just wanted to play a prank on you to light up your day." IIED? Consider the subjectiveness.

Subjectively, Defendant didn’t mean to cause harm. But intent can be established by acting with knowledge that the consequence is substantially certain to result.
Fact-finder likely finds extreme and outrageous conduct (recklessness).
IIED liability established for both Mr. B and his daughter.

Can battery be established through reckless conduct or just intent?

Only intent

True or false: For intentional torts, intent can be established by…

the actor's purpose
Acting with knowledge that the consequence is substantially certain to result

What’s the difference between Trespass to Land and Trespass to Chattels?

To land is for real property. Chattels is personal property.

Who can sue for trespass to land?

Whoever has possession of the property (tenant in rented properties)

Tenant is in possession of property. What can the landlord sue for?

For damages - trespass to chattels 

What are the elements of Trespass to Land?

The actor must intend to:

1. Make physical contact with the land;

2. Remain on the land; or

3. Cause a tangible thing or person to make contact with or remain on the land.

Mr. A is walking down the sidewalk staring at his phone. The sidewalk takes a sudden curve, but Mr. A is continuing to stare at his phone. Mr. A looks up and ends up on Jack’s land. Trespass?

No, there was no intent.

What are nuisance torts?

Intangible torts: Loud music, bright lights, pollution

What does Trespass to Chattels address?

Intentional harm done to tangible property

What are the elements of Trespass to Chattels?

Voluntary act

Intent to perform the act (of intermeddling or temporary dispossession)

Causation

Damages

In Trespass to Chattels, what damages are allowed for Intermeddling?

Actual damages allowed only for the physical harm to the chattels

In Trespass to Chattels, what damages are allowed for Dispossession?

Actual damages for harm caused and loss of use. No nominal damages allowed.

In essence, what is Conversion?

Forced sale

What are the elements of Conversion?

Voluntary act

Intent to perform the act

Exercise control over property that is not yours

Professor confiscates Jack’s cell phone permanently. What tort is Professor liable for and why?

Conversion. It’s a forced sale.

Professor confiscates Student A's cell phone for the rest of the semester. What tort is Professor liable for and why?

Trespass to chattels. Temporary dispossession of the property.

Student sends terabytes of harmful files to their school. What tort is Student liable for and why?

Intermeddling. Substantial interference.

True or false: Intermeddling needs substantial interference.

True

For conversion, the damages awarded are for the fair market value of the item and the Defendant receives title to the item (forced sale). What damages are awarded for valueless chattels?

Parasitic damages

What are methods of committing Conversion?

DRUMS RAD

D – Damaging
R – Receiving
U – Using
M – Mis-delivery
S – Stealing
S – Refusal of Surrender
A – Altering
D – Discarding

How could someone be liable for conversion even though they may not be subjectively at fault for the conversion? What’s the exception to this rule?

1. Purchasing goods without knowing they were converted - you can’t obtain title of goods from a seller (thief) who doesn’t have title.

Exception: if the goods were obtained by FRAUD, the seller/thief has title and can transfer the title to the purchaser.

2. Delivery guy mis-delivers in good faith - still conversion

1. Embittered Defendant steals his ex-girlfriend’s car and drives it into a lake. What tort?

2. Embittered Defendant hits the hood of her car once with a hammer, causing a large dent. What tort?

1. Conversion

2. Trepass to Chattels

Consent is a defense for intentional torts. How can one consent?

Express

Implied in fact

Implied in law

Emergency doctrine (unconscious patient)

Ms. A showed her arm to a surgeon in a vaccination line.
The surgeon stated there was no mark and she should be vaccinated.
Ms. A says, “I have been vaccinated before without a mark.”
Surgeon says nothing and proceeded to vaccinate her.
Ms. A held up her arm without objection.
Consent defense to battery? Why?

Plaintiff's open actions and manifestations of consent to vaccination were sufficient for the surgeon to reasonably believe she consented

Does consent apply here?
Doctor is asked to perform exploratory surgery and suddenly decides to remove a tumor.

No

Mr. A fails to disclose he has HIV. Mr. B consents. Is consent valid here? Why?

No, “substantial mistake”

True or false: Consent is not valid for persons in power (e.g. prison or workplace), mistake, or when given by children, undue influence, or mental incapacity.

True

What is Explicit Consent?

Spoken or written consent

What is Inferred/Implied Actual Consent?

A reasonable person would comprehend the conduct as consent, and the Plaintiff actually wanted to consent in their mind.

What is Apparent Consent?

A reasonable person would comprehend the conduct as consent, but the Plaintiffs’ subjective mental state is ignored.

A college student starts playing basketball on the field. What type of consent is this and why?

Implied consent. Their action matches with what they’re consenting to.

A nurse begins to take a patient's blood pressure. The patient offers their arm but has never encountered the procedure before and internally objects. What type of Consent defense should the nurse rely on and why?

Apparent consent. They had no reason to know the patient objected.

Patient said “Don’t cut off my hand” and Doctor says, “I’ll do whatever is medically necessary.” The patient says nothing in response. Battery? Any consent defense?

Yes, battery. No consent defense. A reasonable person wouldn’t comprehend silence as consent, especially considering her earlier statement.

With Constructive Consent or Implied in Law, consent is implied due to…

existing in society; Crowded World Theory

What is the Emergency Doctrine?

Allows consent as a defense for Defendant when there is no time to obtain consent due to a serious medical emergency and there is no reason to believe that P would not consent

With the Emergency Doctrine, how can consent be implied?

1. Patient is unconscious

2. Risk of serious bodily harm or death if treatment is delayed;

3. A reasonable person would consent; and

4. The physician has no reason to believe that the patient would refuse treatment (e.g. documents on file with the hospital)

Plaintiff fails to ask something that would’ve impacted the Defendant’s consent. Is consent canceled?

Yes, by Failure to Disclose.

Is consent valid for Criminal Acts under the Restatement 3rd?

Yes, but it’s limited. Consent is invalid where the law seeks to protect members of victim’s class.

16 year old tells Bartender, “Please give me beer. I consent to drinking.” Bartender hands over the beer bottle. Liability under Restatement?

Yes, protected class

When can Self Defense be used?

When a person reasonably believes the force is necessary
Believing that he is being or is about to be attacked

True or false: Force must be in proportion/reasonably necessary.

True

Which Restatements cover self defense defensive force?

§22-§26

Is Self Defense objective or subjective?

Subjective view based on D’s point of view at the time, but a reasonable person must’ve thought of self defense

Defendant acts in self defense, but uses more force than necessary. Can he raise the privilege of self-defense?

No

When can deadly force be used in self defense generally?

The other is about to intentionally inflict deadly force or serious bodily injury, and it can only be prevented by deadly force

In self defense, the other person needs to intend infliction of force. Consider this hypothetical:

Mr. A has always been friends with Mr. B. One day, Mr. A thinks he should play a prank on Mr. B. Mr. A walks up with a gun pointed at Mr. B while smiling. Mr. B sees him with a gun and shoots him dead immediately. After the criminal proceedings, it's found that Mr. A texted Mr. C that "I'll obviously have no intent to harm him. Just want to play an April Fools joke."

Valid self defense?

No, Mr. B reasonably believed imminent harm

When can deadly force be used in self defense during a burglary?

Tenant is put in bodily harm that can only safely be prevented by deadly force

Under common law, when your home is being burglarized, do you have to retreat?

If completely safe to do so, yes. If not, no.

Under Stand Your Ground Laws (whether at home or in public), do you have to retreat?

No

You’re put in danger in public. Do you have to retreat?

Under California law, no.
Under common law, yes.

Can you defend someone else, even if you mistakenly help the initial aggressor or subdue the initial victim?

Yes

What type of force can be used to defend property?

First a warning if possible, then “reasonable force.” Never deadly force unless physically threatened.

When defending property, can you threaten harmful or offensive contact, including death?

Can threaten, but not use

True or false:
You can engage in conduct that satisfies elements of battery, assault, IIED, or false imprisonment to defend land.
Alarm systems and electric fences can be used to protect property, but not spring guns.
Warnings must be given when feasible.

True, Restatement § 31

Can you commit an intentional tort to recover real property?

No, you should go to court