Intentional Torts

Intent, Battery, Assault, False Imprisonment, IIED, Trespass to land, Trespass to Chattels, Converison

What does “intent” mean for purposes of intentional torts under Restatement (Second) of Torts § 8A?

A defendant acts intentionally when the defendant performs a volitional act either:

1. for the purpose of causing the legally relevant consequence, OR

2. with knowledge that the consequence is substantially certain to occur.

Purpose OR Substantial Certainty = Intent

How is “substantial certainty” different from negligence or recklessness?

The difference concerns the defendant's level of knowledge.

If D merely knows there is a risk or possibility that the consequence will occur, that generally points toward negligence or recklessness.

Intent requires something considerably stronger: D knows the consequence is substantially certain to occur.

Does intent require a bad motive or a desire to injure someone?

No.

Intent and motive are different.

Intent asks whether D intended the legally relevant consequence or knew it was substantially certain.

Motive asks why D acted.

A defendant can therefore act with good intentions, bad intentions, or no hostility at all and still possess the intent necessary for an intentional tort.

What happened in Garratt v. Dailey?

Five-year-old Brian Dailey moved a lawn chair as Ruth Garratt was about to sit down. Garratt fell and was injured. The major issue was not simply whether Brian physically moved the chair - he obviously did - but whether he knew with substantial certainty that Garratt would attempt to sit where the chair had been and therefore fall/contact the ground.

Why was Brian's young age important in Garratt v. Dailey, and did being a child automatically prevent intent?

His age mattered because the court had to determine what Brian actually knew, particularly whether this five-year-old understood with substantial certainty what would happen when he moved the chair.

But being a child did not automatically eliminate intent.

Brian wants Garratt to fall but does NOT want her to be injured. Can intent exist?

Yes.

If Brian acts for the purpose of causing the relevant contact - such as causing Garratt to fall and contact the ground - intent can exist.

He does not also need to desire her physical injury.

Brian hopes Garratt will fall but believes she will notice what he is doing and catch herself. Is intent established?

This is more difficult.

If Brian merely hopes she will fall but does not act with the purpose of causing the fall and does not believe it is substantially certain, the substantial-certainty route has not been established. Intent cannot simply be inferred because D recognizes that something could happen.

Brian has decided to pull the chair away, but before he does so another child pushes him and he accidentally knocks the chair over. Has Brian committed the intentional act?

No, not on those facts.

Brian may have formed the mental intent, but the movement that actually removed the chair was not his intended, volitional act - it resulted from being pushed.

Intentional tort liability generally requires the relevant volitional act + intent.

What is the difference between the single-intent and dual-intent approaches to battery?

Single intent — majority: D must intend the contact that the law regards as harmful or offensive; D does not separately have to intend harm or offense.

Dual intent — minority: D must intend the contact AND intend that the contact harm or offend P.

Why does the single-versus-dual-intent distinction matter practically?

Because the same intentional physical act could produce different results depending on which rule the jurisdiction follows.

Suppose D deliberately makes contact with P but genuinely lacks any intent to harm or offend.

Under single intent, D can potentially be liable if the intended contact turns out to be legally harmful/offensive.

Under dual intent, liability may fail because D did not also intend the harmful/offensive nature of the contact.

So dual intent requires an additional mental-state showing.

What happened in Wagner v. State?

Wagner was attacked in a public place by a mentally disabled man, Giese, who unexpectedly grabbed her from behind and threw her to the ground. The litigation involved Utah's governmental-immunity framework and required the Utah Supreme Court to determine whether Giese's conduct constituted battery, which brought the court directly into the question of what intent battery requires.

What happened in McGuire v. Almy?

Almy, who suffered from serious mental illness, was confined in her home and cared for by a nurse, McGuire. During an episode, Almy became violent and threatened to kill anyone who entered. McGuire entered the room while trying to care for her, and Almy struck McGuire with a piece of furniture, causing injury.

Can a person suffering from severe mental illness possess the intent necessary for an intentional tort?

The court concluded that mental illness does not automatically immunize a person from tort liability.

What general rule concerning mental illness does McGuire v. Almy establish?

“[A]n insane person is liable for his torts.”

But that does not mean intent disappears as an element.

If a tort requires a particular intent, the mentally ill defendant, to be found guilty of the tort, must still have been capable of forming that intent and actually formed it. Once that intent exists, the law generally does not excuse the defendant merely because mental illness or delusion caused the defendant to form it

Suppose a mentally ill person intentionally strikes a nurse because she genuinely believes the nurse is trying to kill her. Does the delusion necessarily eliminate intent?

No.

The delusion may explain why she struck the nurse, but if she deliberately struck the nurse, she nevertheless intended the contact. The delusional motive generally does not erase an intent that actually existed.

How do Garratt and McGuire together demonstrate the subjective nature of intent?

Both cases ask what this particular defendant actually intended or knew, rather than what a reasonable person would have intended or known. This is a SUBJECTIVE standard. That distinguishes intentional tort analysis from negligence's usual reasonable-person objective inquiry.

What happened in Talmage v. Smith?

Smith discovered boys on sheds on his property and ordered them down. He then threw a stick toward one of the boys. Instead of striking the boy Smith intended to hit, the stick struck Talmage, another boy, in the eye and caused a serious injury. Smith argued, in substance, that he had not intended to hit Talmage.

What is the doctrine of transferred intent?

Intent can transfer when D intends one of the traditional intentional torts covered by the doctrine but instead accomplishes another covered intentional tort or injures a different person.

The law essentially carries D's original tortious intent over to the resulting covered tort.

Which five intentional torts are traditionally subject to transferred intent?

• Battery

• Assault

• False imprisonment

• Trespass to land

• Trespass to chattels

These correspond to the traditional torts associated with the old trespass writ.

Why was Smith's argument that he did not intend to hit Talmage insufficient in Talmage v. Smith?

Because Smith's intentional-tort intent could transfer from the intended victim to the actual victim.

If Smith possessed the necessary intent toward one boy, accidentally hitting Talmage instead did not transform the resulting contact into mere negligence.

His original intent follows the act to the unintended victim.

Suppose Smith threw the stick intending NOT to hit anyone, but merely to make one boy fear being hit. The stick accidentally hits Talmage. Can transferred intent apply?

Yes, potentially.

If Smith intended to create the apprehension required for assault, he intended one of the five torts subject to transferred intent. If his act instead caused a battery against Talmage, the assault intent can transfer:

intended assault → completed battery

Why is transferred intent conceptually fair even though D did not intend the exact injury that occurred?

Because D already chose to engage in conduct with the intent necessary to commit a recognized intentional tort.

The doctrine generally places the risk of the act going differently than planned on the intentional wrongdoer, rather than on the innocent person who unexpectedly suffers the consequence.

What happened in Ranson v. Kitner?

The defendants were hunting wolves when they encountered an animal that they honestly and reasonably believed was a wolf. They deliberately shot and killed it. Unfortunately, it was actually Kitner's dog. Although the hunters were genuinely mistaken about the animal's identity, they intentionally performed the act: they meant to shoot that particular animal.

What is the main rule illustrated by Ranson v. Kitner?

Mistake and good faith generally do not negate intent. The defendants mistakenly believed the dog was a wolf, but they did not accidentally shoot it. Their mistake concerned what the animal was, not whether they intended their physical conduct toward it.

What is the difference between “mistake” and “accident” for purposes of intent?

Mistake: D intentionally acts upon the object/person but is wrong about some relevant fact.

Example: Ranson — “I deliberately shot that animal but mistakenly believed it was a wolf.”

Accident: D did not intend the relevant interference/contact at all.

Example: “My gun unexpectedly discharged and the bullet hit the dog.”

How could the facts of Ranson v. Kitner be changed so the case concerns negligence rather than mistake?

Suppose the hunters intentionally shoot at a wolf but carelessly fail to notice Kitner's dog standing nearby. Their bullet misses the wolf and accidentally strikes the dog. They did not intend to shoot the dog and were not merely mistaken about the identity of the animal they deliberately shot. Instead, the question becomes whether they failed to exercise reasonable care in firing the weapon.

What question should you ask first when an exam hypothetical raises intentional-tort intent?

• What consequence did D purposefully seek, or what consequence did D know was substantially certain to occur?

• Single/dual intent? → Wagner

• Mental incapacity? → McGuire

• Wrong victim/tort? → transferred intent, Talmage

• Mistake? → Ranson

D intentionally shoves A because, due to a delusion, D thinks A is a monster. A ducks, and D's hand instead strikes B. What doctrines from this unit are implicated?

1. Intent: D purposefully attempted the contact.

2. Mental illness — McGuire: The delusion does not necessarily negate intent because D actually intended to strike the person D perceived.

3. Transferred intent — Talmage: D's intent toward A can transfer when the act instead causes battery to B.

What are the basic elements of battery?

Battery requires:

1. Intent — D intends the harmful/offensive contact (subject to the jurisdiction's single/dual-intent approach), and

2. Harmful or offensive contact with P's person.

A battery therefore requires actual contact. The contact need not cause physical injury if it is legally offensive.

What makes bodily contact “harmful” for purposes of battery?

Under Restatement (Second) of Torts § 15, bodily contact is harmful when it causes physical impairment of the condition of another's body, physical pain, or illness.

So battery does not require serious injury. Physical impairment or pain can qualify as harmful contact.

What makes contact “offensive” for purposes of battery?

Under Restatement (Second) of Torts § 19, contact is offensive if it offends a reasonable sense of personal dignity.

This is generally an objective standard.

What happened in Wallace v. Rosen?

During a fire drill at a high school, teacher Ruth Rosen was trying to move students down a stairway. Carol Wallace, the mother of a student, was standing on the stairs. Rosen touched Wallace on the back and told her to move. Wallace alleged that Rosen had pushed her down the stairs and sued for battery.

What major principle does Wallace v. Rosen illustrate about battery?

Not every intentional touching is a battery. Ordinary social life necessarily involves some physical contact. A person is generally understood to consent to the ordinary contacts customary and reasonably necessary to everyday life.

Examples include:

• tapping someone's shoulder to get attention,

• a friendly grasp of an arm,

• ordinary jostling while passing through a crowd.

How does context affect whether a touching is “offensive” under Wallace v. Rosen?

In Wallace, the contact occurred during a fire drill on a crowded school stairway while Rosen was directing people to move. That context matters when determining whether the contact exceeded the ordinary contacts people are expected to tolerate.

What happened in Fisher v. Carrousel Motor Hotel?

Robert Fisher, a Black NASA mathematician, was attending a professional luncheon at the Carrousel Motor Hotel. While Fisher was holding a plate, a hotel employee snatched the plate from Fisher's hand and made a racist statement indicating that Fisher could not be served there. The employee never directly touched Fisher's body.

What major rule does Fisher v. Carrousel Motor Hotel establish about the “contact” requirement of battery?

Battery does not require direct body-to-body contact. Contact can include intentionally touching or taking an object that is so connected with P's body that it is customarily regarded as part of P's person. In Fisher, forcibly snatching the plate from Fisher's hand was sufficient contact.

Why does battery protect certain objects connected to the body as though they were part of the person?

Because battery protects not merely the physical integrity of skin and bones but also a person's bodily autonomy and personal dignity. Certain objects are so closely connected to a person that deliberately interfering with them can carry essentially the same personal affront as directly touching the person's body.

Classic examples include things being held, worn, or otherwise intimately connected with the person.

D intentionally hits P's car with his fist while P is sitting inside it. Is that necessarily battery under Fisher?

Not necessarily.

The question is whether the car is sufficiently connected to P's person that striking it constitutes contact with P.

Merely being inside an object does not automatically make every part of that object an extension of the body. Fisher therefore requires analysis of the nature and closeness of the object's connection to P.

D intentionally pokes P's horse with a stick while P is riding the horse. Could that satisfy battery's contact requirement?

Potentially, yes.

Because P is physically riding and connected to the horse, intentionally striking or manipulating the horse may constitute contact with something sufficiently connected to P's person.

What are the elements of assault?

Assault generally requires:

1. An intentional act by D

2. Intended to cause P to anticipate/apprehend imminent harmful or offensive contact

3. Which actually causes P to experience that apprehension

4. While D has at least the apparent ability to carry out the contact.

Importantly, contact does not actually have to occur.

What does it mean to say that assault is a “dual-intent” tort under the Restatement?

D must intend:

1. to cause P to anticipate/apprehend imminent contact, and

2. that the anticipated contact be harmful or offensive.

Does “apprehension” in assault mean that P must be afraid of D?

No. Apprehension means anticipation or awareness, not fear. P must perceive that harmful or offensive contact is about to occur. A physically powerful plaintiff who knows she can easily defeat D can still experience apprehension because she recognizes the threatened contact is imminent.

Must P's apprehension of imminent contact be reasonable to establish assault?

Under the majority approach, no.

The focus is on whether P actually apprehended imminent harmful or offensive contact.

Thus, an unreasonable apprehension does not automatically defeat assault if D intentionally caused the required anticipation.

Why must the threatened harmful or offensive contact be “imminent” for assault?

Assault protects against the immediate anticipation of unwanted contact - not anxiety about something that might happen at some indefinite future time.

“I'm going to punch you right now.” → potentially imminent.

“I'm going to punch you next month.” → generally not assault.

What does assault's “apparent ability” requirement in assault mean?

D does not necessarily need the actual ability to complete the threatened contact. D must at least appear capable of doing so from P's perspective.

For example, if D points what reasonably appears to P to be a loaded gun and intentionally causes P to anticipate being shot, the fact that the gun is secretly unloaded does not necessarily defeat assault.

Can words alone constitute assault?

Under the modern approach, yes—words can be sufficient.

The traditional shorthand that “words alone cannot constitute assault” is too absolute.

The real question is whether D's words and surrounding circumstances intentionally cause P to apprehend imminent harmful or offensive contact.

How do conditional threats affect assault liability?

A conditional statement does not automatically prevent assault.

Compare:

“Give me your wallet or I'll hit you right now.”
→ potentially assault because the threatened contact is immediate if the condition is refused.

“If I see you here next week, I'll hit you.”
→ ordinarily not assault now because the threatened contact is not imminent.

The condition must therefore be analyzed together with imminence.

What happened in Western Union Telegraph Co. v. Hill?

Mrs. Hill went to a Western Union office. The employee behind the counter, Sapp, allegedly made sexually inappropriate remarks to her and attempted to reach across the counter toward her in an effort to touch her. The physical arrangement of the counter raised a question about whether Sapp could actually reach Hill.

Why did Sapp's ability to reach across the counter matter in Western Union v. Hill?

Because assault requires at least an apparent present ability to carry out the threatened contact.

If the physical arrangement made it obvious that Sapp could not possibly reach Hill, her perception of an imminent touching becomes more difficult to establish.

How can battery occur without assault?

When P experiences harmful/offensive contact without anticipating it beforehand.

Example: D sneaks up behind P and deliberately punches P. P never sees the punch coming.

D angrily reaches toward a plate P is holding, P sees D coming and expects D to snatch it, and D then grabs the plate. What torts should you analyze?

Both assault and battery.

Assault: P saw D reaching and anticipated the imminent offensive contact.

Battery: Under Fisher, deliberately grabbing an object held by P can constitute contact with P's person if the object is sufficiently connected to P.

What are the basic elements of false imprisonment?

False imprisonment occurs when D:

1. Intentionally acts or fails to act where D has a duty to act,

2. Uses force or threat of force or another legally sufficient means of confinement,

3. Thereby causes P's unlawful restraint or confinement, and

4. Confines P within a bounded area.

Depending on the jurisdiction, P generally must also be aware of the confinement when it occurs or suffer actual harm from it.

What does it mean for P to be confined within a “bounded area”?

P's freedom of movement must be restricted in all relevant directions. False imprisonment is not established merely because D prevents P from going one particular direction if P remains free to leave another reasonable way.

The boundaries need not be physical walls. They can be created through:

• physical barriers,

• physical force,

• threats,

• asserted legal authority, or

• other legally sufficient means of restraint.

Is the “reasonable means of escape” inquiry in false imprisonment subjective or objective?

Primarily objective. An available exit defeats confinement only if it is a reasonable means of escape under the circumstances. But there is also a subjective knowledge requirement: P generally must know the escape route exists.

So a hidden unlocked back door generally does not defeat false imprisonment if P has no idea it is there.

What happened in Big Town Nursing Home, Inc. v. Newman?

Newman, an elderly man, entered Big Town Nursing Home voluntarily. He soon decided he wanted to leave. The nursing home refused to allow him to leave, took and withheld his clothing, and confined him against his wishes. Newman made repeated attempts to escape before eventually succeeding. He sued the nursing home for false imprisonment.

What major principle does Big Town Nursing Home v. Newman illustrate?

Voluntarily entering a place does not equal consent to remain there indefinitely. Newman voluntarily entered the nursing home, but once he wanted to leave, the nursing home's intentional refusal to permit him to do so could constitute false imprisonment.\

Consent to enter ≠ consent to continued confinement.

Why is the “unlawful” part of unlawful confinement important in false imprisonment?

Because not every intentional confinement is tortious.

Confinement may sometimes be legally privileged or otherwise authorized.

Therefore, identifying physical confinement is only part of the analysis. You must also ask whether D had legal authority or privilege to restrain P.

What happened in Parvi v. City of Kingston?

Police officers encountered Parvi and others who appeared intoxicated. Rather than arresting them, the officers transported them outside the city and left them near an abandoned golf course. Parvi later wandered onto a highway and was struck by a vehicle. A key false-imprisonment issue was that Parvi could not later remember the police transporting and confining him.

What does Parvi v. City of Kingston teach about awareness in false imprisonment?

In jurisdictions requiring awareness, P must be conscious of the confinement at the time it occurs. But P does not necessarily need to remember it afterward. A person can therefore experience false imprisonment and subsequently lose all memory of the event.

Can an unconscious person be falsely imprisoned?

Under the Restatement approach, an unconscious person who is unaware of the confinement and suffers no actual harm from it generally cannot recover for false imprisonment. But awareness is not the only possible route: actual harm caused by the confinement can substitute for contemporaneous awareness.

What happened in Hardy v. LaBelle's Distributing Co.?

Hardy, an employee of LaBelle's, was suspected of theft. Company employees asked her to accompany them to an office, where she was questioned about the suspected theft. Hardy later claimed that she had been falsely imprisoned during the questioning. The evidence, however, indicated that she had voluntarily accompanied the employees, was not physically restrained, and was not subjected to threats sufficient to prevent her from leaving.

What major rule does Hardy v. LaBelle's establish about force or threats in false imprisonment?

Mere “moral persuasion” is not enough to constitute confinement. A person can feel:

• uncomfortable,

• pressured,

• embarrassed,

• obligated,

• or reluctant to leave

without being legally confined. False imprisonment requires something more than the feeling that “I probably shouldn't leave.”

What is the difference between duress and mere moral persuasion for false imprisonment?

Moral persuasion pressures P to stay but leaves P with a meaningful choice to leave.

Duress involves sufficiently coercive pressure that P's apparent choice to remain is not meaningfully voluntary.

Can taking or withholding P's property constitute a means of false imprisonment?

Potentially, depending on the circumstances.

Taking property may effectively confine someone if the property is sufficiently important that P cannot reasonably be expected to leave without it. But seizing property does not automatically equal confinement.

What happened in Enright v. Groves?

A police officer encountered Enright with her dog and demanded that she produce identification. When she refused, the officer arrested her.The dispute concerned whether the officer had lawful authority to arrest Enright merely for refusing to provide identification.

Enright sued for false arrest, which is a form of false imprisonment involving confinement through the assertion of legal authority.

Why can submission to a police officer constitute confinement even if the officer never physically restrains P?

Because confinement can occur through asserted legal authority. A reasonable person confronted with an officer asserting authority to arrest does not have to:

• run away,

• physically resist,

• or force the officer to use handcuffs

before being considered confined.

Why is Enright v. Groves potentially unusual as a “false arrest” case?

Because an arrest does not become lawful merely because a police officer performs it. The officer must have lawful authority for the particular arrest.

Thus, the tort analysis requires distinguishing: Actual police power from lawfully exercised police power.

D stands in the only doorway and tells P, “If you try to leave, I'll break your arm.” P believes D and stays. Must D actually touch P for false imprisonment?

No.

The threat can itself create the confinement.

P is within a bounded area, the only reasonable exit is blocked, and D's threat of physical force prevents P from leaving.

D tells employee P, “I'd really appreciate it if you stayed here until we finish discussing the missing money.” P feels guilty leaving and stays. Is that false imprisonment?

Not merely on those facts.

This resembles Hardy.

P may feel significant moral or social pressure, but D has not necessarily used force, threats, barriers, asserted legal authority, or another sufficiently coercive means to confine P.

What are the basic elements of Intentional Infliction of Emotional Distress (IIED)?

IIED occurs when D:

1. Engages in extreme and outrageous conduct;

2. Intentionally or recklessly causes emotional distress; and

3. Actually causes P severe emotional distress.

What level of intent is sufficient for IIED?

IIED does not always require purpose or substantial certainty. Recklessness can also suffice. This is one feature that makes IIED broader than some of the traditional intentional torts.

Are “extreme” and “outrageous” simply two words for the same IIED requirement?

The conduct must cross a very high threshold. IIED is not designed to impose liability for every:

• insult,

• indignity,

• annoyance,

• embarrassment, or

• upsetting interaction.

The conduct must be sufficiently extreme in degree and outrageous in character to justify extraordinary tort liability for emotional harm.

What happened in State Rubbish Collectors Ass'n v. Siliznoff?

Siliznoff became involved in a dispute with a rubbish collectors' association over accounts the association claimed belonged to one of its members. Association representatives summoned Siliznoff to a meeting and subjected him to intimidating conduct and threats of serious physical violence unless he paid money and signed notes. Siliznoff became extremely frightened and suffered significant emotional and physical effects.

Why is Siliznoff historically important to IIED?

Siliznoff recognizes IIED as a separate, independent tort. Historically, courts were more comfortable allowing recovery for emotional harm when it was attached to another recognized tort or physical injury. Siliznoff recognized that severe emotional distress itself can be a legally cognizable injury when intentionally inflicted through sufficiently extreme and outrageous conduct.

What policy rationale supports recognizing IIED as an independent tort, as in Siliznoff?

Without IIED, a defendant could deliberately cause devastating emotional harm yet potentially escape liability simply because the conduct did not technically satisfy an older tort such as battery, assault, or false imprisonment. IIED fills that doctrinal gap.

Why couldn't Siliznoff simply rely on assault or false imprisonment instead of IIED?

The conduct did not necessarily fit neatly within those traditional torts.

Assault requires apprehension of imminent harmful/offensive contact. Threats concerning future violence may cause enormous emotional distress without satisfying imminence.

False imprisonment requires confinement within a bounded area. Severe intimidation does not necessarily mean P was actually prevented from leaving.

What special limitation does Texas place on IIED?

Texas treats IIED as a “gap-filler” tort.

IIED is generally available when the wrongful conduct does not fit another recognized cause of action.

So in Texas, you should ask whether another tort or legal claim already addresses the defendant's conduct before relying on IIED. Other states are less restrictive.

What happened in Slocum v. Food Fair Stores of Florida?

Mrs. Slocum asked a Food Fair employee for the price of an item. The employee responded with the insulting statement, “You stink to me.” Slocum alleged that the remark caused serious emotional distress and aggravated an existing heart condition.

Is the IIED inquiry into actionable words or conduct objective or subjective?

Generally objective. Actionability is ordinarily evaluated against a person of ordinary sensibilities, rather than simply asking whether this particular P happened to be extremely distressed. There is an important exception where D has special knowledge or notice of P's particular vulnerability.

What happened in Harris v. Jones?

Harris suffered from a nervous condition that caused him to stutter. His supervisor, Jones, knew about the condition and repeatedly mocked Harris's stuttering over a period of months. Harris became increasingly distressed and his condition worsened. Although Jones's behavior was deliberately cruel and relevant to the extreme-and-outrageous inquiry, the case ultimately presented another major problem: whether Harris proved emotional distress severe enough to satisfy IIED.

How does Harris v. Jones define “extreme and outrageous” conduct?

The court describes conduct that is:

“so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency,” such that it could be regarded as atrocious and utterly intolerable in a civilized community. The point is that IIED imposes a very high threshold.

What contextual factors does the Restatement (Third) identify when determining whether conduct is extreme and outrageous?

The determination depends on the facts of each case, including:

• Relationship between the parties

• Whether D abused a position of authority

• Whether P was especially vulnerable and D knew it

• D's motivation

• Whether the conduct was repeated or prolonged

Why does abuse of authority matter when determining whether conduct is extreme and outrageous?

The same words or behavior can carry substantially greater coercive or emotional force when D holds power over P.

For example, misconduct by a:

• supervisor toward an employee,

• physician toward a patient,

• therapist toward a client,

may be more outrageous because the relationship gives D authority, trust, or control that can be exploited.

Why does repeated or prolonged conduct matter in IIED?

Conduct that might not independently be extreme and outrageous as a single isolated incident can become so when repeated over time.

The law therefore considers the entire course of conduct, not necessarily each individual act in isolation.

Can the First Amendment limit an otherwise viable IIED claim?

Yes. Snyder v. Phelps is an example in which First Amendment protections can bar an IIED claim.

Albert Snyder's son, Marine Lance Corporal Matthew Snyder, was killed while serving in Iraq. Members of the Westboro Baptist Church traveled to Maryland to protest near Matthew's funeral. The protesters displayed highly offensive signs expressing their religious and political views, including messages attacking homosexuality, the military, and the United States. Snyder sued Westboro and its members under several theories, including Intentional Infliction of Emotional Distress, and a jury initially awarded him substantial damages.

The Supreme Court held 8-1 that imposing tort liability under these circumstances violated the First Amendment.

The critical point was that Westboro's speech dealt largely with matters of public concern - issues such as homosexuality, religion, the military, and national policy - and occurred peacefully on public property.

So even though the speech was extraordinarily hurtful to Snyder, the government generally could not impose IIED liability merely because a jury regarded protected speech on matters of public concern as “outrageous.”

What happened in Taylor v. Vallelunga?

Defendants physically attacked and severely beat Taylor's father. Taylor allegedly witnessed the beating and suffered emotional distress. She sued the attackers for IIED based on the emotional injury she experienced as a bystander to their attack on someone else. The problem was that the defendants did not know Taylor was present.

Why did the bystander's IIED claim fail in Taylor v. Vallelunga?

The defendants did not know Taylor was present and therefore did not:

1. Specifically intend to cause emotional distress to her, or

2. Know that severe emotional distress to her was substantially certain to result.

Must an IIED bystander be present and known to D when the outrageous conduct occurs?

It depends on the jurisdiction.

Your professor notes that many jurisdictions, including the California approach discussed here, require P's presence and D's awareness of P when the conduct occurs.

But some jurisdictions have allowed recovery where P later discovers the outrageous conduct - for example, discovering the body of a murdered relative. So presence is an important jurisdiction-specific issue rather than a universal rule.

What are the two major “high thresholds” that prevent IIED from becoming liability for every upsetting interaction?

IIED contains two especially important safeguards:

1. D's conduct must be EXTREME AND OUTRAGEOUS.

2. P's emotional distress must be SEVERE.

What sequence should you use to analyze an IIED problem on an exam?

1. Conduct: Was D's conduct extreme AND outrageous?

Consider relationship, authority, vulnerability, motive, repetition, and context.

2. Mental state: Did D act intentionally or recklessly?

3. Causation: Did D's conduct actually cause P's distress?

4. Severity: Was P's emotional distress genuinely severe, not merely unpleasant?

5. Special issues: Is P a bystander? Is another tort a better fit? Are constitutional protections implicated?

What are the basic elements of trespass to land according to Restatement (Second) of Torts § 158?

A person is subject to trespass liability, even without causing actual harm, if the person intentionally and unlawfully:

(a) enters land possessed by another, or causes a thing or a third person to do so;
(b) remains on the land; or
(c) fails to remove something from the land that the person has a duty to remove.

What intent must D possess for trespass to land?

The critical intent is generally the intent to enter the land, not an intent to trespass or violate someone's property rights.

Thus, D can commit trespass even if D:

• causes no actual damage,

• acts in good faith,

• mistakenly believes the land belongs to D, or

• believes the entry benefits P.

D carefully checks a property boundary and reasonably but mistakenly concludes that neighboring land belongs to D. D deliberately walks onto it. Is the intent requirement for trespass satisfied?

Yes.

D intentionally entered the physical location.

D's reasonable mistake concerns ownership, not whether D intended the physical entry.

D unexpectedly trips and falls across P's property line. Has D committed an intentional trespass?

Ordinarily, no.

D did not intend to enter P's land; the bodily movement onto the property was accidental. If D's own carelessness caused the fall, there might potentially be a negligence issue, but negligence does not transform an accidental entry into the intentional tort of trespass.

What happened in Dougherty v. Stepp?

Dougherty possessed land that Stepp entered without permission. Stepp entered the property and surveyed part of the land, apparently claiming it as his own, but caused no meaningful physical damage to the property.

What major principle does Dougherty v. Stepp establish about damages in trespass to land?

Trespass to land is actionable without proof of actual damages.

The unauthorized invasion of P's possessory right is itself a legally recognized injury.

P can recover (only) nominal damages even if:

• nothing was broken,

• the land lost no value, and

• P suffered no measurable financial loss.

* nominal damages are small, symbolic sums awarded by a court to recognize that a plaintiff’s legal rights were violated *

Who ordinarily has the cause of action for trespass to land - the owner or the possessor?

The trespass action ordinarily belongs to the possessor of the land, because trespass protects possession.

Ownership and possession are not always the same.

For example, if an owner leases property to a tenant who has possession, the tenant may have the ordinary trespass claim arising from interference with possession.

However, the owner can have a separate action if the trespass damages the owner's reversionary interest.

What is the basic difference between trespass to land and nuisance?

They protect different interests:

Trespass → protects POSSESSION.

Nuisance → protects USE AND ENJOYMENT.

This becomes especially important with things such as particles, smoke, odors, noise, or other indirect invasions, where the question may be whether there has been a physical invasion of possession or instead interference with P's use and enjoyment.

Does it matter that D's unauthorized entry actually benefited P?

Trespass protects P's right to decide who may enter the property. D ordinarily cannot justify an unauthorized entry merely by saying: “But what I did helped you.”

However, necessity (like saving a drowning individual in the neighbor’s pool) may provide a defense or privilege in appropriate circumstances.

What happened in Herrin v. Sutherland?

Sutherland was hunting near Herrin's property and fired a shotgun across the property. Although Sutherland himself did not physically walk onto Herrin's land, the shot passed through the airspace above it. Herrin sued for trespass.

What major principle does Herrin v. Sutherland establish about the boundaries of land?

P's exclusive possessory right extends not merely across the surface but also immediately above and below the land. Thus, even extending an arm over P's gate or allowing a building's eaves to overhang P's property may constitute trespass.