Torts

Levels of Culpability for Torts​

Specific intent*​

Knowledge to a substantial certainty*​

Recklessness or gross Negligence​

Negligent​

Strict liability​

The law steps in and says it's NOT a tort.

Implied Consent

in a crowded world, a certain amount of personal contact is inevitable and must be accepted (i.e., brushing up against someone in an elevator. ​

Wallace v. Rosen teacher touched parent on should during fire drill and parent claimed this caused her to fall down the stairs.​

Unforeseeable illness or incapacity

Cohen v. Petty D fainted while driving, served off the road, got sued by a passenger for her injuries.​

If he KNEW or had REASON TO KNOW about the condition and did NOT take reasonable precautions (i.e., unmedicated, driving when he shouldn't be), then COULD be at fault and COULD be held liable.

Common Elements of Intentional Torts

1. Intentional​

2. Harmful or offensive contact​

3. Do NOT have to show actual damages(EXCEPT for trespass to chattels and conversion)

Intent​

1. D acts on purpose to make contact, OR​

2. D has knowledge to a substantial certainty that the contact will occur.​

​

Garratt v. Dailey child pulled the chair out from under the old lady.

Single Intent

- the actor must ONLY intend to cause the contact, knowledge or intent to cause the result does NOT matter.​

- Wagner v. State mentally ill person yanked the P down by her hair in K-Mart.

Dual Intent​

the actor must intend to cause the contact AND a harmful or offensive result.​

Things to Remember About Intent​

- Malice or motive is NOT required.​

- Voluntary intoxication does NOT negate intent.​

- Children MAY form requisite intent to commit intentional torts BUT we do take age into account when determining what they could've known to a substantial certainty. Garratt v. Dailey.​

- The mentally ill or disabled MAY have requisite intent to commit intentional torts.​

---- We hold them liable for their torts so that caretakers will be more careful, and the innocent P is NOT hung out to dry.​

----- McGuire v. Almy mentally ill person hit her caretaker with a piece of furniture.

- Level or degree of intended harm does NOT matter.

Intent: Mistaken Identity

- a mistake made in good faith is NOT a defense to liability for an intentional tort even if it is a reasonable belief.​

- Ransom v. Kittner D shot the P's dog thinking it was a wolf.​

Intent: Eggshell Skull Rule

- when D commits an intentional tort, liable for ALL injuries REGARDLESS of foreseeability.​

- "You take your P as you find him."​

Vosburg v. Putney child kicked P playfully in the shin and school, but the P was overly susceptible to injury.​

Transferred Intent​

- If you intend to commit an intentional tort against one person and you actually commit it against someone else, you are STILL LIABLE.​

- If you intend to commit one kind of intentional tort and you end up committing a different intentional tort, the intent to commit the 1st tort transfers to the 2nd.​

- ONLY APPLIES to intentional torts that fall within the original writ of trespass (battery, assault, trespass to chattels, trespass to land, conversion).​

Talmage v. Smith D threw the stick at one of the boys on the roof but hit another boy.

Contact​

- Harmful OR offensive​

- Offensive contact ​

1. Offensive to a REASONABLE person in the P's position, OR​

2. D knows P will be HIGHLY offended AND acts with the PRIMARY purpose that the contact will be HIGHLY offensive.​

- You do NOT have to make physical contact with the P's body.​

- ---- Anything so closely associated with the P's person as to be part of them counts.​

------ Fisher v. Carrousel Motor Hotel, Inc. waiter snatched the plate out of the P's hand and yelled racial slurs at him.

Battery​ - Elements

1. Intent​

2. To cause a harmful or offensive contact​

3. With the P's person​

4. That harmful or offensive contact actually occurs

Battery and Affirmative Conduct

D actually does something AND the action is voluntary.​

True or False: Transferred intent applies to battery?

True

Assault Elements

1. Intent​

2. To cause apprehension or anticipation​

3. Of an imminent​

4. Harmful or offensive contact​

5. P actually apprehends or anticipates the harmful or offensive contact​​

Assault: Dual-Intent Rule

D must intend to take the action AND that itresults in apprehension or anticipation.

True or False: Transferred intent applies to assault?

True

Assault and fear

- MAY include fear as EVIDENCE of apprehension or anticipation, but NOT required.

- Think abt how a cop probably isn't scared... or like, a 6 foot jacked man who is abt to get hit by a 5 foot woman with no muscle

Imminence and Assault

- D must have the present apparent ability to carry out the harmful or offensive contact.​

- Western Union Telegraph Co. v. Hill wife went to the office to get her clock fixed, so she went to the office and a sleezy employee made suggestive comments -- she was afraid he would reach over the counter to touch her.

Assault and Awareness

P must be AWARE of the action to anticipate or apprehend it (i.e., asleep, turned around).

Assault and mere words

- Mere words are NOT assault words + actions = assault.​

Assault and physical harm

NOT required to show physical harm.​

I de S crazy dude waving the hatchet at the wife's head.

Subjective standard and assault

look at it from the P's perspective

assault + battery

If you can argue battery, try to argue assault, too, even if one or both causes of action ultimately fail.

False Imprisonment - Elements

1. Intent to confine P in a bounded area.​

2. Resulting in confinement.​

3. P is conscious (aware) of the confinement OR harmed by the confinement.

False Imprisonment - Key concepts

- you can NOT confine someone against their willWITHOUT adequate legal justification for the confinement (i.e., civil commitment order, lawful arrest).​

- CORRECTION false imprisonment IS one of the original writs of trespass torts, so transferred intent CAN apply, but it's rare.

False Imprisonment: Confinement​

-- How is "confinement" created?​

1. Actual or apparent physical barriers.​

2. Physical force.​

3. Submission after a threat to apply physical force.​

4. Submission to duress other than threats of physical force against you(i.e., threats to physical safety of a family member)*​

​

Big Town Nursing Home v. Newman elderly man put in a home by his nephew, and he did not want to be there, so he kept trying to leave but the nursing home staff kept detaining him. bro lost soooo much weight but was lowkey tortured :(

False Imprisonment and Escape

- If P has a REASONABLE means of escape, they are NOT confined, but you are NEVER obligated to use an escape

​---- You do NOT know about (NOT apparent to you, i.e., hidden door).​

​----Would cause you humiliation (i.e., running naked out the door and down the street (think abt agnes scott bonfire in georgia)).​

​---- Would be dangerous (substantial harm to P's person, i.e., jumping out of a 3rd story window).​

​---- Would force you to leave all your possessions behind (substantial harm to P's property).

False Imprisonment: Confinement

- Does NOT have to be for more than an "appreciable length of time, CAN be BRIEF restraint.​

- Mere exclusion is NOT confinement even if it's wrongful(i.e., you can't go down a blocked off street, you can't enter the baseball game with your valid ticket).​

- Area of confinement can be LARGE, but it must be LIMITED (i.e., a town, a yacht, luxurious mansion).​

- You may be restrained by acts AND/OR words that you fear to disregard.

False Imprisonment: Confinement

- Moral or economic restraint

-- Not Confinement

--- Hardy v. LaBelle's employee told she would lose her job if she left the office (economic restraint).

False Imprisonment: Confinement

- Nonfeasance

- if your actions CAUSED the confinement, you have a duty to release or aid in release.​

---- EX you own a store and accidentally lock a lingering customer inside, you realize the customer is in there and leave anyways.​

---- EX zookeeper loses their keys and gets stuck in the tiger exhibit, you see the keys and can give them back, but you do NOT*​

False Imprisonment: Consciousness of Confinement or Harm

- Lack of memory of the confinement AFTER the fact is NOT the same as lack of awareness of confinement AT THE TIME of confinement.​

----- Parvi v. City of Kingston* P was drunk and didn't have anywhere to go, so the cops took him to an abandoned golf course, despite his protests, where he later got hit by a car and had amnesia about the confinement. ​

- If the confinement is INTENTIONAL, you do NOT have to show ACTUAL harm.​

- If the confinement is NEGLIGENT, you must show ACTUAL harm*

False Imprisonment: Consent to Confinement

- General Rule if P CONSENTS to confinement and REVOKES that consent later OR the SCOPE of that consent is EXCEEDED, it becomes false imprisonment*​

- Scope of consent is EXCEEDED when you consent to certain specific activities or levels of confinement, and the D engages in other activities or continued confinement that you did NOT agree to.

Defenses to False Imprisonment: Shopkeeper's Privilege*

- Shopkeepers may stop and detain people who they REASONABLY believe are WRONGFULLY taking merchandise and it is NOT false imprisonment IF

​1. Detained within immediate vicinity of merchant's premises(NO undue time lapse).​

2. Detained in a reasonable manner (investigation is reasonable).​

3. For a reasonable length of time.​

4. There are reasonable grounds to believe the person detained was committing or attempting to shoplift on the premises

Defenses to False Imprisonment: Legal Authority Privilege​

False Arrest ---> P is arrested by a person who claims to have legal authority to do so but does NOT (i.e., excessive force, NO legal basis for arrest).​

- Probable cause, a valid warrant, OR conviction of the crime you were ARRESTED FOR are DEFENSES to false arrest.​

- Enright v. Groves lady arrested for NOT giving the cop her driver's license but that was NOT against the law.​

----- There was a legal basis for the arrest under the dog leash ordinance (later convicted of violating the ordinance).​

------ BUT that was NOT what she was arrested for (charged later).

Intentional Infliction of EmotionalDistress (IIED) - Elements

1. D acts intentionally OR recklessly.​

2. Conduct was extreme AND outrageous.​

3. Actions of D cause P's emotional distress.​

4. Resulting in SEVERE emotional distress OR physical harm.

IIED: Separate Tort vs. Gap Filler​

- If the jurisdiction recognizes IIED as a SEPARATE c/a, then P does NOT need to show evidence of another tort to recover.​

---- If you can prove a different tort, too, then IIED acts like a booster.​

----- State Rubbish Collectors Ass'n v. Siliznoff * garbage cartel threatened to beat up the new garbage guy if he didn't sign promissor ynotes; he got so stressed out he got physically ill.​

​

- In MOST jurisdictions, IIED is a GAP FILLER for when P can NOT prove another tort, but the court still wants to punish the conduct.​

---- Hoffman LaRoche v. Zeltwagner if you can prove a different tort then the IIED claim is PREEMPTED.

IIED: Intentional OR Reckless​

- Transferred intent does NOT apply.​

- Dual intent rule D must intend to engage in the extreme and outrageous conduct AND that it results in severe emotional distress.​

- Taylor v. Vallelunga daughter witnessed her father getting beat up.​

---- D must have beat up the father with the intent that it would cause severe emotional distress OR physical harm to the DAUGHTER.​

---- D must be AWARE that the P is there if it's a "present at the time" P.

IIED: Extreme AND Outrageous​

- Extreme ---> unusual.​

- Outrageous ---> based on the circumstances, the conduct EXCEEDS the bounds of what a civilized society AND reasonable people will tolerate.​

- Must be MORE than mere insult, indignity, or threat, BUT if it exceeds the bounds of dignity, it CAN be considered outrageous.​

- Public humiliation CAN be IIED, but it's usually just an invasion of privacy.

IIED: Extreme AND Outrageous​ -- FACTORS

1. Relationship of the parties allowed D to abuse position of authority over P (i.e., employer).​

2. P is especially vulnerable AND D KNEW of this vulnerability (i.e.,scaring your friend who is terrified of packing peanuts, young children).​

--- EXCEPTION for fairness (i.e., student grading).​

3. Motive of D.​

4. Conduct was repeated or prolonged AND P can NOT avoid D's conduct by leaving.​

5. Threat of violence or serious harm to P's person or property that P has a special interest in.​

6. Actions by common carriers and innkeepers*

IIED: Severity​

- Emotional distress must be SO SEVERE that NO reasonable person would be expected to endure it.​

​

- Harris v. Jones co-workers were making fun of his stutter.​

------ P could NOT show that the harassment was so severe that it increased his mental and physical health issues.

IIED: Types of Plaintiffs​

- When the P is the TARGET of the extreme and outrageous conduct, ONLY need to prove severe emotional distress ---> do NOT need to prove resulting physical harm.​

- When the P is an IMMEDIATE FAMILY MEMBER of the target PRESENT AT THE TIME of the conduct, ONLY need to prove severe emotional distress ----> do NOT need to prove resulting physical harm.​

---- Present at the time ----> you see or hear it (does NOT count if you see it on TV).​

---- D must be AWARE that you are present at the time (Taylor v. Vallelunga).​

- When P is NEITHER the target NOR an immediate family member BUT was still PRESENT AT THE TIME, can NOT recover UNLESS suffered physical harm AND severe emotional distress.

Trespass to Land: Elements

1. Intent​

2. To enter or remain OR to cause another person or tangible thing to enter or remain.​

3. On land in the possession of another.

Trespass to Land: Consent

EITHER an affirmative defense OR lack of consent is an elementof P's c/a.​

Trespass to land: Damages

do NOT have to be foreseeable, and you do NOT have to showACTUAL damages.​

Trespass to land: Reasonableness

Social utility or reasonableness of D's conduct does NOT matter.

Trespass to land: single-intent rule

D ONLY needs to intend to take the volitional action,NOT that it results in entering or remaining on someone else's land.

Trespass to land: transferred intent

- it applies

- (i.e., you shoot the gun over someone' property, and it hits someone you did NOT see).

Trespass to Land: ​Dougherty v. Stepp

- D and surveyors came onto P's land thinking it belonged to D for surveying operations.​

- Lots of heavy machinery and stuff, but there was NO evidence of ACTUAL harm.​

​

KEY TAKEAWAYS --->

- You do NOT have to show ACTUAL damage because the law will infer AT LEAST nominal damages.​

- Mistake of ownership is NOT a defense.

Trespass to Land: ​Enter OR Remain

- DIRECT and TANGIBLE interferences with P's right to exclusive possession of the land.​

- Do NOT have to make physical conduct with the land because P owns the land from the surface to the sky and down to a reasonable depth of the subsurface*​

---- Herrin v. Sutherland ---> D shooting over the neighbor's land, as soon as the bullet crossed onto P's land, it became trespass to land.

Trespass to Land: ​Enter OR Remain

--- Continuing trespass

- continued presence of something placed on the P's land by the D with the P's consent, but the consent ends OR the scope is exceeded, and D fails to remove it.​

----- Possessor can put CONDITIONS on their consent, and if you violate those conditions, it can become trespass to land.​

------ Rogers v. Board of Road Commissioners ---> agreement between P and the Commission to put up and later remove a snow fence but the Commission did NOT completely remove it, and P's husband died.​

Trespass to Land: ​Enter OR Remain

--- Visitors

- trespass CAN occur if they are there initially with P's consent and then P revokes that consent, or visitor exceeds scope of consent.​

---- Visitor must be AWARE that they NO LONGER have P's consent.​

Trespass to Land: Possession​

- Whoever has the possessory interest in the land AT THE TIME of trespass can bring the c/a.​

- Could be the owner of the land, a tenant, etc.

Nuisance

- Covers INDIRECT and INTANGIBLE interferences (i.e., noise, light, vibrations, smoke).​

- Courts usually balance the equities between the land owner's right to use and enjoy their property and social utility of D's conduct.​

------- If D's activity is valuable to society, will probably award damages --> temporary (some $ now and can sue later if it continues) OR permanent (we're giving you all the $ up front so you can NOT sue again later).​

------- If the nuisance is REALLY bad and the D's activity does NOT have much social utility, will probably make D stop with an injunction.

Public Nuisance​: Elements

(1) unreasonable interference with (2) a right common to the general public.

Public Nuisance​: Collective c/a

gov't entities bring the c/a based on statutory provisions.

Public Nuisance​: Individual c/a

individual must show PARTICULAR HARM DIFFERENT IN KIND from the kind suffered by the public (i.e., you lose a K to stock the local lake with fish because it's polluted).

Public Nuisance​: Unreasonable Interference

1. Substantially interferes with public health, safety, peace, comfort, or convenience.​

2. Statute, ordinance, or regulation addresses the issue.​

3. Interference is continuing, permanent, or has long-lasting effect that to D's knowledge is substantially detrimental to the public's rights.

Private Nuisance​: Elements

(1) unreasonable interference with (2) P's use orenjoyment of their land.

Private Nuisance​: Intentional Nuisance

D KNOWS or is SUBSTANTIALLY CERTAIN that conduct interferes with the P's use and enjoyment of their land.​

Private Nuisance​: Negligent Nuisance

D did NOT intentionally interfere with P's use and enjoyment of their land, but D failed to exercise reasonable care to avoid the interference.​

Private Nuisance​: Strict liability

imposed when D's activity is ultra hazardous or extremely dangerous --> Spano v. Perini (dynamite blasting).

Private Nuisance: Unreasonable Interference

- Interference with the physical condition of the land, health of the occupant, comfort or convenience, or P's peace of mind.​

- Time and place dictate EXTENT of unreasonableness.​

- Coming to the nuisance --> the fact that the P acquired or improved his land AFTER the nuisance was already there is a FACTOR but NOT dispositive.

Trespass to Chattels​: Elements

1. Intentional use OR interference​

2. With P's possession of chattel​

3. In a way that causes recognizable harm.

MINOR interference that requires showing ACTUAL damages

Chattel

- an article of personal property, as distinguished from real property (land).

- Examples: Car, laptop, ur fav water bottle, piece of pottery u adore, dog!, Cat!

Trespass to Chattels: ​Intentional Use OR Interference

1. Chattel impaired as to condition, quality, or value.​

--- Glidden v. Syzbiak --> little girl messing with D's dog; the dog was NOT impaired as to condition, quality, or value because it was NOT really harmed, and the owner did NOT lose any "value" in the dog.​

2. Possessor deprived of use for substantial time.​

3. Bodily harm caused to possessor.​

4. Harm caused to some person or thing that P has a legally protected interest in.​

---- CompuServe, Inc. v. Cyber Promotions --> spam emails taking up valuable space on the P's servers interfering with P's business.

Conversion: Elements

1. Intent​

2. To exercise substantial control over the chattel​

3. That seriously interferes with P's right to control it

Conversion: MAJOR Interference

- must show SUBSTANTIAL loss of control over the chattel OR SUBSTANTIAL loss of usefulness.​

- D is liable for the FULL value of the chattel*

Conversion: Who can bring the c/a

- Anyone in possession of the chattel AT THE TIME of conversion

- P must show that her claim to the chattel is SUPERIOR toD's.

Conversion: Defenses

- Mistake of ownership is NOT a defense.​

------ Good faith purchasers are ONLY protected in cases ofFRAUD.​

--------- EX --> thief steals a painting (a Thomas Hart Benton piece!) and then sells it to someone else who did NOT know it was stolen. ​

Conversion vs. Trespass to Chattels: What's the Difference?

- Casto takes Gonzalez's Honda Civic out for a joy ride for a few hours and brings it back with a little scratch, but Gonzalez never noticed it was gone.​

--- Probably just trespass to chattels.​

--- Gonzalez was deprived of use during that time, but he wasn't using it anyways, and the damage is MINIMAL.​

​

- Casto takes Gonzalez's Honda Civic out for a joy ride and gets in a massive flaming wreck, Casto was fine, but the car was completely totaled.​

--- Conversion because Gonzalez is completely and permanently deprived of using the car*

Conversion: ​Ways D Can Convert Chattel

1. Acquire possession of it (i.e., steal it).​

2. Damage or alter it.​

3. Use it.​

4. Receive it (i.e., buy it from a thief).​

5. Dispose of it.​

6. Mis-deliver it (i.e., give it to the wrong person and it gets lost).​

7. Refuse to surrender or return it.

Conversion: ​Factors for Serious Interference

1. Extent and duration of D's exercise of control.​

2. Intent of D to claim chattel as their own.​

3. D's good faith.​

4. Extent and duration of the interference with P's right to control.​

5. Harm to chattel.​

6. Inconvenience and expense to P.​

Pearson v. Dodd --> stealing super secret documents without authorization for copying does NOT count as conversion because D gave them right back and there was NO substantial damage.​

Defenses to Intentional Torts​

- P sues D for an intentional tort.​

- D claims they are NOT liable because they were privileged to carry out the tort.​

- P can come back and say the D's conduct is NOT privileged because of the limits on the privilege.​

Privilege is EITHER an element of the P's c/a OR an affirmative defense (determines who has the burden of proof).​

Actual Consent​

- Expressed by words or affirmative acts.​

- NO duress, capacity to consent, willingness in fact for the conduct to occur.​

Examples -->​

--- Written documents (express consent, i.e., I have read this, and I agree to it).​

--- Telling someone you consent to the activity (express consent).​

--- Inferred from conduct (P DID consent, they just did NOT explicitly say that they consented).

Apparent Consent​

- A person in the D's position would reasonably believe that the P consented.​

- Most people would consent in that situation.​

- Shields D from liability EVEN IF P did NOT actually consent (due to a reasonable mistake, D's conduct was NOT wrongful).

Apparent Consent

--- Can be inferred from

- P's conduct (i.e., standing in line for the vaccine with everyone else and holding out your arm to the surgeon, O'Brien v. Cunard S.S. Co.).​

- Circumstances (i.e., football players consent to hits administered according to the rules of the game, Hackbart v. Cincinnati Bengals).​

- Silence or inaction (i.e., just going along with it without objecting, thumbs-up signal, nodding).​

- Custom or usage, prior dealings between the parties, relationship between the parties, and accepted social norms.​

- By law (i.e., statute lets you do it, public policy says we should let you do it).

Presumed Consent: ​Emergency Doctrine​ - Elements

1. P was NOT capable of giving consent.​

2. NO available substitute for consent.​

3. If it's a genuine emergency.​

4. A reasonable person would've consented under the circumstances.

Presumed Consent: ​Emergency Doctrine

--- When does it apply

- Can NOT get actual consent because they're unconscious.​

- NO conduct by P that would make consent apparent.​

- Parental consent for a minor is NOT required for an emergency medical procedure.​

- Genuine emergency --> conduct is necessary to prevent or reduce a risk to the life or health of P that SUBSTANTIALLY OUTWEIGHS P's interest in avoiding the contact.

Limits on Consent​: (1) Does it violate public policy?​

- EX --> selling children or body parts, illegal fights, statutory rape.​

- We want to deter people from committing crimes.​

- You can NOT consent to conduct that violates the law because the law is designed to protect your interests.

Limits on Consent​: (2) What was the scope of consent?

- What action(s) did you consent to?​

- P can place conditions on consent (i.e., time or area) and may revoke that consent at any point.​

- Consent does NOT extend to past conduct --> if P does NOT consent AT THE TIME OF THE ACT, then any future change of heart about consent does NOT excuse the D's actions.​

- Hackbart v. Cincinnati Bengals --> the hit was an intentional, flagrant violation of the rules done WITHOUT a competitive purpose, so it was OUTSIDE the scope of consent for a professional football player.​

- DeMay v. Roberts --> lack of disclosure can violate the scope of consent (P consented to the doctor's "assistant" being in her home but did NOT know his real identity and would NOT have consented if she knew).​

- Mohr v. Williams --> consenting to surgery on your right ear is NOT consenting to surgery on your left ear (procedure on left ear was OUTSIDE scope of consent to surgery, NOT an emergency).

Limits on Consent​: (3) Was consent obtained by fraud or duress?

- NOT valid consent.​

- Overpowering of the will.​

- Force or immediate threats of force against P, immediate family, or valuable property.​

- Serious criminal charges against P or immediate family.​

- Fraud or misrepresentation as to a COLLATERAL matter that is NOT the ESSENTIAL CHARACTER of the act itself does NOT invalidate consent*

Limits on Consent​: (4) Was the P CAPABLE of consenting?

- Depends on age, intellectual disability, or mental illness.​

- Temporary conditions like intoxication.​

- Is P capable of appreciating the nature, extent, and potential consequences of the conduct?

Self-Defense​

- True affirmative defense --> D must plead and prove it, and the D will NOT be held liable AT ALL if they're successful.​

- ANYONE is privileged to use reasonable force to defend himself when the person has a reasonable belief that there is a risk of a threatened harm to their physical person.

Self-Defense​: Force

must be proportional to the reasonably perceived threat.​

Self-Defense​: Deadly force

(likely to cause death or serious bodily injury) is ONLY allowed if there is a reasonable belief that death or serious bodily injury is about to occur.​

Self-Defense: Mistaken belief

IS protected if it's reasonable (i.e., fake gun).​

Self-Defense: Retaliation

NOT allowed --> you can ONLY use self-defense IN THE MOMENT, NOT after the threat terminates.​

Self-Defense: Language (provocation)

NOT enough, BUT words + actual threats of harm (actions) MAY be sufficient.​

Self-Defense: Duty to Retreat​

- NO duty to retreat if you are using reasonable, NON-DEADLY force in self-defense.​

- Castle doctrine --> NO duty to retreat before using DEADLY force in your own home if you have a REASONABLE belief that the other person is going to cause death or serious bodily injury.​

---- In TX, this privilege applies to your car, place of business, or place of employment.​

- Duty to retreat OUTSIDE the home -->​

------ Minority --> if you can retreat safely, you MUST retreat.​

------ Majority --> you do NOT have to retreat.

Self-Defense: Injury to a 3rd Party​

- If D is defending himself against A, and he unintentionally harms B instead, the privilege of self-defense carries over.​

- D is NOT liable to B UNLESS D acted unreasonably (negligence).

Defense of Others​

- You are privileged to use the SAME type of force to protect others from harm as you would use to protect YOURSELF.​

- Still need to use REASONABLE force.​

- Mistaken defense of others -->

----- Majority (reasonable perception approach) --> D is privileged to use reasonable force to defend another even when she is mistaken in her belief that intervention is necessary, so long as mistake is reasonable.​

----- Minority (step in the shoes approach) --> intervenor steps into the shoes of the person she is defending and is privileged ONLY when that person would've been privileged to defend himself.​

------ LIABLE if D intervened to help the aggressor.

Defense of Property​

Requirements --->

1. Peacefully ask the trespasser to leave.​

2. If the trespasser REFUSES to leave, you can remove him with REASONABLE, NON-DEADLY force.​

KEY CONCEPTS --->

- If you catch someone in the act of trespassing (active force), do NOT have to make a request for them to leave before using reasonable, non-deadly force.​

- Do NOT have to make a request if the conduct of the intruder indicates to a reasonable person it would be useless OR could NOT safely be made in time.

Defense of Property: ​Use of Deadly Force

- You can NOT use deadly force UNLESS there's a threat of death or serious bodily harm to the occupiers or users of the property (i.e., you, your tenants, or your family).​

-Katko v. Briney --> setting up a spring gun to shoot trespassers on property that was NOT a residence or occupied (deadly force) is NOT allowed*

Recovery of Property​: Elements

1. Purely wrongful taking.​

2. Hot or fresh pursuit (NO undue time delay).​

3. Owner has the right to exercise self-help (do NOT have to call 911) but can NOT use deadly force.​

Shopkeeper's Privilege

- "Shopkeepers" may stop and detain people who they REASONABLY believe are WRONGFULLY taking merchandise and it is NOT false imprisonment IF -->

​

1. Detained within immediate vicinity of merchant's premises (NO undue time lapse).​

2. Detained in a reasonable manner (investigation is reasonable).​

3. For a reasonable length of time.​

4. There are reasonable grounds to believe the person detained was committing or attempting to shoplift on the premises.​

Bonkowski v. Arlan's Dept. Store* --> lady called back from the parking lot on suspicion of shoplifting, emptied her purse, and allowed to leave.

Necessity

- Does NOT allow the use of deadly force.​

- You can NOT kill someone else or do serious bodily harm to save yourself.​

- Different rules for public necessity and private necessity.

Public Necessity​

Elements -->

1. Needs of the many outweigh the needs of the few.​

2. Trespass or conversion reasonably necessary to avert a public disaster.​

3. ONLY needs to be reasonable AT THE TIME of the taking.​

- Destroying someone else's property to save the community does NOT make you liable for ANYTHING.​

----- Surocco v. Geary --> gov't official destroyed the P's home to prevent the fire from spreading further and destroying more buildings.​

- Must show danger to the public was IMMINENT, and the taking was a NECESSITY, NOT just a convenience.

Private Necessity​

Elements -->

1. Conduct must be reasonable at the time.​

2. Generally, the reason for the trespass must be life-threatening.​

3. Harm prevented must outweigh the harm caused.​

- If you destroy someone else's property to save your own, then you are responsible for any actual damage done to the other's property.​

----- Vincent v. Lake Erie* --> boat banging up against the dock during the storm damaged the dock.​

- You have the right to trespass WITHOUT liability, BUT if you cause damage, you are liable for those damages.