Torts Outline

TORTS I- Fall 2009-Zisk
 
I. GENERAL INTRODUCTION
A. Definition of tort: There is no agreed upon definition of a tort however, most agree that (1) it is a civil wrong       committed by one against another; and (2) torts can and usually do arise outside of any agreement (contracts) between the parties.
B. Categories: There are three broad categories of torts, and there are individual named torts within each one:
1. Intentional torts: These are torts where the 12∆’ type=”#_x0000_t75″> desires to bring about a particular result. ∆ wants a result to occur, or knows with substantial certainty that the result will occur whether he wants it or not.    Intent focuses on desired consequences of an act; motive focuses on the reasons for desiring those consequences. Intent is an element of all intentional torts, motive isn’t a requirement, but can have a significant impact on liability. The main intentional torts are:
     a. Battery – Intentional infliction of harmful or offensive bodily contact
§ Act: ∆ committed a voluntary act
§ Intent: That ∆ either: (1) intended to cause a harmful or offensive contact or (2) intended to cause π or a third person to have an apprehension of such contact.
§ Harmful or offensive contact: That such contact actually resulted to which a reasonable person of ordinary sensibilities
§ Causation: That ∆’s act in some sense caused the harmful or offensive contact either because ∆ himself touched π, or because ∆ set in motion some force that actually did the touching
§ Lack of consent: π did not consent to the contact
§ CHILA (CAUSATION, HARMFUL or offensive contact, INTENT, LACK of consent, ACT)
     b. Assault – Apprehension of harmful or offensive contact
§ Act: That ∆ committed a voluntary act
§ Apprehension: ∆’s act created an apprehension of immediate harmful or offensive contact with π. This will probably have to be reasonable apprehension but courts are unclear. Also, fear need not be involved, simply the belief that harmful or offensive contact will occur is sufficient.
§ Intent:  ∆ intended to cause either a harmful or offensive contact or apprehension of such a contact
§ Causation: That there was a causal connection between the ∆’s act and π’s apprehension
§ Lack of Consent: Some courts treat π’s lack of consent as part of π’s claim, but it’s discussed as a defenses in most sources
     c. False imprisonment – Intentional infliction of an effective confinement, not just simple restriction of movement
§ Act: That ∆ committed a voluntary act
§ Confinement: ∆’s act confined π to a bounded area (via physical restraint or threats of force)
§ Intent: ∆ intended to confine or restrain π within a bounded area (negligence = no go)
§ Causation: ∆’s act caused such a confinement of π
§ Awareness or harm: π was either aware of the confinement while it occurred or was actually harmed by it (including loss of time, mental anguish etc.).
§ ACCIA (ACT, CONFINEMENT, CAUSATION, INTENT, AWARENESS OR HARM)
d. Intentional infliction of emotional distress – Intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional/mental distress, even in absence of physical harm
§ Damages: Physical harm is not required, but the emotional harm must be severe
§ Intent: ∆’s intent to cause π to suffer severe emotional distress
§ Causation: A causal connection between the wrongful conduct and the emotional distress
§ Extreme conduct: The act must be outrageous and extreme
§ DICE (DAMAGES, INTENT, CASUATION, EXTREME conduct)
e. Trespass to land – ∆ intentionally enters π’s land, without permission, ∆ remains on π’s land without the right to be there, even if she entered rightfully or ∆ puts an object on (or refuses to move from) π’s land without permission
§ Possession: That π had the immediate right to possession of the land
§ Act: That ∆ committed a voluntary act
§ Physical invasion: That ∆ physically invaded π’s exclusive possessory interest in real property without consent
§ Intent: That ∆ intended the invasion
§ PAPI (POSSESSION, ACT, PHYSICAL invasion, INTENT)
     d. Trespass to chattels – Intentional interference with a person’s use or possession of a chattel
§ Possession: That π either possessed the chattel or had the immediate right to possess it
§ Act: That ∆ took a voluntary act that interfered with π’s right of possession in chattel
§ Intent: That ∆ intended to perform the act that brought about this interference
§ Damages: If the act is merely an intermeddling, π must show actual damages but if the act is a dispossession, actual damages don’t have to be proven, the mere taking is damage enough.
§ PAID (POSSESSION, ACT, INTENT, DAMAGES)
f. Conversion – Intentional interference with π’s possession or ownership of property that is so substantial that ∆ should be required to pay the property in full
§ Dominion: That ∆ substantially interfered with π’s right of possession in personal property, in a sufficiently serious fashion as to justify ordering ∆ to pay the property’s full value;
§ Intent: That ∆ intended to perform the interfering action (mistaken belief that property is ∆’s = no defense)
§ Possession: That π was either in possession of the chattel or had the immediate right to.
§ DIP (DOMINION, INTENT, POSSESSION)
2. Negligence: The next category is the generic tort of negligence. Here, the ∆ has not intended to bring about a certain   result, but has merely fell below standard duty of care. A good bar to meet is the “reasonable man standard”.
3. Strict liability: Finally, there is the least culpable category, “strict liability.” Here the ∆ is held liable even though he did not intend to bring about the undesirable result, even if he behaved with utmost carefulness. There are two main individually named torts that apply strict liability:
     a. Conducting of abnormally dangerous activities (blasting); and
     b. The selling of a defective product which causes personal injury or property damage.
C. Significance of categories: There are two main consequences that turn on which of the three above categories a                       particular tort falls into:
1. Scope of liability: The three categories differ concerning ∆’s liability for far reaching, unexpected, consequences. The more culpable ∆’s conduct, the more far-reaching his liability for unexpected consequences – so an intentional tortfeasor is liable for a wider range of unexpected consequences than is a negligent tortfeasor.
2. Damages: The measure of damages is generally broader for the more culpable categories. In particular