Torts Outline

Torts Outline – Vermont Fall 2012
Intentional Torts
 
1.      Battery
a.       Definition: Battery is: 1) intentional, (2) harmful or offensive (3) contact with the (4) non consenting plaintiff. (Example: A intentionally punches B in the nose. A has committed battery.)
                                                              i.      Intent: It is not necessary that D desires to harm P. D has the necessary intent for battery if it is the case that: (1) D intended to cause a harmful or offensive bodily contact
1.      Transferred intent: intent can be transferred when an innocent party is contacted and the contact was meant for another
                                                            ii.      Harmful or offensive contact: If the contact is “harmful” – i.e., it causes pain or bodily damage – this qualifies. But battery also covers contacts, which are merely “offensive,” i.e., damaging to a “reasonable sense of dignity.” The test is whether or not the contact was permitted by the plaintiff.
1.      Contact: anything that is put into motion that contacts the other is considered contact
                                                          iii.      iv) Extends to personal effects: Battery may be committed not only by contact with plaintiff’s body, but also contact with her clothing, an object she is holding (e.g., a cane), etc. This applies to indirect contact, too (e.g., by ordering his dog to attack the plaintiff).
2.      Assault
a.       Definition: Assault is: (1) intentionally (2) causing apprehension of (3) harmful or offensive contact.
                                                              i.      Intent: The defendant must either have intended to cause the apprehension or contact, or have intended to cause the contact itself.
1.      Intended apprehension: First, D intends to put P in imminent apprehension of the harmful or offensive contact, even if D does not intend to follow through (e.g. D threatens to shoot P, but does not intend to actually shoot P). Intention to frighten, but not actual contact = intent.
2.      Intent to make contact: Alternatively, D intends to in fact cause a harmful or offensive bodily contact. (Example: D shoots a gun at P, trying to hit him. D hopes P won’t see him, but P does. P is frightened, but his shot misses. This is assault.) Attempted battery = assault.
a.       Apprehension test:
(1) Must be reasonable
(2) Apprehension is not to be confused with fear or intimidation. (3) Apparent ability will meet the apprehension requirement.
                                                            ii.      No hostility: It is not necessary that D bears malice towards P, or intends to harm her. (Example: D as a practical joke points a toy pistol at P, hoping that P will falsely think that P is about to be shot. D has one of the two alternative intents required for assault – the intent to put P in imminent apprehension of a harmful or offensive contact – so the fact that D does not desire to “harm” P is irrelevant.)
                                                          iii.      “Words alone” rule: Ordinarily words alone are not sufficient, by themselves, to give rise to an assault. Normally, there must be some overt act – a physical act or gesture by D – before P can claim to have been assaulted. (Example: During an argument, D says to P “I’m gonna hit you in the face.” This is probably not an assault, if D does not make any gestures like forming a fist or stepping towards P.) 
(1) Special circumstances: However, the surrounding circumstances, or D’s past acts, may occasionally make it reasonable for P to interpret D’s words alone creating the required apprehension of imminent contact.
                                                          iv.      Imminence: It must appear to P that the harm being threatened is imminent, and that D has the present ability to carry out the threat. (Example: D threatens to shoot P, and leaves the room for the stated purpose of getting his revolver. D has not committed an assault on P.) The circumstances must create in the mind of the party alleging the assault a well-founded fear of imminent battery, coupled with the apparent present ability to effectuate the attempt.
3.      Intentional Infliction of Emotional Distress
a.       Definition: This tort is the intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional or mental distress, even in the absence of physical harm.
                                                              i.      Intent: “Intent” for this tort is a bit broader than for others. There are three types of culpability by D:
1.      D desires to cause P emotional distress.
2.      D knows with substantial certainty that P will suffer emotional distress.
3.      D recklessly disregards the high probability that emotional distress will occur. (Example: D commits suicide by slitting his throat in P’s kitchen. D, or his estate, is liable for intentional infliction of emotional distress because although D did not desire to cause distress to P, or even know that the distress was substantially certain, he recklessly disregarded the high risk that distress would occur.)
                                                            ii.      Outrageous Contact
1.      Does not capture ordinary rudeness or meanness, must be beyond all bound of decency and intolerable in civilized society (Restatement S. 46)
2.      Measured by a reasonable person
                                                          iii.      Intent on part of defendant to cause plaintiff to suffer severe emotional distress, or recklessness as to the effect of defendant’s conduct
b.      Also need causation and damages – severe emotional distress
4.      Trespass to Land
a.       An act of physical invasion of plaintiff’s real property by defendant; intent on defendant’s part to bring about a physical invasion of plaintiff’s real property and; causation.
b.      Definition: As generally used, “trespass” occurs when either:
                                                              i.      D intentionally enters P’s land, without permission.
                                                            ii.      D remains on P’s land without the right to be there, even if she entered 
rightfully.
                                                          iii.      D puts an object on (or refuses to remove an object from) P’s land without permission.
1.      Intent: The term “trespass” today refers only to intentional interference with P’s interest in property. There is no strict liability. (Example: D, a pilot, loses control of the aircraft, and the aircraft lands on P’s property. This is not trespass to land.) 
(1) If you intend to be on another’s property, it is trespass. If you did not intend to be on one’s property, it is not trespass. 
(2) Negligence: If D negligently enters P’s land, this is generally treated, as the tort of negligence, not trespass.
c.       Restatement 158 – Liability for Intentional Intrusions on Land (basic trespass) you ARE liable if you enter intentionally…
                                                              i.      There can be a trespass even if no harm results
                                                            ii.      The intrustion on the land has to be entry (either the entry or the remaining on the land
d.      Restatement 164: Intentions Under Mistake (mistake about whether you are trespassing): you are liable even if it is under a mistaken belief:
                                                              i.      There is liability even if you didn’t know you were on the property
1.      Unless you are invited by the owner or told by the owner
e.       Restatement 166: Non-Liability for Accidental Intrusions (Not trespass IF)
                                                              i.      Must be un-intentional
                                                            ii.      The entry is non-negligent
                                                          iii.      EXCEPT: the activity you are engaged in is abnormally dangerous
f.       164 & 166 are different because:
                                                              i.      It’s hard to prove in 164 what was a mistake – what was in the defendants mind
1.      Ignorance of law is not an excuse in general
5.      Trespass to Chattel
a.       Definition: “Trespass to chattels” is defined as any intentional interference with a person’s use or possession of a chattel. D only has to pay damages, not the full value of the property (as in conversion below).
                                                              i.      Trespass to chattels is designed to protect a person against interference with his right to possess his chattels. Hence, any act of interference will suffice.
                                                            ii.      Intent to do the act of interference with the chattel is sufficient – intent to trespass is not
6.      Conversion
a.       Definition: Conversion is an intentional interference with a P’s possession or ownership of property so substantial that D should be required to pay the property’s full value. 
(1) Example: D steals P’s car, then seriously (though not irreparably) damages it in a collision. D is liable for conversion, and will be required to pay P the full value of the car (though D gets to keep the car).
                                                              i.      Intent: Conversion is an intentional tort, but all that is required is that D have intended to take possession of the property. Mistake as to ownership will not be a defense. (Example: D buys an old painting from an art dealer, and reasonably believes that the art dealer has good title. In fact, the painting was stolen from P years before. D keeps the painting in his house for 10 years. D is liable for conversion, notwithstanding his honest mistake about title.)
b.      Distinguished from trespass to chattels: Courts consider several factors in determining whether D’s interference with P’s possessory rights is severe enough to be conversion, or just trespass to chattels. Factors include: 
(1) Duration of D’s dominion over the property. (2) D’s good or bad faith.
(3) The harm done to the property.
(4) The inconvenience caused to P.
c.       Bona fide purchaser: A bona fide purchaser of stolen goods is still a converter, even if there was no way for him to know they were stolen.
d.      Transfer to third party: D can also commit conversion by transferring a chattel to one who is not entitled to it. (Example: D, a messenger service, delivers a package to the wrong person, X. X absconds with the goods. D has committed conversion, even though D did not end up with possession of the goods.)
e.       Withholding good: D may commit conversion by refusing to return good to their owner. (Example: D, a parking garage, refuses to give P back her car for a day.) The essence of the conversion claim is that the defendant has exercised dominion over the goods. There is generally no liability for conversion until the plaintiff has demanded return of the chattel and has been refused.
Defenses to the Intentional Torts
7.      Consent
a.       Analysis:
                                                              i.      Determine that the plaintiff had the capacity to give consent.