Torts 2013 Vermont
Intentional Torts: The Prima Facie Case
I.Battery – Battery is the intentional infliction of a harmful or offensive bodily contact.
a. Intent and Volition
i. Specific Result or Injury. Once it’s proved that D intended to commit a harmful or offensive touching (or intends any other tort) and such contact occurs, D is liable for any consequences which ensue, even if unintended or unforeseen. (White v. University of Idaho)
ii. The Insanity Defense. “An insane person may [commit battery], even though his reasons and motives for forming that intention may be entirely irrational.” (Polmatier v. Russ)
iii. The First Law of Nature. The law presumes that an act or omission done or neglected under the influence of pressing danger was done or neglected involuntarily. (Laidlaw v. Sage)
iv. Transferred Intent. As long as D intended to hit one person, he will be liable for an intentional tort against any other person who happens to be injured. (Manning v. Grimsley)
1. Keel v. Hainline – L for “horse play” in the classroom and girl who’s not participating gets hit by an eraser and loses an eye. L also for kid at whom the eraser was originally thrown, because the kid helped instigate the battery.
b. Minimum Requirements
i. Minimum Requirements. (1) Intent to touch P; and (2) Harmful or offensive contact.
1. Must be a voluntary act to have a battery (cannot be involuntary).
2. P does not need to be aware of the contact at the time it occurs.
ii. What Constitutes Battery. Knocking anything from P’s body or touching anything connected with his person, when done in a rude or insolent matter, is enough. (Morgan v. Loyacomo)
iii. What Constitutes Offensive Contact. Contact which is offensive to a reasonable sense of personal dignity. The test is objective, NOT subjective – the reasonable person standard.
iv. Tobacco Smoke. Tobacco smoke is capable of making physical contact and of offending a reasonable sense of personal dignity. (Leichtmann v. WLW Jacor Communciations, Inc.)
c. Consent and its limits
i. Consent defined. Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor.
ii. Apparent consent. If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.
iii. Switching Doctors. Consenting to an operation from one doctor is not consenting to that operation being performed by another doctor.
iv. Objective Norms. Offensive contact judged by a “reasonableness” standard. NL if the essential character of the contact itself was not harmful or offensive. (Brzoska v. Olson)
v. Idiosyncratic Objections. You don’t consent to contact if you object on the basis of religion, personal experiences, etc. (Cohen v. Smith)
vi. Implied consent. The law implies the consent of an unconscious patient to medical procedures needed to preserve the patient’s life, and where there is no opportunity to obtain actual consent. (Werth v. Taylor)
vii. Consent obtained by misrepresentation of fact/mistake as to a collateral matter. If consent is obtained by fraud in the factum (misrepresentation of fact, specifically the essential character of the act) it is ineffective. (Rains v. Superior Ct.) If consent is obtained by fraud in the inducement (mistake as to a collateral matter), the mistake does not extend to the essential character of the act and is still effective. (Freedman v. Superior Ct.)
viii. Consent to illegal acts. If you consent to illegal acts, you cannot recover damages for battery incurred in the performance of the illegal act. (Hart v. Geysel, Minority Opinion) Consent to an unlawful act is no defense to a claim of battery. You can recover damages from those who injure you during the commission of the illegal act. (McNeil v. Mullin, Majority Opinion)
ix. Consent to crime. Consent is effective to bar recovery in a tort action although the conduct consented to is a crime UNLESS the conduct is made criminal in order to protect a certain class of persons irrespective of their consent, in which case the consent of members of that class to the conduct is not effective to bar a tort action.
x. Consent while intoxicated. If P, owing to his state of intoxication, was incapable of expressing a rational will and D had knowledge of this state, the consent was ineffective. (Hollerud v. Malamis)
II.Trespass – One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters the land in the possession of another, or causes a thing or a third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove.
i. Conditional or Restricted Consent to Enter Land. A conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with. (Restatement 2d §168)
ii. Intrusions Under Mistake. One who intentionally enters land in the possession of another is liable for trespass even if you act under the mistaken belief of law or fact, not induced by the conduct of the possessor, that (1) you have possess ion or entitlement to the land, (2) have the owner’s consent to enter or were given consent by a 3rd party, or (3) have a privilege to enter or remain on the land. (Restatement 2d §164)
iii. Implied Consent as to Trespass. Implied consent is effective if fraud is as to a collateral matter, or if no invasion… of the specific interests that the tort of trespass seeks to protect. (Desnick v. American Broadcasting Companies, Inc.)
iv. Animal Invasions when D has knowledge of such invasions. If D releases animals with the knowledge, actual or constructive, that they will enter another’s lands, D will be liable for the damages his animals cause. (Pegg v. Gray)
1. Constructive Knowledge: When you impute knowledge onto another person, and assume they either knew or should have known that an event would occur.
v. Animal Invasions; Proximate Causation. Injuries must be proximately caused by the animal’s trespass. Damages that do not naturally result or are not anticipated from the trespass of D’s animal are unrecoverable. (Hollenbeck v. Johnson)
vi. Non-Liability for Accidental Intrusions. UNLESS the actor is engaged in an abnormally dangerous activity, an unintentional and non-negligent entry on land in the possession of another does not subject the actor to liability to the possessor, even though the entry causes harm to the possessor. (Restatement 2d §166)
1. (Malouf v. Dallas Athletic Country Club: NL since golf club and individual golfers did not intentionally cause the golf balls to damage P’s personal property.)
vii. Particles and Substances. D who causes particles or substances to enter P’s property commits trespass. (Van Alstyne v. Rochester Telephone Corp.)
viii. Depths of the Earth. (Majority) Whatever is in a direct line between the surface of the land and the center of the earth belongs to the owner of the surface. (Dissent) The man who owns the mouth of the cave owns the cave, to the extent that effective possession is possible. (Edwards v. Lee)
ix. Airspace. Private property owners do not have the right to block the passage of airplanes, but do have a right not to have planes fly overhead at extremely low altitudes. (Smith v. New England Aircraft Co.)
III.False Imprisonment – (1) [D] is subject to liability to another for false imprisonment if (a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and (b) his act directly or indirectly results in such a confinement of the other, and (c) the other is conscious of the confinement or is harmed by it. (2) An act…not done with the intention…in Subsection (1,a) does not make the actor liable to the other for a…transitory or otherwise harmless confinement…. (Restatement 2d §35)
i. What Constitutes Confinement. (1) The other’s confinement within boundaries fixed by the actor must be complete. (2) Confinement is complete even if there is a reasonable means of escape, unless the other knows of it. (3) No liability for false imprisonment by intentionally preventing another from going in a particular direction in which he may lawfully go. (Restatement 2d §36)
ii. Confinement by Physical Barriers. Confinement may be by actual or apparent physical barriers. (Restatement 2d §38)
iii. Deprogramming. If a reasonable person would think that P has the capacity to consent, even if no actual consent, this is enough. Also, NL if other party is D’s own child, in religious cult, who has impaired “judgmental capacity” (lacks capacity to give consent) (Peterson v. Sorlien)
NOTE: Consent is a fact question; in Eilers v. Coy, jury found for P who had faked consent and fled at first opportunity.
iv. The Citizen’s Arrest. CL allows for arrest on probable cause of felonies, but most states have authorized such arrests by statute. (Bright v. Alishie)
v. Mistaken Citizen’s Arrest. Mistaken citizen’s arrest: some states NL if “probable cause,” others L if wrong person.
vi. Shoplifters. Most states have statutes giving shopkeepers a limited privilege to detain suspected shoplifters without L even if their suspicions prove to be unfounded. Must detain suspects in a reasonable manner and for a reasonable time.
vii. Persuasion as a factor of arrest. If D merely states what he believes, allowing a police officer discretion to prosecute, D is not regarded as having instigated the proceeding. If D’s persuasion was the determining factor in inducing the officer’s decision, or that he knowingly gave false information to induce the authorities, he may be liable. (Melton v. LaCalamito)
viii. Instigating or participating in false imprisonment. One who instigates or participates in the unlawful confinement of another is subject to liability to the other for false imprisonment.
1. Instigation: Instigation consists of words or acts which…encourage the false imprisonment itself.
IV.Conversion – This tort entitles a plaintiff to collect damages where the defendant has interfered with the plaintiff’s personal property to such an extent that the defendant is required to pay its full value.
i. Trespass to chattels v. conversion. If the interference is so great that it is fair to require the defendant to pay the full value of the chattel (regardless of whether it could be returned in some form to P), the action will be for conversion; if the interference is less substantial, the action will be for trespass to chattels.
ii. Liability for trespass to chattel. You are subject to liability for trespass to chattel if, but only if, (a) you dispossess the other of the chattel, or (b) the chattel is impaired as to its condition, quality, or value, or (c) the possessor is deprived
en serious harm or death, even though he might with absolute certainty of safety avoid the threatened bodily harm or offensive contact by retreating. (Restatement 2d §63 comment m)
v. Self-Defense by force threatening death or serious bodily harm. A property owner may use deadly force against the intruder only if she believes that the latter will, unless he is kept out, cause death or serious bodily harm.
a. Spring gun case. Cannot use deadly force to defend property against a trespasser, unless the latter is committing a felony of violence, or is endangering human life by his act. What a property owner may not do directly, he may not do indirectly by a spring gun or other mechanical device. (Katko v. Briney)
i. L because remedy incommensurate with harm. No notice, no physical presence.
b. Burglary. A firearm may be used if reasonably necessary to prevent the commission of a felony or to arrest a felon after a felony has been committed. (Wright v. Haffke)
c. Watchdogs. The mere keeping of a ferocious dog, knowing him to be such, for the purpose of defending one’s premises, is not in itself unlawful; and when injury follows from one so kept, the manner of his confinement and the circumstances attending the injury are all to be considered in determining the owner’s liability. NOTE: Not the same as spring guns. (Woodbridge v. Marks)
vi. Mistake as to danger. If the property owner mistakenly but reasonably believes that force is necessary to protect her property, her use of force will be privileged, provided that there is a real non-privileged intrusion. (Crabtree v. Dawson)
vii. Standing one’s ground in his dwelling place. One attacked in his dwelling place may await his assailant and use deadly force to repel him though he could prevent attack by other means. HOWEVER, if a man is threatened with an attack while he is within his own dwelling place, he cannot use deadly weapons if he can avoid the necessity of so doing by any alternative other than flight or standing a siege. (Restatement 2d §65 comment i)
viii. Harmful contact in defense against harm threatened otherwise than by other. A and B are sailing in a boat, which is about to be swamped by a squall. The boat is manifestly incapable of carrying both. A pushes B into the water. A reaches shore safely in the boat, but B drowns. A is subject to liability for the death of B. (Restatement 2d §73 illustration 3)
ix. Defense of third person. D can defend a third person from a harmful or offensive contact or other invasion of his interests of personality…if the actor correctly or reasonably believes that (a) the circumstances are such as to give the third person a privilege of self-defense, and (b) his intervention is necessary for the protection of the third person.
x. Privilege of self-defense or defense of third person. One can commit an act which would otherwise be a trespass to or a conversion of a chattel…of another, to defend himself or a third person against the other, under the same conditions which would privilege one to inflict a harmful or offensive contact upon the other…. (Restatement 2d §261)
xi. Defense of property against another party’s animals. [To protect one’s property against another’s animals], one must (1) use reasonable efforts to drive the [animal] away and in such appropriate manner as will probably cause him to stay away; or (2) endeavor to catch the dog and confine him to be dealt with in a [reasonable] manner, or (3) make reasonable efforts to ascertain and notify the owner of the dog, so that the latter may…take the necessary precautions…to stop the depredations. (Hulls v. Scruggs)
a. NOTE: One doesn’t have to build fences to keep out dog; must merely make reasonable effort to use other alternatives before shooting dog.
b. Excessive defense actions. Although there must be apparent necessity for the defense, honestly believed to be real, and reasonable defensive acts, acts beyond reason are excessive. In the case of domestic animals from attacks of other animals the relative value of the animals may be a proper [factor] for the jury to consider. (Kershaw v. McKown)
xii. The Single Owner Principle. In deciding whether D…acted wrongfully, we might ask [what might have happened if a single owner possessed] both…the source of the threat and…the property being threatened. (Bamford v. Turnley)
