MCFARLAND TORTS I FALL 2010
I. INTENTIONAL TORTS
A. Battery- an actor is subject to liability to another for battery if : Acts with intent—voluntary act or unlawful act; to cause harmful or offensive contact; and an offensive contact results either directly or indirectly; without the other’s consent
a. Intent and volition- was this a voluntary or unlawful act—even if you do not intend the harm, it was still a voluntary or unlawful act
i. An act is if voluntary if it is not reflexive; mentally disabled and minors
ii. Transferred intent- A intends to hit B, but actually hits C. A is liable to C, A cannot say he did not intend the harm because he did intend the act itself.
b. Minimum Requirements- the harmful or offensive contact does not have to be direct or physical; touching something on one’s body will suffice, so will particulate matter
c. Consent and Its Limits- a willingness in fact for conduct to occur it may be manifested by action or inaction and need not be communicated; allowing a contact that would otherwise be harmful or offensive
i. Apparent consent-
ii. Implied consent
iii. When is consent vitiated by fraud- court looks to the character of the act itself
B. Trespass- to enter upon another’s property without consent; entry upon land can be by a third person or another object
a. Land- any property besides personal property; immovable property
i. Nuisance protects the enjoyment of the property
ii. Trespass allows the owner to keep others out
b. Entry- even a blade of grass that is trod upon and bent over is enough
i. Actual stepping over the property line or causing something to enter
ii. Accidental- you fall on ice onto another’s land- no liability
iii. Voluntary act- you avoid the ice and step on another’s land-liability
c. A property owner does not have to prove damages; harm is not necessary
d. Trespass quarre claussum freigit- a person’s unlawful entry on another’s land that is enclosed
i. Entering on landposessed by another
ii. Remaining on the land
iii. Placing or projecting any object on the land
e. Damages are normally in the form of market value of the chattel trespassed
C. Conversion- the wrongful possession or dispossession of another’s property as if it were ones own. An act or serious of acts of willful interference; without lawful justification; with an item of property in a matter inconsistent with the owner’s rights; whereby the owner is deprived of the use and possession of the property
a. Trover- action for recovery of damages for conversion of personal property
b. Replevy- allows return of property plus money damages for loss of property use
c. Factors of conversion damages:
i. Extent and duration of the actor’s dominion or control over it
ii. The actor’s intent to assert a right in fact inconsistent with the other’s right of control
iii. The actor’s good faith
iv. The extent and duration of the resulting interference with the owner’s right f control
v. The harm done to the chattel
vi. The inconvenience and expense caused by the other
d. Conversion normally results in the forced “sell” of the property from the true owner to the other that has converted for the full price of the item
e. Nemo dat rule- he who hath not cannot give, or one cannot give what he does not have
i. Thief- a thief acquires no property to title and cannot convey a title to another-liable for conversion
ii. Fraud- acquires “voidable” title- the victim of the fraud can get the property back once discovered, but the fraud has title until then. If the fraud conveys title to another person they are immune from conversion liability because the voidable title essentially “clears” all previous owners and starts over with the fraud/new owner.
f. Trespass does not have to prove substantial interference with possession as conversion does
i. If the interference does not amount to “dispossession” then an action for trespass stands (includes proving damage or injury)
D. False Imprisonment- protects the plaintiff’s interest in freedom of movement; generally committed when one party confines another without authorization
a. Confinement:
b. The actor intends to confine; the act directly or indirectly results in confinement; and the other is conscious of the confinement or harmed by it
c. Not liable for transitory or harmless confinement (locked in the cooler hypo), if the confinement was harmful it would be negligent as well
d. False Imprisonment
i. Intent to confine another
ii. Within boundaries fixed by the actor
iii. Confinement results directly or indirectly
iv. Plaintiff must prove awareness of the confinement or be harmed by it
1. Confinement can be physical force, physical barriers, implicit or explicit threats, and false assertion of legal authority
e. To prove confinement you have to prove if there is a way out that is reasonable, you must prove intent to prove false imprisonment
i. If movement is restricted you are confined, but the act to confine must be intentional; must be aware of the confinement; consent is an affirmative defense for confinement and false imprisonment
E. Assault- an actor is subject to liability if
a. An act –voluntary as opposed to reflexive
b. To cause harmful or offensive contact(Battery) or imminent apprehension of a battery to another person
c. Actual and reasonable apprehension of an imminent battery
d. Even if you do
beside flight or standing his ground
o. Defense of a third person- a person may protect a third person from threatening bodily harm or injury in the same way and with the same force he would himself
p. If circumstances would give the third person self-defense and his intervention is necessary for the protection for the third person
q. courts look at the reasonableness of the force used and the necessity to use the force; also proportionality
C. Private Necessity- a necessity that involves only the defendant’s person interests and provides only a limited privilege; actual or reasonable appearance of necessity based on the circumstances. Actual =real threat; reasonable=we would have been fine, but the tornado looked bad. A limited privilege for trespass, etc. but not a privilege to escape liability for any harm caused, no right to damage.
a. Entry upon another’s land may be justified by necessity if an act of God or other involuntary trespass threatens serious danger or the life of another
b. Private necessity relieves the intruder from liability for trespass, but destroys possessor’s immunity from liability in resisting the intrusion
c. Restitution-remedy for unjust enrichment and generally requires a defendant to disgorge benefits gained at the plaintiff’s expense; measuring damages by loss or gain
d. Cost-benefit analysis and the single owner principle come into effect, choosing one property interest over another
e. If a person knows that going out in the rain is a grave danger to your health and still makes you leave the premises they can be held liable for any sickness or injury
f. Squatting interferes with the administrative allocation of housing. Excuse of homelessness or hunger cannot be used as a necessity, it can only be upheld when life is in danger otherwise no one’s houses would be safe
g. High transaction costs: when the situation provides little or difficult chances of the two parties negotiating, as a practical matter, the law allows people to take other’s entitlements and pay damages; by awarding damages the courts have made the deal for the parties they might have made themselves
a. When there is no time for bargaining the person in the leveraging position could create a monopoly because they know the other party has not choice
h. Low transaction costs: are more likely to protect property rights that result in stronger sanctions than would the damages that are awarded
D. Public Necessity- a necessity that involves the public interest and completely excuses the defendant’s liability. There must be actual appearance of necessity; If you are mistaken or reasonable and are wrong you have no privilege and are responsible for damages. If one establishes public necessity then the owner is responsible for any damages, not the destroyer
