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Torts
John Marshall Law School, Chicago
Bernabe, Alberto

Difference b/w duty to HELP and duty to RESCUE

RPP:
Does not create unreasonable risk of harm to others
Has a certain level of common knowledge
Sometimes, he violates the law if it would help avoid risk to others

INTENTIONAL TORTS
D who commits intentional tort is liable for all resulting injuries, however unexpected
Common elements for all intentional torts:
Intent
· D acted for the purpose of causing ______[the particular tort] · OR
· D acted with substantial knowledge that the act would cause __ [the particular tort] o Garrat v. Daley: no liability w/out fault. 5 y.o. D intended for the lady to fall when he knew she was going to sit onto the chair and pulled it from under her.
§ This case
· Transferred intent – if a person intents to inflict unwarranted injury upon another but ends up injuring some unintended party, he is still liable for injuries.
o Applies to 5 orig. int. torts: assault, battery, FI, trespass to chattel & tresp to land.
o Talmage v. Smith – D had intent to injure P even though P can only prove that D had intent to injure someone else when he threw a stick and injured P.
· Mistake doctrine – if D intends to do acts which would constitute a tort to one person but does it to another, still constitutes intent as to the P. Same w/property – if trespass thinking it’s yours, it’s still trespass.
· Concept of intent is subjective; proof can be objective evidence of act from which jury can infer subjective state of mind
Causation
Injury

BATTERY: intentional harmful or offensive contact w/another’s person, causing harm.
Interest protected: personal autonomy –right to choose who touches us
· Harmful or offensive contact w/a person
o Doesn’t have to be physical contact
o Anything connected to a person so that it is customarily regarded as part of the other’s person is offensive contact
§ Fisher v. Carousel Hotel –offensive contact when knock plate out of P’s hands
o Contact doesn’t have to be direct – touching someone w/a stick is still a battery
o P doesn’t have to be conscious of either the contact or its offensive nature
§ Sleeping beauty kiss- price is liable for battery
· + Intent of either harmful of offensive contact (not intent to harm, just intent of contact)
o Boy playfully kicked classmate’s chair w/out intent to harm but classmate’s old injury got aggravated, he’s liable
o Doc performs successful medical procedure but w/out pt’s consent, still liable for battery b/c intentional offensive contact
· +causation
· +injury
o Doesn’t have to be physical injury b/c protects intrusions of personal autonomy as well
Always distinguish intent to act from intent to cause a harmful or offensive contact
ASSAULT: intentional affliction of injury caused by apprehension of imminent harmful or offensive contact and apparent or actual ability to inflict it
Interest protected – to be free from emotional injury that is result of apprehension of possible battery
Vicarious liability – employer may be vicariously liable for employee’s conduct if employee is acting w/in the scope of employment
· intent
· apprehension (NOT fear)
o MUST know. If don’t know, no apprehension
o Source of contact doesn’t have to be D – if D convinces P that a stick next to P is a snake D put there, which is about to bite P, it’s apprehension of imminent harmful contact
o Sleeping beauty is battery but not assault b/c she has no apprehension of the contact
o Crim law “Assault” = attempted battery; but not every battery is an assault
§ Sleeping beauty kiss – battery but not assault b/c no apprehension
· of imminent harmful or offensive contact [battery] o beating up, spitting, throwing water balloons (either harmful OR offensive)
o Traditional CL: words alone are insufficient
o Rest: verbal stmts can sometimes imply sufficient imminency
§ A says to B “I will shoot you right now” => apprehension
o
· ability to do it à apparent OR actual
o Western Union v Hill – qn of fact to jury whether employee was liable for assault when he attempted to touch P and offered to “love and to pet her” while still behind a counter that divided them.
o If pull the trigger of unloaded gun (apparent ability but not real), still assault what if only point but don’t pull?
· +causation
· + injury

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: severe emotional distress intentionally or recklessly caused by extreme and outrageous conduct
Interest protected: individual’s right to not have others wrongfully and intentionally cause us emotional disturbance
Relatively new COA, sometimes delves into issues of 1st amendment – I can say what I want
· Intentional or reckless conduct
o “reckless” – deliberate disregard of a high degree of probability that severe mental distress will result even when that was not D’s intention
§ presumed level of culpability below intent but above negligence
§ allows to argue distress absent intent & negligence
o Bernabe doesn’t think ‘reckless’ should be a category in torts
· Extreme & outrageous conduct
o Conduct that is beyond all possible bounds of decency, and regarded as atrocious, and utterly intolerable in a civilized community.
o No objective std
o Factors: victim’s personality-vulnerability, rel-ship b/w parties, circumstances
· Severe emotional distress
o Level of distress no one should be made to endure
o Don’t need physical manifestation
o Third party recovery – emotional distress suffered by bystander is actionable when:

The victim is a close relative of the primary victim
Is present at the scene of the outrageous conduct against the primary victim
D knows the close relative is present
BUT this is not the same as transferred intent – no such thing in IIED (would expand scope of liability too wide, too many claims)

· Taylor v. Vallelunga – P was present & witnessed beating of her father but no COA b/c D didn’t know she was there nor did he beat up the father w/intent to cause daughter ED.
· +Causation

FALSE IMPRISONMENT: intentional confinement or restrain of a person without adequate legal justification, causing injury.
Interest protected: the right to be free of unjustifiable confinement
· Confinement
o Means of confinement:
§ Physical barrier or

Area must be bound in all directions; P must not be free to proceed in any direction, with no reasonable means of escape
Not reasonable means of escape – requires P to be heroic, endure excessive embarrassment or discomfort, or if victim is unaware of the means to escape
Can be a large area –even entire city

§ Force or threat of immediate force against P, his family or others in his immediate presence, or his property, or
· A grabs B’s coat, B refuses to leave w/out it, B I falsely imprisoned
· Threat of economic retaliation or employment termination is not FI
· Hardy v. LaBelle- employer suspected employee in theft, sup asked her to go to back room, said for a tour but really for interrogation, he never told her she couldn’t leave or threatened her with force; and she never asked to leave,
§ Omission where the D has a legal duty to act or
· Have to prove duty
§ Improper assertion of legal authority – false arrest.
· P has to submit to the arrest
· Arrestor has to be unprivileged under the circumstances
· 3 ways to support arrest:
o Reasonable cause
o Conviction
o Warrant
· Enright v. Groves – police officer approached a woman sitting in her car b/c he was told she owned the dog that was running loose, but he arrested her b/c she did not show him her DL- he said “produce the DL or go to jail”. Convictio

so much, buy it!
o Typically, no recovery for sentimental value

TRESPASS TO LAND – intentional unauthorized entry onto another’s land
· Interest protected: right to exclude others from ur land & to prevent unauthorized entry to ur land
· Intent
· Physical invasion of another’s land

· Mistake is not excuse – still trespass if D had intent to be where he ended up being
· Interference is enough – no need to show damages
· Nominal damages r allowed; + injunction
o Walk the dog, dog poops; u didn’t know, but turns out u’re on neighbor’s land=>trespass b/c u had desire & purpose to allow ur dog to poop right here. It’s not ur land. Give me my $$.
o Heart attack while driving, run into the fence & onto P’s prop =>no trespass b/c no intent
(1)Dougherty v. Stepp, pgs. 66-67
(2) Bradley v. American Smelting and Refining Co., pgs. 68-70

NUISANCE – public v.private
· Private nuisance – unreasonable interference w/another’s current possessory or beneficial interest in the use or quiet enjoyment of land
o Unreasonable interference
o Current possessory interest
§ P doesn’t have to be owner, but be lawful occupant, have possessory interest
o Use or quiet enjoyment
§ Generally include noise, lights, odor, vibrations
· Public nuisance- interference w/a public right or convenience, or public health or safety
o P doesn’t have to have property or use interest in affected land
· To distinguish from trespass, factors include:
o Duration (serious, persistent, permanent – trespass; temporary- nuisance)
· No nominal damages

Process:
Complaint filed
The job of defense lawyer is to dismiss it asap; most direct way – attack elements of the COA (facts don’t support the claim)=>Motion to Dismiss
If lawyer fails to dismiss – litigation goes forward
D argues their defenses

PRIVILEGES (DEFENSES)
Consent = permission, authorization; if there’s consent, D can argue as defense
a. Rogers v. Board of Road Com’rs for Kent County, pgs. 72-73
b. Hackbart v. Cincinnati Bengals, Inc., pgs. 92-94
c. Mohr v. Williams, pgs. 94-97
d. De May v. Roberts, pgs. 99-100
· There’s a debate as to whether it’s a defense or element of COA for P to prove – important b/c if it is, P always has to insert “there was no consent”, and if forget once, the case may be dismissed
o Simple solution – always argue lack of consent
· Can be express, apparent, implied by law
§ Express–explicit; relies on objective manifestation
§ Apparent/implied – under the circumstances, conduct reasonably conveys consent
· Also can be implied from usage or custom

Rogers v. Board of Rd Commissioners – implied consent b/c P stood in line w/other women who went thru vaccination, & stuck her arm out

·
§ Implied by law –e.g consent to emergency medical treatment
· Limits to consent:
o Time restraint
Rogers v. Board of Road Commissioners for Kent County – D had permission to have a snow fence up on the decedents land during winter but was to remove it when it wasn’t needed. D left