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Rutgers University, Newark School of Law
Latin, Howard A.

Torts Outline

Tort = a civil wrong for which a remedy may be obtained, usually in the form of money damages

I. Intentional Torts

Intent to bring about the natural and probable consequences of an act (not intent to do harm) must be present in order to give rise to an Intentional Tort. (i.e. the balls escaping the cricket grounds not the injury must be intended) The purpose of an intentional tort is to avoid the discussion of foreseeability and make it easy for P’s to win by escaping the burden of proving reasonableness/ intent of the D. P MUST PROVE LACK OF CONSENT.
Battery = an intentional and offensive touching of another without lawful justification (aka tortious battery); ‘intent to touch’; designed to protect people’s physical integrity and psychic harmony
Prima Facie Case
1. Touching (offensive)
2. Intending to touch
3. Lack of consent
Mohr v. Williams (p.12): ear surgeon operates without consent. Rule: If the surgery was performed without consent and was not absolutely necessary at that time, it was wrongful and therefore unlawful, so Dr. is liable.
Vosburg v. Putney (p. 4): one student kicks another while in class. Rule: Not all invasions of one’s bodily integrity give rise to tort claims. Otherwise liability would be strict, as opposed to being based on some notion of fault. Student’s kick was a violation of order and decorum of the school and is therefore unlawful, so kicker is liable.
Offensive Battery = does not cause physical harm, but is hostile and without victim’s consent, such as poking someone with a finger in anger, angrily knocking off someone’s hat, spitting in one’s face, cutting someone’s hair, even unwanted kiss; protects physical integrity/psychic harmony; un-consented to touching; knowledge that the unpermitted conduct has taken place is not necessary to establish offensive battery.
Alcorn v. Mitchell (p.65): appellant spits in the face of the appellee in front of full court. Rule: Any reasonable person would have been offended; punitive damages may be assessed for highly offensive conduct to provide an alternative redress to physical retribution.

Transferred Intent (Battery): When attempting to cause harm to one person, you inadvertently cause harm to a third person. Actor will be held liable. (i.e. A throws a rock at B and C is injured; A is liable to C.) The intent to touch remains a constant regardless of the target.
Thin-Skulled Plaintiff Rule/Eggshell Rule: If you are liable for damage, you are liable for ALL/FULL PHYSICAL DAMAGES, even if the victim is somehow extra frail;
Assault = the threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact/invasion of their privacy/integrity; the act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit battery; ‘intent to frighten’
Prima Facie Case
1. Imminent apprehension/fear of harm to one’s own body
2. Intent to cause apprehension/fear
3. Lack of consent
4. Victim must fee apprehension/fear (varies; functions to
reduce the scope of liability)

I. De S. & Wife v. W. De S (p.61): D struck at P’s wife with a hatchet but missed. Rule: An act, which causes another to be fearful of a harmful or offensive contact is known as an assault, and the P may recover damages, even though there is no actual physical contact or physical harm.
False Imprisonment = a restraint of a person in a bounded area without justification or consent (applies to private and governmental detention)
Prima Facie Case
1. Act or omission of confinement to a bounded area
2. Against P’s will; P must be aware of it
3. No Justification/consent
4. Length of time period is immaterial

Bird v. Jones (p. 67): P was prevented from proceeding on a public highway,
that was closed to permit spectators to watch an event. Rule: There is no false imprisonment where the party has a way out of his partial confinement.

Coblyn v. Kennedy’s, Inc. (p. 71): P was detained by an employee of D who
suspected P of shoplifting. Rule: 1) If a man is restrained in his personal liberty by fear of a personal difficulty, it amounts to false imprisonment. 2) If a shopkeeper has reasonable grounds to believe a person has committed or is attempting to commit larceny of goods for sale on the premises, he may detain that person in a reasonable manner for a reasonable length of time.

Intentional Destruction of Personal Property =
Prima Facie Case
1. Destruction of P’s personal property (does not apply to real
2. Intent
3. Lack of consent
Intentional Infliction of Emotional Distress= intentionally or recklessly causing another person severe emotional distress through one’s extreme or outrageous acts
Prima Facie Case
1. Intent to cause
2. Severe emotional distress
3. Lack of consent
4. Outrageous/shocking behavior to the social
5. Victim does experience severe emotional distress

D’s conduct was intentional and sufficiently extreme and outrageous to be likely to produce a strong emotional response in a normal person. There is sufficient assurance that the alleged harm is real together with a strong public interest in deterring such conduct. P’s emotional response must be severe. If emotional anguish is great, courts will allow the action regardless of whether there is a physical manifestation of the mental suffering or bodily harm. 2nd Restatement: conduct must be intolerable, and not merely insulting, profane, abusive, annoying or even threatening. It must go beyond all reasonable bounds of decency, unless D is aware of P’s super-sensitiveness. Mere verbal abuse, name-calling, rudeness, and threats are generally not actionable.

Defenses to Intentional Torts:

A. General: D eliminates one of the prima facie elements of the case = P loses
B. Affirmative: D says ‘Yes, I did it but for good reason….’
(Both can be employed by one D)

1) Consent (violenti non fit injuria): one who cons

ot know or expect that they are substantially certain to occur. There is merely a risk of such consequences – – unlike an intentional tort. If the P can’t prove negligence, P eats the loss.

Prima Facie Case (duty, breach, causation, damages)
1. Reasonable foreseeablity of the risk
2. D fails to take reasonable care in light of the risk
3. D’s actions caused P injury
4. Damages – can be physical or psychological

When a duty is owed to others:

1. When there is a special relationship (i.e. innkeepers to guests, common carriers to passengers)
2. When there is a contractual duty – where there is reliance or elements of consideration, a contractual relationship exists so as to legally impose a duty to act or prevent harm
3. When there is an assumption of aid/risk on a social venture – if one voluntarily starts to help another, the person voluntarily enters into a relationship and is thus responsible for a failure to provide reasonable care
4. No duty to inspect one’s own property

Foreseeablity = the quality of being reasonably anticipatable.

Stone v. Bolton (p. 138): P was injured when a cricket ball escaped field and hit her in the head). Rule: The happening of a known risk, even if extremely slight, is actionable since the injury was foreseeable.

Hammontree v. Jenner (p. 148): D had an epileptic seizure while driving and
injured P. Rule: A sudden illness, which renders a driver unconscious will not be grounds for an action in negligence or strict liability. However, if illness or risk of illness is known, D is liable. In this case, the last seizure was 20 years prior therefore the risk was not reasonably foreseeable.

Scott v. Shepherd (p. 98): D threw a lighted torch into a marketplace to avoid
injury, it was subsequently thrown by others and eventually scorched the P. Rule: A party will be liable for setting forces in motion, which are likely to cause injury of a sort and do cause injury even though the force is diverted by another. Blackstone dissents saying trespass must have an immediate not consequential injury.
Reasonableness/Standard of Care = reasonable, adequate, satisfactory care so as not to create unreasonable risk for self or others; not all possible care; aka Reasonably Prudent Person Standard (RPP) – a conceptual construct; we look at a group of regular people and ask what they would normally do under similar circumstances; we don’t use subjective standards