Bauman Torts
Fall 2014
I. Intentional torts: FITTED CAB
a. Why are most cases brought? Liability insurance
b. To establish prima facie case for intentional tort liability – prove 3 elements:
i. Act by D
ii. Intent and
iii. Causation
c. Intent:
i. Act with the purpose of causing contact
ii. Knowledge substantially certain to occur -Garrett v. Daily
1.) false imprisonment
a. intent to confine someone against their will and the other is conscious or harmed by it. Elements:
i. Intent to confine п, п in fact completely confined
ii. Action
iii. Causation- P is aware of the confinement or suffers actual injury from the confinement
b. confinement – direct restraint of P or his physical liberty w/o adequate legal justification
c. Problem: were they confined? That is the issue…
d. Teich Miller- you must ASK to leave. Can’t assume, but ask or else there is no FI.
e. П has burden of proving the Δ confined her
2.) Tresspass to land
a. intent to enter land owned by someone else or cause a third person or thing to enter the land and fails to remove it
b. actual damages are not necessary because enforces boundary policies…theory is so that ppl aren’t intruding into other land
c. Amphitheater: smoke isn’t a trespass to land because it’s not a tangible invasion. Ownership is from anything below or above it
d. Traditional view: an actor commits trespass to land when he intentionally enters or causes an entry onto the land of another.
i. Entry can be made above or below through the surface of the land
ii. Ex. shooting a gun over your land to duck hunt
iii. Actual harm to the land is not required
1. vindicates owners exclusive possession- that’s what trespass is supposed to protect: there is injury in right of exclusive possession when ppl come onto your land
e. Modern New rule: intangible forces can be evasive but must violate legally interest of the п. More than a ray of light.
i. Trespass interferes with the owner’s right to exclusive possession
ii. Trespass can occur by means of a physical invasion of microscopic particles if the result is in interference with the right of exclusive possession.
iii. When invasion involves microscopic particles, the п must show actual damage to the property.
f. Can’t use “mistake/good faith” as a defense to trespass
3.) trespass to chattels
a. intentional act
b. Prima facie case:
i. Δ interferes with п right of possession
ii. Intent to perform the act- mistake is no defense, but intending to do the act of interference is sufficient
iii. Causation, and
iv. Damages
c. using or intermeddling with another person’s chattel
i. dispossess (I don’t have it anymore) the other of his chattel
ii. chattel is impaired
iii. possessor is deprive of use of substantial time
iv. bodily harm is thereby caused to a person in which S has a legally protected interest
d. Taking away of or damage to tangible personal property
e. Actual damage to or loss of use chattel required
f. Damages: value of loss of use or cost of damages to the chattel
4.) emotional distress
a. extreme and outrageous conduct,
i. Intent: Conduct must be intentional to cause severe emotional harm: intentional or reckless.
ii. causation
iii. damages- severe emotional distress
b. Intentionally causes severe emotional distress or with recklessness regarding the infliction of such distress and severe emotional distress results.
c. causal connection btw wrongful conduct and emotional distress
d. Transferred intent doesn’t work here: Caldor v. Bowen- severity is measured by intensity and duration. Need more than cursing or insult. Court will be harder if you take advantage of someone’s vulnerability
e. Nickel: you just have to have severe emotional distress- court wont take it easy if it’s the boss
f. Damages – how to prove severe emotional distress? Physical symptoms – something not seen before: Relationship. Missing work, inability to sleep, weight fluctuation. etc. severe enough to make client see Dr. (may note symptoms non—pro missed/ if not. D might say P didn’t care enough to see Dr.. or ran up damages by failing to see Dr. One shot at getting compensation)
g. The “mere insult” is NOT outrageous conduct
5.) Conversion
a. Conversion is where you borrow and steal- wrongful exercise of dominion over the personal property of another (taking, substantial use, altering, destroying, selling and buying)…must be tangible
b. Prima facie case:
i. Δ interfering with п right of possession in the chattel that is serious enough in nature or consequence to warrant that the Δ pay full value of chattel
ii. Intent to perform the act bringing about the interference with п right of possession
iii. Causation
c. Damages: Δ must pay п the full value of the property at the time of conversion.
d. Wiseman- tow truck case- conversion: is where you borrow and steal- exercise the dominion- you don’t have to intent to own it.
e. What act constitutes so serious to make actor pay full value? P.56
i. Wrongful acquisition (theft)
ii. Wrongful transfer (mis-delivering)
iii. Wrongful detention (refusing to return to owner)
iv. Substantially changing
v. Severely damaging or destroying
vi. Misusing the chattel
f. How to satisfy the element of conversion:
i. Took something that belonged to someone else. What act constituted the conversion? Towing the truck (Wiseman v. Schaffer- stolen truck, towed)
ii. This act of dominion of truck leads to loss of truck.
iii. Δ isn’t excused- he intentionally meddled with the truck- real owner didn’t give him permission to do so.
g. Multiple factor test: different from notion of elements of a cause of action- in order to have COA for battery, must have….etc…but for multiple factor test- no one factor by itself absolutely has to be there. Look at all the factors: what court thinks are most significant factors and how do they operate in the situation?
6.) Assault
a. Elements of assault:
i. An actor commits assault if he acts intending
1. to cause a harmful or offensive contact OR
2. to cause imminent apprehension of such contact AND
3. the actor has the apparent present ability to inflict the contact AND
4. apprehension of harmful or offensive contact actually results
b. Use the reasonable person test:
i. Apprehension of immediate offensive touching
i. If you have others, you have both defense… talk about both
ii. majority rule/ officious intermeddler may use reasonably necessary force to defend another only when the other could have used force to protect himself- no defense if mistaken. Modern trend – allows force when actor reasonably believes the aided person had right to self -defense.
d. Defense of property
i. Katco v. Browning: booby trap- can’t use deadly force to repel the threat to land
ii. Cannot do by mechanical means if you cant do it by person
iii. Doctrine: recapturing chattel (hot pursuit)→ a Δ can peaceably enter another’s property to take back his chattel
iv. Shopkeeper’s privilege: reasonable person standard. Can detain for a reasonable time to investigate for a suspicion of a wrongdoing. Merchant’s privilege to detain individuals for reasonable investigation they reasonably believe to have taken chattel unlawfully/shoplifted goods. Policy: privilege is necessary for the protection of a shopkeeper against the dilemma in which he would otherwise find himself in when lie reasonably believes that a shoplifter has taken his goods.
v. 3 elements:
1. timing (happening right now)
2. reasonable belief
3. boundaries of defense privileges
vi. Reasonable mistake is allowed as to property owner’s right to use force in defense of property
e. Necessity:
i. Public- absolute privilege: usually involved pro-government. Act for the public good. If interference w/land or chattels of another is necessary to prevent disaster to community, no compensation to be paid by person doing damage. (ex. shoot rabid dog; Mayor orders house torn down for fire break)
ii. Private- qualified privilege: Δ still has to pay for damages to the land. Doesn’t matter if Δ is cautious or prudent. Act solely to benefit any person or protect any property from destruction or serious injury. Owner of property may not resist exercise of privilege of private necessity. (ex. tie boat to dock in storm)
III. Negligence
· Fault based
· Once you move from substantial certainty to extremely high risk that something will occur…you are moving towards negligence (reckless conduct, gross negligence)
· Risk that something will occur that isn’t extreme but its serious enough that it’s regarded as unreasonable risk of conduct/harm. It’s the realm of negligence law.
· Individuals conduct is creating risk but the risks are ones that are considered in society as “reasonable risks”
o ex: driving automobile- for the most part it’s reasonable if you are obey the rules but there are risks (like a child stepping in front of your car). It’s a risk but not an unreasonable risk.
