Torts Outline MekelàFall 2010
1 Restatement, Torts, 29, § 13: Battery
An act which, directly or indirectly, is the legal cause of a harmful contact with another’s person makes the actor liable to the other, if
a) The act is done with the intention of bringing about a harmful or offensive contact or any apprehension thereof to the other or a third person, and
b) the contact is not consented to by the other or the other’s consent thereto is procured by fraud or duress, and
c) the contact is not otherwise privileged.
§ Contact with clothing/anything closely identified with body = sufficient
o Volitional/Conscious Choice
o Purpose or Knowledge with a substantial certainty that harm is likely to occur
§ Uses RPS
§ Children and mentally impaired can be liable if from requisite intent
§ Objective test with subjective element of similar circumstances in D’s situation (question of how subjective to get)
o Doctrine of Transferred Intent
§ Transferred to another “victim”
§ Even if unforeseen
o Transferred to constitute the requisite intent required for any of the 5 intentional torts evolving from trespass historically
§ Trespass to Chattels (personal property)
§ Trespass to Property
§ False Imprisonment
o Harm, or
· Does not account for extreme sensitivity
§ Fact that offensive nature of contact NOT discovered until later does not bar recovery.
§ “Fear of AIDS cases”
· Majority Approach
o MUST prove ACTUAL CONTACT
· Minority Approach
o Need not prove actual contact and can recover for “window of anxiety”
o Role of Privilege
§ Property Owner’s Privilege against trespassers = a defense
· Does NOT extend to use of excessive force
o Types of Damages
· Always get these as P and prove case and no defenses
· Only awarded for egregious behavior to punish/deter
· Trend against P.D.s, disfavored
§ Words alone are not enough. “Color the act.”
§ Overt act REQUIRED.
§ Conditional threats work
Ø Intent: Knowledge with a substantial certainty that harmful or offensive contact or imminent apprehension of harmful or offensive touching is likely to occur
§ Contact NOT required.
Ø Imminent Apprehension of a battery
§ Requires being aware at the time, but doesn’t require fear.
§ Conditional threat is sufficient
§ Must be imminent, but not future threat.
§ Contact not needed
v Solicitation by a man to a woman for intercourse unaccompanied by an assault is not actionable.
v Insulting words used when not accompanied by an assault are not actionable.
Ø Exemplary/Punitive Damages
§ Shame on you $
§ Malice/Egregious Behavior
Ø Actual Damages [Actual Harm/Loss is quantifiable] § Humiliation (squishy number)
§ $ Quantifiable
§ Applies all the time when intentional tort proven
§ Easier to get
v Liability of an Employer (now almost universal in application)
Ø Principle authorize the doing and manner of the act, or
Ø The agent was unfit and the principle was reckless in employing him, or
Ø The agent was employed in a managerial capacity & was acting in the scope of employment, or
Ø Employer or manager of the employer ratified or approved the act.
Ø Act: Un-willful detention
§ Mere threats are not enough
§ Must be actual or constructive
Ø Intent: Intent to detain
Ø Harm: Confinement
· No reasonable avenue of escape
· Physical barriers
· Implied means of confinement
Ø Without consent or legal authority.
Ø Consent to the detention
Ø Shopkeeper’s Privilege
§ Belief of retail theft must be based on reasonable grounds, and
§ Confinement for reasonable duration, and
§ Detention is done in a reasonable manner.
Ø Not liable based on guilt or innocence
v Recovery for Damages
Ø NOT limited to mental harm
Ø Can recover for other consequential damages resulting from confinement
Ø Possibility of punitive damages in egregious cases.
Intentional Infliction of Emotional Distress
Ø Extreme and outrageous (goes beyond boundaries of decency & socially intolerable)
Ø It is NOT mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.”
Ø Unless person knows that a plaintiff is extremely sensitive about a certain subject
Ø Intentional (kwsc that severe harm will result) OR
Ø Reckless (deliberate disregard of a high degree of probability that emotional distress will result) Lower ‘bar’.
Ø To cause mental distress
Ø Causal connection between the wrongful conduct and the emotional distress
Ø The nexus between the act and the injury
Ø Distress must be severe
v Some differences from other torts we’ve studied include: the requirements are higher/more extreme; very descriptive; more substantial; role of court in determining if they are enforceable or not; and the need for more substantial evidence.
v This tort has high bars because: Act and Harm.
v It could impede on Constitutional rights, freedom of speech.
v Proof issues (fictitious, fakers”). How real?
v Concern over being inundated with cases, otherwise.
Ø IIED may be easier to prove re: how courts approach the elements in the employment setting with regard to sexual or race
istake is allowed, and in others, not for the defense of others.
· Reasonable in fact, belief, and in action.
Self Defense Sections 63 & 65 p. 89
§ 63 Self-defense by Force NOT Threatening Death or Serious Bodily Harm
· No duty to retreat
§ 65 Self defense by Force Threatening Death or Serious Bodily Harm
· Duty to retreat except if in one’s house.
· Special rule re: one’s dwelling.
· Exception, if the other person lives in the house (helps to prevent domestic violence)
§§ 70 & 71 Excessive Force
· Force reasonable for circumstance
· About to be inflicted upon in peril of death/ravishment and can only be prevented by equal force back.
· In some jurisdictions if you started a fight, you cannot claim a subsequent self-defense.
· In some courts a mistake is allowed, and in others, not.
· Majority opinion: Human life is more valuable than personal property.
· Prof. Posner Economic costs. Economic efficiency. This is a case by case basis, cost-benefit analysis. Each human life is not worth the same as another due to expectancy. What is most efficient means of resolving the case? This flies in the face of the value of life over property. This economic efficiency is amoral. Distributive justice, which this is NOT, would be the ethical distribution of valuations.
Limited Right of Self Help regarding Property:
· Must act promptly/immediately
· Can only use reasonable force
o NEVER force threatening death or serious bodily harm
· Better be RIGHT!
o Mistake is NO defense & actor trying to recapture property can become liable for intentional torts.
· Uniform Commercial Code (UCC) § 9-503 – Repossession
o Triggered by default
o Cannot “breach the peace”
§ Courts have different standards for this
Defenses & Privileges: Necessity and Legal Authority
· Required standard of care
· Required only to require ordinary prudence and care.
· Policy: Do what a reasonable person would do in the given situation.
· Whoever is making the decision in these circumstances is in a better position to make the argument. Could be based on economic theory.