Select Page

Torts II
St. Thomas University, Florida School of Law
Silver, Jay S.

Professor Silver


Torts II


Spring 2013

























Intentional Torts

Battery: Intent to cause harmful or offensive contact with the person of another (or object intimately associated with the person of another)

Assault: Intentional creation of apprehension of an imminent harmful or offensive contact 
·         P must be aware of the threatened contact
·         D has to have the present ability to perform the act

False Imprisonment: Intentional confinement of a person without their consent or legal justification. 
You have to be aware of the imprisonment unless you are unaware and it results in actual harm (injury)
·         Defenses:  shopkeepers privilege

Trespass to land:  Intentionally entering into the land of another w/o permission or privilege, or intentionally causing something else to be on someone's property. 
·         If D puts an object or refuses to remove an object from P's land w/o permission
·         If D remains on P's land after the consent to be there has expired.
·         If D reaches P's airspace substantially interfering with P's use an enjoyment of his land. 

Trespass to chattels:  intentionally interfering with a person's chattel impairing the condition, quality or value of the chattel, w/o consent or privilege to do so.

Conversion:  Intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.  

Intent: acting with knowledge to a substantial certainty or purpose, that the act you are engaging in will have a particular result
·         Transfer intent:  When intending to harm a person ends harming another.  Or when intending to commit a tort ends committing another.  The intent to harm someone or do a tort is transferred to the other harmed person or the actual tort committed.

IIED: Intentional or reckless infliction by extreme and outrageous conduct that results on P's severe emotional or mental distress.
·         P must show that P sought medical aid or that D knew of P's emotional propensities

Defenses to intentional torts:
·         Consent:
◦     express:  If P expressly consents
◦     implied:  From P's conduct, custom, or from the circumstances
▪     Consent will be invalid if P is incapable of giving that consent because P is a child, intoxicated, or unconscious.  
·         D will not be privileged if D goes substantially beyond the scope of that consent.
·         Self-defense:  A person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact, any threatened confinement or imprisonment.  
·         Defense of others:  A person may use reasonable force to defend another person against imminent harm.
·         Defense of property:  A person may generally use reasonable force to defend his property (both land and chattels)
◦     Use of deadly force is not reasonable if not necessary
·         Necessity:  D has a privilege to harm the property interest of P where this is necessary to prevent great harm to third persons or to D himself.
◦     Private:  If a person prevents injury to himself or his property, or to the person or property of a third person, this person is protected if there is no less-damaging way of preventing the harm. P must pay for the damages P caused. 
◦     Public: When the interference with the land or chattels of another is necessary to prevent a disaster to may people.
▪     No compensation has to be paid by the person doing the damage. 

Voluntariness (or free will) has to be present in all torts: 3 torts
1.      Intentional Torts (fault based: moral capability; BAD)
2.      Negligence (Fault based)
3.      Strict Liability

Where does fault goes in intentional torts?: fault resides (exists) in a mental state (intent: knowledge to a substantial certainty or purpose that a result is going to occur) (ignorance of the law is not excuse)
Voluntary (mental state, free will): I did not exercise my free will to get into that situation; I was forced into that situation.

Absence of free will: no voluntary act.  The act is caused by external forces and controlled by it or a third party

Voluntariness: is when you consciously control your muscles (consciously will your muscles to move)

What are other acts that are not voluntary?
·         reflexes: i.e., blinking (you have no control)
o   absence of volition; it is the result of the reflexes action (not liable because no voluntary)
·         sleepwalking: (not conscious) the person unconsciously moved his muscles (but if he knew of his propensity he is negligent because he knew and did not take reasonable precaution)
·         Motive to commit the act:
o   difference between motive, intent, and voluntariness (volition)
o   motive is your own reason for doing something; even if it is not required to prove the act (the tort) it is useful to prove that the person who committed the act had a reason to do it, although it is not an element of any tort

Negligence does not require intent (knowledge to a substantial certainty or more that the act you are engaging in or your purpose)
·         Elements: 
◦     Duty
▪     proximate cause (if it was foreseeable, then D had a duty to prevent the harm from happening)
◦     Breach 
◦     Cause (but for D's act P would not have suffered damages)
◦     Damages (actual damages suffered by P)

·         Standard:  Reasonable care in all the circumstances  (as would have been provided by the RP)
◦     Professionals:  Reasonable care provided by a professional in good standing in the same community in which they practice

Negligence per se: violation of a criminal statute designated to protect against this type of accident, and the victim is w/i the class of persons the statute is designed to protect. 

·         Burden of proof:  
◦     P bears the burden of production (evidence that D was negligent, that P suffered injuries and that D's negligence caused P's injuries)
◦     Burden of persuasion:  P must convince the jury that it is more probable than not that P's injuries are due to D's negligence.

RIL (res ipsa loquitur) “the action speaks for itself,” alternative to negligence
·         To create an inference of negligence using circumstantial evidence. 
·         P must demonstrate that the harm P suffered does not no

onsists of breach of a duty (accidental harm), although you did not commit the act, you had the responsibility 
·         Was there a duty? Yes, to exercise reasonable care under all the circumstances, what a RPP would have done
·         Was it breached?

Fault in intentional torts consists of intent (usually worse than negligence)
Fault: moral capability, being bad, doing something wrong
In torts and criminal law, we do not care of the intent of the RP, in contract yes
Specific performance (equitable remedy): the person looking for remedy (P) has to have clean hands
Money damages (legal remedy)

Government Immunity (Sovereign Immunity)
·         retained unless state statutes waive it
·         Originated in the English Common Law rule that the King can do no wrong
·         an employee injured by another employee (negligent) can recover from any injury at the workplace

·         Federal Governments have waived it, through the Federal Tort Act
·         Ps cannot sue the state for harm form the cops
·         sub-entities (counties) can be sued for negligence

The United States
·         In enacting the FTCA (torts act), Congress chose to waive the sovereign immunity enjoyed by the United States and give consent to be sued for damages caused by the negligent or wrongful act or omission of any employee of the United States acting within the scope of their employment.


Public Officers
·         Official immunity is available only with respect to acts that are “discretionary” as opposed to “ministerial” in nature
o   discretionary or non-discretionary
o   acts of commission: like speeding and driving through a stop sign
o   acts of omission: like failing to use the brakes

Summary of defenses to negligence 
·         Express and Implied consent
·         Contributory negligence (old law): Any negligence on P's part bars recovery, regardless of how insignificant it is compared to D's negligence.
o   abolished except for 4 states (courts do not like it, discredited)
o   EXCEPTION to contributory negligence:  Last clear chance:  If D did not take the last clear chance to avoid the harm, the court will still grant recovery despite contributory negligence (try to avoid contributory negligence)

·         Comparative Negligence: replaced in most states (complete repudiation or rejection of contributory negligence)
o   pure: P recovers whatever he can (unaltered recovery)
o   modified: recover only if less than 50% (hybrid of contributory and comparative)
§  50-50 jurisdictions
§  51-49 jurisdictions (P recovers only if less than 49% responsible)