TORTS – Fall 2011 – Alan Sykes
I. Intentional Torts
A. Prima Facie Case
1. Act
2. Intent
3. Tort (battery, assault, trespass, conversion, infliction of emotional distress)
4. Causation – proximate cause test for intentional torts is directness
5. No consent (burden on plaintiff)
6. Damages
B. Battery
1. Restatement §13: acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and a harmful contact with the person of the other directly or indirectly results
a. Intent (Restatement §1): a person acts with the purpose of producing that consequence or the person acts knowing that the consequence is substantially certain to result
2. Vosburg v. Putney (1891)
a. Putney kicked Vosburg’s leg and a preexisting injury was exacerbated and Vosburg lost his leg
b. malice is not necessary, only intent to do the unlawful touching
c. this touching was unlawful (no implied license of the playground or consent) and the defendant was in fault
3. Offensive Battery (Restatement §18): acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and an offensive contact with the person of the other directly or indirectly results
4. Alcorn v. Mitchell (1872)
a. Mitchell spat on Alcorn’s face at the end of a trial
b. punitive damages can be awarded because circumstances of malice and willfulness should be punished
C. Assault
1. Restatement §21: acts intending to cause harmful or offensive conduct, or an imminent apprehension of such a contact, and the other is thereby put in such imminent apprehension
a. “mere words do not amount to an assault” – distant threats
b. imminent apprehension
i. no significant delay
ii. more than just fright
2. I. de S. and Wife v. W. de S. (1349)
a. defendant hit at door with hatchet, swung in the direction of the wife but missed
b. there was intent to cause harmful/offensive touching and there was a fear of such harm
3. Tuberville v. Savage (1669)
a. defendant said “if the judges weren’t in town, I’d stab you”
b. not assault because there was no intent to actually cause the contact, assault is when you strike someone
D. Torts to Property
1. trespass to real property (land, things pertinent/fixed to the land)
a. no harm needed, but intent
i. intent to complete the physical act, not to cause the injurious consequence (so it doesn’t matter if you didn’t know it was someone else’s land)
b. intangible trespasses (e.g. – factory soot)
i. if you can prove results
ii. older courts deemed light, odors, noise not trespass, but modern courts allow that (see nuisance)
c. Doughtery v. Stepp (1835)
i. defendant entered land as surveyor, no damage, but still a trespass
2. trespass to chattel (personal property)
a. intent requirement
b. physical harm requirement
i. Intel v. Hamidi – worker sends out complaint emails using the company computer network; no physical harm so not trespass to chattels
3. Conversion
a. Act of dominion or ownership over personal property as if it is their own (interference with another’s dominion over their property)
b. Poggi v. Scott (1914)
i. defendant sold plaintiff’s barrels of wine, thought they were empty barrels
ii. intent/knowledge did not matter, intentional act of dominion over the property occurred
c. damages – fair market value of items taken
4. Note: transferred intent
a. can be transferred for battery, assault, trespass to land and trespass to chattels; not conversion
E. Intentional Infliction of Emotional Distress
1. Restatement §46: extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress
a. or does so to immediate family present a the time
b. or to any other person present if the distress results in bodily harm
2. high standard for outrageousness
II. Defenses to Intentional Torts
A. Consent
1. plaintiff must show that he did not consent
2. implied consent
a. emergency rule – go to family first, then substitutive consent
b. inferred from conduct
t her with chair leg; defendant held liable because she had the requisite intent
III. Negligence
A. Prima Facie Case
1. Duty
2. Breach
3. Causation
4. Damages
B. Reasonable Person Standard
1. general objective standard
a. what would have been the conduct of a man of ordinary prudence in the same circumstances?
b. Vaughan v. Menlove (1837)
i. defendant put his haystack too close to plaintiff’s property; haystack caught fire, held liable because a reasonable person wouldn’t have put the haystack so close
2. adjustments to the reasonable person standard
a. Children
i. held to the standard of “a reasonably careful person of the same age, intelligence and experience” (RTT)
ii. except when taking part in ‘adult’ activities, then adult standard
a. child activities – running, playing, skiing (no license)
b. adult activities – driving, operating speedboat
iii. Roberts v. Ring (Minn. 1919)
a. defendant (77 year old man with poor hearing/eyesight) hit 7 year old boy who ran out into the street; held negligent despite age, plaintiff not contributorily negligence because he is held to standard of child of same age
iv. Daniels v. Evans (NH 1966)
a. 19 year old killed by defendant’s automobile when riding a motorcycle, doing adult activity so he was held to adult standard of care
