Torts – Miscellaneous Information
1) A civil wrong, other than breach of contract, for which a remedy may be obtained, usu. in the form of damages; a breach of a duty that the law imposes on persons who stand in a particular relation to one another.
2) Function and Fit
a) Substantive Law – Determines what a person’s duties and rights are
i) Duty = legal obligation
ii) Right = something you’re entitled to have done for you
b) Torts is part of the substantive law
3) Tort
a) Offense against an individual
b) Injured individual is a party
c) Remedy (usually money damages) used to compensate the injured individual
d) “Liable”
4) Categories of Torts
a) Intentional Torts
b) Strict Liability
c) Vicarious Liability
d) Negligence
5) Intentional Torts
a) Intentional Invasions of the Person
Desire or knowledge to a substantial certainty that a person’s rights will be invaded
i) Battery
ii) Assault
iii) False Imprisonment
iv) Intentional Infliction of Emotional Distress
b) Intentional Invasions of Property
Desire or knowledge to a substantial certainty that the thing at issue will be affected by the Defendant’s conduct
i) Trespass to Real Property
ii) Trespass to Chattel
iii) Conversion of Chattel
6) Negligence
a) Duty
b) Breach
c) Causation
d) Damage
7) Strict Liability
8) Vicarious Liability
9) Writs
a) Trespass (forcible, direct, and immediate injuries to person or property; strict liability)
b) Trespass on the Case (indirect conduct that causes an injury to person or property)
i) Illustration
(1) Person struck by log had a cause of action in Trespass
(2) Person who stumbles over log laying in road had a cause of action in trespass on the case.
c) Writs Abolished
d) Prima Facie Case
i) “Cause of Action”
ii) Plaintiff must plead, then prove
iii) There may be more than one “prima facie” case in any situation
iv) For intentional torts, each will have the following essential elements:
(1) Act (Volition)
(2) Intent
(3) Causation
(4) Plus, at least one distinctive element
v) Affirmative defenses – Raised by Defendant
Intentional Torts
1) Battery – “Battery is a voluntary act intended to cause harmful or offensive contact.”
a) Elements
i) Voluntary (volitional) act
(1) Volitional (conscious) act required (voluntary act of the muscles)
(2) Volition (or voluntariness ) = desire to perform a particular act; to use the muscles in a particular way
(3) If no volition, no intent:
(a) Josh has his finger on the trigger of a gun. He sneeezes; the sneeze causes a spasm; the spasm causes his finger to press the trigger; the gun fires a bullet.
(4) But you can have volition and still not have intent:
(a) Josh believes gun is empty; he points it and pulls the trigger; the gun fires a bullet.
(5) Involuntary actions and reflexes are not sufficient
(a) Seizure
(b) Sneeze
(c) Sleeping
(d) Doctor uses hammer on your knee
(e) Someone else pushes you
ii) Intent
(1) “Intent” means that Defendant desires or knew with substantial certainty that a certain result would occur.
(2) Thus, for battery, intent means that Defendant intended to cause harmful or offensive contact
(3) Two dimensions of intent for battery
(4) Levels of intent
(a) Purposeful Intent – A purpose to cause harm = desire; intent, even if the harm is not substantially certain to occur OR
(b) Substantial Certainty – Knowledge that harm is substantially certain to occur = intent, even in the absence of purpose to bring about that harm
(5) Thus, the fact-finder must determine intent by examining the circumstances. This means the fact-finder will look at objective evidence (outward appearances) to derive subjective intent.
(6) Does not depend on what a reasonable or ordinary person would have desired or be substantial certain about.
(7) General rule is that children may be held liable for intentional torts.
(8) But, babies and very young children may lack capacity to form the requisite intent.
(a) Parents generally are not vicariously liable for the torts of their children.
(b) Exceptions (Florida):
(i) Parent entrusts child with an instrumentality which, because of the child’s lack of age, judgment, or experience, may become a source of danger to others (gun, car, slingshot)
(ii) Employer-employee relationship
(iii) Parent consents to, directs, or sanctions the wrongdoing (encouraging child to hit another child)
(iv) Parent fails to exercise control over child even though parent knows or with due care should know that injury to another is possible (narrowly construed; typically requires course of conduct) (prior, similar bad conduct)
(v) Parental Liability: Statutes
1. “Willful or wanton” conduct by child
2. Cap on damages
3. Florida Statutes § 741.24
(vi) Direct Parental Liability
(vii) “Direct” liability, such as negligent supervision
(viii) Why sue children? Insurance.
(9) You can have tortious intent without “bad” motive
(a) (e.g., practical joke)
(b) Thus, insane person or child can be liable for intentional torts
(10) Intent and Insanity
(a) Williams v. Kearbey (Kan. App. 1989)
(i) The mentally ill generally may be held liable in tort.
(ii) But, if a person is extremely mentally ill, he or she may not be capable of forming the requisite intent.
(iii) The mentally ill defendant need not appreciate the significance or wrongfulness of his or her act.
1. He just needs to “intend” what he did (e.g., fire a gun/pull the trigger)
iii) Causation – Direct (contact) or indirect (sets in motion a force that brings about the contact)
(1) Indirect causation v. extended personality
(2) “But for”: Injury to plaintiff would not have occurred “but for” defendant’s action (or inaction)
(a) Factual link: your conduct must cause the harm
(b) Bad attitude not enough – must be conduct/harm
iv) Harmful or offensive contact = contact offensive “to a reasonable sense of personal dignity”
(1) Two standards for “offensive” contact
(2) Harmful or offensive contact =
(a) Contact that causes actual harm (broken bone, bruise, etc.) OR
(b) Unconsented to contact that violates plaintiff’s known beliefs or values OR
(c) Conduct offensive to a reasonable sense of personal dignity
(i) Sense of community/crowded world
(ii) Course of dealing
(iii) Context
(3) Indirect Contact and Extended Personality Doctrine
(a) Defendant wears gloves and slaps plaintiff
(b) Defendant fires gun; bullet hits plaintiff
(c) Defendant snatches plate held by plaintiff
(d) Defendant knocks glasses off plaintiff’s face
(e) Defendant touches plaintiff’s cane
(f) Defendant grabs plaintiff’s purse
(4) Contact v. Harm
(a) Intent to cause a harmful or offensive contact v. intent to cause a particular harm
(b) D wants to humiliate P by tripping him when he comes out of the school building.
(i) D extends his foot and trips P.
(ii) P falls over the railing, down a flight of stairs, and into a cactus.
(5) Particulates and intangibles
b) No need to plead damage under the common law
c) Policy underlying the tort?
d) Damages
i) Not an element of the prima facie case
ii) Plaintiff can recover damages, even if she has suffered no harm or loss (“nominal damages”)
iii) Can recover for emotional damages resulting from the physical battery (parasitic damages).
2) Assault – Overt act with intent to cause reasonable apprehension of immediate harmful or offensive contact
a) Elements
i) Overt act
(1) “Words alone are not sufficient”
(a) Courts want to avoid “name calling” as tort
(2) Traditional rule: Need words + overt act
(a) Hand in pocket
(b) Clenched fist
(3) “Threats for the future and insults of the present” are not “breaches of the peace.”
(4) Restatement (Second) of Torts § 31 relaxes the rule in some circumstances (past conduct/current circumstances):
(a) Al, a notorious gangster, who is known to have killed other men, telephones Bugsy and tells him that he will shoot him on sight. Coming around a corner, Bugsy encounters Al standing on the sidewalk. Without moving, Al says to Bugsy, “Your time has come.”
ii) Intent
(1) Levels of intent
(a) Purposeful Intent – A purpose to cause harm = desire; intent, even if the harm is not substantially certain to occur OR
(b) Substantial Certainty – Knowledge that harm is substantially certain to occur = intent, even in the absence of purpose to bring about that harm
iii) Causation – Direct (contact) or indirect (sets in motion a force that brings about the contact)
(1) Indirect causation v. extended personality
(2) “But for”: Injury to plaintiff would not have occurred “but for” defendant’s action (or inaction)
iv) Reasonable apprehension of imminent harmful or offensive contact
(1) Must be
(a) Imminent AND
(b) Harmful or Offensive Contact
(2) Apprehension
(a) Apprehension = perception or anticipation of contact (jury question)
(b) Apprehension ≠ fear (but fear always includes apprehension)
(i) Even Superman can experience apprehension
(c) Perception is key
(i) Hit from behind/attacked while asleep
(ii) Contrast with battery, which does not require that the plaintiff be conscious during the attack
(d) Defendant need not intend contact, but must have the apparent ability to do so
(i) Toy gun
(ii) Distance?
(e) Defendant need not intend to cause contact
(i) Rattlesnake buzzer
(f) Must fear for yourself
(i) Friend about to be hurt
(ii) Threat to delete your computer files
(g) Apprehension must be “reasonable”
(i) Courts reluctant to protect extremely timid individuals
(ii) Restatement omits “reasonable,” but don’t use this as your rule
(3) Imminent
(a) Imminent = no significant delay
(i) Jury question
(b) Words negating imminent contact
(i) “If you weren’t an old man, I’d beat you to a pulp.”
(ii) “If that police officer weren’t on the corner, I’d hit you right now.”
(iii) “If you’re still on this playground in 30 minutes, I’m going to beat you up.”
(4) Conditional Threat
(a) An assault made conditional on the victim’s compliance with a demand that the defendant has no legal right to impose (“unlawful demand”) constitutes an assault, even if the victim is confident no assault will occur he if complies with the demand
(i) “If you don’t get off the sidewalk now, I’m going to run you over with my bike.”
(ii) “If you give me your wallet, I won’t shoot you.”
(5) Transferred Intent
(a) Limited to 5 traditional intentional torts: assault, battery, false imprisonment, trespass to chattel, and trespass to land
(6) Mistake
(a) If defendant intends to do acts that wou
al girl who is a little overweight, and is quite sensitive about it. Knowing this, Betty tells Alyssa that she looks like a hippopotamus. This causes Alyssa to become embarrassed and angry. She broods over the incident, and is made ill.
(3) Standard
(a) Objective standard, but . . .
(i) The extreme and outrageous character of the conduct may arise from the actor’s knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity.
(ii) So: Intrusion must be such to cause severe emotional distress to a person of ordinary sensibilities, in the absence of special notice or knowledge.
ii) Intent or recklessness
(1) Plaintiff intended to cause severe emotional distress or acted with reckless disregard whether the plaintiff would suffer severe emotional distress.
(2) Reckless = high probability distress will occur; lesser standard than “substantial certainty”
(a) Suicide in plaintiff’s kitchen
(b) Δ spread rumor π’s son had hanged himself
(c) Dead bodies
iii) Causation
iv) Severe mental distress (damages)
(1) Plaintiff must actually suffer severe distress; actual damages are required
(a) Being upset or angry does not suffice.
(b) Unless Δ knew of π’s sensitivities and targeted them, the distress much be such that a reasonable person of ordinary sensibilities would suffer under the circumstances.
(2) Modern majority: Do not need physical injury
5) Trespass to Land – Look
a) Elements
i) Voluntary Act
ii) Intent
(1) Intent to do the act that resulted in the trespass
(2) Mistake is not a defense: A reasonable belief that you’re on your own land, or that you’re entitled to be on the land will not prevent liability.
iii) Causation
iv) Entry on land of another
(1) Land = realty and anything (relatively) permanently attached to the land
(2) Physical entry (but, trend toward recognizing intangible invasions in some jurisdictions)
(3) Lawful right of authorized entry expires
(4) “On, above, or below”
b) Trespass v. Nuisance
i) Trespass = interference with all or part of plaintiff’s current possessory interest in real property
(1) Physical intrusion; traditionally, “a tangible item” (but, changing somewhat)
ii) Nuisance = creates conditions of noise, light, odor, or vibration that interfere with plaintiff’s quiet enjoyment of property
iii) Some invasions may = both trespass and nuisance
6) Trespass to Chattels – Personal property not real property
a) Elements
i) Voluntary Act
ii) Intent (to impact chattel)
(1) Mistake is no defense
(2) Transferred intent applies
iii) Actual damage, substantial deprivation, or dispossession of personal property for period of time
iv) Dispossession = Δ exercises “dominion or control”
(1) Plaintiff need not be aware of the dispossession/deprivation
(2) Minor invasion
v) Damage (required: “no harm, no foul”)
(1) Scratch or dent car
(2) Joyride
(3) Spill food on suit
(4) Beating plaintiff’s dog
(5) Take torts casebook for two days
(6) Remember: Fact question
7) Conversion of Chattels – Look
a) Elements
i) Voluntary Act
ii) Intent = intent to exercise substantial dominion over the property
(1) Transferred intent does not apply
(2) Causation
(3) Complete destruction or major invasion of personal property [that requires defendant to pay the full value]
(a) Damage presumed; forced judicial sale; FVM
(b) (Every conversion includes a trespass)
b) Acts of Conversion
i) Wrongful acquisition (theft, embezzlement)
ii) Wrongful transfer (selling, misdelivering)
iii) Wrongful detention (refusing to return to owner)
iv) Substantially changing
v) Severely damaging or destroying
vi) Misusing the chattel
c) Distinguishing Trespass from Conversion
i) Restatement factors in determining seriousness of the interference:
(1) Extent and duration of the defendant’s exercise of dominion or control;
(2) Defendant’s intent to assert a right inconsistent with the plaintiff’s right of control;
(3) Defendant’s good or bad faith;
(4) Extent and duration of the resulting interference with plaintiff’s control;
(5) Harm done to the chattel; and
(6) Inconvenience and expense caused to plaintiff.
8) Defenses to Intentional Torts
a) Ways Defendant Can Prevail
Plainti
