Torts Outline

Tort’s Outline
Thomas Fall 2004
Comments on Intent
Transferred intent is tort to tort
Often said that it transfers between five related intentional torts (battery, assault, false imprisonment, trespass, trespass to chattels)
More accurate to divide between property and personal tort—most common battery to assault
Thomas doesn’t think property torts should transfer to personal torts
Transferred intent person to person
If A intends to shoot B and misses and hits C
Could be both
Intend to scare A by shooting at curtains, B hiding in curtains
Children and Insane
Not a defense
But can undermine intent if sever enough
Example: If insane and think someone is communist and they are bad, so shoot them, still have intent but if you think they are superman and wont be wounded, then not intent because didn’t intend to harm
Elements
Desire
KSC
Under intent because Desire is hard to prove because you can’t get inside peoples heads and to account for lapses in time
Must be substantial certainty, can’t be likely or very likely must be substantially certain
Transferred
 
Intentional Torts
Assault
Volitional Act
Must be seen by victim
Immediate Apprehension of Offensive Contact
Usually a battery that doesn’t quite happen
Intent-general problem with intent, court scared of false claims, how do you prove really scared
Desire
KSC
Transferred Intent
Scenarios
Point an unloaded gun at a person
                                                               i.      if you think its unloaded less likely
                                                             ii.      but if you didn’t know if it was loaded or not—yes
Punch in nose
                                                               i.      Yes because saw it coming
“I’m going to kill you”
                                                               i.      apprehension-yes
                                                             ii.      Immediacy is questionable
1.      if not immediate not assault because you have time to get help or escape
small man threatening big man with gestures
                                                               i.      must have something more then just words, gestures, weapons
Drunk person swinging a bat
                                                               i.      Intent problem
Hitting a sleeping person
                                                               i.      No-didn’t see it coming
 
Battery
Volitional Act
Not always stated, sometimes assumed
Offensive contact
Has to be actual physical contact
Must be offensive
Does not have to cause harm
Intent
Desire
KSC
Transferred Intent
Scenarios
Punch in nose-battery
Unwanted kiss
                                                               i.      Contact yes, offensive if unwanted
Car hit due to road rage—intent, offensive contact,
                                                               i.      No battery if no bodily harm results because no bodily contact
                                                             ii.      Yes battery if bodily harm results because it’s a battery through instrumentality
1.      could be trespass to chattels, because of transferred intent, but Thomas doesn’t like it
2.      cars and clothing can be extensions of people but creates a line drawing problem
Consensual hug that causes unexpected harm—problem with intent
                                                               i.      Hug generally to show affection, consented to hug, so no offensive contact, but the harm created is offensive contact
Hit with water balloon—questionable
Take a bite of another’s sandwich—doesn’t cause harm but don’t have to have harm for a battery
 
Assault/Battery
usually go together
assault protects mental
battery protects body
Elements when put together
Volitional act
Apprehension of offensive contact
Offensive contact
Intent
                                                               i.      Desire
                                                             ii.      KSC
                                                            iii.      Transferred
Cases
Van Eaton
Facts
D hit the P’s horse causing it to go out of control, D threatened to shoot P, threw gravel, gave the finger, cut off w/ car
                                                               i.      Best argument is that horse is instrumentality and apprehension of physical safety
                                                             ii.      Series of events led to battery
Holding: can have Assault and Battery claim without evidence of harm or damage, contact can to be offensive w/o actually causing harm—b/c want to stop things from escalating, people could abuse it (w/o leaving proof of harm), b/c it’s done specifically to cause offensive contact
Geiger
Facts
prisoner poisoned by floor wax being placed in Maalox bottle given to him by prison guard when supposed to only be handled by medical personnel.
Holding: No assault or battery because the floor wax was self administered—no apprehension, absence of intent for battery—couldn’t prove who put floor wax in bottle
Schoor v. Wilson
Facts
P grabbed the camera strap after the D was taking pictures of her being somewhere she wasn’t supposed to be, D had to bend her finger back to end the struggle and retain control of the camera and get away, P said repeatedly you’ll have to hit me, D counter claimed
Holding: Court found sufficient evidence to show by P grabbing camera strap, ring bent because being choked, that there was offensive contact, harm or physical damage not required to support assault claim, charges against D dismissed
 
False Imprisonment
Volitional Act or Omission
Physical Restriction of movement by
Can be by force or coercion
victim must be aware
                                                               i.      unless harm is caused, the exception to knowledge
Intent
Desire
KSC
Transferred intent
Scenarios
Locked bedroom door while asleep, but before they wake up, door is unlocked—No
Locked in car while asleep and get sick—yes, exception to knowledge when harm is caused
Accused of shoplifting, escorted to manager’s office
                                                               i.      Only if he tries to get up and leave
                                                             ii.      Coercion—gun v. no gun, can say he was free to go at anytime v. wanted to stay and clear things up
Taking a shower in gym, someone steals your clothes
                                                               i.      Physical restraint ?
                                                             ii.      Intent can transfer from trespass to chattels
                                                            iii.      Coercion no because reasonable person would leave towels
Told not to leave room or you’ll be fired—coercion—no because not physical
 
Conversion
Right to the Property (remedy get property back)
exercise substantial dominion over it
intent
desire
KSC
transferred
Trespass to Chattel
1. Right to the Property
2. Substantial interference with the property
      a.   Don’t have to be aware
b. Damage, substantial deprivation or disposition (has to be significant)
Generally if you have Conversion you have Trespass to Chattel and vice versa
 
Scenarios
1.Taking car keys
            a. Conversion—yes for keys, but not car
            b. Trespass to Chattel—yes
2. Pet P’s dog—no
3. Lean against P’s car
            a. Conversion—no
            b. Trespass to Chattel—yes if there’s damage
4. Car for joy ride (bring back)
            a.   Conversion—no
            b. Trespass to Chattel—yes if you try to use your car while it’s gone, no if not
 
Intentional Infliction of Emotional Distress—didn’t come from same set as other 5 (can’t have transferred intent)
1. Outrageous Conduct (except for common carriers)
            a. Factors
                        1. Power Relationship—boss making pass at bar
                        2. Repetition—proposition multiple times
                        3. Knowledge of Sensitivity
2. Severe emotional distress
            a. unclear whether you need medical evidence
3. Intent
            a.  Desire
            b. KSC
            c. Reckless
                        1. Conduct which leads to high probability—lower then KCS
Third party recovery
1. when 3rd party witnesses action
            a. uncertainty in the law about recovery
2. Factors
            a. Relationship to victim—typically familial
            b. Presence at the scene
            c. Outrageous conduct
3. Example—in wife while your spouse is murdered
 
Scenarios
1. Collection case, harass wife at her home, 15 minutes harassment, saying husband going to jail, take their home, wife cries for 10 minutes—yes IIED
2. Explicit & vulgar proposition—single instance is not enough for IIED
3. Murder in presence of spouse—yes
 
Cases
Polk Holding
            1. Facts: whistle blower was harassed at work by following her around, altering her vacation time,         calling her at home
            2. Holding: All facts above did constitute IIED
Walker Holding
            1. Facts: old man moved in with daughter who he made his power of attorney so she could care for him           after accident, they turned basement into a apartment for him and put lock on back gate which was only         wheel chair accessible entrance turned all of P’s assets into annuity in their name
            2. Holding: 
                        Conversion claim: Using proceeds of another settlement to buy annuities that named D as                                  beneficiary and then cashing and spending proceeds on D constitutes conversion
                        False Imprisonment: threat that P could not return if he left wasn’t enough to constitute restraint                                     to state a claim for false imprisonment.
           
            Defenses to Intentional Torts
Introduction to Defenses
Affirmative Defense
Must affirmatively state a defense—if not stated you lose it, must raise it in the pleadings
Up to D to make the defense
Contrasted in Prima Facie Case
Burden of Proof lays on the D
 
Consent
1. Willingness in fact that an act or invasion take place 
 
Types of Consent
1. Express—hit me right here, sign waiver form
2. Implied—implied consent in game by participation
3. Substituted—when someone who can’t give consent, consents for them—children most common, comma victim
 
Limitations on Consent
1. Disfavored—so narrowly construed because we assume most people don’t consent to torts
2. Revocable—if consent in writing, can revoke verbally
3. Crimes—cannot consent to a crime except in some jurisdictions
4. Children
5. Public Policy
 
Self Defense
1. Immediate, apparent necessity
            a. Toy gun may look real
2. Reasonable Force
 
Note on Retreat
1. Generally not required
2. Minority rule exception: required unless serious harm will result
3. Exception to exception: victims dwelling—can use deadly force to protect—no need to retreat from home
 
Defense of Others
1. Immediate Apparent Necessity
            a. Note on perspective—can be either or both depending on jurisdiction
                        1. 3rd party perspective
                        2. Victims perspective
 
Defense or Recovery of Property
1. Reasonable Force
            a. Note on force
                        1. Property not as important as people
                        2. Exception for dwelling
2. Immediate, Actual Necessity
            a. If you guess wrong, you lose.
                        1. Example: Think someone is shoplifting, but they are not, no defense
            b. Note on Shopkeepers
                        1. Some jurisdictions allow reasonable necessity, others don’t
Necessity
1. Principle: Can interfere with property rights of another to protect something of equal or higher value
            a. Example: boat hitting dock during a storm and you untie the boat to save the dock
2. Public v. Private: 
            a. Public complete defense because doesn’t require compensation
                        1. Example: Big fire burn down San Francisco, blow guys house up to stop the fire, didn’t work                       (common law)—no compensation
                        2. Constitution—requires compensation
            b. Private defense but not complete defense because you are liable for damages
                        1. Example: Necessary to tie boat up to dock because of storm, but do have to pay for damage