TORTS
LEVY
FALL 2012
Intent
• Does the defendant desire to bring about the harm, or know to a “substantial certainty” that the harm would occur.
• Definition is subjective. The defendant must actually exhibit desire or substantial certainty in their mind.
• The fact that a reasonable person would have been substantially certain is only evidentiary in determining if there was intent.
• Proof of mere reckless behavior is not the same as being substantially certain
• Recklessness requires taking substantial and unreasonable risks that the tort will occur while intent require the actor to know with substantial certainty that the tort will occur
• Transferred Intent
• A defendant who intends to inflict an intentional tort upon one person, but winds up inflicting either a different tort listed, or upon another person, will still be held to have the requisite intent to be liable for an intentional tort to the person injured.
• 5 Torts
• Battery
• Assault
• False Imprisonment
• Trespass to Chattel (damage to property)
• Trespass to land (damage to land)
• Mistake Doctrine
• If a defendant intends to do acts which would constitute a tort, it is no defense that the defendant mistakes, even reasonably, the identity of the property or person he acts upon or believes incorrectly there is a privilege.
• A removes trees from B’s land thinking it is his land, A is liable to B for cutting down the trees even if it was reasonable to believe it was his land (Perry v. Jefferies)
• Insanity and Infancy
• Insanity nor infancy are defenses for intentional torts.
• Since Intent is subjective an infant or insane person may not have the requisite intent.
• A 1 year old child pulls a trigger and kills a man, even though she intended to pull the trigger she may not intend the battery and is thus not liable.
• The Child or insane person however need not appreciate the significance or amount of wrongness of the act
• A boy pulls the chair out from under an adult knowing that she will fall, since he intended the wrongful contact he is liable even if he did not understand or intend the degree of harm. (Garrat v. Dailey)
Battery
• Battery occurs when a defendant acts intentionally cause harmful or offensive contact with the victim’s person.***
• General rule that if there is consent there is no battery
• implied consent is a way to alleviate liability when it is undesirable to the public
• Usually the touching has to be of a particulate matter.
• radiation might be considered a battery
• Intent requirement
• Does not require intent to harm.
• It is only necessary that the defendant intend to cause either harmful or offensive contact (touching)
• Harmful or Offensive Contact
• What is harmful or offensive is determined by a reasonable person.
• Contact does not need to be injurious physical touching of the body, it can include intrusion of personal autonomy
• A grabs a plate from B in an aggressive manner can be battery. (Fisher v. Carrousel Motor Hotel)
• no requirement that the victim be conscious of the contact or the harmful or offensive nature at the time of the intrusion.
Assault
• Intentionally causing the victim’s reasonable apprehension of immediate harmful or offensive contact
• Intent Requirement
• desire or substantial certainty for the apprehension to occur
• if no desire then negligent infliction of emotional distress
• Apprehension
• victim must have the apprehension, meaning if they are unaware of the attempted battery at the time then no apprehension and no assault
• Does not require the victim to fear the contact.
• even if victim believes he could avoid or evade the harmful or offensive contact that was to ensue, there is still an assault.
• Imminent Harmful or Offensive Contact
• mere words alone are seldom sufficient because the lack of overt act in furtherance of the assault failed to establish the imminence of the attack
• Fear may be of offensive contact (spitting) and need not be a fear of injury
• Reasonable Apprehension
• many jurisdictions require the fear to be reasonable but restatement does not require this
• A knows that B believes his pencil is a gun and pretends to shoot his pencil at B with the intention of causing apprehension of harm or offensive contact.
• Restatement= Liability for Assault
• common law= No liability for assault unless jury determines the belief that a pencil was a gun was reasonable
• Conditional Assault
• Assault still occurs if there is a conditional threat of imminent
t claims
Wrongful Termination
• An employer’s discharge of employee contravenes “significant public policy”
• torts exists irrespective of whether the employee’s termination violated the employment contract
• an employment status is as an employee-at-will, absent an express or implied agreement to the contrary
• If at will employment then the termination has to be in contravention of public policy for liability on employer
Tortious Breach of the Covenant of Good Faith and Fair Dealing
• Every contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement.
• Normally in contract court because it is essential a breach of contract, but if a tort then can recover for punitive damages and emotional.
• Normally for insurance companies failing to pay the insurance money in a timely manner.
Intentional Misrepresentation (Fraud)
• material misrepresentation
• made with knowledge of the falsity of the statement or with reckless disregard for the truth
• with intention to induce reliance
• and the victim justifiably relies on the misrepresentation
• causing damages
• (Nader v. Allegheny… gets the confirmation receipt from airline but not ticket… there is liability)
• Concealment and Failure to disclose
• an act to conceal can be deemed an intentional misrepresentation
• Mere failure to disclose may also be deemed concealment (not clear whether these are all necessary or whether they are just factors that lead to)
• is there a fiduciary relationship between the parties?
• Is the failure to disclose likely to mislead?
• Is the fact within the knowledge of the defendant and is unlikely that the victim can learn of it
• Pricing is usually not a concealment or failure to disclose because buyer has the duty to do the market research
