Torts Kurtz Fall 2014
I. Intentional Torts and Privileges
A. Interference with persons or property
1. Intent
Desire or purpose to cause a result,
or acting despite knowledge with substantial certainty that said result will occur.
a) Transferred Intent
Δ intending to cause assault, battery, trespass to land/chattel or false imprisonment
satisfies intent element even if another of these torts occur
or if tort occurs to a different person
b) Mistake Doctrine
If Δ intends an act constituting a tort, mistaking victim’s identity is not a defense
c) Insanity
The mentally insane are generally held liable for intentional torts
d) Infancy
Very young children may be considered incapable of tortious intent
2. Battery
A volitional act by Δ, coupled with intent to cause harmful or offensive contact, or immediate apprehension thereof, that results directly or indirectly in harmful or offensive contact with π
a) Offensive Contact
Contact which would offend the ordinary person
Contact unwarranted by the social usages prevalent at the time and place
b) “Crowded world” doctrine – Wallace v. Rosen
In a crowded world, some customary and reasonable contacts are assumed consensual,
at least absent expression to the contrary
c) Extension of π’s body
Harmful/offensive contact include contact with clothing or anything held in the hand
3. Assault
A volitional act by Δ, coupled with intent to cause harmful or offensive contact or immediate apprehension thereof, that results directly or indirectly in harmful or offensive contact with π
(Almost) every battery includes an assault
a) Imminent apprehension
The contact apprehended must be immediate; threats of future harm are not assault
b) Fear vs Apprehension
It is not necessary for the victim to fear immediate contact
The victim need only be put in apprehension or anticipation of contact
c) Mere words
Mere words do not constitute an assault; must be accompanied by some overt act
d) Conditional statements
Assault conditional on noncompliance with a demand still constitutes an assault
but “If you weren’t an old man, I’d beat you” is not assault
4. False Imprisonment
Act intended to confine π or θ within bounds fixed by the actor that results in confinement of π
a) Bounded area
Restricted area can be large, but not as large as a whole country.
Exclusion from private property cannot constitute false imprisonment
b) Means of escape
If reasonable means of escape exist, no recovery for false imprisonment.
Means of escape are unreasonable if involving exposure, risking material harm to victim’s clothing, risking substantial harm to the victim, or if the means are not apparent or known.
Δ can generally be held liable for injuries sustained while escaping
c) Means of confinement or restraint
– physical barriers
– use of force, or yielding to threat of force
– yielding to (threat of) duress
o Mere persuasion is not duress, nor is fear of losing job
o Dilemma of having to abandon property may constitute duress
– yielding to legal authority
d) Consciousness of confinement
π must be either conscious of the confinement, or physically harmed by it, to recover.
Some jurisdictions may allow recovery for false imprisonment of children without the two.
e) Justification
Restraint or detention, reasonable under the circumstances and in time and manner, imposed to prevent another from inflicting personal injuries or damaging property, is not unlawful
5. Trespass to land
Volitional act to enter land in the possession of another, or causing a thing or θ to do so
6. Trespass to Chattel
Intentionally using or intermeddling with another’s chattel, without consent or privilege.
– Owner is dispossessed of chattel, OR
– Chattel is impaired in condition, quality or value, OR
– Possessor is deprived of its use for a substantial time, OR
– Bodily harm caused to the possessor or someone/thing in which they have a legally protected interest
7. Conversion (i.e. Trespass to Chattel +)
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 full value.
– “You break it, you buy it”: Actor has to pay full value of the chattel, but gains title
a) What can be converted
– Physical and representative property (key to car; certificate to a stock)
– NOT money and negotiable assets
– Trade secrets, intellectual property, information gathered and sold as commodity
8. Intentional Infliction of Emotional Distress (IIED)
Extreme/outrageous conduct that intentionally or recklessly causes severe emotional distress.
a) Physical manifestation of emotional distress
Most jurisdictions no longer require physical manifestations, but some might.
b) Third party recovery
For conduct directed at θ, π must be present,
and must either be a member of victim’s immediat
aggressor.
– Some jurisdictions argue a reasonable mistake still creates privilege
4. Defense of Property
a) Reasonable force
Limited to force reasonably necessary to the situation as it appears to Δ.
Deadly force may be used if personal safety of Δ or family is threatened.
– Home invasions often involve defense of self/others as well
b) Defense of habitation
Peaceful invasion made in owner’s presence does not warrant ANY use of force unless a request for invader to depart has been made
c) Mechanical Devices
Mechanical devices may not be used where act would not be privileged in person.
5. Recovery of property
Use of force privileged only to recapture property where
a. Dispossession is only momentary, or
b. Owner is in “fresh pursuit” of the wrongdoer
a) Demand for return.
Any force is unjustified until a demand has been made for return of property
Unless it reasonably appears such a demand would be pointless/dangerous
b) Reasonable force
Use of force must be reasonable under circumstances
– Force likely to do deadly or serious bodily harm may not be used to recover property
– Most states allow no force to be used in retaking possession of land
6. Necessity
a) Public Necessity
Actual or apparent necessity to protect the public, as judged by the actor, can justify tortious behavior
b) Private Necessity
Primarily used as a privilege for trespass
Δ will still be liable for compensatory damages, but not for technical or punitive damages
– Encourages trespasser to be careful
– Encourages landowner to allow trespass where a necessity exists
c) Personal Injury or death
Necessity never warrants the taking of life or inflicting substantial bodily harm
7. Discipline
For some relationships, need for orderly discipline gives privilege to exert reasonable force and restraint
– Parent and child
– Teacher and student
– Military officers and subordinates
– Ship captain and crew/passengers
