Torts: Gersen/Levmore 2008
Intentional Torts: The Prima Facie Case
I. Battery – Battery is the intentional infliction of a harmful or offensive bodily contact.
a. Intent and Volition
i. Intent: No intent to physically harm needed:
1. Intent to cause harmful or offensive bodily contact, or
2. Intent to cause imminent apprehension of a harmful or offensive bodily contact
3. Knowledge to a substantial certainty that harm would occur
ii. Specific Result or Injury. Once it’s proved that D intended to commit a harmful or offensive touching (or intends any other tort) and such contact occurs, D is liable for any consequences which ensue, even if unintended or unforeseen. (Vosburg v. Putney); Good Intentions are irrelevant (White v, University of Idaho)
iii. The Insanity Defense. “An insane person may [commit battery], even though his reasons and motives for forming that intention may be entirely irrational” because a crazy choice is still a voluntary act. (Polmatier v. Russ)
iv. Actual Intent. Intent requires intent to touch, not just intent to enter into a situation where others could get injured (like a football game). (Knight v. Jewett)
v. The First Law of Nature. The law presumes that an act or omission done or neglected under the influence of pressing danger was done or neglected involuntarily. Self-preservation rules, but only if there is no possibility of deterrence (difference between kidney disease and bomb shield) (Laidlaw v. Sage)
vi. Transferred Intent. As long as D intended to hit one person, he will be liable for an intentional tort against any other person who happens to be injured. (Manning v. Grimsley)
1. Keel v. Hainline – L for “horse play” in the classroom and girl who’s not participating gets hit by an eraser and loses an eye. L also for kid at whom the eraser was originally thrown, because the kid helped instigate the battery. Transferred intent/results among defendants
vii. Arrest and Crime Prevention. Defendant can sometimes break up a fight, neither police, nor citizens can use deadly force to stop a fleeing suspect.
b. Minimum Requirements
i. Minimum Requirements. (1) Intent to touch P; and (2) Harmful or offensive contact.
1. Must be a voluntary act to have a battery (cannot be involuntary).
2. P does not need to be aware of the contact at the time it occurs.
ii. Harmful Contact. Harmful contact is defined as pain or bodily damage
iii. Offensive Contact. Offensive contact is defined as damaging to a reasonable sense of dignity (so it doesn’t have to physically harm the person if it was bodily contact with offensive intent (pushing someone while insulting them; even without physical harm, there is offensive contact).
iv. What Constitutes Battery. Knocking anything from P’s body or touching anything connected with his person, when done in a rude or insolent matter, is enough. (Morgan v. Loyacomo)
v. What Constitutes Offensive Contact. Contact which is offensive to a reasonable sense of personal dignity. The test is objective, NOT subjective – the reasonable person standard.
vi. Tobacco Smoke. Tobacco smoke is capable of making physical contact as particulate matterand of offending a reasonable sense of personal dignity. (Leichtmann v. WLW Jacor Communciations, Inc.), but still requires intent or malice. (Madden v. D.C. Transit System)
c. Consent and its limits
i. Consent defined. Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor. If valid, it is a complete bar to recovery for any intentional tort
ii. Implied consent. If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact. Look at the hypothetical bargain that the parties would strike behind a veil of ignorance. Situations in which consent will be implied:
1. Plaintiff is unable to give consent
2. Immediate action is necessary to save plaintiff’s life or health
3. There is no indication that plaintiff would not consent if able
4. A reasonable person would consent in the circumstances
iii. Scope of consent. Consent only applies to the situation that was consented to, not a free pass to do the permitted act in all settings. (Rains v. Superior Court). When the situation changes, consent ends. (Miller v. Couvillion) (Where man agreed to participate in Karate demonstration, when it was over, the defendant kicked him and there was liability).
iv. Switching Doctors. Consenting to an operation from one doctor is not consenting to that operation being performed by another doctor. (Grabowski v. Quigley)
v. No implied consent when person can be consulted. If a patient can consult and there is no emergency, performing an operation without express consent is assault. (Grabowski v. Quigley)
vi. Ordinary Personal Contact. Absent expression to the contrary, ordinary personal contact must be accepted and consent is assumed. The time and place in which the act is done will affect its character. (Wallace v. Rosen)
vii. Objective Norms. Offensive contact judged by a “reasonableness” standard. NL if the essential character of the contact itself was not harmful or offensive. (Brzoska v. Olson)
viii. Idiosyncratic Objections. You don’t consent to contact if you object on the basis of religion, personal experiences, etc. These views must be expressed ex-ante to result in liability. (Cohen v. Smith)
ix. Implied consent. The law implies the consent of an unconscious patient to medical procedures needed to preserve the patient’s life, and where there is no opportunity to obtain actual consent. This consent will be implied even if the plaintiff had previously denied consent in non-emergency setting. (Werth v. Taylor)
x. Consent obtained by misrepresentation of act/mistake as to a collateral matter. If consent is obtained by fraud in the fact (misrepresentation of fact, specifically the essential character of the act) it is ineffective. (Rains v. Superior Ct.) (Permission to hit patients for therapy is not same as permission to beat the patients for fun). If consent is obtained by fraud in the inducement (mistake as to a collateral matter), the mistake does not extend to the essential character of the act and is still effective (Essential Character of the act can be broadly defined). (Freedman v. Superior Ct.) (Where telling someone a drug prevents infections when it induces labor is a mistake of collateral fact because both ensure the safe delivery of the baby).
xi. Examples of Inducement/Act. Inducement: pay woman to have sex with counterfeit bill, Man has affair and continues to sleep with wife. Act: Man lied about having STD to sleep with woman.
xii. Plaintiff’s Mistaken Consent. Mistake about the nature of event that will take place will usually not negate consent as long as defendant wasn’t aware of plaintiff’s mistake. True even if plaintiff would never have agreed under the true facts.
xiii. Defendant’s Mistake as to whether Plaintiff has consented. Defendant is protected for his reasonable mistakes based on the objective standard
xiv. Consent to illegal acts. If you consent to illegal acts, you cannot recover damages for battery incurred in the performance of the illegal act. (Hart v. Geysel, Minority Opinion) Consent to an unlawful act is no defense to a claim of battery. You can recover damages from those who injure you during the commission of the illegal act. (McNeil v. Mullin, Majority Opinion)
xv. Consent to crime. Consent is effective to bar recovery in a tort action although the conduct consented to is a crime UNLESS the conduct is made criminal in order to protect a certain class of persons irrespective of their consent, in which case the consent of members of that class to the conduct is not effective to bar a tort action.
xvi. Consent while intoxicated. If P, owing to his state of intoxication, was incapable of expressing a rational will and D had knowledge of this state, the consent was ineffective. (Hollerud v. Malamis). TALso cannot give consent as minor or when unconscious.
II. Trespass – One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters the land in the possession of another, or causes a thing or a third person to do so, or (b) remains on the land even if he entered it legally, or (c) fails to remove from the land a thing which he is under a duty to remove.
i. Intentional trespass only. If it is negligent, it will be treated as the tort of negligence, the intent is in regard to the intent to enter the land (either intent or knowledge to a substantial certainty).
ii. Conditional or Restricted Consent to Enter Land. A conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with. (Restatement 2d §168)
iii. Intrusions Under Mistake. One who intentionally enters land in the possession of another is liable for trespass even if you act under the mistaken belief of law or fact, not induced by the conduct of the possessor, that (1) you have possess ion or entitlement to the land, (2) have the owner’s consent to enter or were given consent by a 3rd party, or (3) have a privilege to enter or remain on the land. (Restatement 2d §164)
iv. Implied Consent as to Trespass. Implied consent is effective if fraud is as to a collateral matter, or if no invasion… of the specific interests that the tort of trespass seeks to protect. Weigh public/private benefit against harm of trespass. (Desnick v. American Broadcasting Companies, Inc.)
v. Animal Invasions when D has knowledge of such invasions. If D releases animals with the knowledge, actual or constructive, that they will enter another’s lands, D will be liable for the damages his animals cause. (Pegg v. Gray)
1. Constructive Knowledge: When you impute knowledge onto another person, and assume they either knew or should have known that an event would occur.
vi. Animal Invasions; Proximate Causation. Injuries must be proximately caused by the animal’s trespass. Damages that do not naturally result or are not anticipated from the trespass of D’s animal are unrecoverable. No liability for unforeseeable damages from trespass by animals. (Hollenbeck v. Johnson)
vi
nal property to such an extent that the defendant is required to pay its full value.
i. Trespass to chattels v. conversion. If the interference is so great that it is fair to require the defendant to pay the full value of the chattel (regardless of whether it could be returned in some form to P), the action will be for conversion; if the interference is less substantial, the action will be for trespass to chattels.
ii. Liability for trespass to chattel. You are subject to liability for trespass to chattel if, but only if, (a) you dispossess the other of the chattel, or (b) the chattel is impaired as to its condition, quality, or value, or (c) the possessor is deprived of the use of the chattel for a substantial time (refuse to return or transfer to a third party), or (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest. (Restatement 2d, §218)
iii. What constitutes conversion instead of just trespass to chattels. (1) Conversion is an 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 other the full value of the chattel. The factors that must be looked at are:
1. The extent and duration of the actor’s exercise of dominion or control
2. The actor’s intent to assert a right in fact inconsistent with the other’s right of control
3. The actor’s good faith
4. The extent and duration of the resulting interference with the other’s right of control
5. The harm done to the chattel
6. The inconvenience and expense caused to the other (Restatement 2d §222A)
iv. Intent. The only required intent is the intent to take possession of the property, mistake as to the correct owner is not a defense (same as for trespass to chattels).
v. Strict Liability Tort. Most courts hold that a bona fide purchaser of stolen goods is liable of conversion even if there was no way to know that it was stolen. No mistake, even for right to possess or who has title, doesn’t negate intent.)
vi. Only mistake is if there is no intent to make contact with the possession (this is a defense both in trespass to chattels and conversion
vii. Conversion by destruction or alteration. If you intentionally destroy a chattel or so materially alter its physical condition so much as to change its identity or character, you’re liable for conversion. (Restatement 2d §226)
viii. Limitations on the amount of recovery in conversion. Can only recover the value of converted property when the property is still in the hands of the person who converted it from your possession…once it leaves the hands of the tortfeasor or is sold to a third party, you cannot recover the value that they add or subtract to your property.
ix. Bodily Organs. Bodily organs can be donated and given away, but not sold. The balance is struck between a patient’s right to make autonomous medical decisions, and the right of 3rd parties engaged in socially useful activities to be free from liability for using a patient’s organs to manufacture a product line. (Moore v. Regents of the University of California)
x. Internet Domain Names. Internet domain names can be considered intangible property capable of possession and dispossession. A person can be liable for conversion if they negligently fail to protect such interests. (Kremen v. Cohen) Definition of property that can be converted is something that can have a property right:
1. Interest Capable of Precise Definition
2. Capable of Exclusive Possession
3. Owner must have established a legitimate claim to exclusivity
xi. Electronic Signals. Electronic signals (Spam) generated and sent by computer are sufficiently tangible to support a trespass cause of action. (Compuserve, Inc. v. Cyber Promotions Inc.) (Spammer used compuserve equipment to store and process ads by emails their cyustomers)
V. Assault – Assault is the intentional causing of an apprehension of an imminent harmful or offensive contact. (Restatement 2d §21).
Definition. L for assault if (a) you act intending to cause a harmful or offensive contact with [another
