Torts Outline, Fall 2007
§ 1: Intentional Torts: Battery, Assault, False Imprisonment
All Intent. Torts require Intent: Desire/Purpose, substantial certainty
I. Battery:
– Elements of Prima Facie case of battery:
o Voluntary Act by D
o Intent
o Harmful or Offensive Touching
A. Voluntary Act by D
– Must prove that the act was voluntary
B. Intent: purpose or desire. Can be single or Dual Intent(varies according to juris)
– Single is intent to act
-Dual is intent to act and cause harm
– must desire intentional, unconscented, contact
– subjective standard: not what reasonable person would have believed, but what the D believed while committing the act.
– intent can be reckless, more than unreasonable
– only need to intend the touch, not the harmful/offensive result
o degree of touching is not important, even the slightest touch can be battery
o Substantial Certainty: lower level of intent. Do not have to have desire, D believed that a harmful touch was substantially certain to result from his act
– TRANSFERRED INTENT
2 types of transferred intent
1. tortfeasor intends a tort on one person, but commits a tort on another
-transfer of intent amongst persons
2. tortfeasor intends one tort to assault (scare), but accomplishes another battery.
-transfer of intent amongst torts
Note: Motive is not intent, can have a positive motive, but still have intent to touch, and result can be harmful/ offensive
C. Harmful of Offensive Touching
– Liable for even trivial contact that is insulting or offensive.
o Reasonableness controls what is offensive
o Not enough for harm or offense without touching
– Extended Personality: holding a book, other object, riding a bike or in a car that is touched the battery will extend to the person with that object
– Indirect touching i.e. blowing smoke at a person with intent to offend can be battery.
Child Liability
7. Most states children may be liable for torts they commits as long as the injured plaintiff can prove tort, including intent.
8. some states young children are presumed incapable of harmful intent.
Parental liability for torts of minor children
-Injured can only sue parents is cases where it is allowed by statute, or parent is at fault in some way.
-statutes allowing parents to be sued are limited
1. child’s tort must have been committed willfully or wantonly
2. damages are capped at a very low amount
Liability to the Mentally Ill
– Most juris hold Mentally ill persons liable for the battery they commit
– Minority will require dual intent, and will examine if they really could form intent
– Why:
o 1. Where one of 2 innocent persons must suffer a loss, it should be borne by the one who occasioned it.
o 2. Public policy, if not, so relatives of insane persons will restrain the insane individual,
o 3. So people will not feign insanity to avoid liability
Damages For Battery:
-if battery is proved court will award at least nominal damages
Compensatory Damages:
– Damages for harm suffered
o General damages: unidentified damages resulting from the touching.
§ i.e. embarrassment from being hit, pain and suffering, disability
§ Special Damages: specific identifiable economic losses: medical bills or lost wages.
· Can include future damages such as medical costs over a lifetime.
– Damages must be proven
II. Assault
– Elements of Prima Facie Case of Assault:
o Voluntary Act by D
o Intent: purpose/desire, or substantial certainty
o Apprehension of imminent harmful offensive touching (but no touching)
o Immediate or Imminent
A. Intent:
– Assault occurs when D intends to cause harmful or offensive touching (that doesn’t occur)
– or places P in an imminent apprehension Of touching.
B. Apprehension of Imminent harmful touching
– Imminent:
o Cannot be threat of future contact
o Words alone will not constitute assault, must be taken in context with actions.
o i.e. I would punch you, but there is a cop here, not assault
o giving 2 unpleasant choices is assault
– Apprehension: requires awareness of a touching that would be a battery
o Not aware, no assault
-Damages are the same as battery
III. False Imprisonment
– False imprisonment occurs when a person intentionally confines another without lawful privilege and against his/her consent within a limited area for any appreciable time.
– Elements of a Prima Facie Case of False Imprisonment
o Voluntary act by D
o Intent
o Confinement
A. Act: P must show an act by D that caused confinement.
– words alone are sufficient: threatening a person with physical force can be the act
B. Intent: act must be done with intent to confine the P
– Again, desire or belief in substantial certainty
– Transferred intent applies (applies to all intentional torts)
– Normal citizen may have right to confine a person who is committing a felony
C. Confinement
– P must be restricted to a limited area, without a reasonable means of escape, for some period of time
o Area: must be a limited area confined by D’s acts
§ i.e. blocking a sidewalk is not enough, P can go other way
o No means of escape
§ P has no duty to search for a means of escape, or run the risk of harm from attempting escape
D. Awareness
– P must be aware that they are confined at the time of confinement OR
-P must be harmed by confinement
E. How Confined
– Physical Barrier: locked in room, fence…taking a disabled person’s wheelchair
– Assertion of Authority: stating that you have authority to confine when you do not
– Duress of goods: take a person’s property and don’t return it.
– Duress of person: threaten physical harm
– Could be a failure to act, not letting a person out of a confinement
Damages: This is a trespass tort, can get damages even if there is no harm…remember harm is required if P not aware of the confinement.
§ 2. Defenses To Intentional Torts aka Privileges
-Self Defense
-Defense of Property
-Consent
-Necessity
I. Self Defense:
-a privilege to use reasonable force to defend against harmful or offensive contact, and against
Confinement
o Depends on the apparent necessity of self defense, not on the actual reality
– Deadly Force: D’s privilege extends only as far as is reasonably necessary to prevent harm,
o If not threatened with deadly or serious harm, cannot use force likely to cause deadly/serious harm
– No duty to retreat, or otherwise avoid need for sd
– Excessive Force: can only use reasonable force, excessive force is unprivileged.
o Cannot continue defense after incident, or retaliate
– Assault and Imprisonment: if facts support it, can commit both in self defense
o Facts are important D might be privileged to commit assault or false imprisonment, but not use physical force.
– Defense of Third Persons: may use same analysis in defense of 3rd persons.
Self Defense: issue is whether the defendant reasonably believed that defense was necessary and then whether he used the amount of force reasonable to cope with the apparent threat.
-battery degree is not important i.e. kissing a stranger…not a defense that it was brief and no harm.
-degree becomes important when the issue of privilege is present\
-subjective standard
II. Defense of Property: Use of reasonable force is privileged in defense of property, never deadly force
-cannot use force that would likely cause death or serious bodily harm
– must also contain the sel
ent:
– P can place limits on the scope of consent, not a defense when acts go beyond the consent given.
D. Minor’s and Consent:
– Minors can consent to age appropriate touching.
o An 8 year old can consent to a football game.
o Older minors can consent to greater touching such as routine medical care.
o A minor may not be able to consent to non-urgent surgery.
– In cases of sexual intercourse a minor cannot consent. Courts have found a minors’ consent to sex can bar a tort claim, but not criminal prosecution.
E. Consent and Criminal Activity:
– Some courts have found that consent to illegal acts is ineffective, consent will not be a defense.
-can relate to minors’ consent to sex, statutory rape is a crime, thus a minor cannot consent to it
-some courts say consent to crime can bar a tort claim, not criminal prosecution though.
IV. Necessity:
– Public Necessity: must be an emergency situation, and the action must be to protect the public.
– Private Necessity: act to preserve one’s own life or property
A. Public Necessity: a public actor (fireman, police officer, city official), acting in an emergency situation to protect the public good from a public disaster
– Total defense: at common law will not be liable for any damages if acting out of public necessity.
– Could be preempted by constitution or statute: may require compensation
B. Private Necessity: provides a privilege for a person to enter land/use property of another when necessary to protect any person (actor, owner of land, third person) from serious harm
– Not a complete defense: actor is liable for the harm done to property if any, but not for the trespass.
– Also private necessity supersedes owner’s right to keep out trespassers: could not forceably remove a person exercising private necessity from your land…would be liable for battery.
– Necessity may now be antiquated defense…covered by statute, constitution, insurance.
§ 3. Negligence
– Not defined by specific acts, any conduct that creates unreasonable risk of harm
Prima Facie case:
– Act or actionable omission by D (omission when under some legal duty to act
– Duty
– Breach of duty
– Actual Cause (cause in fact
– Proximate Cause (legal cause/policy)
– Harm
-must prove each element by the preponderance of evidence, greater weight of evidence
I. Duty: general duty : Reasonable Care: Reasonable person standard
A. Reasonable person
– Duty owed by all is to exercise care that a reasonable prudent person would exercise under similar circumstances.
– Objective test: issue is how the “reasonable person” would have acted under the circumstances. Not how D believed they were acting, how you would act.
o The circumstances change, dictating how Reasonable person would act
– Only one standard of care, Reasonable Person/reasonable care.
o If danger of the activity increases, care is greater based on circumstances.
§ Danger is higher, reasonable person would exercise greater care
