TORTS I
Professor Todd
Summer 2015
INTENTIONAL TORTS
a. Intent
i. No Intent to Harm:
i. Intentional torts are generally not defined in such a way as to require D to have intended to harm the P.
ii. Substantial Certainty(general intent):
i. If D knows with a substantial certainty that a particular effect will occur as a result of the action (throwing something into a crowd…prob. hit someone), she is deemed to have intended that result
a. High Likelihood:
i. But If it is merely “highly likely” not “substantially certain” that the result will occur, then the act is not an intentional tort
iii. Act Distinguished from Consequences:
i. The act must be intentional or substantially certain, but the consequences need not be
iv. Specific Intent: D acts desiring that his conduct cause the resulting consequences
v. Transferred Intent:
i. If D held the necessary intent with respect to person A, he will be held liable for an intentional tort committed against any other person who happens to be injured.
vi. Minors/Incompetent persons: generally held liable for intentional torts they commit, even where they lack knowledge that the consequences are wrong or foreseeable
b. Battery
i. Definition: intentional infliction of harmful or offensive bodily contact(intentional, unconsented to, physical contact)
i. D intended to cause harmful or offensive contact with
a. The person of another OR
b. A third person OR
c. An imminent apprehension of such contact
ii. And an offensive or harmful contact directly or indirectly results
ii. Intent Needed:
i. it is not necessary that D intends to HARM P
ii. Has intent for battery if either:
a. D intended to cause a offensive of harmful bodily contact OR
b. Substantialy Certain that it would occur
c. D intended to cause an imminent apprehension on P’s part of a harmful of offensive bodily contact (the intent to commit an assault is sufficient for battery – fire a gun to scare someone, end up hitting them, intent is there)
iii. Harmful or Offensive Contact:
i. Harmful – causes pain or bodily damage
ii. Offensive – damage to a reasonable sense of dignity (spitting on someone, blowing smoke in there face, unwanted kissing, pulling chair out from under someone) – anything that is close to P’s body or person
iv. Indirect Causation – D sets in motion the harm-producing force
i. Ex. Putting poison in someone’s tea, they drink and die
ii. Setting a trap for someone
v. P need not be aware
i. It is not necessary that P has an actual awareness of the contact at the time it occurs. (ex. D kisses P while she is asleep…battery)
vi. “Thin Skull” Doctrine: the tortfeasor must take his victim as he finds him. The victim being particularly susceptible to injury is not a defense.
vii. Mentally ill person:
i. Insane person must be capable of ENTERTAINNIG the intent to complete the act
ii. And must have in fact entertained it
a. However, dillusion will not be inquired into – if you think you’re hitting a bad guy and you’re not
viii. Damages
i. D is liable for damages for all injures caused – foreseen or unforseen
c. Assault
i. Definition: intentional causing of an apprehension of harmful or offensive contact AND the person is actually put in imminent apprehension
ii. 2 Intents will work:
i. Intent to create apprehension – D intends to put P in imminent apprehension of the harmful or offensive contact, even if D does not intent to follow through; OR
ii. Intent to make contact – D intends to in fact cause an offensive or harmful bodily contact. (shoots and misses, but ment to hit him…P sees it and is scared…assault)
a. Actor knows with substantial certainty that the harmful contact will occur; OR
iii. Summary: D has needed intent if D intends to commit an assault of intends to commit a battery
iii. Apprehension: is not fear. The D only has to believe that the act will happen. Thinking he can get out of it or defend themselves doesn’t matter.
iv. No Hostility:
i. It is not necessary that D bear malice towards P, or intend to harm P
v. Words alone:
i. Rule: Words alone are not sufficient by themselves
ii. Must be some overt act by D – physical act or gesture by D (lunging at you)
iii. Special Circumstances: surrounding circumstances or D’s past actions may suffice
vi. Imminence:
i. It must appear to P that the harm being threatened is imminent, and that D has the present ability to carry out the threat
ii. Future threats lack immanency
vii. P Aware of Danger:
i. P must be aware of the threatened contact
viii. Threat to Third Person:
i. P must have apprehension that SHE HERSELF will be subjected to bodily contact – not see someone else
ix. Conditional Threat:
i. where D threatens the harm only if P does not obey D’s demands, the existence of assault depends on whether D had the legal right to compel P to perform the act in question
ii. (ex. Burglar breaks in and D says “if you don’t get out I’ll through you out” there is no assault because D has the legal right to force P to leave.)
d. False Imprisonment
i. Definition: D acts
i. Intending to confine a person within certain fixed boundaries AND
ii. His acts directly or indirectly results in such a confinement of the other AND
iii. The other is conscious of the confinement or is harmed by it
ii. Exception: a child or incompetent can recover for false imprisonment even if they are not aware of the confinement
iii. Intent:
i. P must show that D either intended to confine D; OR
ii. That D at least knew with substantial certainty that P would be confined by D’s actions
iii. Can not be committed by mere negligent or reckless acts (accidentally lock a door – no intent, not false imprisonment)
iv. Confinement:
i. Confined within certain limits (not being able to enter doesn’t count)
ii. May result due to:
a. physical force
b. barriers which restrain freedom of movement
c. present threats of force
d. assertion of legal authority
i. caused by D’s assertion that he has legal authority to confine P – even if he doesn’t, so long as P reasonably believed that D does
e. constitute failure to provide plaintiff a means of escape (where such affirmative duty is imposed on D)
f. any general confinement may constitute false imprisonment if it includes some demonstration of physical power which by all appearances may only be avoided by submission
iii. False Arrest – may constitute false imprisonment since the resulting confinement is without proper legal authority – can result no matt
n if the chattel is returned unharmed
h. Conversion??
B. DEFENSES TO INTENTIONAL TORTS (Privileges)
a. Burden is on the party asserting the privilege or defense by a preponderance of the evidence
i. May have a privilege of self –defense, but if you go beyond what is reasonable, you are liable
b. Consent
i. Express Consent: If P expressly consents to an intentional interference with his persons or property, D will not be liable for that interference
i. Fraud vitiates consent where it goes to a material matter
ii. Consent induces by duress (present physical force of threats)is invalid
iii. Consent given by mistake is a valid defense unless the D knew or took advantage of P’s mistake
iv. Informed Consent (i.e. to a surgical procedure) is a valid defense
ii. Implied Consent: Existence of consent may also be implied from P’s conduct, from custom, or from circumstances
i. Consent would be implied from circumstances of emergency (immediate action is required, no time for consent)
iii. Lack of Capacity: Consent will be invalid if P in incapable of giving that consent (child, intoxicated, unconscious, incompetent)
i. Consent as a Matter of Law
a. Even if P is incapable of truly giving consent, consent will be implied “as a matter of law” if these factors exist:
i. P is unable to give consent
ii. Immediate action is necessary to save P’s life or health
iii. There is no indication that P would not consent if able; and
iv. A reasonable person would consent in the circumstances
iv. Exceeding Scope
i. Even if P does consent to an invasion of her interests, D will not be privileged if he goes substantially beyond the scope of that consent
ii. However, in an emergency case, an emergency may justify going beyond that scope
c. Self-Defense
i. Definition: a person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact, and any threatened confinement or imprisonment
ii. Apparent Necessity:
i. Self-defense may be used not only where there is a real threat of harm, but also where D reasonably believes there to be one
iii. Only for protection:
i. Self-Defense applied only where D uses the force needed to protect himself against harm
a. Retaliation: D may not use any degree of force in retaliation for a tort already committed
b. Imminence: D may not use force to avoid harm which is not imminent, unless it reasonably appears that there will not be a later chance to prevent the danger
