Torts Outline
I. Intentional Torts
a. Battery
i. A person is liable for battery if he acts intending to cause harmful of offensive contact with another person and the contact actually occurs
1. Intent: a desire or substantial certainty that contact will occur
2. Harmful: cause pain or injury
3. Offensive: that which would offend a reasonable person’s sense of personal dignity
4. Contact: direct or indirect physical touching
5. Person: a human being or object associated with, attached to, or in close approximation with
ii. Split in authority
1. Vosburg Rule = Majority
a. If the contact is harmful by today’s standards, and there is intent to contact another person, there is a battery. If the contact is not offensive by today’s standards, and there is intent to harm another person, there is a battery.
i. Question Sequence:
1. Is it offensive? Does it offend a reasonable person’s sense of personal dignity?
2. If yes, was there intent to contact?
3. If no, was there intent to harm?
2. Restatement 2nd Rule = Minority
a. If there is intention to cause harmful or offensive contact to another person, there is a battery.
i. Question Sequence:
1. Was there intent to harmfully contact?
2. Was there intent to offensively contact?
b. Assault
i. Assault is the intentional creation of a reasonable apprehension, in a person, of an imminent battery, and the apprehension is actual.
1. Apprehension: Perception, not fear
2. Imminent: Immediate, not sometime in the future. No significant delay
3. Intentional creation
a. Mere words Cannot be assault
i. With action; they can be an assault.
1. Must be an action or gesture by defendant who intends to cause a reasonable apprehension (from victim’s point of view) of an imminent battery
ii. Majority Rule: An assault occurs when a person takes an action to intentionally create a reasonableapprehension in another person of an imminent battery and that apprehension actually occurs.
1. Requires reasonable apprehension
iii. Minority Rule (Restatement): An assault occurs when a person takes an action to intentionally create an apprehension in another person of an imminent battery and that apprehension actually occurs.
1. Do not have to have a reasonable apprehension
c. False Imprisonment
i. An intentional confinement of a person in set boundaries against their will.
1. Confinement
a. Any Reasonable exit is not confinement
b. Confinement is literally no way out or no exit without sacrificing physical safety or reasonable sense of personal dignity.
i. Physically confined from leaving? If no,
ii. How is the threat accomplished?
1. Threats: are they legally right threats?
a. Claim of legal Authority
b. No, is confinement
c. Yes, is not confinement
2. Is the threat imminent?
a. If you can do it now, it is imminent
b. If you can’t do it now, it is not imminent
iii. If it is illegal, it is not imminent (assume you will never break the law)
2. Against will
a. Voluntary admission to stay does not matter. What matters is that they were restrained from leaving.
3. Boundaries
ii. Majority Rule: Intentional confinement, within boundaries or limits, of another person against their will, and aware of the confinement.
1. Actuality of what plaintiff finds (re: a way out)
2. Questions can arise if you don’t find an obvious way out
iii. Minority Rule: (restatement) Intentional confinement, within boundaries or limits, of another person against their will, & they are either aware of confinement or are physically injured by it.
iv. Must Release from imprisonment
1. If you didn’t intentionally do the imprisoning
2. You promise(d) to
3. You innocently confined then realized you did it
4. Legal relationship (parent/child)
II. Defenses to Intentional Torts
a. Defenses are for defense not individual causes of action
b. Intended to harm someone else
i. Transferred Intent Doctrine:
1. Intent to commit one intentional tort transfers if that tort is accidently committed against another.
2. When an intentional tort is intended to harm a person and another intentional tort is actually committed, the intent transfers
c. Mental Illness
i. Valid defense if person does not meet an element because of it.
1. Person believes they are hitting a giant cockroach, not another person.
ii. Invalid defense if person is still substantially certain that something will occur.
iii. Mentally ill can still make the necessary intent to contac
le except in very limited circumstances, unless you are threatened with deadly force.
1. In and of itself – you can only use deadly force to protect against deadly force
2. Deadly force is force that is capable of killing – not that it actually did
3. Aggressor – May not use force
a. Aggressor is first to use force or first to escalate to deadly force
b. Instigator can be aggressor or just using words to instigate
i. Examples: A calls B a name and B throws a punch
1. A is instigator
2. B is aggressor
ii. Then A pulls a gun on B
iii. A changes to aggressor
c. Withdrawal and that is somehow communicated to the other party will revoke aggressor status
iii. Retreat – Split Jurisdiction
1. Retreat, if possible, before force (accept from home)
2. Don’t have to retreat before force
f. Rule for defense of others:
i. MINORITY
1. ALTER EGO RULE: You have the right to use the same force the person you are protecting has a right to use.
ii. MAJORITY
1. REASONABLE BELIEF RULE: You may use force to the extend that you reasonably believe is necessary
iii. Cannot use force against a third person
g. Necessity
i. **RULE** Necessity as public interest (good of the public) is defense against being held liable for destroying property
1. Does not constitute public official only, citizen can activate public necessity also
2. How many people will potentially benefit
ii. Must choose the lesser of two evils
iii. **RULE** Necessity as private interest is not defense against liability in damages.
1. Save one person is private
h. Defense of Property
i. MUST WARN: Must give warning to leave property
ii. Circumstances when force is allowed to regain property: Misrepresentation, deception, theft
1. Privilege – Shoplifter still in store
&nbs
