Torts Outline – Jennifer Robbennolt – Fall 2010
· General Rule
§ Need to do something
o Harm to Another
· Punitive Damages in Intentional Torts
o When a defendant’s conduct is particularly egregious—that is, when the defendant either acts with intent to harm or with willful or wanton disregard of whether harm will occur—most courts allow a jury to assess punitive damages (Malice)
· Compensatory damages alone may not sufficiently deter bad actors from engaging in nefarious conduct
· Allows society to express its sense of outrage against the defendant’s conduct
· Justify plaintiff’s legal fees that were paid to prevail in the case.
· Elements of intent (only need one)
o (1) Desire to cause the consequences of the act
§ Ex: (a)Harmful or (b) offensive touching
o (2) Belief that the consequences are substantially certain to result
§ Ex: (a)Harmful or (b) offensive touching
· 4 types of possibilities (harmful/offensive) for each category
o Only need to show 1 of 4
· Case: Garrett v. Dailey
o D (5 years old) pulls chair from P as she is sitting down. Even if D did not desire her to hit the ground, he was substantially certain that she would. Intent for battery
· Factors such as age or mental illness do not negate intent
o However, courts consider these factors in determining if intent exists.
· Actor does not need to intend injury (Motive Immaterial)
o Rule: Intent requires no showing of intent to injure or other bad motive. The intent of the actor that is relevant for purposes of intentional torts is the intent to bring about the consequences that are the basis for the tort. Thus, a person may be liable even for an unintended injury if he intended to bring about such “basis for the tort” consequences.
§ Case: Ranson v. Kitner
· D hunting wolves. P’s dog had a resemblance to a wolf. P’s dog killed as if it were a wolf.
· Holding: Does not matter that they were acting in good faith or bad faith. Requisite Intent was established. They purposefully caused the harmful action and were substantially certain that the consequences would occur. He intended to act on the piece of property (dog). Good faith does not negate intent.
· Transferred Intent
o Intent will be found where a defendant intends to commit one of the five intentional torts against a particular person, but instead:
§ Commits that intentional tort against a different person
§ Commits a different intentional tort against a person
§ Commits a different intentional tort against a different person
o Can be transferred between 5 intentional torts:
§ False Imprisonment
§ Trespass to Land
§ Trespass to Chattels
§ NOT Intentional Infliction of Emotional Distress
o Case: Talmage v. Smith
§ D throws stick at a boy, hits another boy in the eye by mistake.
§ Holding: Liable for intentional tort of battery because he intended to cause harmful contact to someone. Transferred intent.
· Elements of Battery
o (1) Conduct
o (2) Intentionally
o (3) Causing
o (4) Harmful or offensive contact with the person of another
· Harmful Contact
o Any physical impairment of a condition of another’s body or physical pain or illness
§ There is an impairment of a condition of another’s body or physical pain or illness function of any part of the other’s body is altered to any extent even if the alteration causes no harm
o Restatement §13 (Harmful Contact)
§ An actor is subject to liability to another for battery if (both!)
· (1) He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact
· (2) A harmful contact with the person of the other directly or indirectly results
· Offensive Contact
o Offends a reasonable sense of personal dignity
§ P’s hypersensitive reaction is insufficient. “In order that a contact be offensive to a reasonable sense of personal dignity, it must be one which would offend the ordinary person and as such one not unduly sensitive as to his personal dignity”
· Case: Broska v. Olson
o Holding: (majority rule) “We hold that the fear of contracting a disease with exposure to a disease-causing agent is unreasonable. Thus, absent actual exposure to HIV, plaintiffs cannot recover for fear of contracting AIDS”
· Do not want to reward irrational fear of AIDS virus (create greater misunderstanding about the disease)
o Minority Rule: Recovery is limited to the distress suffered during the window of anxiety period, that is, the time between possible exposure to HIV and the receipt of negative test results.
o Exceptions: Rules will not apply if the defendant knows of the plaintiff’s hypersensitivity and proceeds anyway.
o Restatement §18 (Offensive Contact)
§ An actor is subject to liability for battery if (both)
· He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact
· An offensive contact with the person of the other directly or indirectly results (offending a reasonable sense of personal dignity can count)
§ An act which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of infliction it and therefore, would be negligent or reckless if the risk threatened bodily harm
· What does not constitute applicable conduct by the defendant?
o Unconscious acts
o Reflex actions
· Apprehension is not necessary
o A person may recover for battery even though he is not conscious of the harmful or offensive contact when it occurs
· Causation-direct OR indirect results
o The harmful or offensive contact must be caused by the defendant’s act or some force that set the acts into motion. Foreseeability of results of his actions is not relevant.
§ Ex: D chases P and throws a piece of wood at him desiring to hurt him. Wood hits a pile of rocks which crush D to death.
· Actual Damages not required
o P can recover at least nominal damages even though he suffered no severe actual damage. In majority of jurisdictions punitive damages may be recovered where defendant acted with malice.
· Split: Intent Variation
o Majority: Intent to offend
§ Ex: Supreme court of Colorado ruled battery cannot be established without intent that the contact be harmful or offensive
o Minority: Mere intent to contact rule
§ As long as D intends to make the contact, requisite intent is satisfied.
· Case: Whit
scape or prevent the threatened touching.
· Ex: 90 pound girl can assault Hulk Hogan
o (1) Conduct
o (2) Intentionally
o (3) Causing
o (4) The unlawful confinement of another against his or her will
· Split: When can you recover for false imprisonment?
o Majority rule: The plaintiff must know he is confined or be harmed during confinement to recover
o Minority rule: Plaintiff must be aware of confinement in all circumstances to recover
o The defendant’s intentional act must result in the confinement of the plaintiff within boundaries fixed by the defendant for some period of time
o Confinement requires that a plaintiff be restricted to a limited area without knowledge of a reasonable means of escape.
§ If a reasonable means of escape is available and known to the plaintiff, then false imprisonment has not occurred
· No duty for P to search for a means of escape or to run any risk of harm to her person or property
o Sufficient Means of Confinement
§ Physical Barriers
§ Physical Force
· False imprisonment will result where P is restrained by the use of physical force directed at him or a member of his immediate family. An action may also lie if the force is directed against P’s property
o Reasonableness of P’s submission is immaterial
§ Football player imprisoned by nun
§ Direct Threats of Force
· Words alone can be sufficient
o Threats of immediate violence
§ Indirect Threats of Force
§ No means of Escape
§ Invalid use of legal authority
o Insufficient means of confinement
§ Moral threats
· A cause of action will be sustained if a person remains in the area merely because he is responding to the exertion of moral pressure
§ Future threats
§ Economic threat
o If an actor is under a duty to release the other from confinement, or to aid in such a release by providing means of escape, his refusal to do so with the intention of confining the other is a sufficient act of confinement to make him subject to liability
§ Ex: Passenger in car asks to leave, but you refuse.
· Shopkeeper’s Privilege
o A store owner who reasonably believes another person has stolen, or is attempting to steal property, is privileged to detail that person in a reasonable manner for a reasonable time to investigate ownership of the property
§ 1. Reasonable belief a person has stolen or is attempting to steal
§ 2. Detention for a reasonable time
§ 3. Detention in a reasonable manner
o This is not based on customer’s guilt or innocence, but instead of reasonableness of a store’s action under the circumstances
Intentional Infliction of Emotional Distress