Torts
Bohannan 2012
1. Intentional Torts
1. Intent: a person acts intentionally where:
a) he has subjective desire to cause the consequences of his act; or
b) the consequences are substantially certain to result from his act.
RTT §1: Intent
A person acts with the intent to produce a consequence if:
(a) the person acts with the purpose of producing that consequence; OR
(b) the person acts knowing that the consequence is substantially certain to result.
2. Tortious forms of intent
a) Specific intent: D acts specifically desiring that his conduct cause the resulting consequences
b) General intent: D acts knowing with substantial certainty that his acts will cause the resulting consequences.
c) Transferred intent: D acts intending to make contact with one contact but contact with a third party occurs, resulting in harm to the third party, the D is said to have transferred intent. This only applies to cases of battery, assault, false imprisonment, trespass on land and trespass on chattels, and only applies if the harm is direct and immediate.
a. Talmage v. Smith- D threw a stick at 2 of P’s companions because of their trespass, but inadvertently struck P in the eye. The court held the right of P to recover depended on D’s intention to hit somebody, and to inflict an injury upon someone, and claim that he intended to hit someone else than the P is immaterial.
d) Mentally impaired persons and minors may be held liable for intentional torts because they need only show intent to contact, regardless of whether D had knowledge or understanding that the consequences were wrong or foreseeable.
· Garratt v. Dailey- 5 year old D removed chair from under arthritic woman as she began to sit down, court held him liable despite lack of intent to cause harm.
· Wagner v. Utah- mentally impaired man attacked P w/o reason, court held that battery had been committed because the only required mental state was the intention to make contact with the plaintiff, not the intention to cause harm.
e) Prima Facie case is made where P shows D intended to contact and in doing so invaded a protected interest, then burden is on D to show justification or excuse.
f) No intent when volition is lacking (unconscious, seizures, asleep, reflex[putting hand out to catch fall not reflex])
a. Intentional infliction of harm guards against
i. Physical harm to person or property
1. Protects people against forcible dispossession of their land and against the taking of their personal prop
2. Protection against assaults (threats to use force against the person), and to affronts to personal dignity and emotional tranquility.
2. Offensive Battery
A. Intentional Torts
1. Battery:
a) PRIMA FACIE CASE: D acts, intending to cause a harmful or offensive contact with the person of another or a third party, and a harmful or offensive contact occurs, either directly or indirectly.
i. Bodily harm- any physical impairment of the condition of another’s body, or physical pain or illness. RST § 15
ii. Offensive- a bodily contact is offensive if it offends a reasonable sense of personal dignity.
b) RESTATEMENT DEFINITION
RST § 13: Battery: Harmful Contact
An actor is subject to liability to another for battery if
(a) 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, and
(b) A harmful contact with the person of the other directly or indirectly results.
RST § 18: Battery: Offensive Contact
(1) An actor is subject to liability to another for battery if
(a) 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, and
(b) An offensive contact with the person of the other directly or indirectly results.
(2) An act which is not done with the intention…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 inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.
c) Intent: Distinguish between intent to contact and intent to harm—intent to cause harmful/offensive contact is the only necessary element in battery, does not matter whether D intended to harm.
a. Vosburg v. Putney-
A. Intent to do harm is not required in cases of assault and battery- it only must be proven that either that the intention was unlawful, or that the defendant is in fault.
B. Damages do not have to be limited those foreseeable
1. the law presumes that you intend the harm that results from your intentional contact
C. Where defendant, 11 yr old student, intentionally taps plaintiff, 14 yr old student, on plaintiffs leg inside a classroom after the classroom has been called to order and the tap causes harm, the tap is wrongful even though the defendant intended no harm, and the defendant is liable to assault and battery, of all the harm that results, regardless to whether the harm was foreseeable. (Prima facie case) p. 4
d) Offensive: Person commits offensive battery when he contacts another and that contact offends the person’s reasonable sense of personal dignity.
· Alcorn v. Mitchell- D spat in face of P after losing a suit against P, court said it is customary to instruct jury to give vindictive damages when there are circumstances of malice, willfulness, wantonness, insult and indignity attending to the wrong complained of. (Offensive battery/recovery of damages) p. 59
· Hypo: woman who requests to not be seen or touched by any man while under anesthesia for surgery—while request is not necessarily reasonable, the average person would find a touch by a man in the face of her expressed desire opposite to this would find this contact offensive, so offensive battery.
e) Broad Scope: Broad definition of offensive battery is given to avoid possible escalation resulting from offensive battery.
· Respublica v. DeLongchamps- person held liable for kicking cane out from under another man even though no substantial harm resulted—it was an affront to the man’s sense of personal dignity. P. 60
· The protection afforded against a offensive battery covers not only cases of direct contact with the plaintiff’s person, but also contact with anything so closely attached to the plaintiff’s person that it is customarily regarded as a part thereof and which is offensive to a reasonable sense personal dignity. (ex coat)
f) Eggshell Plaintiff rule: You take the plaintiff as you find him-it doesn’t matter if there was some underlying condition unknown to you, whatever harm you cause, foreseeable or not, you are responsible.
g) Damages Nominal, actual, punitive
2. Assault
a) PRIMA FACIE CASE: D acts intending to make a harmful/offensive contact with P, or to put P in an imminent apprehension of said contact, and imminent apprehension results.
b) RESTATEMENT DEFINITION:
RST § 21: Assault
(1) An actor is subject to liability to another for assault if
(a) 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, and
(b) the other is thereby put in such imminent apprehension.
(2) An action which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm.
RST § 24: What Constitutes Apprehension
In order that the other may be put in the apprehension necessary to make the actor liable for an assault, the other must believe that the act may result in imminent contact unless prevented from so resulting by the other’s self-defensive action or by his flight or by the intervention of some outside force.
c) Prima facie case- no actual bodily contact, but imminent apprehension of contact.
· I. de S. and Wife v. W. de S.- Man threatened woman with hatchet and threw hatchet at her, but missed, but guilty of assault b/c put her in imminent ap
ion which usually accompanies false imprisonment).
· Whittaker v. Sanford: When a woman is allowed total freedom to move about on a yacht, but confined to the yacht and movements on land were restricted, then there is false imprisonment. (even though not close confinement)
· You can always say that when you are being excluded from one area-that you are restricted to some area-Confinement is ultimately a jury issue
e) Ex. Locked in room with large unscreened window
· Not confinement if there is a reasonable means of escape-Only an inconvenience/or something he wouldn’t do (Means of escape-Must be known or obvious to the plaintiff)
· However, there cannot be any risk to the person confined-that is not reasonable (safe)
· Stole clothes-no reasonable means of escape (embarrassing)
g) Intent: D must have intent to confine, negligent imprisonment is not an actionable tort (however if major physical harm results then may be liable under negligence principles). transferred intent: can be liable if it happens to someone other than the intended
h) Reasonable means of Escape: There is no false imprisonment if there is a reasonable means of escape and the confinee knows of the reasonable means of escape. Person being confined is not expected to take his life into his own hands in order to escape.
i) Shopkeeper’s Privilege: Shopkeepers have a privilege to detain a suspected shoplifter if:
· there are reasonable grounds to believe theft has occurred;
· detention is carried out in a reasonable manner; and
· the detention is limited to a reasonable period of time.
· Coblyn v. Kennedy’s, Inc.: Where a 70 year old man with a heart condition is ordered to return to a store by two younger men, one of which has a firm grasp on his arm, the shopkeepers privilege does not apply b/c it is not reasonable. Where the person does not feel free to leave b/c of personal difficulties or force, but instead feels they have no option but to comply, there is a false imprisonment.
J) consent:
· if you agree to go someplace-that is consent to confinement-but this consent can be revoked. (consent can be a defense) Herd v Weardale Steel: miners 30 minute delay to surface did not constitute false imprisonment.
· D relied on P’s consent-courts are more lenient- it depends on the circumstances (cost, time, conditions/safety) (if defendant knows consent is forced/duress is considered)
4. Intentional Infliction of Emotional Distress
a) PRIMA FACIE CASE: D, by extreme and outrageous conduct, intentionally or recklessly causes severe emotional distress in P.
b) RST §46: Outrageous Conduct Causing Severe Emotional Distress
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress
(a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in bodily harm.
