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Torts
University of Kansas School of Law
Kautsch, M.A. (Mike)

 

Intentional Torts: FiTTED CAB: False Imprisonment, Trespass to land, Trespass to chattels, intentional infliction of Emotional Distress, Conversion, Assault, Battery

Transferred Intent: FiT BAT: False Imprisonment, Trepass to land, Battery, Assault, Trespass to chattels

Battery: CAHIL: (Causation, Act, Harmful or offensive contact, Intent, Lack of consent) if he acts intending to cause a harmful or offensive contact w/ the person of the other or a 3rd person, or an imminent apprehension of such contact, and … harmful or offensive contact w/ the person of the other directly or indirectly results. Battery is the intentional infliction of a harmful or offensive bodily contact. 
·         Act: That Δ committed a voluntary act.
·         Intent: That Δ either: (a) intended to cause a harmful or offensive contact (with P’s body or w/ the body of some 3rd person) or (b) intended to cause P or a 3rd person to have an apprehension of such harmful or offensive contact.
·         Harmful/offensive contact: That a harmful or offensive contact w/ P’s person actually resulted. (The standard for an “offensive” contact is that the contact “offends a reasonable sense of personal dignity.” Rest. 2d § 19.) P’s “person” is defined broadly, to include her clothing, the chair she is sitting in , and anything else closely connected w/ her body.
·         Causation: That Δ’s act in some sense “caused” the harmful or offensive contact, either b/c Δ himself touched P, or b/c Δ set in motion some force that actually did the touching
·         Lack of consent: That P did not consent to the contact. 

Defenses to Battery: self-defense, consent, defense of others, defense of property, retaking of land, recapture of chattels, necessity, discipline, detention for investigation, and legal authority

Damages Recoverable for Battery:
·         All physical and mental injury flowing from the wrongful conduct
·         If victim cannot claim actual damages, he’ll get nominal damages (which are basically a “token” amount of damages, like a dollar, to declare that Δ violated P’s rights.)
·         If Δ intended to injure P, the P can recover punitive damages (damages that do not compensate the P for harm, but rather are intended to punish particularly heinous conduct.

Assault: CIA LAp: (Causation, Intent, Act, Lack of consent, Apprehension) A person is liable for the tort of assault upon another if
(a) he acts intending to cause a harmful or offensive contact w/ the person of the other or a 3rd person, or an imminent apprehension of such a contact, and
(b) the other is thereby put in such imminent apprehension. Rest 2d § 21 (1). 
Assault is the intentional creation of an apprehension of imminent harmful or offensive contact.
·         Act: That Δ committed a voluntary act.
·         Apprehension: That Δ’s act created in P an apprehension of immediate harmful or offensive contact w/ P’s person. P need not feel “fear,” merely the belief that a harmful or offensive contact will occur.
·         Intent: That Δ intended to cause either a harmful-or-offensive contact, or an apprehension of such a contact
·         Causation: That there was a causal connection between the Δ’s act and P’s apprehension
·         Lack of consent: Some courts treat P’s lack of consent as part of P’s claim, but it’s discussed as a defense in most sources (and here)

False Imprisonment: A confinement can involve anguish: (Act, Confinement, Causation, Intent, Awareness of harm) Δ falsely imprisons P if Δ:
(a) acts intending to confine P or a 3rd person w/in boundaries fixed by Δ AND
(b) his act directly or indirectly results in such a confinement of P AND
(c) P is conscious of the confinement or is harmed by it. P must show:
·         Act: That Δ committed a voluntary act.
·         Confinment: That Δ’s act confined P to a bounded area (via physical restraint or threats of force)
·         Intent: That Δ intended to confine or restrain P w/in a bounded area (negligence is not sufficient)
·         Causation: That Δ’s act “caused” such a confinement of P
·         Awareness of Harm: That either P was aware of the confinement while it occurred, or else P was actually harmed by it.

Damages Recoverable for False Imprisonment:
·         Ps are entitled to compensation for loss of time, physical discomfort and inconvenience, physical illnesses resulting from the confinement (nervous disorders), mental suffering and humiliation
·         If P suffered no actual damages, he will be entitled to nominal damages
·         Ps often get punitive damages in FI cases
·         Ps can also recover damages incurred during a reasonable attempt to escape

False Arrest: #42

Intentional Infliction of Emotional Distress: DICE: (Damages, Intent, Causation, Extreme conduct) The intentional or reckless infliction, by extreme and outrageous conduct of severe emotional or mental distress, even in the absence of physical harm
·         Act: Extreme and outrageous conduct by Δ. (Petty insults or annoyances won’t suffice)
·         Intent: Δ’s intent to cause P to suffer severe emotional distress (although most courts allow recovery for recklessness as well).
·         Causation: A causal connection between the wrongful conduct and the emotional distress
·         Damages: Physical harm isn’t required, but the emotional harm must be severe

3rd Parties may recover for emotional distress. That is, a person (“P”) can recover for outrageous conduct directed at someone else (“V”) as long as:
(1) P was present for the conduct
(2) P was closely related to V
(3) D knew P was present and knew (or recklessly disregarded the likelihood) that P would suffer emotional distress as a result.
The requirements that D know P was present, and that P be a close relative, are ones that wouldn’t be imposed if traditional transferred-intent doctrine were implied.


Trespass to Land: PiPIA: (Physical Invasion, Possession, Intent, Act)
Intentional and unauthorized physical invasion of P’s land. Trespass does not require proof of damages. 
·         Act: That Δ committed a voluntary act
·         Physical

ng the chattel.

Damages Recoverable for Conversion: Damages calculated at the fair market value at the time and place of conversion. That is, Δ is required to “buy” the chattel (and gets to keep it).  (Where Δ acted in good faith and the item has not been permanently reduced in value, some courts permit Δ to return the chattel and pay only partial damages, to compensate for the temporary deprivation.

9 Defenses to Intentional Torts: DoDD, SLaSh CoRN (Defense of Others, Defense of land/chattels, Discipline, Self defense, Legal Authority, Shoplifter detention, Consent, Recapture of chattels, Necessity)
1.      Consent (express, implied-in-fact, implied by law)
2.      Self defense
3.      Defense of others
4.      Defense of land/chattels
5.      Recapture of chattels
6.      Shoplifters—detention to investigate
7.      Necessity (public and private)
8.      Legal authority
9.      Discipline
Note: Strictly speaking, consent isn’t a defense to assault, battery, and false imprisonment (the so-called “personal” intentional torts); it’s part of the P’s prima facie case. That is, P has to prove a lack of consent for those three torts. However, since consent is conceptually easier to understand as a defense, almost every source covers it that way. 

Note: Except for consent, the defenses listed above are also referred to as “privileges”—if a Δ is privileged to act in a certain manner (e.g., to defend herself), the existence of that privilege is a complete defense to the P’s intentional torts.

Consent is ineffective in five principal situations: CaD FInS (Criminal act; Duress; Fraud; Incapacity; Scope)
1.      The consent was obtained through duress (threat of imminent and serious harm to P or P’s family)
2.      The consent was obtained through fraud (as to an essential matter only, not a collateral, or unimportant, matter)
3.      P did not have the capacity to consent (infant, drunk, mentally incompetent; for these, someone else, e.g., next of kin, has to consent for P);
4.      The act exceeded the scope of consent (e.g., consent to contact during a contact sport ends when the game ends);
5.      In some jurisdictions, the consent was to a criminal act. In all jurisdictions, consent to a crime is invalid if P is a member of a legislatively-protected class. Thus if P is an uderaged female, her consent to have sex w/ Δ, an adult male, will never bar her from suing for battery, b/c she is a member of the class.