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University of Kentucky School of Law
Price, Melynda J.

Torts – Price – Fall 2009
·         A tort is a civil wrong, other than a breach of contract, for which the law provides a remedy.
·         Major purposes of tort law:
o   to provide a peaceful means for adjusting the rights of parties who might otherwise     “take the law into their own hands”
o   to deter wrongful conduct
o   to encourage socially responsible behavior
o   to restore injured parties to their original condition, if the law can do this by     compensating them for their injury (most important and controversial)
·         2 common law writs are the genesis of tort law:
o   writ of trespass
o   writ of trespass/action on the case
·         The distinction between trespass and case lay in the direct and immediate application of force to the person or property of the plaintiff. Trespass is for all forcible and direct injuries.
·         Liability must be based on legal fault.
·         In tort law: we use preponderance of the evidence
o   Plaintiffs action more than likely resulted in defendant’s injury
·         3 possible bases of tort liability:
o   1) Intentional conduct
o   2) Negligent conduct that creates an unreasonable risk of causing harm
o   3) Conduct that is neither intentional nor negligent, but that subjects the actor to strict liability because of public policy. (Strict liability or abnormally dangerous conduct)
·         Intent:
o   desire for harm OR
o   knowledge with substantial certainty that harm will come
·         Children are held to the standards of liability of adults if engaged in adult activities…Children are given much more responsibility once they start school (age 5-6)
·         In intentional torts, you must have:
o   The appropriate state of mind AND
o    Tortuous consequences
·         The desire to be helpful is irrelevant when it comes to intentional torts; therefore, motive is also irrelevant
·         Intent may be specific or general
o   Specific intent: an actor “intends” the consequences of his conduct if his goal in acting is to bring about these consequences
o   General Intent: an actor “intends” the consequences of his conduct if he knows with substantial certainty that these consequences will result
§ Ex. Kid pulling chair out from under old lady
·         “Transferred Intent”: applies where the D intends to commit a tort against one person but instead:
o   Commits a different tort against that person, OR
o   Commits the same tort as intended but against a different person, OR
o   Commits a different tort against a different person
·         In these 3 cases: the intent to commit a tort against one person is transferred to the other tort or to the injured person
·         There are 5 torts that fall within the trespass writ and limitation on use of transferred intent:
o   Battery, Assault, False imprisonment, Trespass to Land, and Trespass to Chattels
·         Battery: harmful contact or offensive contact
o   Intentional harmful or offensive contact with a person or a third person, or an imminent apprehension of such a contact, AND
o   A harmful contact with the person of the other directly or indirectly results.
·         Contact is deemed “offensive” if P has not expressly or impliedly consented to it
·         This can include anything connected other’s person OR can include throwing things to cause the K
o   Ex. Forceful dispossession of P’s plate in an offensive manner was sufficient (Fisher case)
·         Transferred intent applies to battery cases
·         Apprehension is not necessary
·         As long as there is no contact, there is no battery
·         Assault: (both are required)
o   Intent to inflict harmful or offensive contact or imminent (reasonable) apprehension of such contact AND
o   The other is put in such imminent apprehension
·          What interest does assault protect? 
o   Protects the mental interest of being free of the apprehension of other types of harmful contact (battery).
·         The apprehension has to be imminent to constitute assault (threats of future contacts are insufficient, as well as long distance), belief also has to reasonable (reasonable person test)
·         Apprehension does not require fear; it just requires apprehension of contact.
·         When there are just words (language), you need more to have assault.
·         Preparation for assault is not considered assault
·         For the tort of assault, the victim must have an apprehension of contact, and it is not necessary that D have the actual ability to carry out the threatened contact. (apparent ability to act is sufficient)
·          For there to be an apprehension, the P must have been aware of D’s act (unlike battery)
·         Transferred intent applies to assault cases
·         False imprisonment: (need all 3)
o   When D intends to confine P in boundaries defined by the D AND
o   That leads to unlawful, total confinement from defendant’s action AND
o   P is conscious of confinement OR is injured
·         False imprisonment is the direct (intentional) restraint of one person of the physical liberty of another without adequate legal justification
·         Personal liberty is the interest that false imprisonment protects
·         If one gives their consent to confinement, it is not false imprisonment.
·         The boundaries are defined by the defendant (room, car, house, city, state, etc.); Area of confinement can be large, and you can be free to move around.
·         The means of escape must be reasonable and must be known
·         You must be contained in an area; doesn’t include saying that you can’t have access into a certain area
·         You have to be conscious of confinement, unless you are injured
·         Generally no false imprisonment is found when the plaintiff stays to clear their name
·         Moral pressure, mental restraint, or language is not enough, there must be physical force
·         False imprisonment when dealing with law enforcement officers is sometimes called false arrest.
o   Ex. Officer wrongfully arrested woman after not showing driver’s license with “Dog Leash” ordinance. (Enright/Groves case)
·         Tort claims often come in clusters, this case could also include assault and battery.
·         The level of consent can be limited, and an escape route has to reasonable and apparent
o   Ex. P consented to take ride on boat, but clarified conditions for arrival, which were not met. Swimming to shore was not reasonable.
·         Could also include P’s property, in certain circumstances
o   Ex. P’s purse was wrongfully withheld; therefore, she could not leave building without leaving purse. False imprisonment could result
·         Transferred intent applies to false imprisonment
·         Intentional infliction of emotional distress: (all 4 must be proven)
o   1)D’s conduct must be intentional or r

  Trespass to Chattel:
o   D dispossesses P of the chattel, OR
o   The chattel is impaired as to its condition, quality, or value, OR
o   The possessor is deprived of the use of the chattel for a substantial time, OR
o   Bodily harm is cause to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.
·         “Dispossession”—conduct on D’s part serving to dispossess P of his lawful right of possession
·         Restatement states that a trespass to chattel may be committed by intentionally using or intermeddling with the chattel in possession of another.
·         “Intermeddling”—intentionally or directly bringing about a physical contact with a chattel
o   Ex. Denting P’s car, striking P’s dog, etc.
·         Does a computer signal constitute a physical contact?
o   Court ruled yes, substantially physical (explanation of neutral experts)
§ Electronic signals generated and sent by computer have been held to be sufficiently physically tangible to support a trespass cause of action.
·         Mistake as to the lawfulness of D’s actions is no defense. Intent to trespass is not required, just the intent to do the act of interference with the chattel is sufficient.
·         Anyone with possession or the immediate right to possession may maintain an action for trespass.
·         Actual damages are required in this type of trespass.
o   In cases of dispossession, the loss of possession itself is deemed to be actual damage
·         Transferred intent applies to trespass to chattels.
·         Consent: D is not liable for an otherwise tortuous act if P consented to D’s act
·         Consent may be given expressly; it may also be implied from custom, conduct, words, or by law.
·         Express (actual) consent: exists where P has expressly shown a willingness to submit to D’s conduct
o   Consent by Mistake: the consent is still a valid defense unless the D caused the mistake or knows about it and takes advantage of it
o   Consent induced by Fraud: the consent generally is not a defense.
§ The fraud must go to an essential matter; if it is only with respect to a collateral matter, the consent remains effective.
§ Most of the “consent induced by fraud” cases involve battery.
o   Consent obtained by duress: may be held invalid.
§ Threats of future action are not sufficient to invalidate the express consent
·         Implied consent: 2 basic kinds
o   Apparent consent: consent that a reasonable person would infer from P’s conduct
§ Ex. Football, minor bumping in a crowd, etc.
o   Consent implied by Law: where action is necessary to save a person’s life or some other important interest in person or property
§ Ex. Emergency situation where P is incapable of consenting