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Torts II
University of Mississippi School of Law
Percy, E. Farish

I.       INTENTIONAL TORTS
Intent
1.      The intent necessary for the commission of an intentional tort is present when the person acts voluntarily, knowing with substantial certainty, that the harmful contact will occur.
a.       Garratt v. Dailey: ∏ alleged that ∆, who was 5 years old, pulled a chair out from under her as she was sitting down, thereby causing her to fall and break her hip. ∆ alleged that he picked up the chair and sat down in it, and then noticed that ∏ was about to sit down where the chair had been. However, upon a second appeal, it was found that he knew, when he moved the chair, that ∏ was about to sit down in it. While battery requires an intentional infliction of a harmful bodily contact, this does not mean that there must be an intent (or desire) to cause harm or even to cause the contact. A harmful bodily contact is inflicted intentionally when the person knows with substantial certainty that the contact will occur. The general view of intent is that where a reasonable person in the position of the defendant would believe that a certain result was substantially certain to follow his acts, the defendant will be considered to intend that result.
b.      Intent can be proved by either: (1) specific intent; or (2) substantial certainty that injury would occur. You do not have to know the degree of the injury; you do not have to intend the injury, only the conduct.
2.      Where a reasonable man would believe that a particular result was substantially      certain to follow, he will be held in the eyes of the law as though he had intended it.
Spivey v. Battaglia: ∏ and ∆ were both employees at the same company. ∆ was aware of ∏’s shyness. In an effort to tease her, ∆ intentionally put his arm around ∏ and pulled her head towards him. She immediately experienced sharp pain and suffered partial facial paralysis. Some time later, ∏ brought an action against ∆ for negligence and assault and battery. ∆ moved for summary judgment, contending that the “hug” was an assault and battery as a matter of law, and ∏’s action was barred by the statute of limitations. The motion was granted and affirmed on appeal. From this decision, ∏ appealed, contending that the action could be maintained on a negligence count, which was not barred by the statute of imitations. The distinction between intent and negligence is a matter of degree. Where the known danger ceases to be only a foreseeable risk and becomes a substantial certainty, intent will be legally implied, and the actor’s conduct becomes an assault and not unintentional negligence. In the present case, it cannot be said that the partial paralysis was ‘substantially certain’ to occur as a result of the ∆’s hug. As such, the negligence cause of action should have been submitted to the jury. Decision quashed; remanded with directions to reverse.
3.      Mistake does not absolve an actor from liability for the harm caused by an intentional act.
Ranson v. Kitner: While hunting wolves, the appellants (∆s) spotted the appellee’s    (∏’s) dog. Due to the dog’s striking resemblance to a wolf, they mistakenly killed it. The appellee sued the appellants to recover the value of the dog, and the trial court awarded the appellee $50 in damages. The appellants appealed, arguing that they should not have been held liable for the harm caused by their conduct because they had acted in good faith. The general rule is that mistake is no defense to an intentional tort. Because intent is held to be present when a result is substantially certain to occur, without regard to the actor’s desire, the actor’s belief as to the nature of the result of his conduct is normally irrelevant.
4.      An insane person may be capable of entertaining the intent to commit an intentional tort.
a.       McGuire v. Almy: ∏, a registered nurse, had been hired to give 24-hour care to ∆, an insane person. ∆ had a violent attack during which she broke furniture and warned ∏ not to enter her room or she would be killed. After entering, ∏ approached ∆, who stood in striking position with a piece of furniture raised above her head. When ∏ grabbed for the hand with the weapon, ∆ struck her. There was a jury verdict for ∏. ∆ appealed the denial of her motion for a directed verdict. An insane person is to be judged by the same standards as a normal person. Intent to do the act is key to a battery, not the intent to harm. If an insane person can entertain that intent, then he can be liable for battery. The standard applies even though an insane person’s acts may be uncontrollable.
b.      Generally accepted public policy reasons: (1) the loss is better borne by the actor than the victim; (2) liability will encourage closer surveillance by custodians; and (3) insanity is easily feigned. The counter-argument is that one should not be liable for acts not within his control.
5.      Doctrine of Transferred Intent- When one intends one tort, but commits another, it is no defense that an unintended person was instead harmed and the doctrine may be invoked.
a.       Talmage v. Smith: ∏ and several other boys were playing on the roofs of sheds on ∆’s property. ∆ ordered the boys to get down, but before they had succeeded in doing so, ∆ took a stick and threw it, hitting ∏ in the eye with such force that the sight in that eye was lost. There was evidence that ∆ threw the stick intending to hit Byron Smith, another boy on the roof, and not the ∏. This decision provides an example of the prominent doctrine of “transferred intent.” 
b.      The doctrine of “transferred intent” may perhaps represent the most peculiar aspect of “intent” in intentional interferences with persons or property, in that a defendant may be liable for harming another (or his property) even if he had no desire to harm, or even knowledge that such harm would occur to that person (or property). The reason for the doctrine may be because of the feeling that when the defendant does act intentionally with respect to one person, he is morally “at fault” and should not escape liability because of the fortuitous circumstance of injuring another victim.
c.       The doctrine can be applied to: (1) Same tort, different victim; (2) different tort, same victim; and (3) different tort, different victim
d.      Generally applies on if the intended tort and the resulting tort were batter, assault, false imprisonment, trespass to land or trespass to chattel (not intentional infliction of emotional distress).
Torts Involving Personal Injury
1.      Battery- unlawful contact with the body of another person.
a.      The least touching of another in anger is battery. An unintentional touching without violence is not a battery. The use of violence in a rude manner is a battery. An attempt to pass through a narrow way resulting in a struggle sufficient to do injury is a battery. (Cole v. Turner)
The interest protected by an action for battery is the interest in freedom from intentional and unpermitted contacts with the plaintiff’s person. Consequently an unintentional or socially acceptable contact is not a battery. The gist of the action for battery is not the actor’s wrongful intent but the absence of consent to the contact.
b.      Restatement (Second) of Torts, §§ 13, 18
(1)   § 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.
P must prove: D committed a voluntary act with the intent to cause a contact with another or intent to cause imminent apprehension of such contact which results in harmful or offensive contact.
(2)   § 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 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 inflicting it, and, therefore, would be negligent or reckless if the risk threatened bodily harm.
                                                What type of contact is offence? Contact would be offensive to a                                                   reasonable person and contact that D knows is offensive to P (the                                                   hypersensitive P cannot recover unless D knew about it.)
c.       A battery may be committed even though there is no physical contact with the person’s body, so long as there is contact with something which is attached to, or closely identified with, the body.
(1)   Fisher v. Carrousel Motor Hotel, Inc.: ∏, a black man, was attending a meeting at the ∆’s hotel. While he was standing in a buffet lunch line, holding his plate, an employee of the hotel came up to the ∏ and snatched his plate from his hands, shouting at the same time that the hotel would not serve a black man. While ∏ was not physically injured, the incident was highly offensive to him, and he sued the hotel for damages to battery. Any offensive contact with a person’s body or anything closely identified with the body is battery. The reason for this is that battery involves an offense to the person’s dignity, not just a physical injury. Therefore, an unpermitted invasion of the person’s body is not necessary, because an unpermitted contact with something closely identified with the body, such as something held in the hands, may be just as offensive as an unpermitted contact with the person. 
(2)   This decision is representative of the prevailing view that actual physical contact with the body is not necessary for battery. It should also be noted that actual physical injury to the plaintiff is not a requirement of battery for the same reason that actual physical contact is not required. An unpermitted, offensive contact with the person or anything identified with the person, violates a person’s integrity, even if he is not harmed. A battery therefore, entitles the plaintiff to recover damages for mental disturbance—such as fright, or humiliation or embarrassment.
            Negligence vs. Battery
                        SOL usually longer for negligence
                        Insurance doesn’t cover intentional torts
                        Harder to hold employer vicariously liable for intentional tort
                        Punitive damages available for intentional torts
                        No stringent proximate cause requirement for intentional torts
                        Government hasn’t waived immunity from intentional torts
                        Contributory negligence not a defense to intentional torts
2.      Assault- the intentional placing of another in fear of immediate bodily injury.
a.       Elements of Assault:
(1)   Voluntary act
(2)   Intent to cause harmful or offensive contact or cause imminent apprehension of such contact
(3)   Results in imminent apprehension of the contact
(1)   I de S et. ux v. W de S: ∆ was beating with a hatchet upon the door of ∏’s tavern, which was closed for the night. When ∏’s wife M (also a ∏) put her head out the window and ordered ∆ to stop, he struck at her with the hatchet. ∆ claimed there was no trespass for which M could recover, since he did not actually harm her.
(2)   The law of assault developed to protect a person’s interest in freedom from being fearful of a harmful or offensive contact upon his person, as opposed to battery, which protected a person from the injury itself.
b.      There can be no assault unless there is an apparent ability to carry out a threatened contact.
(1)   Western Union Telegraph Co. v. Hill: Sapp was an employee of the ∆. When the ∏ came to the office to have her clock repaired, Sapp, who had been drinking, suggested illicit sexual relations. ∏ claimed that Sapp then made a grab for her shoulder over the counter, but she jumped back. The counter was 4’2” high, coming to Sapp’s armpits, and so wide that by stretching over it Sapp’s fingers barely reached the end of it. The photographs showed it was unlikely that Sapp could have reached the ∏. Judgment went for ∏ and ∆ appealed, claiming there was no apparent ability to carry out the threat as a matter of law.
(2)   This case illustrates the principle that the apprehension raised must be a reasonable one. Only an apparent ability to commit a battery could raise a reasonable fear and consequently only those may be redressed by the action for assault. The requirement of a reasonable fear is a policy limitation designed to guard against insubstantial or feigned fears as a round for litigation.
(3)   Mere words may not be enough to constitute assault, but together with other acts and circumstances, mere words may become enough depending on the jurisdiction.
3.      False Imprisonment- an intentional tort whereby the victim is unlawfully restrained.
a.       Elements of False Imprisonment:
(1)   ∆ acted with the intent to confine ∏ within fixed boundaries without legal justification
(2)   Confinement resulted
(3)   ∏ was aware of the confinement or was injured by the confinement
b.      One can be held liable for exemplary damages in a false imprisonment action if the false imprisonment is done intentionally in violation of the rights of the plaintiff.
(1)   Big Town Nursinghome, Inc. v. Newman: ∏ was taken to the nursing home (∆) by his nephew on September 19, 1968. The admission papers provided that he would not be kept in ∆ for any length of time against his will. Three days later, ∏ decided he wanted to leave and attempted to call a taxi. He was prevented from leaving by ∆’s employees. ∏ was advised that he could not leave or use the phone, and his grip and clothes were locked up. He attempted to leave on several occasions, but was caught and brought back against his will each time. He was locked up in Wing 3, a ward for senile patients, incorrigibles, alcoholics, etc. Payment of ∏’s social security checks was changed without his authorization. When he finally escaped on November 11, 198, he had lost 30 pounds. He sued ∆ for false imprisonment and received an award for actual and exemplary damages. From this decision, ∆ appealed, arguing that the award of exemplary damages was improper in this case. False imprisonment is the direct restraint by one person of the physical liberty of another without adequate justification.    The entire course of ∆’s conduct was to prevent ∏ from leaving, in violation of his admission papers. Affirmed.
(2)   Whether or not an action for false imprisonment will lie depends upon whether or not there is a reasonable means of escape available to the person confined. If an individual could remain imprisoned without risk of physical harm, there is authority for the proposition that one cannot recover for injuries suffered in making an unreasonably dangerous escape.
(3)   Exemplary damages- damages exceeding the actual injury suffered for the purposes of punishment, deterrence and comfort to plaintiff.
c.       A plaintiff’s present recollection of a previous consciousness of confinement is not required to make out a prima facie case for false imprisonment.
(1)   Parvi v. City of Kingston: ∏ was found by police in downtown Kingston (∆), New York, in an intoxicated state. He told the officers he had nowhere to go, and they drove him to an abandoned golf course outside of town to “sleep it off.” ∏ brought an action for false imprisonment against ∆ on the ground that the officers had confined him. The testimony as to whether ∏ willingly went to the golf course was conflicted. ∏ testified that he could not presently recall whether he was conscious of being confined at the time he was taken out of town. The trial court dismissed the complaint and ∏ appealed. A plaintiff’s present recollection of previous consciousness of confinement is not required to make out the prima facie case for false imprisonment. It may well be that the alcohol or ∏’s injuries wiped out the memory of a consciousness that existed at the time the officers picked him up. This is not the same as saying he was unaware of the dignitary invasion when it occurred. Reversed.
(2)   Dissent: ∏ has no memory of the entire incident and admitted that his only knowledge of it stemmed from subsequent conversations. He thus failed to make out even a prima facie case for false imprisonment.
(3)   There remains some question among the various jurisdictions as to whether the action for false imprisonment will lie in the absence of knowledge of the confinement. A substantial number of states require such knowledge. The Restatement (Second) of Torts provides that the action will lie without such knowledge if the plaintiff suffers some actual injury or damage from the confinement.
d.      False imprisonment exists upon the unlawful restraint of an individual against his will.
(1)   Hardy v. LaBelle’s Distributing Co.: ∏, a temporary employee of ∆, was asked by another employee to tour the store. She was taken to the manager’s office where she was detained and informed she had been accused of stealing a watch. Present in the office were other employees and at least one uniformed police officer. ∏ denied the accusations and voluntarily underwent a polygraph examination. She passed and was given an apology. She bought suit for false imprisonment, contending she had been detained against her will. At trial, ∏ testified she voluntarily stayed in the office to attempt to exonerate herself. The jury returned a verdict for ∆, and ∏ appealed. ∏ admitted she felt restrained from leaving the office, yet would have stayed anyway to exonerate herself. Thus, she was not restrained against her will and was not falsely imprisoned. Affirmed.
(2)   Moral persuasion is not enough to constitute false imprisonment.
(3)   False imprisonment requires actual confinement, either through physical force or threats. The plaintiff also must know of the confinement. Thus, if an unconscious individual is confined, yet released before he awakens, no cause of action exists. Further, the existence of a safe, reasonable avenue of escape must be known by the plaintiff before such can be used by the defendant to preclude his liability.
e.       A claim for false arrest will not lie if an officer has a valid warrant or probable cause to believe that an offense has been committed and that the person who was arrested committed it.
Enright v. Groves: ∆, a uniformed police officer for the City of Ft. Collins, observed a dog running loose in violation of the Ft. Collins “dog leash” ordinance. He saw the dog approach the ∏’s house, and he asked her 11-year-old son if the dog was his. The son replied that it was his dog, and that his mother was sitting in the car parked on the curb. ∏ got out of the car and spoke with ∆. ∆ demanded her driver’s license. ∏ gave her name and address by refused to produce her license. ∆ ordered her to produce her license or go to jail. She responded, “Isn’t this ridiculous?” whereupon ∆ said, “Let’s go,” and arrested her. ∏, who was convicted of violating the “dog leash” ordinance, sought and was awarded 1,500 damages for false imprisonment. ∆ and Ft. Collins appealed, arguing that there was probable cause for the arrest, and that ∏ was convicted. Conviction of the crime for which one is specifically arrested is a complete defense to a subsequent claim for false arrest. In this case, ∆ did not arrest ∏ for violation of the “dog leash” ordinance. He arrested her for failure to produce her driver’s license upon demand. No statute or case law requires a citizen to produce a driver’s license upon demand unless that person is the driver of a vehicle and the demand is made in that connection. ∏ was not driving when the demand and arrest were made. Accordingly, ∆ was without authority to demand her license and to use force in arresting ∏. Affirmed.
f.       1) To commit a false imprisonment it is not necessary that the tortfeasor actually apply physical force to the person or the plaintiff, but that plaintiff be physically constrained. 2) A false imprisonment occurs when there is an intentional breach of an obligation to take active steps to release plaintiff.
Whittaker v. Sandford: ∏ and ∆ agreed that ∏ would travel on ∆’s yacht across the Atlantic, on the condition that ∆ would not attempt to detain her on board for any purpose, particularly that of reconverting her to the religious movement with which he was affiliated. Upon arrival I ort, ∆ refused to furnish a boat so that ∏ was detained on his yacht for over a month. Even though ∆ does not actually lay hands on ∏, there is still false imprisonment because ∏’s freedom of movement is limited. When ∆ breaches his duty to take active measures to release ∏, he commits the tort of false imprisonment.
4.      Intentional Infliction of Emotional Distress- intentional and extreme behavior on the part of the wrongdoer with the intent to cause the victim to suffer from severe emotional distress, or with reckless indifference, resulting in the victim’s suffering from severe emotional distress.
a.      A complaint based on mental suffering caused by the outrageous conduct of defendant will be sustained if there was no privilege to act in such a manner.
(1)   State Rubbish Collectors Ass’n v. Siliznoff: ∆had collected rubbish from a certain brewery while he was not a member of the State Rubbish Collectors Association (∏). This action prompted the ∏ to threaten to inflict bodily harm on ∆, ruin his truck, or destroy his business unless he joined the ranks of their membership and paid them dues. ∆ sued to collect on notes it had forced ∆ to sign, and he counterclaimed for damages for the emotional distress caused by the ∏’s threats. The jury found for the ∆, and the ∏ appealed. In the absence of privilege, any conduct of defendant which exceeds the bounds of societal decency and causes extreme mental suffering, but no physical injury, constitutes the basis for a cause of action in mental suffering.
(2)   The foundation of this opinion is that because mental suffering is an inherent element of the damages suffered in battery, assault, false imprisonment, and defamation, it is anomalous to deny recovery in cases in which the defendant’s intentional misconduct fell short of producing some physical injury but produced intense mental distress.
b.      No recovery is allowed for mental suffering when the abuse, insult or profanity is not accompanied with serious threats to life or other affronts which amount to more than mere annoyances.
Slocum v. Food Fair Stores of Florida: While shopping in the ∆’s store, ∏ inquired into the price of an item and was met with a rude and malicious reply by an employee of the ∆. The remark upset the ∏ mentally and allegedly caused a heart attack. In order to recover, there must be severe emotional distress as an outgrowth of the conduct. The purpose of this is that if trivial insults were actionable at law then there could well be a curtailment of free speech, for those who fear legal repercussions for expressing disrespectful opinions might be deterred from speaking.
c.       In order to recover damages resulting from the intentional infliction of emotional distress, a plaintiff must show that the distress suffered by him was “severe.”
Harris v. Jones: ∏ worked at ∆’s plant. He was a lifelong stutterer, was very self-conscious about the fact and, hence, also suffered from bad nerves. ∏ charged that ∆, a supervisor at the plant, “maliciously and cruelly” ridiculed him, causing him acute nervousness and resulting in an increase in his stuttering. Furthermore, ∏ charged that ∆had ratified ∆’s conduct. At the trial for intentional infliction of emotional distress, a jury found for ∏ and awarded damages. The court then dismissed the verdict and entered judgment for the ∆s. ∏ appealed. Applying § 46 of the Restatement, the court found that the emotional distress was not severe. Affirmed.
d.      Restatement (Second) of Torts § 46
In order for an action of intentional infliction of emotional distress to lie, four separate elements must be shown:
(1)   the conduct must be intentional or reckless;
(2)   the conduct must be extreme and outrageous;
(3)   there must be a causal connection between the wrongful conduct and the emotional distress; and
(4)   the emotional distress must be severe.
e.       In order to recover damages for mental suffering which is the result of defendant’s injury of a third person, the plaintiff must show that defendant reasonably anticipated mental distress would be inflicted on the plaintiff.
(1)   Taylor v. Vallelunga: ∏ witnessed the beating of her father by ∆, which caused her mental anguish. ∏’s presence at the scene of the assault was unknown to the ∆ and he had no intent to inflict the severe emotional upset on the ∏.
(2)   An intention to cause severe emotional distress exists when the act is done for the purpose of causing the distress or with knowledge on the part of the actor that severe emotional distress is substantially certain to be produced.
(3)   Restatement’s position regarding recovery for IIED where conduct is aimed at a third party- Where conduct is directed at a third person there is liability if the ∆ intentionally or recklessly causes severe emotional distress to: (1) a member of the person’s family who is present at the time (regardless of whether there is any physical injury); or (2) any other person who is present and whose distress results in bodily harm.
(4)   There is no transferred intent for IIED because it is not desirable to extend liability to everyone who may be shocked or frightened by conduct directed at a third person.
Torts Involving Property Damage
1.      Trespass to Land
a.      Every unprivileged entry onto the land of another is a trespass regardless of the amount of damages.
(1)   Dougherty v. Stepp: ∆ entered the enclosed property of the ∏ without consent. While on the property, ∆ surveyed the land. However, the surveying techniques involved no marking of trees or cutting of bushes. The jury found for the ∆, and ∏ appealed. An action for trespass can be maintained without proof of any actual damage. From every entry against the will of the landowner, the law implies some damage; “if nothing more, the treading down the grass or herbage.” Reversed. The purpose of the decision is that at common law the trespass action was a safeguard against the repeated trespasser. Without the deterrent of legal liability for mere entry on the land without damage, the trespasser could after numerous entries onto the land claim an easement by prescription.
(2)   A ∏ does not have to prove that the ∆ intended to trespass, intended to do harm, or caused actual harm to the property. He need only show that the ∆ intended to enter the property. A ∏ can sue for nominal damages. Socially useful conduct is not a defense to trespassing. Some courts have allowed compensation for emotional distress.
b.      Particulate matter does not usually constitute a trespass, but will in instances where the ∏ can show actual damages.
(1)   Bradley v. American Smelting and Refining Co.: ∆ operated its primary copper smelting plant some four miles from ∏’s property. Various gasses and particulate matter, which cannot be detected by human senses, were emitted in the process. ∏ brought an action against ∆ for trespass to land, arguing that his property was being damaged by the gasses and particulate matter being emitted.
(2)   Trespass law applies when the invasion interferes with the right of exclusive possession of the property. Nuisance law protects the right of use and enjoyment.
c.       Violation of the airspace immediately above the property by foreign objects can constitute a trespass.
(1)   Herrin v. Sutherland: While hunting, ∆ repeatedly fired his shotgun at game birds in flight over ∏’s property. These shots deprived ∏ of the quiet, peaceful enjoyment of his home and property.
(2)   The ∏’s right to possession extends to airspace above the land.
d.      Subsequent to the expiration of a license to enter land, any injury due to the continued presence of that object, regardless of the fact that negligence was not a cause of the injury, is a trespass.
(1)   Rogers v. Board of Road Com’rs for Kent City: Two years prior to the date of the fatal injury of P’s husband, ∆ obtained a license to place a winter snow fence on ∏’s property on the condition that it be removed at the end of each winter season. In clear violation of the condition of the license, the fence was not taken down by the summer and thus as a result ∏’s husband as he mowed the felid hit the fence which caused him to fall and sustain a fatal injury.
(2)   Restatement § 160- failure to remove property, even if legally placed, constitutes a trespass as privileged entry onto land may be limited by time, space, and purpose.
(3)   This case belongs to a line of precedents which hold that once a trespass has been committed the intruder is liable for all the consequences of his trespass. His liability encompasses all tangible damage inflicted on the land itself, the person of the possessor and his family, and his chattels. The liability flows regardless of the forseeability of the event. The reasoning which justifies such a rule is that the liability is based on the doctrine of transferred intent, not negligence, that is, the intent to enter the land unlawfully is transferred to establish a basis of liability for all other injuries caused. Hence, the fact that such harms could not be anticipated is irrelevant to building or attacking liability.
e.       Recap: Trespass to Land
(1)   Intent to enter land
(a)    Intent to trespass not required
(b)   Intent to harm not required
(c)    Mistake as to ownership is no

higher importance of the dignity and honor of the individual and have held that the ∆ may stand his ground and use deadly force, and even kill his assailant. Since it is usually difficult or impossible to retreat safely from an assailant with a gun, the question no longer has the importance that it once had, particularly since the Restatement provides that the victim may use deadly force if there is the slightest doubt, if reasonable, that the retreat can be safely made, and “in determining whether his doubt is reasonable every allowance must be made for the predicament in which his assailant has placed him.” Restatement (Second) of Torts § 65.
g.      Injury to Third Party- So far as “transferred intent” is concerned, the privilege of self-defense is carried over, and the ∆ is held not to be liable to the third party in the absence of some negligence towards him.
3.      Defense of Others
a.       Nature of Privilege- A privilege similar to that of self-defense is recognized for the defense of third persons. The early common law recognized a feudal privilege in the master of the household to defend members of his family and his servants against attack. As in the case of self defense, the closest questions concern whether the ∆ used reasonable force in the circumstances.
b.      Reasonable Mistake- Some courts hold that the intervenor steps into the shoes of the person he is defending, and is privileged only when that person would be privileged to defend himself. If it turns out that he has intervened to help the aggressor, he is liable. Other courts hold that the ∆ is privileged to use reasonable force to defend another even when he is mistaken in his belief that intervention is necessary, so long as his mistake was reasonable. The Restatement (Second) of Torts § 76 has adopted this position.
4.      Defense of Property
The privilege to defend property is limited to the use of force reasonably necessary to the situation as it appears to the ∆.
a.       Katko v. Briney: To guard an unoccupied, isolated house, which had been entered unlawfully on previous occasions, against future unlawful injuries, ∆ took several precautions such as boarding up the house, posting no trespass signs, and setting up a shotgun trap. There was no warning of the spring gun device which was rigged so that it would fire when a door was opened. When ∏, a trespasser, opened the door, the gun blast seriously wounded him, blowing away a substantial portion of his leg. The wound left the ∏ permanently disfigured with a shortened leg. The fact that an intruder is acting unlawfully does not justify the maintenance of a mechanical device to protect property which can cause great physical injury. Such a man-killing mechanical device is only permissible if the intruder is committing a violent felony, endangering the lives of the occupants. The privilege to use physical force exists only after the landowner’s mild methods of expulsion have been met with resistance or when the violence directed at the land is redirected at its occupants.
b.      What constitutes reasonable force is normally a question for the jury, but there are several recognized limitations. When the invasion is peaceful and occurs in the presence of the possessor, the se of any force at all will be unreasonable unless a request has been made to depart. A request does not have to be made however, when the conduct of the intruder would indicate to a reasonable person that it would be useless or that it could not safely be made in time.
5.      Recovery of Property       
a.      The law recognizes a privilege to recapture chattels when the owner has been defrauded of his rightful possession and he pursues the wrongful taker of his goods in fresh pursuit.
(1)   Hodgeden v. Hubbard: ∆s extended credit to ∏ on the sale of a stove. Immediately after this credit sale, ∆s discovered ∏ was in severe fiscal difficulties. Upon notice of ∏’s true financial status, ∆s rushed out in pursuit of ∏ and their stove. When they overtook the ∏ a few miles away, they requested return of the stove. ∏ resisted and drew his knife. While one ∆ held the ∏, the other ∆ took possession of the stove. When possession is taken by one who obtained through fraud, the dispossessed owner may recapture by force, if he proceeds without unreasonable delay and as long as no unnecessary violence to person or breach of the peace occurs. No privilege exists in favor of the wrongdoer to resist, and if he does so, the owner may use any force necessary to defend his own person. The policy behind sanctioning the recapture privilege is that this self-help remedy enables to owner to recover his property promptly without wading through the cumbersome and lengthy legal procedures which ultimately may not even operate in time to recover the chattel or may be powerless to compel the return of the chattel.
(2)   Any force designed to inflict serious bodily injury is excessive if exercised to effect the recapture of chattels. The amount of force which may be used is limited by the necessities of the situation as they would appear to a reasonable person in the recapturer’s position. As a rule, a resort to force will not be privileged unless a demand first has been made for return of the chattels.
b.      There is a shopkeeper’s privilege to detain a customer for investigation if the shopkeeper has reason to suspect that customer has stolen goods.
Bonkowski v. Arlan’s Department Store: On the basis of a report that ∏ was shoplifting, ∆’s detective detained her outside the store and made her reveal the contents of her purse. ∏ produced sales slips for the items from the store, and this satisfied the detective that she had committed no theft. As a result of this detention, ∏ suffered psychological trauma. The court’s reasoning in allowing this privilege is that t guards the shopkeeper from the dilemma of either allowing the suspected person to walk away free, thus assuming the burden of loss for the stolen item himself, or the equally unpalatable choice of arresting the suspect, thus assuming the risk of paying damages in action for false arrest.
6.      Necessity
a.       The law recognizes a privilege to damage property to avert threatened disaster when necessary in exigent circumstances.
Surocco v. Geary: To halt the spread of a conflagration that endangered a whole town, ∆ destroyed, by means of a gunpowder blast, ∏’s store and house and the goods therein. This destruction was accomplished while the ∏ still had time to empty the buildings of goods. The right to destroy property is justified if it is done to prevent a fire or other disaster from proliferating and is done in the good-faith belief that it is a necessity. The purpose of sanctioning this privilege to destroy property in times of emergency is to insure the safety of the entire community, which could be jeopardized if the owner had a right to recover against the individual who saved the community. This right to recovery might deter the community’s savior from acting.
b.      Private necessity of avoiding destruction or damage to one’s property gives rise to a privilege to invade the property of another, but this privilege is limited to entry and compensation must be made for any damage resulting from it.
(1)   Vincent v. Lake Erie Transp. Co.: The steamship Reynolds, owned by the ∆, was moored to the ∏’s dock for the purpose of discharging cargo. When a violent storm developed, instead of cutting the ship loose from the dock, the crew kept it tied up, with $500 damage resulting to the dock. ∏ sued to recover for this damage. Upon judgment for the ∏, ∆ appealed contending that the defense of necessity insulated them from liability. It is true that normal property rights may be suspended where non-human conditions such as storms get out of control. In the landmark case of Ploof v. Putnam, however, it was pointed out there where injury to property results from an emergency trespass, the damages must be compensated for, even though the trespass itself may be privileged. The judgment must be affirmed. 
(2)   The trespass involved must not be disproportionate to the danger avoided. Private necessity, of course, must be distinguished from public necessity. Unlike private necessity, public necessity carries with it a complete privilege (no liability for damages) whenever a trespass is necessary to avoid a public disaster. Both public officers and private citizens may act in public necessity, and even deadly force may be justified in proper circumstances.
7.      Authority of Law
a.       Police officer executing a valid arrest warrant has a defense to false imprisonment
b.      If an officer mistakenly arrests the wrong person, there is no defense
c.       An officer may use reasonable force
8.      Discipline
a.       Teachers, parents and military officials may claim a discipline privilege
b.      The discipline must be reasonable
c.       Local regulations may limit a teacher’s privilege to use discipline
9.      Justification
a.       Basically a catch-all defense
b.      ∆’s conduct must be reasonable
c.       Restraint or detention, reasonable under the circumstances, imposed for the purpose of preventing another from inflicting personal injuries or interfering with or damaging real or personal property is not unlawful.
Sindle v. New York City Transit Authority: The students on ∆’s school bus were vandalizing the bus. The driver inspected the damage after having warned the students and decided to take them to a police station. He locked the doors, bypassed regular bus stops, and proceeded to the police station. At one point, several students jumped out a bus window, apparently without injury. ∏, a 14 year-old boy, decided to jump out, but as he was climbing out the window, the bus rounded a curve, and he fell out and was run over by the rear wheels. ∏, joined with his father (also a ∏), sought damages for negligence and false imprisonment. At trial, the ∏ waived the negligence claim, and the court denied the ∆’s motion to amend its answer to plead the defense of justification and excluded all evidence bearing on justification. ∆ appealed an award of damages to the ∏. A person who is falsely imprisoned is not relieved of the duty of reasonable care for his own safety in extricating himself from the unlawful detention. The actions of the bus driver might be compared to action allowed under the so-called “shopkeeper’s privilege.” Under that privilege, a shopkeeper may detain a suspected shoplifter. Here, the driver detained suspected vandals. This point goes to the issue of justification.
II.    STRICT LIABILITY
Animals
1.      Trespassing Domestic Animals
a.       Strict liability (English common law rule)- the owner of animals of a kind likely to roam and due damage is strictly liable for their trespass. The kind of animals for whose trespasses their owner would be liable were limited and had a definite barnyard pattern. Dogs and cats were not included. An exception to the rule of strict liability would be the case of animals straying from the highway on which they were lawfully being driven. This exception was born out of the necessity of getting the animals to market.
b.      “Fencing in” rule- requires the owner of the animals to fence them in or otherwise restrain them, and made the owner strictly liable if he did not do so
c.       “Fencing out” rule- if the ∏ fenced his land properly there was strict liability when the animals broke through the fence, otherwise there was liability only if the owner was negligent
d.      No strict liability
2.      Wild Animals- the owner or possessor of a non-domesticated animal was subject to strict liability if the animal injured anyone
3.      Domestic Animals- the owner of a domestic animal was subject to strict liability only if the owner knew or had reason to know that the animal had vicious propensities. If the ∏ is unable to prove that the owner knew or should have known of the domestic animal’s dangerous propensities, then strict liability does not apply and the