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

Torts II Outline
Professor Percy
Spring 2002

Intentional Torts
False Imprisonment
Intentional Infliction of Emotional Distress

¨ desire to bring about result which will harm interest of another
¨ key to all intentional torts
¨ 2 types:
· actual intent – intent to cause actual harm
· presumed intent – intent to do, act with substantial certainty that harm will occur

¨ Proof of actual intent
· Don’t have to prove (usually) the actual result (specific harm)
· Have to prove D intended offensive/harmful result
· It is the intent to act, not the intent to harm, that is critical in determining whether there is an intentional tort
¨ Proof of presumed intent
· must show D knew with substantial certainty that harm would occur

¨ Minors
· Children can have the intent to be liable for intentional tort
· Must prove child knew with substantial certainty that harm would occur

¨ Negligent v. Intentional Torts
· SOL shorter for intentional torts
§ 1 yr. MS for assault & batter
§ 3 yrs for negligence
· Prove substantial certainty of harm or intent to harm (intentional) – not foreseeable risk of harm (negligent)
· Punitive damages are easier to get with intentional torts
· Insurance policies usually exclude coverage for intentional torts
· Comparative negligence available in negligence cases – NOT with intentional tort cases
· Employer/employee – harder to prove vicarious liability for intentional torts

¨ NO Exceptions for:
· Mistake as to property or person
§ Still liable
§ Examples
¦ Cutting down someone else’s trees
¦ Shooting a domestic dog when you intended to shoot a wolf
· Intoxication – intent still exists
· Insane person
§ Can still be held liable
§ Intent still exists – universal to most juris.
§ Standard applies even if person’s acts are uncontrollable
§ Can be liable even if medical evidence introduced
§ UNLESS – person is insane to point he can’t form requisite intent
§ Some Juris. have exceptions that prevent employees in psychiatric hospitals from filing intentional I/T (intentional torts) claims b/c they assumed risk by working there

¨ Doctrine of Transferred Intent (Mistake)
· If D held necessary intent to injure one person (A) and injures another (B), he will be held to have committed intentional tort against B (any other person who happens to be injured)
· Doctrine applies to assault, batter, false imprisonment
§ Examples
¦ Intended to shoot A, shoot B – B can sue for I/T
¦ Talmage v. Smith – Δ threw stick and hit Π, a kid who happened to be standing next the kid on Δ’s roof Δ was aiming at

¨ 4 Intentional Torts:
· battery
· assault
· false imprisonment (F/I)
· intentional infliction of emotional distress (IIED)

¨ NO contributory negligence with intentional tort
¨ Types of damages:
· Compensatory – pecuniary/actual
· Punitive – if you can show outrageous conduct
· Nominal – even if no pecuniary damages

¨ Intentional infliction of harmful or offensive bodily contact
¨ Contact can be either:
· Harmful OR
· Offensive

¨ Restatement 2nd Torts §13
· 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 3rd person or an imminent apprehension of such a contact and
(b) A harmful contact with the person of the other directly or indirectly results

¨ Battery extends to:
· Personal effects
§ Even if there is no physical contact with person’s body – as long as there is harmful or offensive contact with something attached to or closely identified with the person’s body, battery extends
§ Examples
¦ Contact with person’s clothing
¦ Contact with object in person’s hand – Fisher v. Carrousel Motor Hotel [white Δ snatched plate from black Π’s hands] ¦ Putting harmful pill into someone’s drink
· Unforeseen consequences
§ Once est. that D intended to commit harmful or offensive contact – D liable for any consequences which ensue (Doctrine of T/I)
§ Example
¦ Golfer throws golf club at caddy, hits a bystander
¦ Golfer is liable

¨ Standards
· Normally a reasonably prudent person standard (RRP) to determine what is offensive
§ Not whether particular P found it offensive but whether a RPP offended UNLESS
· You are aware of a person’s hypersensitivity, battery could be argued though a RP wouldn’t have found it offensive

¨ Children
· What if 6y/0 boy knocks girl down?
· Girl develops permanent scars?
· Must look to boy’s intent
· If he intended to push her down – he’s liable even though he may NOT have intended harm

¨ Current Awareness

Victim doesn’t have to be aware of contact at time it occurs for it to be battery
Public policy reason to deter poor conduct

o Dentist who attacks patient while she’s under anesthesia

¨ Battery – Examples
· note case – doorman kicking car. Is this battery? No
· spitting in someone’s face. Is this battery? Yes. It’s offensive – RPP would find it offensive
· sexual harassment – if there’s contact it may be a battery
· tap on shoulder to ask for directions – it wouldn’t be a battery with a normal person, even if it’s an extremely sensitive person who fears being touched it wouldn’t be a battery
· mortician prepares a body and later finds out person had AIDS. Is it battery? There would be an intent problem (hospital didn’t intend for this to happen) plus there’s no certainty he was exposed to AIDS – didn’t develop AIDS so no harmful contact occurred.
· blowing smoke in someone’s face is battery when the person was allergic and defendant knew this.
· note 4 p. 34 – A is standing with his arm around B’s shoulder, and leaning on him. C, passing by, violently jerks B’s arm, as a result of which A falls down. C could be liable to A with transferred intent.
· putting Nair in someone’s shampoo bottle. Is this battery? Yes.
· pat another lawyer on the back after a case. Is this battery? No.
· girl kisses her boyfriend at school and caused his head to hit a locker. Is this battery? No. the girl didn’t mean it to be offensive – thus no intent

¨ The intentional causing of apprehension of harmful or offensive contact
¨ Same as battery BUT NO ACTUAL CONTACT required

¨ Intent
· D must have either
§ Intended to cause the apprehension of contact (thus intent to frighten = intent) OR
§ Intended to cause the contact itself

¨ Elements
· Threatened contact AND
· Apparent ability to carry out contact
§ Does Not have to be actual ability – just apparent
· Example – Someone points gun at you that is NOT loaded – it is still assault
§ RPP must believe apparent ability to assault exists AND
§ Apprehension or anticipation of contact – immediate threat
§ P must be aware of contact and there must be an immediate threat
o Example – if you say “watch out, there’s a snake” but there is NO snake and person runs into a wall, injuring himself = ASSAULT
§ P doesn’t have to be apprehensive fearful – just have to anticipate contact
o Example – petite girl says she’s going to slap pro wrestler
o Western Union Telegraph v. Hill [Δ tired to grab Π but the dimensions of the counter made grabbing impossible] § P must be aware of what is occurring at time of assault (must prove he’s aware) – unlike battery

¨ Threats/Words
· Mere words w/o physical harm is NOT an assault – must be accompanied by some OVERT ACT
· What words alone can cause immediate apprehension? see Restatements for examples
· MS case
¦ Man handcuffed
¦ Other man says “Let’s see if he can swim in the river while he’s handcuffed.”
¦ Holding??
· Threats
§ If someone says he’s going to kill you next week – NO ASSAULT
§ Apprehension has to be immediate – CANNOT be future
¨ Difference between Assault & Battery
· Assault – NO ACTUAL CONTACT necessary

¨ Intentional infliction of confinement;
¨ Direct restraint of physical liberty of one person by another w/o legal justification

¨ Elements
· Actor subject to liability if he acts:
1. intending to confine
2. must actually confine – through force or threat of force
3. P must be aware of confinement (Majority & Restatements)
§ some juris. allow injury to replace element of awareness.
§ Restatements – no liability unless person knows of confinement or is harmed by it

¨ Exception to Awareness
· DOES NOT mean P has to remember confinement – only that he was aware of it at time it occurred
· Parvi v. City of Kingston – drunk taken to an abandoned golf course by police to sleep it off

¨ Shoplifting
· Suspected shoplifting interrogations often fall into this category
· Must be ACTUAL confinement either through force or threat of force
· If person is free to leave NO F/I
· Example: Hardy v. Labelle’s Distributing [Π stayed to clear her name after being accused of shoplifting]

¨ General Rules
· If P can leave the room and does so – NO F/I
· If there is a reasonable means of escape – NO F/I
· If P remains voluntarily and does not try to leave when there is reasonable means of escape – NO F/I
· Refusing to permit someone to enter is NOT F/I
· F/I CANNOT be future
· Taking someone’s clothes (who’s in pool) = F/I b/c you

· You can trespass under someone’s land too
· See note case #9, p. 69 – involved trespass by allowing tourists to tour cave under someone’s land

¨ Restatements § 217 – tort against personal property
¨ Difference in trespass to real property/personal property – w/ personal property must show actual damages
¨ Rarely used in modern tort law
¨ But used in Compu Serve – junk email case

¨ Proof
· General or specific intent AND
· Intermeddling (intentionally bringing about physical contact with chattel) w/ another’s property OR
· Intention disposal of one’s chattel
· Mistake about ownership of property is NOT a defense

¨ Damages
· Usually must show damage to property OR
· Owner must be deprived of chattel for substantial amount of time OR
· Damages don’t have to be foreseeable – example of P being allowed to recover for bodily harm to P when D trespasses?
· Nominal damages not allowed here
· If deprived for a substantial amount of time damages = cost of substitute
· If deprived permanently damages = cost of replacement

¨ Occurs when D so substantially interferes with P’s possession or ownership of property that it is fair for D to pay property’s full market value
¨ In other words – D has taken your property and you seek damages for full market value
¨ Closely related to trespass to chattel – when does it become conversion?? See note case examples p. 81
¨ Example – Pearson v. Dodd [former employees of Π secretly and without authority removed documents from Π’s files, copied and replaced them, and turned the copies over to Δ to be published] ¨ The publication of information which does not amount to literary property, scientific invention, or secret plans formatted for the conduct of commerce, without an actual physical conversion of the documents containing the information, does not amount to conversion

¨ Ways to convert Chattel
· Most actions brought for conversion involve settling title to disputed goods
· Stealing it
· Severely damaging or altering it
· Using it (even if you had permission) in a way that exceeds authorization/permission
· Receiving it – stolen goods
· Disposing of it – wrongfully selling it
· Misdelivery
· Refusing to surrender it

¨ Damages
· P entitled to full market value of property D converted
· Who may maintain action?
§ Anyone in possession at time of conversion – does NOT have to be owner
§ Anyone w/ right of possession – does NOT have to be owner

¨ Return of Chattel
· Majority view – owner DOES NOT have to accept chattel back from converter
· Owner can say D bought chattel and demand full market value

Privileges (Defenses to Intentional Torts)
Self Defense
Defense of Others
Defense of Property
Recovery/Recapture of Property
Other Privileges

¨ Willingness in fact that an act or an invasion of interest may take place

¨ Two Types of Consent:
· Express
§ Signing a waiver
§ Verbal consent
§ Examples
¦ Wrestler signing a release form
¦ Immigrant vaccination case
· Implied
§ If P’s behavior indicates consent, unexpressed feelings do NOT matter
§ D is guided by P’s acts
§ Determined by if it was reasonable for D to view P’s acts as consent

¨ Illegal Activity
· Majority
§ Consent to an illegal activity is not valid consent
§ Public policy – created law to protect public (reasoning)
· Minority
§ allow consent to an illegal activity (only a few juris.)
§ Restatements also adopt this view

¨ Medical
· No consent needed if patient in life-threatening/emergency situation
· Otherwise – must have consent
MS – if these conditions don’t exist or RPP would not have consented, then battery