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

TORTS II
PROFESSOR PERCY
SPRING 2005
INTENTIONAL TORTS

– Intent:
o Conduct must be voluntary; with
§ Specific intent to cause the tortious act; OR
§ Substantial certainty that such conduct will occur
· Anything short of substantial certainty does not satisfy intent
o It is the intent to do the act, not the harm, that is critical in determining whether there has been an intentional tort
§ Hostile intent (malice), or a desire to do harm, is not necessary
· Malice may give rise to punitive damages
o Negligence vs. Intentional
§ Foreseeable risk vs. substantial certainty

– Children & People with Mental Illnesses
o A child can be held liable for an intentional tort
· May not be held liable if very young (ex. 2 years old)
§ However, there aren’t many suits against children
· Children have no money
· Would be a better claim to sue parents for negligent supervision
o Mental Illness
§ People with a diminished capacity can be held liable for intentional torts as long as prove the requisite intent
· It is usually irrelevant that the def. intent may have resulted from a mental condition
§ Policy reasons:
· Encourage people to take care of the mentally ill
· If a mentally ill can pay, they must
o Innocent victim should not bear burden simply because the def. is insane
· Exceptions:
o May be necessary to prove insane person had actual knowledge of falsity of statement
o An institutionalized patient can not be held liable for injury to employee taking care of patient
§ Assumption of risk
o Intoxication is not a defense

– Transferred Intent
o When a def. intended to cause one tort, but commits another, a plaintiff may be able to invoke doctrine
§ Intent transfers from intended victim to actual victim
o The doctrine can be applied to:
§ Same tort; different victim
§ Different tort; same victim
§ Different tort; different victim
o Usually, doctrine of transferred intent only applies if the intended result and the resulting tort of: battery, assault, false imprisonment, and trespass to land or chattel
§ Does NOT apply to IIED

– Mistake
o Mistake is generally NO defense to a tort suit
§ Encourages people to be careful
o Even if have no intent to trespass on someone else’s land; still have intent to be on land
§ Can still be liable
o Mistake about ownership irrelevant
§ Ex. Person kills a dog believing it to be a wolf; still liable, had intent to kill

– Negligence vs. Intentional Torts
§ SOL usually longer for negligence
§ Insurance usually doesn’t cover intentional torts
§ Harder to hold employer vicariously liable for intentional tort
§ Punitive damages are available for intentional torts
§ No stringent proximate cause issue for intentional torts
§ Government hasn’t waived immunity for intentional torts
§ Contributory negligence not a defense to intentional torts

INTENTIONAL TORTS – Interference with Person

– Battery
§ An intentional and offensive touching of another without lawful justification/privilege
· Includes extension of the person (i.e. hat, cane, item holding, etc…)
o Must be a harmful or offensive touching of extension
§ Extension may be a weak claim though
§ IIED may be better claim
o Elements:
§ Voluntary act, with the
§ Intent to cause contact with another; OR
· Intent to cause imminent apprehension of such contact, which results in
§ Harmful or offensive contact
o Sufficient contact:
§ Actual contact between def. & plaintiff
§ Contact between object & plaintiff caused by def.
· Ex. throwing a rock
· Ex. Def. shoots plaintiff (bullet)
· Ex. Def. puts drugs in drink
§ Contact between plaintiff & 3rd person caused by def.
· Ex. def. pushes bystander into plaintiff
o Offensive:
§ Determined by standard of a reasonable person
· Did the conduct violate a reasonable person’s sense of dignity?
§ Contact the def. knows the plaintiff finds offensive
· A hypersensitive plaintiff can not recover, UNLESS def. knew about it
o Unforeseen Consequences:
§ If def. intended to cause a harmful or offensive contact, then he will be liable for all the consequences, even if they are unforeseen
· Ex. A trips B and B falls sideways down a flight of stairs and is seriously injured
· Ex. A kicks B in shin and contact causes inflammation of previous injury causing serious injury (eggshell skull rule)
o Good faith contact usually not a defense
§ Unoffensive and unharmful contact is fine
· Ex. tapping someone on shoulder to get attention
o Plaintiff does not have to be aware of the contact
§ Ex. sleeping woman receives kiss
o Plaintiff does not have to prove actual damages
§ May recover nominal, actual, and punitive damages

– Assault
§ The act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery
· Every battery includes an assault, but not every assault includes a battery
o Assault does not require contact
§ Plaintiff must be aware of assault to have claim
· If not aware, then could not be in imminent apprehension of contact
o Elements:
§ A voluntary act by the defendant, with the
§ Intent to cause harmful or offensive contact, OR intent to cause imminent apprehension in plaintiff of such contact, that results in
§ Plaintiff’s imminent apprehension (not fear) of such contact
o Def. must have the apparent present ability to make the tortious contact
§ Def. doesn’t have to have actual ability to commit assault
§ Use objective standard of reasonable person to determine if def. had apparent ability and if a reasonable person would have been apprehensive in plaintiff’s situation
o Words alone:
§ Majority of courts have held that words alone are insufficient to sustain an assault claim
· Some courts are undecided
§ Conditional threats:
· Sometimes a conditional threat is actionable
o Still must prove all elements
· Threat must be immediate, preparation not enough
· Ex. Leave or I am going to kick your ass
§ Words with action may be enough
· Ex. in argument def. reaches in back pocket
o There need be no actual harm to prove assault

– False Imprisonment
§ The direct restraint of one person of the physical liberty by another without adequate legal justification
o Elements:
§ Def. acted with the intent to confine a person within fixed boundaries against their will
§ Such confinement resulted; and
§ Plaintiff was aware of the confinement or harmed by it
· Minority:
o Still require that the plaintiff be conscious or aware of imprisonment, regardless of injury
o A person may be confined by acts or merely words which he reasonably fears to disregard
§ Need force or threat of force
§ Moral persuasion may not be enough
· Ex. If you leave I will tell wife you cheated on her
· Ex. Come with me to take lie detector test or I will think you stole
o Restriction of a person to a confined area probably will constitute false imprisonment
§ Ex. keeping person on boat but refusing to take them to shore
o Threats of future action is insufficient
§ Ex. Stay here or I will call the police
o If a reasonable way of escape exists, which is known by plaintiff, that would not imperil life or limb, then no confinement exists
§ May be false imprisonment if def. failed to notify plaintiff of an alternative reasonable exit
· Still liable if an unsafe or uncomfortable exit
§ If person attempts an unreasonable escape and is injured; tortfeasor not liable for those injuries
§ Jury gets to decide what is an unreasonable exit or escape
o False arrest
§ Retention of property may be enough to constitute false imprisonment
· Ex. shopkeeper takes bag to search for stolen goods
§ Any arrest must be lawful
· However, conviction of the crime for which one is specifically arrested for is a complete defense
o Plaintiff may recover all types of damages; no actual damages need be proved

– Intentional Infliction of Emotional Distress (IIED)
§ The tort of intentionally or recklessly causing another person severe emotional distress through one’s extreme or outrageous acts
o Elements:
§ The conduct must be intentional, substantial certainty, or reckless;
§ The conduct must be extreme or outrageous, if no physical harm resulted
· The conduct must exceed all bounds which could be tolerated by society
o However, conduct usually viewed within context
· People still need to be able to legally “blow of steam”
§ The conduct must cause emotional distress; and
· The conduct must be the type that would cause severe emotional distress to a person of ordinary sensibilities
o Satisfy subjective and objective standard
§ The emotional distress must be severe
· Minority:
o Still require proof of some physical consequences on plaintiff
o Common Courtesy Rule:
§ Certain parties may be liable for insult of customer by employee:
· Common carriers, hotels, restaurants
o Owe special duty to the public
o If plaintiff is a public figure or official and claiming IIED because of a publication, must show actual malice (NY Times)
§ Otherwise would have a chilling effect on Free Speech (1st Amendment concern)
o Alienation of Affection
· Still a valid claim in MS and few other states
o Some states have adopted specific statutory language prohibiting such a tort
§ A husband can sue the other person that led their wife to leave him
o IIED applied to a 3rd party
· A person witness an act and claims IIED
· Could try to claim transferred intent, but probably wouldn’t work
o Would expand liability to much
§ Def. subject to liability if: (RS)
· Intentionally or recklessly causes severe emotional distress to
o A member of family who is present at the time
§ No requirement of physical harm
o Any other person who is present and who distress results in physical harm
§ Some courts require:
· Person be present or witness act; or
· Def. was aware of plaintiff’s presence
§ Some courts have allowed plaintiffs to recover where a relative’s body has been mistreated even though they weren’t present
o Objections to IIED:
§ Injury suffered is difficult to determine
§ Damages resulting from mental distress are speculative
§ May allow fictitious claims
§ May open floodgates to litigation

INTENTIONAL TORTS – Interference with Property

– Trespass to Land
o Elements:
§ Voluntary act;
· Doesn’t have to be a person, can be object
§ Invasion of land owned by plaintiff; and
§ Intent of the def. to be on the land
· Mistake as to ownership is no defense
o Possessor of land, not just owner, has claim of trespass
o Damages need not be proven to recover
§ Can recover nominal damages if no damage
§ May try for punitive damages if persistent, extreme enough, etc…
· May have claim for IIED in extreme case
o Recovery allowed for unforeseen consequences
o Particulate matter or pollution may constitute a trespass
§ Most courts require proof of actual damages
§ Distinguish between nuisance and trespass to land (may be applied together)
· Trespass = actionable invasion of a possessor’s interest in the exclusive possession of his land
· Nuisance = an actionable invasion of possessor’s interest in the use and enjoyment of his land
o Invasion above and below property can constitute a trespass
§ Plaintiff’s right to possession extends above and below the ground
· Govt. sets limits on airspace for travel (planes)
§ Ex. shoot gun (bullet goes over land) at a bird
· Will probably only recover nominal damages ($1)
o Failure to remove object from property after license or invitation expires
§ Ex. govt. allowed to put posts in ground during winter, when fail to remove them it after winter constitutes trespass
· A good way around govt. immunity from negligence
o Govt. not immune from intentional tort

– Trespass to Chattel
o Intentional interference with a person’s chattel
§ The plaintiff remains the owner of the chattel, with possession merely interrupted or interfered with, so that when the chattel is returned, the owner has to accept it and recovery is limited to damages of the chattel, or for reimbursement for the time it was missing or unusable
· A dog can be chattel
o RS 217
§ Trespass to chattel may be committed by intentionally:
· Dispossessing another of the chattel; or
· Using or intermeddling with a chattel in the possession of another
o Intentional bringing about a physical contact with the chattel
o RS 218
§ One who commits a trespass to chattel is subject to liability to the possessor of the chattel if, but only if:
· He dispossesses the other of the chattel; or
· The chattel is impaired as to its condition, quality, or value; or
· The possessor is deprived of the use of the chattel for a substantial time; or
· Bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest
o Mistake is no defense
o Most courts require some proof of actual damage

– Conversion
o An intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other party the full value of the chattel
§ Measure of damages is the value of the goods converted
o Essentially, a forced sale
· Generally, damages measured by market value at time goods converted
o Cannot recover sentimental value
§ May be able to claim IIED
· May be able to recover punitive damages if the conversion was done maliciously
o Possessor of chattel may maintain an action
o In determining the seriousness of the interference and the justice of requiring the actor to pay the full value the following factors are important:
§ The extent and duration of the actor’s exercise of dominion and control
§ The actor’s intent to assert a right in fact inconsistent with the other’s right to control
§ The actor’s good faith
§ The extent and duration of the resulting interference with the other’s right of control
§ The harm done to the chattel
§ The inconvenience and expense caused to the other
o The following examples are ways an actor may convert a chattel:
§ Stealing
§ Damaging or altering
§ Using it
§ Receiving it in bad faith
· A bailee who stores chattel unknowing they were stolen (in good faith) may not be held liable
§ Wrongfully selling it
· Bona fide purchaser of stolen goods may be liable for conversion
o Minority:
§ No conversion if the BFP returns the chattel
§ Misdelivering it
· A bailee who mistakenly delivers chattel to the wrong party may be held liable
§ Refusing to return it

PRIVILEGES

o Most privileges are a form of defense; therefore, the burden of pleading a privilege falls on the defendant
– Consent
o Courts differ on how to treat consent:
§ Some courts require plaintiff to prove a lack of consent
§ Some courts require defendant to prove plaintiff did consent
o Two forms of consent:
§ Express:
· Generally straight forward
o Ex. Patient signs a consent form for surgery
§ If an emergency develops, doctor has limited privilege to address that issue even though beyond scope of consent
o Ex. Two men verbally agree to a fist-fight
· However, if def. exceeds scope of defendant, consent is waived for that action and may be a battery
· If def. unconscious and arrives at emergency, doctor usually has privilege to treat patient in a reasonable manner
§ Implied:
· Behavior can indicate consent
o Overt acts and manifestation of feelings
· If nature of the activity is physical, the plaintiff must prove the act was an intentional violation of the rules or norm
§ Do not consent to intentional violation of the rules
o Ex. football player gets punched in the neck
§ Not normal activity in game; breaks rules
o Consent to illegal activity
· Ex. plaintiff and def. agree to an illegal prize fight and plaintiff gets injured
§ Majority:
· Cannot consent to illegal activity
o Plaintiff would have a v

and
o Likelihood that the harm that results from it will be great
o Inability to eliminate the risk by exercise of reasonable care
o Extent to which the activity is not a matter of common usage
o Inappropriateness of the activity to the place where it is carried out
o Extent to which its value to the community is outweighed by its dangerous attributes
§ Judges decide whether an activity is abnormally dangerous (question of law)
§ Superseding cause:
· A superseding cause may relieve def. of liability
o Ex. Def. stored dynamite in KY, a criminal stole the dynamite from a locked shed and blew up something in FL 4 weeks after theft
§ Some jurisdictions have adopted statutory strict liability for certain activities
· Storage of dynamite by statute may be an abnormally dangerous activity
· Blasting done in an urban or residential area
· Crop dusting (not an abnormally dangerous activity in MS & probably other farming states)
§ Some jurisdictions analyze all activities on a case-by-case analysis using RS 520 factors
o American Cyanide Co. (1990)
§ Accidents that are due to a lack of care can be prevented by taking care; and when a lack of care can be proven in court, there is no need to impose strict liability because negligence claim will suffice and will adequately deter such accidents from happening
· Must determine relevance of manufacturing, shipping, and transportation
o The manufacturer of a product is not considered to be engaged in an abnormally dangerous activity because the product becomes dangerous when it is handled or used in some way after it leaves the premises, even if the danger is foreseeable

– Limitations on Strict Liability
o Can argue the harm produced be activity could be prevented with reasonable care; therefore, strict liability will not apply and plaintiff will have to prove negligence
o Can argue the harm that occurred is not the type of harm that makes the activity abnormally dangerous
§ Narrow defense
o Act of God
§ No liability
§ Ex. hurricane causes reservoir to overflow
o Some states have adopted statutory immunity for certain activities
§ Def. cannot be held liable for doing what the state authorized him to do
· May be liable negligence
o Some jurisdictions allow contributory negligence as a defense to strict liability
§ RS 524 does recognize contributory negligence as a defense
o Majority of jurisdictions recognize comparative negligence
o Some jurisdictions allow defense of assumption of risk
§ RS 523
· Plaintiff voluntarily brought calamity upon himself
o RS 3rd (proposed)
§ RS 20
· Defines an abnormally dangerous activity:
o When an activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised; and
o The activity is not a matter of common usage
§ What is common usage?
§ RS 24
· Scope of liability
o Trespasser do not have a claim of strict liability
o Person who desired to secure benefit from the activity does not have a claim of strict liability
§ RS 25
· If the plaintiff has been contributory negligent in failing to take precautions against an abnormally dangerous activity, the plaintiff’s recovery is for physical harm resulting from the contributory negligence is reduced in accordance with the share of responsibility assigned to plaintiff
o Explicitly recognizes comparative negligence as a defense
·
o RS 2nd & RS 3rd differences:
§ RS 2nd 520 was a factor test; RS 3rd 20 is not and leaves out appropriateness of activity in community
· Elemental test, RS 3rd takes away some judicial discretion
o More predictable & stable
– Why impose strict liability?
o Enterprise idea
§ Def. reaps burden, should bear burden
o Easier to spread risk; def. can obtain insurance
o Def. may have introduced something into the community not normally there, which is unusually dangerous
o Lower transaction cost
§ Don’t have to prove duty and breach
o Encourage def. to consider alternatives or at least engage in activity in more appropriate place
§ If it an activity where harm cannot be prevented by reasonable care and strict liability imposed, will encourage def. to come up with a better, safer way
o Between two innocent people, the one engaged in he activity should bear the burden

PRODUCTS LIABILITY

– The liability of a manufacturer, seller, or supplier of chattels to one with whom he is not in privity of contract and he suffers physical harm caused by the chattel
o The liability may rest upon the def. own negligence or upon warranty or upon strict liability
– Manufacturers argument against strict liability:
o The application of strict liability for design and warning cases have kept good products off the market, limited product development, and created an unreasonable “tort tax” on products which is passed on to the consumer
– Consumers argument for strict liability:
o Deny the manufacturers arguments and claim strict liability has acted as a surrogate policeman/watchdog to ensure product safety
– Privity
o Historically: no claim unless parties in privity of contract
o Modern: no privity required

– Negligence
o If a reasonable person would have foreseen that the product would create a risk of harm to human life or limb if not carefully made or supplied, then the manufacturer and supplier are under a duty to all foreseeable users to exercise reasonable care in the manufacture and supply
§ MacPherson v. Buick Motor Co. (1916)

– Express Warranty
o UCC 2-313
§ Representation (express warranty) may be a part of the bargain
§ Any written or promotional material expounding certain qualities, etc. may suffice as an express warranty/representation
o RS 2nd 402B
§ One engaged in the business of selling chattels who, by advertising, labels, or otherwise, makes to the public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm to a consumer of the chattel caused by justifiable reliance upon the misrepresentation, even though…
· It is not made fraudulently nor negligently, and
· The consumer has not bought the chattel from or entered into any contractual relation (privity) with the seller
o Horizontal vs. vertical privity
§ Manufacturer to supplier to merchant = vertical privity
§ Merchant to consumer = horizontal privity

– Implied Warranty