TORTS
LAWSON
FALL 2012
Tort constitutes: conduct -> wrongfully (fault) -> causing -> invasions of plaintiff's or another's rights.
Divided into: Intentional and unintentional
Intentional Tort
I. Intentional Interference with person or property
1. Intent – subjective test
1. The person acts with the purpose of producing the consequence
2. The person acts knowing that the consequence is substantially certain to result. It employs subjective test.
i. Garret v. Dailey, 5 yr old, pulled chair out, injured adult, minor committing tort is liable, Intent = purpose or knowledge to a substantial certainty (“grave risk” is not enough
ii. Spivey v. Battaglia, lunch hug and paralysis, An assault and battery is not negligence, for such action is intentional, while negligence connotes an unintentional act. A reasonable man must believe that a result was substantially certain to follow in order for him to intend it. Knowledge and appreciation of a risk, short of substantial certainty “is not the equivalent of intent, intent is purpose or knowledge of particular harm or offensive contact.
iii. Ranson v. Kitner, mistakenly shot dog while wolf hunting, Kitner was mistaken about the legal relevance of his actions but he WAS NOT mistaken about the consequences of their actions, therefore intent is fulfilled. Trespass to chattel (intent to harm somebody else's property) apply here, because they intended to shoot a wolf and thought it was a wolf is enough to prove that they are liable. Intent to cause a harm is enough.
iv. McGuire v. Almy, insane patient, kept at home, struck nurse, insane person liable for his torts; intentional in that defendant intended to strike the plaintiff and cause harm. In defamation and malicious cases where malice is required of which the insane person is incapable of, then insane person is not liable.
v. Talmage v. Smith, aimed to hit a boy on a shed but hit different boy,
If D intends to hit a boy using “unreasonable force under the circumstances” then he is committing an unlawful act. As such, he would be liable for the injury done even though it was a different boy. A transfer of intent does not preclude him from paying damages.
II. Battery:
1. Elements: a) Conduct b) Intentionally (intent to cause harm or offensive contact c) Causing d) harmful or offensive contact with the person of the plaintiff
2. Intent to cause contact is not enough. There must be intent to cause harm. Transferred intent can play a role when a person is damaged other than the person intended to get hurt.
3. Offensive contact: if it offends a reasonable sense of personal dignity. Must be one which would offend the ordinary person.
Most Jurisdictions follow this fairly closely. You can pretty much refer to it as law**
· 2nd Restatement of Torts – p14, 16
· Section 13: Battery – Harmful Contact
· Subject to liability to another for battery if:
· A. Acts intending to cause a harmful or offensive contact with the person OR an imminent apprehension* of such contact (*transferred intent) AND
· B: A harmful contact directly or indirectly results
· Section 18: Battery – Offensive Contact
· 1. Subject to liability to another for battery if:
· A. Acts intending to cause a harmful or offensive contact with the person OR an imminent apprehension of such contact AND
· B. An offensive contact directly or indirectly results
· 2. An act which is not done with the intention above 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
Cole v. Turner: intentional touching of another in an unreasonable manner is considered battery.
Wallace v. Rosen: fire drill, D placed hand on P back, causing her to fall down. Intentional touching doesn’t constitute intent. There needs to be intent to cause harm and there was none in this case.
iii. Fisher v. Carrousel Motel: D snatched a plate from P's hands and yelled offensive words, Snatching or knowing of an object closely attached to an individual constitutes battery even though there was no actual physical contact to individual's body. Intentional and offensive touching of anything that is so closely connect to the body of a person is to be viewed as part of the person.
3. Assault:
1. Elements: a) Conduct b) Intentionally c) Causing d) Plaintiff to reasonably apprehend e) Reasonably apparent imminent battery
· 2nd Restatement of Torts – p 19
· Section 21: Assault
· Subject to liability to another for assault if:
· A.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 contact, and
· B.the other is thereby put in such imminent apprehension
· Section 22 Attempt unknown to other
· An attempt to inflict a harmful or offensive contact or to cause an apprehension of such contact does not make the actor liable for an assault if the other does not become aware of the attempt before it is terminated.
· Section 30: Conditional Threat
· If the actor intentionally puts another in apprehension of an imminent and harmful or offensive contact, he is subject to liability for an assault although he gives to the other the option to escape the contact by obedience to a command given by the actor, unless the command is one which the actor is privileged to enforce by the infliction of the threatened contact or by a threat to inflict it.
· Section 31: Threat by words
· Words do not make the actor liable for assault unless together with other acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person
1. I de S et ux. v. W de S – hatchet – D banging a door with a hatchet missing the wife P. A defendant may be liable in assault of P, even though, there has been no actual physical invasion of the P by D. P can recover damages for assault even though there has been no physical contact or injury to the P by the D.
2. Western Union Telegraph Co. v. Hill – D's employee made improper advances towards P who was standing across the counter. “I will fix your clock” Actionable assaul
and you intentionally cause plaintiff to be confined. Confinement of an individual to a bounded area, without means of egress, can result imprisonment even if there is no actual physical restraint used upon the individual. False imprisonment may result from refusing an individual a means of egress.
5. Trespass to land:
1. Elements: a)conduct b)intentionally c)causing d) an authorized entry on to the land of another. Person only has to be on somebody's land. Even though, a person thinks it is their land and later find out it is not, it is still considered trespass.
2. Damage can be assessed for every entry against the will of the possessor. The law infers some damage for every entry against will. In this case, the treading down of the shrubbery.
· 2nd Restatement of Torts – p 21
· Section 158: Liability for intentional intrusion causing no harm
· Subject to liability of another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally:
· a.enters land in the possession of the other, or causes a thing or third person to do so
· b.Remains on the land, or
· c.fails to remove from the land a thing which he is under a duty to remove.
i. Doughtery v. Stepp: P sued D for unauthorized and unlawful entry onto his land. Every unauthorized & intentional, and therefore unlawful entry, into the close of another, is trespass. damage can be assessed for every entry against the will of the possessor. To maintain an action in trespass, it is not necessary that there be an actual physical injury to the land.
ii. Herrin v. Sutherland: P sued D for terspass for shooting a gun over the space above P's land. It is trespass to pass over, or cause an object to pass over, the land of another, even if there has been no touching of the soil. For trespass, your ownership above the land only extends to the airspace within immediate reaches of the surface. If aviation is disturbing you, then you may have a nuisance claim. Interfering with the use and enjoyment of the land – nuisance.
iii. Rogers v. Board of road Com'rs for Kent County: P sought recover for th death of her husband whose death she claims have been caused by D due to their trespass onto their property. Once an individual's privilege to enter upon the land of another is effectively terminated, the individual's entry upon the land constitutes trespass. A trespasser will be held liable for consequences resulting from the trespass without any question of negligence.
