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University of North Carolina School of Law
Daye, Charles Edward

Torts – UNC Law – Daye (Fall 2012)
        I.            Liability based on fault
a.       Tort is a civil wrong, other than a breach of contract, which the court provides a remedy in the form of damages
                                                               i.      Function of tort system is to protect: physical integrity of the person; personal dignity; property from damage; a person’s good name; person’s peace of mind, privacy
                                                             ii.      Economic functions of tort system: to adjust losses inadvertently caused by deviation from acceptable norms; to encourage loss prevention and promote safety; to assess the costs of enterprise; to allocate the inevitable losses of useful enterprise via market and insurance
                                                            iii.      How to allocate cost of a harm in society: leave it where it fell (plaintiff); shift it to the person who caused it (defendant); shift it to a third party (like the state, or a hospital, etc)
      II.            Intentional Interference with Person (Overview)
a.       Intent is one element required to establish a tort, but that’s not all you need
                                                               i.      Intent is:
1.       Acting for the purpose of causing a tortious consequence OR
2.       Acting with knowledge that a tortious consequence is substantially certain
a.       Note: an act is a voluntary muscular movement
                                                             ii.      Note: if it is merely “highly likely” but not “substantially certain” that the bad consequences will occur, then the act is not an intentional tort. “Recklessness” by D is not enough.
b.       “Substantial certainty” of the contact can either be subjective (Garret v. Dailey) or objective (Spivey v. Battaglia), either way it’s knowledgeable
                                                               i.      Garret v. Dailey said the actor personally had to know with a substantial certainty that the harm would occur (held that 5 yo child did, was liable)
                                                             ii.      Spivey v. Battaglia said that if a reasonable man would believe that a particular result was substantially certain to follow, it’s as though an actor intended it (in this case actor hugged p in unsolicited way and caused paralysis)
c.       Age isn’t a factor as long as a person can intend to cause a harmful contact either through purpose or substantial certainty. See Garratt v. Dailey.
d.      Insanity is no defense for torts. All the person has to do is intend to cause the contact (they don’t have to intend to cause the harm) McGuire v. Almy (insane woman threw chair at plaintiff and injured her during a fit in which plaintiff tried to subdue her)
                                                               i.      Additional note: someone can be criminally innocent but civilly liable.
e.      Mistake is no defense for an intentional tort. See Ranson v. Kitner (where defendants shot plaintiff’s dog, believing it was a wolf; they were hunting wolves)
f.        Transferred intent – if D held the necessary intent with respect to person A, he will be held to have committed an intentional tort against ANY OTHER PERSON who happens to be injured.
                                                               i.      There must be the intent to do something to someone and in so doing cause a tortuous consequence to occur
                                                             ii.      If the defendant committed an act for the purpose of asserting unreasonable force against one party and hit another party, he is still liable for the damage done to that party. See Talmadge v. Smith (defendant liable when he threw stick at another boy but hit plaintiff instead).
    III.            Battery
a.       Battery is the intentional infliction of a harmful or offensive bodily contact. It is not necessary that D desires to physically harm p. D has the necessary intent for battery if it is the case either that
                                                               i.      D intended to cause a harmful or offensive bodily contact OR
                                                             ii.      D intended to cause an imminent apprehension on P’s part of a harmful or offensive bodily contact
b.      Harmful or offensive contact actually occurred:
                                                               i.      Bodily harm is any physical impairment of the condition of another’s body or physical pain or illness
                                                             ii.      Contact is enough if a reasonable person would know that the contact would cause harm; the person has to intend to cause a contact that a reasonable man would know would cause harm (the individual doesn’t have to know that it causes harm or that the contact is wrong)
                                                            iii.      A bodily contact is offensive if it offends a reasonable sense of personal dignity
1.       Wallace v. Rosen gives another test: A battery is the knowing or intentional touching of a person against his/her will in a rude, insolent or angry manner (not the case here, defendant was tapping plaintiff on shoulder to get her attention, no way defendant could have known plaintiff would then slip and fall down stairs)
2.       Plaintiff’s person extends to things immediately associated with him. In Fischer v. Carrousel Motor Hotel the plate was considered part of the plaintiff’s person (defendant grabbed plate from plaintiff and yelled)
                                                           iv.      Defendant is liable for direct and indirect contact. It is enough if he starts in motion a force that brings about harmful or offensive contact to P’s person
1.       Ex. D swings at P and misses but because P is startled he falls and is injured
2.       Ex. D pulls a chair out from under someone and they are injured when they fall
                                                             v.      Battery doesn’t require the plaintiff to apprehend the contact
1.       Ex. Still a battery if P is struck from behind, or if P is unconscious
2.       Defenses: Self-defense, defense of others, defense of property, consent
    IV.            Assault
a.       Assault is the intentional causing of an apprehension of harmful or offensive contact.
b.      D has the requisite intent for assault if D either “intends to commit an assault” or “intends to commit a battery.”
c.       Elements P must prove:
                                                               i.      Act: D committed a voluntary act
                                                             ii.      Apprehension: D’s act created in P an apprehension of imminent  harmful or offensive contact with P’s person
                                                            iii.      Intent: D intended to cause either a harmful or offensive contact or an apprehension of such contact
                                                           iv.      Causation: there was a causal connection between D’s act and P’s apprehension
d.      Apprehension
                                                               i.      Apprehension doesn’t mean fear; it means that the act will result in imminent contact unless prevented by something
                                                             ii.      For apprehension, P must be aware of the act (unlike battery) – malice is not required, defendant does not need to intend to harm plaintiff
                                                            iii.      You can’t apprehend an imminent touching unless you believe they have the present ability to carry out such a touching. See Western Union Telegraph Co. v. Hill (defendant said he would fix plaintiff’s clock if she let him pet her, he then made a move toward her and she jumped back)
e.      Words
                                                               i.      Words alone generally can’t make an assault (apprehension must be of imminent contact, so threats of future violence aren’t assault).
                                                             ii.      Words coupled with actions can make an assault.
1.       Ex. If someone reaches for their gun, what they say makes a difference
f.        Defenses: self-defense and defense of others
      V.            False Imprisonment
a.       False imprisonment is the direct restraint of one person of the physical liberty of another without legal justification (Big Town Nursing Home, Inc. v. Newman, where plaintiff was forcibly kept in nursing home in ward for mentally disturbed people)
b.      Someone is liable for false imprisonment if they act intending to confine the other or a third person, such confinement, results, and the other is aware of the confinement or is harmed by it, and the confinement is against the will of the other.
                                                               i.      Intentional (purpose to cause confinement or substantial certainty that confinement will occur)
                                                             ii.      Confinement (herein of): restraint, boundary, or appreciable time
                                                            iii.      Against the will (herein of):
1.       Awareness – is the way you would say “it was against my will”
2.       [substitute] or is harmed – “I didn’t want it” or “I was harmed”
                                                           iv.      Without privilege or legal justification
c.       Elements P must prove:
                                                               i.      Act: D committed a voluntary act
                                                             ii.      Intent: D intended to confine or retrain P within bounded area fixed by
                                                            iii.      Confinement: D’s act confined P to a bounded area
                                                           iv.      Awareness or Harm: P was aware of the confinement when it occurred or was actually harmed by it (this is a dignitary tort, so if you aren’t aware your dignity can’t be impaired; Parvi v. City of Kingston, where defendants were not held liable because plaintiff had no recollection of incident)
                                                             v.      Against will: P was confined against her will (Hardy v. LaBelle’s Distributing Co, where defendants were not held liable because plaintiff went willingly into manager’s office in order to try to clear her name).
d.      Confinement occurs if there is no reasonable means of escape
                                                               i.      Escape is unreasonable if the plaintiff doesn’t know of its existence, it’s not apparent, or it’s dangerous (see Whittacker v. Sandford, where defendants’ imprisonment of plaintiff was not allowing her to use lifeboat to get to shore from boat when she and children were on boat)
                                                             ii.      If the only means of escape could cause phys

land without P’s consent
                                                            iii.      Intent: D intended the invasion
                                                           iv.      Possession: that P had the immediate right to possession of the land
d.      Trespass is intentional even when the defendant enters the land in the honest belief it is his own
e.      Mistake as to ownership of land is no excuse
                                                               i.      You don’t have to intend to trespass, you just have to intend to enter the land
                                                             ii.      If mistake is induced by plaintiff, then then mistake would be an excuse (e.g. someone can’t invite you onto their property then say you were trespassing)
f.        Trespass must be physical: person, fence, building, etc. Light and sound don’t qualify (for that, you’d charge them with nuisance)
g.       Boundary of land extends all the way to the sky and all the way to the center of earth
                                                               i.      See Herrin v. Sutherland (where shooting a gun over plaintiff’s property was a trespass since the bullet entered onto P’s land)
                                                             ii.      Note: Today most courts find liability only if: (1) plane enters into immediate reaches of airspace and (2) flight substantially interferes with P’s use and enjoyment of his land.
h.      Trespass may exist where the defendant remains on plaintiff’s land after an otherwise lawful right of entry has lapsed
                                                               i.      See Rogers v. Board of Road Commissioners for Kent County (where failure to remove an anchor post in the ground at the expiration of the license to have it on the land was a continuing trespass – objects can count as trespass too)
                                                             ii.      When consent expires, trespass begins
i.         Defenses: Consent, necessity, NOT MISTAKE
VIII.            Trespass to Chattels
a.       Any piece of MOVABLE property is a chattel (real property=attached to ground)
b.      Rule: Restatement Section 218: One who without consensual or other privilege to do so, uses or otherwise intentionally intermeddles with a chattel which is in the possession of another is liable for trespass to such person if, (a) the chattel is impaired as to its condition, quality, or value, (b) the possessor is deprived of the use of the chattel for a substantial time, or (c) bodily harm is thereby caused to the possessor or harm is caused to some person or thing  in which the possessor has a legally protected interest.
                                                               i.      A 4th way is to dispossess the owner of the chattel.
c.       Elements the P must prove:
                                                               i.      Act: D did some voluntary act that interfered with P’s right of possession
                                                             ii.      Intent: D intended to perform the act that brought the interference
                                                            iii.      Possession: P either possessed the chattel or had the immediate right to possess it
                                                           iv.      Damages: P must show one of the 4 above
d.      Examples: shooting someone’s pet, borrowing someone’s car, putting a bumper sticker on someone’s car
                                                               i.      Exceptions are sometimes made for children who trespass if they are found to not be old enough to meet intent requirement. See Glidden v. Szybiak.
e.      Mistaken identity as to who owns the chattel does not negate intent
                                                               i.      The mistake doesn’t protect the defendant against liability for the result he intended to cause, unless the mistake was induced by the plaintiff who owns the chattel
1.       Ex. I dress my dog up like a wolf. Then Kira shoots my dog thinking it’s a wolf. She isn’t liable b/c I induced her mistake to my chattel.
                                                             ii.      All the defendant has to do it intend to intermeddle with the chattel
                                                            iii.      See Ranson v. Kitner (where defendants accidently shot plaintiff’s dog thinking it was a wolf; still liable because there was intent to shoot a dog)