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Torts
University of North Carolina School of Law
Eichner, Maxine

TORTS

EICHNER

2013

INTENTIONAL TORTS

INTENTIONAL TORTS

Prima Facie Case

1) Act by defendant

2) Intent; and

3) Causation

BATTERY

Prima Facie Case

1) An act by the defendant which brings about harmful or offensive contact to the plaintiff’s person

2) Intent on the part of the defendant to bring about harmful or offensive contact to the plaintiff’s person

ASSAULT

Prima Facie Case

1) An act by the defendant creating a reasonable apprehension in plaintiff of immediate harmful or offensive contact to the plaintiff’s person

2) Intent on the part of the defendant to bring about in the plaintiff apprehension of immediate harmful or offensive contact with the plaintiff’s person

FALSE IMPRISONMENT

Prima Facie Case

1) An act or omission to act on the part of the defendant that confines or retrains the plaintiff to a bounded area

2) Intent on the part of the defendant to confine or restrain the plaintiff to a bounded area

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Prima Facie Case

1) An act by defendant amounting to extreme and outrageous conduct

2) Intent on the part of defendant to cause plaintiff to suffer severe emotional distress

3) Damages—severe emotional distress

Intentional Torts to Property

TRESSPASS TO LAND

Prima Facie Case

1) An act of physical invasion of plaintiff’s real property by defendant

2) Intent on defendant’s part to bring about a physical invasion of plaintiff’s real property

TRESSPASS TO CHATTELS

Prima Facie Case

1) An act of defendant that interferes with plaintiff’s right of possession in the chattel

2) Intent to perform the act bringing about the interference with plaintiff’s rights of possession

3) Damages to property

CONVERSION OF CHATTELS

Prima Facie Case

1) An act by defendant interfering with plaintiff’s right of possession in the chattel that is serious enough in nature or consequence to warrant that the defendant pay the full value of the chattel

2) Intent to perform the act bringing about the interference with plaintiff’s right of possession

DEFENSES TO INTENTIONAL TORTS

CONSENT

A defendant is not liable for an otherwise tortious act IF the plaintiff consented to the defendant’s act; consent may be given expressly, or it may be implied from custom, conduct, words, or by law.

SELF-DEFENSE

When a person has reasonable grounds to believe that he is being, or is about to be, attacked, he may use such force as is reasonably necessary for protection against the potential injury

DEFENSE OF OTHERS

The actor need only have a reasonable belief that the person being aided would have the right of self-defense.

DEFENSE OF PROPERTY

A defendant may reasonably prevent the commission of a tort against her property.

REENTRY TO LAND

A defendant may regain possession of property in some instances.

RECAPTURE OF CHATTELS

Similar to Reentry to land.

NECESSITY

A person may interfere with the real or personal property of another where the interference is reasonably and apparently necessary to avoid threatened injury is substantially more serious than the invasion that is undertaken to avert it.

NEGLIGENCE

Prima Facie Case

1) DUTY

2) BREACH

3) ACTUAL HARM

4) CAUSE-IN-FACT

5) PROXIMATE CAUSE

à DAMAGES

DEFENSES TO NEGLIGENCE

D’s AFFIRMATIVE DEFENSES

1) P didn’t minimize the consequences of negligence

2) P was engaging in illegal activity

3) Contributory negligence

4) P assumed the risk

P’S RESPONSES TO CONTRIBUTORY NEGLIGENCE CLAIM

1. D responsible to protect P from his own negligence (Bexiga)

2. D had a special duty or P had no duty (Christensen)

3. Entitlement (Leroy Fiber)

4. Rescue doctrine

5. Last clear chance doctrine

D acted intentionally or recklessly

Intentional Torts

Battery

A person is subject to liability for battery when he acts intending to cause a harmful or offensive contact, and when a harmful or offensive contact results.

Contact, which is offensive to a reasonable sense of personal dignity, is offensive contact.

· Doctrine of Extended Personality suffices for contact

Contact, which is offensive to a reasonable sense of personal dignity, is offensive contact.

p’s person= anything connected to the p is viewed as part of the p’s person (in a car, on a bike, holding a purse)

actual damages not required

Prima Facie case

A prima facie case has been made IF a person (all elements)

Acted

An act has actually resulted if the person acted (all elements)

i. Consciously

1. Acts committed while unconscious do not constitute an intentional tort

Hammontree v Jenner (epileptic driver underwent a seizure therefore no intent)

ii. Voluntarily

1. Reflexive acts – A muscular reaction is always an act unless it is a purely reflexive reaction in which the mind and will have no share.

With Intent

Intent exists if person acts with (any element)

i. Purpose/actual intent to harm or offend

1. Actual intent to harm or offend exists if a person’s goal in acting is to bring about harm or offense.

2. Snyder v. Turk (offensive contact where surgeon pulled nurse down to open wound).

a. Offensive contact enough; injury not necessary

ii. Knowing it will harm or offend

1. If the D has knowledge that some contact will harm or offend prior to committing the contact and he commits it anyway

2. Cohen v. Smith (male nurse made contact with female patient’s naked body knowing that it would offend her religious beliefs)

a. Focus is on D’s knowledge of the insulting nature of his conduct to that P

b. Policy justification: person has the right to control own body

iii. Substantial certainty that the harmful or offensive contact will occur

1. A person “intends” harm or offense if he knows with substantial certainty that harm or offense will occur.

2. Garratt v. Dailey (5 year old pulls chair out from woman; liable if he acted knowing her butt would hit ground)

3. Reckless, willful, and wanton conduct shows intent to harm

If the action is not intentional, shows an utter indifference to or conscious disregard for a person’s own safety.

iv. Transferred intent

1. Transfer to another person – If D tries to commit an intentional tort against person A but contacts another person instead

2. Baska v. Scherzer (P hit by D, D intended to harm another; harm transferred; D liable for harming P)

3. Liable for another tort – If D tries to commit an assault against person A but winds up contacting them, the intent transfers to battery (even though intent was for assault and not battery)

v. Intentional Exceptions

1. Mentally Disabled (Insanity): General rule = not an excuse from liability

An insane person is exempt from liability ONLY IF (all elements)

a. He/she has no sane reason for the action

b. He/she does not understand harm will result

But an insane person is NOT exempt from liability if he/she intends to do harm

White v. Muniz (83 year old punches nurse when trying to change diaper)

Must have appreciated offensiveness of conduct

States split in app

reflexive reaction in which the mind and will have no share.

With Intent

Intent exists if a person acts with (any element)

i. any intent to cause battery

ii. actual intent to cause an imminent apprehension of such contact

iii. substantial certainty that imminent apprehension of such contact will occur

iv. Transferred Intent

To Cause Either (any element)

i. Harmful or offensive contact

ii. Imminent apprehension of such contact

d. Imminent apprehension of harm or offense actually occurred

Imminent apprehension is said to have occurred IF (all elements)

i. Awareness or knowledge of the oncoming act

1. Must have sufficient time to have an apprehension of contact

Koffman v. Garnett (Teenage football player slammed by coach but there was no assault because student had no warning of imminent forceful tackle)

a. Fear is not required, just apprehension of touching that would be a battery if completed

2. Can’t apprehend something you don’t see

a. Ex. A person with their back turned can’t apprehend imminent contact

3. Can be transferred

a. Ex. Student intends to commit battery by throwing a knife at another; misses; but at time knife thrown, teacher, not student intended to be hit, sees action occurring and experiences imminent apprehension of contact

i. Teacher, not intended student, can sue for assault because transferred intent

ii. Intended student cannot sue for assault because unaware of the harmful act occurring

ii. Expected imminent contact

1. Immediate threat of contact, with no significant delay, is necessary

a. Doesn’t have to be instantaneous – just without delay

b. If a person is too far away to do any harm or merely preparing for future harmful acts, there is no possible imminent contact

i. Ex. Anti-abortion activists place abortion doctors’ photos online. Doctors have been killed as a result. Best defense for the activists is that there is no imminent threat of contact. Apprehension of some possible threat in the future is not enough

2. Words alone

a. Overt act required

Words alone do not constitute an assault, but must be accompanied by acts to create a reasonable apprehension

i. Cullison v Medley (Family surrounds man in trailer and issues conditional threats; given the circumstances intimidation in a number of ways in addition to words can constitute imminent apprehension of contact)

ii. Reasonable person must reasonably assume imminent apprehension of contact

iii. Assault addresses only one narrow form of emotional distress, apprehension of a contact with the person of the plaintiff

b. Conditional language alone does not express a present intent to harm

c. Words may negate an assault

Words that make it unreasonable to assume any apprehension of immediate contact, even accompanied by acts, may negate an assault

i. Ex. A friend is holding a gun out at you but you know it is unloaded and they are joking and laughing saying, “hey man, look, I’m gonna shoot you!”

ii. Ex. If that cop weren’t here, I would hit you