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University of North Carolina School of Law
Ardia, David S.

Torts Course Outline

Professor David Ardia

Fall 2013

I. Goals of Tort Law

1) Deterrence

2) Social Utility

3) Corrective Justice / Fairness

4) Compensation (risk distribution / loss spreading)

5) Administrability (process values)

II. Intentional Torts


A. Battery: a volitional act with intent to cause a harmful or offensive contact and harmful or offensive contact resulted.

1) ACT

a. Requires volition: voluntary contraction of muscles

b. Involuntary movements do not satisfy the requirement

c. Insanity and infancy do not negate volition BUT could be relevant to determining intent (GARRATT v. DAILEY)


a. Purpose: intent to cause contact for purpose of injuring OR offending (Defendant doesn’t need to intend injury) (this is Dual Intent – WHITE v. MUNIZ)

b. Knowledge (to a substantial certainty): intent sufficient if defendant knows that act is substantially certain to produce harmful or offensive contact.

1. Good motive doesn’t matter (COHEN v. SMITH)

2. Must ask what the defendant knew (subjective test). (GARRATT v. DAILEY)

c. Transferred Intent: intent to cause one intentional tort that results in another intentional tort, or intent to cause an intentional tort to one person that results in a tort to another is sufficient


a. Physical Contact – doesn’t need to make direct physical contact

1. Defendant may merely invade plaintiff’s body space or use instrumentality under his/her control to do so. (Ex: throwing a ball)

2. Contact with things intimately connected to plaintiff will suffice (FISHER v. CAROUSEL)

3. Trivial contact will suffice

a) Policy: deters retribution. Want to reduce need for self-help

b) Generally sound and light waves do not count as contact, but smoke particles can (LEICHTMAN v. WLW JACOR)

b. Harm: Trivial Contact will suffice if it causes harm (Eggshell Skull Doctrine)

1. Pain or bodily damage

c. Offensive Contact: if contact doesn’t harm. It must be offensive. Contact is offensive if it offends a reasonable sense of personal dignity (objective test) (SNYDER v. TURK)

1. Must be offensive to the plaintiff, but need not be offensive to most persons (COHEN v. SMITH)

c) Policy: person’s right to control his/her own body.

2. Plaintiff’s subjective sensibilities are not unlimited. Highly dependent on context and policies (what kind of contact does the law want to encourage/discourage)

d. Plaintiff need not be aware of contact (ex: if D kisses P while P is sleeping)

B. Assault: an act intending to cause a harmful or offensive contact with another or an imminent apprehension of such contract (CULLISON v. MEDLEY)

1) ACT: (see battery)

2) INTENT: to cause a harmful or offensive contact OR (see battery)

3) IMMIMENT APPREHENSION of contact exists

a. An assault is a touching of the mind, as opposed to the body

b. Imminent does not mean immediate, in the sense of instantaneous contact… it means no significant delay

c. Words Alone Not Enough

1. Context matters (including prior history)

2. Must be accompanied by physical act / gesture

d. Objective Test – imminent apprehension of assault is based on reasonable person test.

e. Plaintiff must be aware of D’s act

f. Liability for assault is independent of P’s ability

g. Imminent Apprehension is not limited to feat, but rather an awareness of an imminent touching that would be a battery if completed.

C. False Imprisonment: Conduct by the actor which is intended to, and does in fact, confine another within boundaries fixed by the actor where, in addition, the victim is either conscious of the confinement or is harmed by it (MCCANN v. WAL-MART STORES, INC)

1) CONDUCT by the actor that is INTENDED to and does in fact CONFINE another within boundaries FIXED by the ACTOR

a. Physical constraint sufficient

1. Extent of confinement:

a) Confinement to a specific area (limited to a country too big, i.e.)

b) Exclusion not sufficient (not allowing P to go somewhere)

c) Knowing a safe and reasonable escape indicates P is NOT confined

d) Can be for any appreciable time, however short

b. OR Threat of Force

1. So long as reasonable person would believe they were confined OR

2. False claim of authority

2) AND victim is CONSCIOUS of the confinement OR HARMED by it.

a. False Imprisonment is a trespassory tort: Actual harm is only required if the victim is not aware of confinement – P can recover damages even if she sustains no actual harm

b. Policy Justifications: (1) Deterence; (2) Right of autonomy – you should be able to choose where you want to go.


A. Trespass to Land

1) INTENT to


1. Degree is determined by what D correctly or reasonably believes is necessary. Depends on context:

a) Relative SIZE of the parties

b) Nature of threat used (type of weapon, i.e.)

2. D may be privileged to use assault or imprisonment as a defense when the facts permit these.

3. Deadly Force is privileged ONLY when it is reasonably necessary to prevent death or serious bodily harm.

a) Policy: Better for an actor to suffer temporary humiliation / pain and be vindicated in court than cause a serious injury or death.

b. Is retreat ever required? Depends on the jurisdiction

1. Majority View: retreat is not required

2. Minority View: retreat is required (Ex: if attacker were physically immobile)

E. Defense of Others

1) Most jurisdictions recognize that a person may defend others on the same basis that he may defend himself.

a. Actor only needs to have a reasonable belief that the person being aided would have the right to self-defense.

b. Is Defense of Others privileged even when one makes a mistake?

a. Majority View: mistakes are still privileged

b. Minority View: mistakes are NOT privileged.

F. Defense and Repossession of Property:

1) One is privileged to use reasonable force to defend her property, both land and chattels.

a. You cannot use deadly force solely to defend property (KATKO v. BRINEY)

1. Cannot do by mechanical means what you can’t do in person

b. But, if trespass/conversion threatens owner’s life, then deadly force permitted

1. In NC, in defense of one’s dwelling, deadly force may be used if:

a) Reasonable threat of deadly harm, OR

b) Reasonable belief of a felony

2) Repossession of Chattels: very limited privilege

a. D must act in “fresh pursuit.” This means owner must act without reasonable delay.

b. Reasonable mistake is NOT PRIVILEGED. If D is wrong about fact that P has taken chattel, then he is liable.