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Torts
University of North Carolina School of Law
Daye, Charles Edward

 
Torts
Fall 2013
Professor Charles Daye
 
 
I. Intentional Interference With Person or Property
A.     Intent
1.      Rule:  To be held liable for an intentional tort, a person must act (a) for the purpose of causing a tortious consequence, or (b) with knowledge that the act is substantially certain to cause such tortious consequence.  (Garratt v. Dailey)
2.      Rationale:  The (a) standard requires a subjective assessment of the actor’s state of mind, which may be hard to prove.  The (b) standard allows an objective assessment of the evidence to determine the actor’s intent.
3.      Unforeseen consequences
a.       Intentional tort liability is not waived because the defendant could not foresee the ultimate result of the contact.  The tort is complete at the time of the contact.
b.      Exception: Spivey v. Battaglia
i.        Court held that the D was not liable for battery because he could not know that the specific results were substantially certain to occur. 
ii.      This case is wrong.  The court deviated from the established rule so that the plaintiff could have her day in court.  The established rule is Garratt.  An intentional tort is complete at the time of contact—the defendant does not need to intend or expect a specific result.
4.      Deviations from the “Substantial Certainty” Standard
a.       Woodson v. Rowland
i.        P sued D in a wrongful death action after her husband was killed working in a cave.  The court held that a D would be liable if there was an exceedingly high probability that the cave-in would occur.
ii.      This standard is less rigorous than the rule in Garratt.
iii.    The court intended for this peculiar rule to apply only to cases on intentional tort in relation to the North Carolina Worker’s Compensation statute.
b.      Britt v. Hayes
i.        P brought an action for negligence after the D backed into his truck.  D claimed the act was assault and battery and should be barred by the statute of limitations.  Court held that to commit an intentional tort, the D must have intended to injure the P.
ii.      The judge was not trying to change the rule for all intentional torts, rather only a rule to preclude an action for negligence.
iii.    This case was a deviation from the standard rule and applied primarily to give the P his day in court.
5.      Mistake:  Generally, a mistake as to the identity of the person to which harm is caused does not negate intent. (Ranson v. Kitner)
·         Note:  Distinguish mistake and accident.  A mistake is to cause exactly what you intended, but not knowing that it would affect the interest of another.
6.      Insane Persons:  An insane person may be held liable for an intentional tort if he is capable of forming the same intent as would be required of a normal person. (McGuire v. Almy)
a.       It is irrelevant if the insanity was the cause of the intent.
b.      The insane person may not be capable of forming the necessary intent in some situations, such as torts requiring malice.
7.      Transferred Intent
a.       If the D intended to commit an intentional tort with respect to one person, he will be held liable to any other person that may be harmed. (Talmage v. Smith)
b.      If the D intends one tort but another results, he will still be held liable as long as both the intended and resulting torts include either: assault, battery, false imprisonment, trespass to land, or trespass to chattels.
B.     Battery
1.      Definition:  The intentional infliction of a harmful or offensive bodily contact.
a.       Intent:
i.        D must intend to make contact with the P.
ii.      D does not have to intend to harm or injure the P (e.g. playing a joke could be a battery).
iii.    If P expresses a desire not to be touched, there will be battery even if the D is trying to help.
b.      Offensive Contact Standard:  The test is whether an ordinary person not unduly sensitive as to his dignity would have been offended.
i.        Ordinary and reasonable contacts (e.g. bumping on a crowded subway or tapping someone on the shoulder to ask a question) will not result in battery if the person happens to be unduly sensitive (Wallace v. Rosen).
ii.      If the D knows of the P’s peculiar sensitivity, he may have the required intent (Restatement does not take a position on the issue). 
2.      Indirect contact
a.       Battery can be committed by contact with the P’s clothes or any object closely connected with her body (Fisher). 
b.      D doesn’t have to touch the P.  Using an instrument, like a gun, or an animal will result in battery.
3.      P does not need to be aware of the contact when it occurs (e.g. unconscious patient).
4.      Unforeseen consequences (same as general rule for intentional torts).
C.     Assault
1.      Definition: The intentional causing of an apprehension of harmful or offensive contact (apprehension of a battery).
2.      Intent Requirement
a.       D may intend to commit a battery, or
b.      D may intend only to frighten the P
c.       A hostile motive is not required
d.      Transferred intent applies (see generally above)
3.      Effect of Words
a.       Words alone will almost always never constitute an assault (Restatement suggests there may be some extreme circumstances where words could result in assault).
b.      Words must be accompanied by an overt act.
i.        Words may convert an act into assault
ii.      Words may negate an intent to commit assault
4.      P must be aware of the danger (e.g. unconscious patient may claim battery, but not assault)
5.      P must have an apprehension of the contact, but not necessarily fear.
6.      The harmed threatened must be imminent
a.       Threats of future harm are not assault.
b.      Threats to third persons are not assault (P must be apprehensive of contact to himself)
c.       P must believe that the D has the present ability to carry out the harm
·         Note:  It is not necessary for the D to have the actual ability to carry out the threatened contact, only that the P believes that he does.
D.     False Imprisonment
1.      Definition:  The intentional infliction of a confinement upon another without legal justification.
2.      Requirements:  One who
a.       Intentionally (for the purpose or with substantial certainty)
b.      Restrains (or confines)
c.       Against one’s will
d.      Within a “boundary”
e.       For an appreciable length of time
3.      The Intent Requirement
a.       Actual damages or injury are not required.
b.      False imprisonment is strictly an intentional tort.  Negligence resulting in a confinement will sustain an action for negligence, not false imprisonment, as long as actual damage results.
c.       Transferred intent applies.
4.      Nature of Confinement
a.       P must be confined within definite physical boundaries.
b.      Refusal to admit is not a confinement.
c.       Means of escape must be unreasonable.
i.        Means of escape would be unreasonable if it is physically dangerous to the P, harmful to his clothing, offensive to his reasonable sense of decency or personal dignity, or dangerous to some third person.
ii.      Means of escape is not a reasonable one if the P does not know of its existence, and it is not apparent.
iii.    If the only means of escape could cause physical danger to the P, and he could remain confined without any risk of harm, he may not recover for injuries he suffers in making his escape.
5.      Enforcement of Confinement
a.       If the P is physically confined (e.g. locked within a room) the elements will be met.
b.      If the D threatens to use force if the P tries to escape (and has the ability to do so), confinement exists.
i.        Threats must involve an imminent harm—threats of future harm are not sufficient.
ii.      Threat can be explicit or implied (e.g. pointing a gun at the P.)
iii.    Threats to third persons will suffice.
iv.    Threats to property will suffice (e.g. taking the P’s personal property so that he cannot leave).
·         Note: You must draw the line at where a reasonable person would be restrained by the taking of his property.
6.      Consent
a.       If the P submits to confinement to clear himself of suspicion, there is no false imprisonment (Hardy v. Labelle’s)
b.      If the P consents to the initial confinement, there will be false imprisonment if the D is under a duty to release the P and does not do so (Whitaker v. Sanford).
7.      Legal Authority
a.       Confinement may be caused by the assertion of legal authority.
i.        It is irrelevant whether the asserted legal authority is valid or invalid, as long as the P believes the authority is valid.
ii.      Officers can be held liable for false imprisonment if they arrest you for something other than what they say.
b.      P must actually submit to the authority (e.g. if she walks away, no false imprisonment)
c.       A private citizen who aids a police officer in making a false arrest can be held liable to the P for false imprisonment.  If the officer requests assistance, the private citizen will not be liable unless he knows the arrest is an unlawful one.
d.      Regardless of the unreasonableness of the arrest, no action for false imprisonment will lie if the P actually committed the crime.
8.      P must be aware of the confinement at the time it was committed.
a.       The P need not remember the confinement later, only be aware at the time of confinement (Parvi v. City of Kingston).
b.      The Restatement says that actual harm can substitute for awareness (e.g. a baby, who is unaware, is confined and suffers injury).
·         Note:  The Restatement is not controlling authority and courts will apply this rule only if it is just under the circumstances.
E.      Intentional Infliction of Emotional Distress
1.      Definition:  The intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional or mental distress, even in the absence of physical harm.
2.      Requirements:
a.       Intentional or reckless conduct
b.      Extreme and outrageous conduct
c.       Severe emotional distress
d.      Causal connection between conduct and distress
3.      Intent Requirement 
a.       D must act
i.        with the purpose of causing the emotional distress, or
ii.      with knowledge that the mental distress is substantially certain to occur, or
iii.    in deliberate disregard of a high probability that the distress would occur (recklessness)
·         Note:  The intent element is broader than the other intentional torts.
b.      Transferred intent does not apply.
i.        Exception:  When action is directed at a member of the immediate family of the P, transferred intent may apply.
·         Note:  D must be aware of the P’s presenc

o chattels.
ii.      Court upheld this decision because the value of the P’s equipment was diminished, even though there was no physical damage.
H.     Conversion
1.      Definition:  The tort of conversion occurs when the D so substantially interferes with the P’s possession or ownership of property that it is fair to require the D to pay the property’s full value.
2.      Conversion vs. Trespass
a.       The difference between the two torts is a matter of degree.
b.      The theory of trespass is that the property remains the P’s property and the damage is the diminution in value.  If the damage/conduct was so bad that the D should pay the full value, then conversion will lie.  If the P has an election between the two, the issue is whether the P wants to keep the chattel (trespass) or sell it (conversion).
c.       Conversion results in a “forced sale.”
3.      The intent requirement is the same as trespass to chattels.
4.      Factors court considers when determining if conversion has taken place:
a.       the extent and duration of the actor’s exercise of dominion or control
b.      the actor’s intent to assert a right in fact inconsistent with the other’s right of control
c.       the actor’s good faith (or bad faith)
d.      the extent and duration of the resulting interference with the other’s right of control
e.       the harm done to the chattel
f.       the inconvenience and expense caused to the other
5.      Actions that may result in conversion
a.       Acquiring possession of it (e.g. stealing the chattel)
b.      Damaging or altering it (e.g. intentionally running over an animal and killing it)
c.       Using it (e.g. a bailee seriously violates the terms of the bailment)
d.      Receiving it (e.g. obtaining possession after a purchase from a thief)
e.       Disposing of it (e.g. a bailee wrongfully sells a chattel)
f.       Misdelivering it (e.g. delivery to wrong person by mistake so that the chattel is lost)
g.       Refusing to surrender it (e.g. bailee refuses to surrender a chattel)
i.        Refusal to surrender must be intentional.  If D is unable to return goods because they were lost, then there will only be a claim for negligence.
ii.      Once the P demands return of his goods, the D may take a reasonable time to check the validity of the plaintiff’s claim to the chattel
h.      Taking of information 
i.        Copying constitutes a conversion when the information has a commercial value that is substantially diminished by the making of the copy.
ii.      Protected information includes patents, copyrights, and trade secrets; an invention that has not yet been patented or literary property that has not been copyrighted; information that is compiled so that it can be sold (“commodified material”)
iii.    The copying of information of no commercial value will not constitute conversion (Pearson)
6.      Effect of Good Faith
a.       An actor who acts under good faith and under a mistake may be liable for conversion (e.g. bailee delivers goods to an imposter).
b.      Bailees will not be held liable if they accept stolen goods (without knowledge that they are stolen), but are required to deliver the goods to the right person (e.g. if the true owner demands return of the goods)
c.       Good faith purchaser of stolen goods will be liable for conversion
d.      Good faith purchaser of goods obtained by fraud will not be liable for conversion.
7.      Damages
a.       The measure of damages is the market value of the property converted.
b.      Market value is determined at the time the item was converted.
i.        Some jurisdictions give the highest intermediate value between the time of conversion and the time of the suit.
ii.      Some jurisdictions give the highest intermediate value between the time of conversion and a reasonable time for making a replacement.
c.       Damages cannot be recovered for sentimental value.
d.      If the chattel is a product of creative effort, damages may be based upon the value of the time it took to create the chattel.
8.      Who may sue
a.       Suit may be brought by the person in possession.
b.      Possessor must have a “colorable claim.”
i.        Finders could bring a suit because they have superior rights to all but the true owner.
ii.      A thief could not bring a claim.