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University of Oregon School of Law
Weiner, Merle H.

Weiner, Merle – Torts – Fall 2015

èIntentional Torts

· Overview of intentional torts

o Intent – Intentional torts

§ Act with purpose or knowledge and substantial certainty that an act will occur

· Transferred intent = extended liability principle

· Rule of 7’s re children = minority rule

§ Purpose:

· Purpose does not require risk of injury toward the other person.

§ Knowledge:

· Knowledge of substantial certainty of result does not require any desire that invasive result occur.

· Assault

o Intent

§ Act with purpose or knowledge with substantial certainty to cause apprehension of imminent harmful or offensive contact

§ Can prove circumstantially

o Apprehension of Imminent Harmful or Offensive Contact

§ Fear not required

§ Must be aware

§ Reasonable Person Standard

o Imminent Act

§ Threat must be immediate

§ Imminent = grey area

· Battery – protect against invasion of person

o Elements

§ Intent (to cause touching and harmful or offensive contact)

· Act with purpose or knowledge with substantial certainty to cause touching

· Transferred intent

· Dual Intent v. Single Intent

o Dual intent

§ Intent to touch, AND

§ Act with purpose or knowledge with substantial certainty to cause touching that would be harmful or offensive

o Single Intent

§ Intent to touch

· NOTE: Second Restatement of Torts is the source of both single and dual intent…

· Medical Battery within the scope of Dual Intent vs. Single Intent

o Courts are inconsistent in whether they apply dual intent standard or single intent standard to medical battery matters.

o No one-size-fits all solution

§ Touching (direct or indirect)

· Extended Personality Rule: Touching something that is in contact with the plaintiff can constitute a battery.

§ Harmful or offensive contact (touching required)

· Offensive to a reasonable sense of personal dignity

· Unconsented

o Consent sometimes a defense, sometimes affirmative element of prima facie case

o Awareness not required

o Damages

§ Compensatory

· Pecuniary

· Pain and suffering

§ Nominal

§ Punitive

· False Imprisonment

o Elements

§ Intent (to confine or to commit another intentional tort)

· Act with purpose or knowledge with substantial certainty to cause confinement or to commit another intentional tort

§ Confinement within a boundary for an appreciable amount of time, without lawful privilege

· Confinement = barrier

· Confinement = threat of force

· Confinement = physical force

· Confinement = other duress (threats to loved one/property)

· Confinement = asserted legal authority

· No reasonable escape. Π can’t just assume confinement, don’t have to commit another tort to test confinement, but should do what’s necessary to make sure confinement is genuine

§ Harm or awareness of confinement

· EX: Baby locked in storage locker. Baby was unaware of confinement but was harmed because of the temperature è false imprisonment

· Some jurisdictions hold that a child can be subject to false imprisonment even if the child was unaware of the false imprisonment and not harmed


o Elements

§ Extreme and Outrageous Conduct

· R2: Goes beyond mere insult, beyond all bounds of decency, utterly intolerable in civilized society

· Reasonable person standard

· Courts consider context/relationship between the parties

· Common qualifying fact patterns

o Repeated conduct, not isolated incident

o Abuse of power

o Vulnerable victim

o Violation of fiduciary relationship è auto extreme and outrageous

§ Causation

· Act used as circumstantial evidence

§ Intent or recklessness to cause severe emotional distress

· Can be shown by acting with purpose or knowledge with reasonable certainty to cause emotional distress

· Can also be shown by ∆ reckless disregarding the risk of emotional distress

· Lower standard of reckless disregard permitted because emotional distress is largely not recoverable under negligence

· May be inferred, i.e. ∆ knew π was esp. vulnerable

· No transferred intent

· Recklessness =

o Subjective Recklessness: The D himself knows the risk and fails to take precaution even though doing so wouldn’t be hard

o Objective Recklessness: D doesn’t know there is a high probability that E.D. will follow, but D knows of facts that would lead a reasonable person to realize there was a high degree of probability that e distress will follow

§ Result: Severe emotional distress

· Must be physically present

o Exception: rare kidnapped/molestation cases (wouldn’t happen in parental absence)

· 3RD party recovery:

o Actor may be liable if he intentionally or recklessly causes SED

o Immediate family member, physically present

o Other 3RD party + bodily harm

· Evidence

o Act itself, medical care/medications, psychiatrist/counseling, physical manifestation, diary, 3RD party account, attempts to make it stop

o Note: If there’s a primary tort, just go after the primary tort and add on emotional distress as parasitic damages

· Trespass to Land (Protects possessor’s interest in exclusive possession of land)

duct beyond scope of consent

§ Determined by objective circumstances, not by π desires or reservations

o Self-defense

§ Reasonable belief and reasonable force under the circumstances to repel immediate attack

§ Amount of force allowed must be proportion to the force necessary to prevent harm to actor

§ Excess force = liability to π, but only for excess force

§ Mistaken belief: Privilege of self-defense is based on appearances, not on the objective reality. If a reasonably believed imminent danger è privilege of self-defense

§ Deadly force: At home, do not have to retreat.

· Minority Rule: Must retreat prior to using deadly force.

§ Burden of proof on ∆ to prove defense

§ Reasonableness of self-defense: OK to commit tort/threaten something far more severe just to make the primary tort end, not OK to follow through

§ Stand your ground: No duty to retreat for reasonable force, including in public spaces. If attacked, ∆ is not required to retreat or otherwise avoid the need for self-defense. If threatened with sexual attack or a deadly situation è OK to use reasonable deadly force.

· Minority Rule: some jurisdictions do require the actor to retreat before using deadly force when actor is not at their domicile

o Defense of Others:

§ You can defend others as you would defend yourself if you were in the same situation.

§ SPLIT – Innocent Mistake: Jurisdictions are split on whether you would be held liable if you make an innocent mistake and interfere with a fight you shouldn’t have.

o Defense of Property

§ Privilege to use reasonable force if you reasonably believe that your property is being taken

§ No privilege to protect personal unoccupied property with weapons likely to cause significant harm or death (spring guns, dangerous animals)

· Spring guns: Some say they aren’t allowed at all. Other say yes in the commission of a felony, but you do so at your own risk (liability).

§ Minority Rule: Privilege to protect property only if intrusion is likely to cause death or serious inj to prop owner/users of prop

§ Hot/fresh pursuit: OK to attempt to retrieve property while in hot pursuit.