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University of South Carolina School of Law
Boyd, Marie C.

Professor Boyd
Fall 2012
1) Intentional Torts
a)     Intent
i)  Restatement definition—consequences of an act are intentional if the act is done with the purpose (specific intent) and/or the knowledge / substantial certainty that consequences will result (general intent)
ii)       Specific—actor intends the consequences if his goal in acting is to bring about this consequence
iii)     General (Garratt v. Dailey)
(1)  Definition—an actor intends the consequences of his conduct if he knows with substantial certainty that the consequence will result
(2) Spivey v. Battaglia—intent w/ which such tort liability as assault (intentional tort) is concerned is not necessarily a hostile intent or a desire to do harm
(a)  Unsolicited hugging of co-employee that resulted in paralyzed side of face and mouth (don’t need to intend the actual harm)
(b)  Objective test:  “where a reasonable man would believe that a particular result was substantially certain to follow, he will be held in the eyes of the law as though he had intended it.”
(c)   “knowledge and appreciation of a risk, short of substantial certainty, is not the equivalent of intent.” p. 21
(d)  distinction b/w intent and negligence boils down to a matter of degree (if dangers is only foreseeable risk which a reasonable man would avoid then can pursue under negligence, once it becomes a substantial certainty then it becomes intentional)
(e)  even though a reasonable man in D’s shoes would not be “substantially certain” the results would follow doesn’t mean that he cannot be found liable under negligence
iv)   Transferred Intent—(Talmage v. Smith)
(1)  Definition—doctrine holds that as long as the D held the necessary intent with respect to one person, he will be held to have committee an intentional tort against any other person who happens to be injured
(a)  Transfer from actor to another tort (i.e. intend assault but commit battery) or to a different actor if he intended a result (i.e.  B by shooting near her, and the bullet accidentally hits C, A has committed a battery upon C
(b)   5 kinds that transfer trespass to chattels, trespass to land, assault, battery, and false imprisonment
v)   Mistaken Inent —parties are responsible for damages caused by their own mistaken belief even if they acted in good faith
(1)  Ranson v. Kitner—mistook dog for wolf but still liable
vi)     How do you prove intent?
(1)  Admission of actor whose intent is in question
(a)  Has to be admissible according to the rules of evidence
(2)  Circumstantial evidence
(a)  Law evaluates intent by what the actor does
vii)   Children & Intent
(1)  Age only important in determining what actor knew (his experience, capacity, and understanding are factors that Court considers)
(2)  Garratt v. Dailey—child younger than 6 held liable for damages b/c able to understand that D might fall
(3)  Some states have parental responsibility statutes that make parents liable for their child’s malicious torts
iv)   Mentally Ill & Intent
(1)  Mentally disabled persons may be held responsible for their intentional torts as long as P can prove that they formed the requisite intent
(2)  McGuire v. Almy—assault and battery where insane lady said that she would kill anyone who came into her room
(3)  Exceptions—several jurisdictions have carved out a narrow exception to this general rule if D is an institutionalized mentally disabled patient who cannot control or appreciate the consequences of his conduct and he injures an employee that is caring for him/her then can’t be held liable
v)     Intoxication
(1)  When you voluntarily get drunk, as a matter of public policy, the intoxication does not vitiate intent
vi)   Policy
(1)  Reasons for holding mentally ill and children responsible for their intentional torts
b)     Battery—an actor is liable for battery if they
i)       An actor is liable for battery if they:
(1)  Act intending to cause a harmful / offensive contact or an imminent apprehension of such contact, AND a harmful contact w/ the person directly / indirectly results
(2)  Elements
(a)  Harmful or offensive contact;
(b)  To Plaintiff’s person;
(c)   Intent; and
(d)  Causation
(3)  Definitions:
(a)  Bodily contact—any physical impairment of the condition of another’s body / physical pain or illness
(b)  Offensive contact—contact that offends a reasonable person’s sense of personal dignity
(4)  Bodily Contact
(a)  Wallace v. Rosen—“in a crowded world a certain amount of contact is inevitable and must be accepted”
(i)    Fire drill case
(ii)  No malicious intent allowed however
(b)  Fisher v. Carrousel (African-American at buffet; waiter snatches plate from hands)—to constitute an assault and battery it is not necessary to touch the P’s body or even his clothing, knocking, or snatching anything from the P’s hand or touching anything connected with his person, when done in an offensive manner, is sufficient
(5)  Policy
c)      Assault—intentional threat or use of force that causes another to have reasonable apprehension of imminent, harmful, or offensive contact (even if D doesn’t actually intend the contact)
i)       Elements
(1)  An act by D creating a reasonable apprehension in P;
(2)  Of immediate harmful or offensive contact to P’s person;
(3)  Intent; and
(4)  Causation
ii)     Western Union v. Hill—don’t have to actually to be able to actually harm the person the P just must think that they could be harmed
iii)   Additional consideration:
(1)  Conditional statements are NOT threats
(2)  Providing an ultimatum is a threat if harm is “imminent”
(3)  Harm must be “imminent” in time, close in space, and actual (not potential) harm
(4)  Words alone are not an assault
(5)  Transferred Intent included
(6)  Policy
d)     False Imprisonment—intentional infliction of confinement through force or threat of force of which P is aware of
i)       Elements
(1)  An act or omission on part of D that confines or restrains P;
(2)  To a bounded area;
(3)  Intent; and
(4)  Causation
ii)     Methods of Confinement
(1)  Physical barriers (Whittaker—cult said no life boat)
(2)  Overpowering physical force or submission by physical force (BigTown—big man physically restrained)
(3)  Threats using physical force
(a)  Exception (Hardy v. Labelle—exception to threats, own desire to clear herself, no false imprisonment)
(4)  Duress
(5)  Claim of legal authority (Enright v. Groves—dog no license jail)
iii)   Test is subjective not objective, not whether the reasonable person would submit but if P submitted to confinement
iv)   Rest §42 (no liability for intentionally confining unless the person being physically knows of the confinement or is harmed by it—Harvey—drunk guy on golf course)
v)     Additional Considerations:
(1)  Confinement: held w/in certain limits (can be very large area)
(2)  Future threats are typical not enough, but focus on the time limits
(3)  Moral pressure is not enough
(4)  Confinement in a foreign country is not enough
(5)  Victim MUST be aware he is confined
(6)  Arrest
(a)  If warrant is involved—no FI claim
(b)  If not warrant, and no privilege, may have a claim
(7)  Shoplifting—person must be detained by a merchant in:
(a)  A reasonable manner
(b)  For a reasonable amt. of time
(c)   For reasonable grounds
(8)  Transfer Intent Included
e)     Intentional Infliction of Emotional Distress (IIED)—one in the absence of any privilege intentionally subjects another to the mental suffering incident to serious threats to his physical well being, whether or not the threats are made under circumstances as to constitute technical assault
i)       Restatement Definition—one who without privilege to do so intentionally causes severe emotion distress to another is liable for such emotional distress and for bodily harm resulting from it
ii)     Elements:
(1)  An act by D amounting to extreme and outrageous conduct;
(2)  Intent or recklessness;
(3)  Causation; and
(4)  Damages—severe emotional distress
iii)   Requisite intent—unlike for other intentional torts; recklessness as to the effect of D’s conduct will satisfy the intent requirement
iv)   Outrageous conduct—conduct that transcends all bounds of decency tolerated by society (i.e. when Beck wakes up)
(1)  Test:
(a)  Overall subjective: would reasonable victim find extreme and outrageous; no reasonable person should be expected to tolerate
(b)  Subjective if the D is aware of P’s sensitivity
v)     Severe Emotional Distress–
vi)   No transferred intent but transferrable b/w people
(1)  Restatement would hold D liable if:
(a)  D knows of the bystander’s presence
(b)  Conduct was directed at a member of the bystander’s immediate family
(c) bystander suffers bodily harm as a result of her distress
(2)  Taylor v. Vallelunga—D wasn’t aware of her and beating wasn’t administered to cause her distress, intent was lacking
vii) Damages: only intentional tort that requires damages (State Rubbish—trash collector, got sick, and actually lost wages he would have made)
viii)           Additional Considerations:
(1)  Physical harm DOES NOT have to result
(2)  VERY fact specific
(3)  Racial Insults—debatable; may be mere insults
(4)  Mere words generally not enough (Slocum v. Food Fair)
(5)  Debt Collection—look to the degree of collector’s efforts
(6)  Transfer intent
f)       Trespass to Land—occurs when the D enters the P’s land or causes another person or object to enter the P’s land
i)       Elements:
(1)  Act of physical invasion
(2)  Intent to bring about physical invasion
(3)  Causation
ii)     Intent:
(1)  General not Specific (Doughtery v. Stepp—surveyors on somebody else’s land they didn’t know was his, just have to intend to be in the physical spot where you are)
(2)  Even if you reasonably believe it is your land it is still trespass
iii)   Against possession not ownership
iv)   3 kinds of Trespass
(1)  entry w/o authority
(2)  remaining and not leaving
(3)  failure to remove an object from land (Rogers—failure to remove snow fence, death by lawnmower)
(a)  Restatement Section 160 stats “a trespass, actionable under the rule stated in Section 158 may be committed by the continued presence on the land of a structure, chattel or other thing which the actor or his predecessor in legal interest therein has placed thereon with the consent of the person then in possession of the land if the actor fails to remove it after the consent has been effectively terminated
v)     Additional Considerations:
(1)  No damages necessary
(2)  Real property extends into airspace and below for a reasonable distance (Herrin v. Sutherland—shooting ducks, nominal damages)
g)     Trespass to Chattels
1) Chattel – movable or transferable  property; esp. a physical object capable of manual delivery, not subject matter of real property
2) Definition – Intentionally dispossessing another of the chattel, or using or intermeddling with a chattel in the possession of another”
3) Restatement Definition – One who commits a trespass to a  chattel is subject to liability to the possessor of the chattel if, but only if,
                        i) he dispossesses the other of the chattel, or
                        ii) the chattel is impaired as to its condition, quality, or value, or
iii) the possessor is deprived of the use of the chattel for a substantial time, or
iv) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest
            4) Intermeddling – directly damaging the chattel
5) Dispossession – depriving the plaintiff of his lawful right of possession of the chattel
            6) Glidden – Defendant, child, pulled on dogs ears
i) no damage was done to the dog and the dog was not dispossessed therefore there was no trespass to chattel
7) Compuserve – Mass emails messed up the servers that Compuserve was providing to their customers
i) Servers were being tied up and therefore they were losing their value and being damaged
ii) Addt’l Considerations – Don’t have to damage the actual chattel but you have take aw

               ii) Right to use defense:
                                    a) Can use the privilege as long as mistake is reasonable
                                    b) “Victim’s Shoes” – if victim cannot use the defense, neither can you
L) Defense of Property – Use force to protect/retrieve property in case of  unpriviliged threat so long as the reasonable belief is both necessary and proportional to the force.
                        i) Proportionality to use force
a) Katko – Man puts spring gun up to protect against robbery (with a spring loaded gun)
1) Can’t use deadly force to protect against intrusion, unless the intrusion threatens death/serious bodily harm to the occupiers/users of the premises
                                                2) Value of human life v. right to protect the property
ii) Can only defend property against those without consent/privilege to enter the property; mistake is not allowed, unless the intruder in some way  misled the possessor as to his identity or authorization
iii) Limitations on the possessor’s privilege may also restrict his power to eject the plaintiff from his property into a position of unreasonable physical danger. However, if the plaintiff’s presence endangers the personal safety of those on the premises, the privilege of self-defense, or that of defense of third persons may justify the ejection
iv) “Fresh Pursuit” – D must begin his recapture efforts promptly after his dispossession or at least immediately upon learning of it, and must continue his efforts without interruption
a) it must be left to the law to get the property back;
b) force can be used when chattel was taken by force or fraud;
c) must demand the property back before force
d) Hodgeden v. Hubbard -Chasing down that stove. Plaintiff drew a knife when the employees chased him down
1) Can pursue but must use proportional force. No force used then you can’t use force to recover said property. Must demand back
M) Recovery of Property – when one’s possession began lawfully, one may use peaceful means to recover it.
i) Shopkeeper’s privilege (Bonkowski v. Arlan’s Dept. Store) Restatement 120A
a) A merchant can detain, for reasonable investigation, a person whom he reasonably believes to have taken a chattel unlawfully.
b) Suspect must be within immediate vicinity of store
                        c) Merchant may wait until shopper leaves store (helps for
reasonable belief)
d) Merchant needs to make a request before using force
e) Merchant can use force, but can’t cause harm
f) Merchant can hold for reasonable time
N) Necessity – D acts under necessity when he acts to prevent a threatened injury from some force of nature, or some other independent case not connected w/P
i) a person may interfere with real/personal property of another where the interference is reasonable and apparently necessary to avoid threatened injury from a natural/other force and where the threatened injury is substantially more serious that the invasion is undertaken to avert it
ii) Public Necessity – act/interference is for public good (shooting a rabid dog), defense is absolute
iii) Private Necessity – where the act is solely benefitted a limited number of people, the defense is qualified, must pay damages. Defense is absolute if the act is to benefit the owner of the land
iv) Discipline: a parent/teacher may use reasonable force in disciplining children, taking into account the age/sex of the child and the seriousness of the behavior.
v) Public Authority – if the D is duly commanded or authorized by law to do what he does, he is of course not liable for doing it.
vii) Surocco – San Fran mayor burned down a house to prevent fire from spreading
a) Public champion has the right to destroy private property to avoid a public disaster, as long as they reasonably believe that by doing so they prevent the spread of disaster
b) Policy: social protection, individual intent, cost of delay, single person acting to save the city shouldn’t be responsible for the damages.
vii) Lake Erie: Necessity requires some emergency/extreme circumstances, not a privilege for owner to expel someone during an emergency
O) Justification – A lawful or sufficient reason for one's acts or omissions; any fact that prevents an act from being wrongful
i) A parent/guardian/teacher entrusted with the care or supervision of a child may use physical force reasonably necessary to maintain discipline promote the welfare of a child or to prevent the physical damage to property.
NEGLIGENCE-negligence is the omission to do something which a reasonable man, guided upon those considerations that ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do.
1)      Duty
2)      Breach of Duty
3)      Causation-Actual and Proximate
4)      Damages