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Torts
University of South Carolina School of Law
Fox, Jacqueline R.

Torts Outline Fall 2013 J. Fox

Tort – a civil wrong, other than breach in contract, for which the law provides a remedy

>The inherent flaw in torts is that there can’t be a value placed on many damages such as life, injury, distress, etc.

>Tort law generally includes: (1) fault; (2) intent; (3) damages; (4) causation.

I. Intentional Torts

a. Intent: desire to cause certain immediate consequences

i. Elements Person acts with intent to produce consequence if:

1. Person acts with purpose of producing consequence OR

2. Person acts knowing that the consequence is SUBSTANTIALLY CERTAIN to occur

ii. If conduct merely creates a foreseeable RISK of harm (may or may not be realized), then conduct may be negligence or reckless, but not intentional

Spivey v. Battaglia: D gave P a hug which injured her – wasn’t substantial certainty, so no intent (may be negligence)

iii. Children may be liable for intentional torts as long as P can prove each of the elements, including intent

Garatt v. Dailey: If the child was substantially certain that the aunt would sit and fall, then it was intent for battery

iv. Generally, mistake does not negate intent

Ranson v. Kitner: shooting dogs instead of wolves – still intended to shoot

v. Mentally disabled people may be held responsible for their intentional torts as long as plaintiff can prove that they formed the requisite intent

McGuire v. Almy: when a mentally disabled person does intentional damages to a person or property, he will be held liable

vi. Transferred intent: If the tortfeasor has the intent to harm one person but instead harms another; he is liable for that harm to the 2nd person for any intentional tort that results. Extends to intending to commit one tort but instead commits another (transfers from person to person and from tort to tort)

Talmage v. Smith: man threw a stick at one boy who was jumping on his sheds and accidentally hit a different boy.

1. The torts it includes are battery, assault, false imprisonment, trespass to land, and trespass to chattels (Not IIED or Conversion)

b. Battery Elements

i. Harmful or offensive contact

1. Directly or indirectly occurs

2. Always unconsented and unprivileged; offensive contact when it would offend a reasonable sense of personal dignity

3. Unintentional contact: negligence analysis

4. Wallace v. Rosen: woman standing on top of stairs during fire drill and teacher grabbed her and “pushed” her down the stairs. Court ruled it was accidental touching and during a fire drill where touching was occurring.

ii. To plaintiff’s person

1. Fisher v. Carousel – waiter grabbed plate from African American hotel guess – ACCESSORIES count as person

iii. Intent; and

iv. Causation

c. Assault Elements

i. An act by defendant creating a reasonable apprehension in plaintiff:

1. Apprehension should not be confused with fear or intimidation

2. If defendant has apparent ability to commit a battery, this will be enough to cause reasonable apprehension

3. Words alone are not sufficient: words must be with conduct (words can negate reasonable apprehension)

ii. Of immediate harmful of offensive contact to plaintiff’s person:

1. Immediacy is important!!! Has to be apprehension of immediate battery!

2. Assault in the mind of the plaintiff – normal person (not overly sensitive, unless def. knows of it – IIED)

iii. Intent; and

1. Intent to create immediate apprehension or intent to commit the battery

iv. Causation.

v. Can have assault by itself or battery by itself or have them both

d. False Imprisonment Elements

i. An act or omission on the part of defendant that confines or restrains plaintiff;

1. Physical barriers, physical force, threats of force, failure to release, and invalid use of legal authority ARE acts of restraint

2. Moral pressure and future threats are NOT acts of restraint

3. Time is irrelevant (can be however short)

4. Hardy v. LaBelle’s: fear of losing job not enough to false imprisonment

5. Shopkeeper privilege: if merchant reasonably believes a person has stolen may detain for a reasonable amount of time

ii. To a bounded area;

1. Plaintiff must know of the confinement or be harmed by it

2. Freedom of movement must be limited in all directions: must be no reasonable means of escape known to plaintiff

iii. Intent; and

iv. Causation

v. Damages NOT required

e. Intentional Infliction of Emotional Distress Elements

i. An act by defendant amounting to extreme and outrageous conduct;

1. Extreme and Outrageous: conduct that transcends all bounds of decency. Conduct that isn’t normally outrageous may become so if:

a. It is continuous in nature;

b. It is directed toward a certain type of plaintiff; or

c. It is committed by a certain type of defendant

2. Subjective approach of a reasonable person

3. Intentional or reckless handling of a corpse

ii. Intent or recklessness

1. Recklessness will satisfy the intent requirement

iii. Causation; and

1. Bystander cases: when the defendant intentionally cause physical harm to a third person and the plaintiff suffers emotion distress, plaintiff may recover by showing the elements of IIED or that he was present, is a close relative, and the DEF. KNEW those 2 elements

iv. Damages – severe emotional distress

1. Actual damages, not nominal damages, are required

2. *Only intentional tort that requires damages

f. Trespass to Land

i. Physical Invasion of plain

h, peaceable repossession is allowed, but no force

i. False imprisonment by shopkeeper: may detain for reasonable investigation when he reasonably believes one to have unlawfully taken chattel. Reasonable force, must make verbal request if practical

f. Necessity: individual rights or property give way to impending necessity. Defendant may, in course of defending himself, his property, or others or their property from the threat of imminent harm for which plaintiff is not responsible, intentionally do something reasonably deemed necessary that injures plaintiff’s property. Plaintiff’s interest is sacrificed for cause

i. Issue: when does defendant pay compensation for plaintiff’s loss?

ii. Public necessity: danger effects entire community, privilege is complete, no individual liability.

iii. Private necessity: in an action taken to protect someone’s private interests, there is no liability for trespass, etc. The plaintiff may not resist or expel the defendant, and the defendant must pay for all actual costs

iv. Mistake: if reasonable, the defendant still has the privilege

g. Authority of Law:

i. Ministerial: defendant must do it properly for privilege;

ii. discretion: must be honest and in good faith

h. Discipline: parent child: look at the factors closely in the casebook, teacher student: privilege exists, Military and ships:

i. Justification: restraint or detention reasonable under the circumstances in both time and manner to prevent another from causing personal injuries or damage to real or personal property

III. Negligence

a. Definition: The failure to use reasonable care under the circumstances.

b. Elements

i. Duty

1. A duty to use reasonable care. Requires the actor to conform to a certain standard of conduct for the protection of others against unreasonable risks

ii. Breach

1. A failure to conform to the required standard

iii. Causation

1. A reasonable close causal connection between the conduct and the resulting injury

2. Two elements:

a. Cause in fact

b. Proximate cause

iv. Damages

1. This is required for the plaintiff in a negligence claim

2. Nominal damages cannot be recovered if no actual damage occurred