McGarity
Torts
Fall 2011
Intentional Torts
A. Intent
· Intent as to result
· Action undertaken with “substantial certainty” of result (Garrat v. Dailey)
B. Transferred intent
· Intent to commit any of the traditional Torts (except conversion or ED) transfers to actual commission of another Tort (Talmage v. Smith)
· Defenses may also transfer: i.e. self-defense may transfer to trespass to chattels (1995 Torts exam answers)
C. The Reasonable Person: Intentional Torts
1. Normal intelligence, memory, sensitivity, and acuity
2. Not adjusted for mental disabilities (McGuire v. Almy), except for deception, but may be adjusted for children (but children can still commit most invasion of person Torts: Garrat v. Dailey)
I. Battery
1. If defendant acts intending (not accidental or negligent: Brown v. Kendall) to cause a harmful or offensive contact with plaintiff or another or an imminent apprehension thereof, and a harmful or offensive contact directly or indirectly results, s/he is liable for battery
2. Contact with something intimately connected to plaintiff's body is the same as contact with his/her body (Fisher v. Carrousel Motor Hotel); kicking a dog on a leash (2nd Restatement)
3. Action undertaken where a reasonable person would think that the result is “substantially certain to follow” is battery (Garrat v. Dailey)
4. “Offensive” is determined by what a reasonable person would think is offensive (Wallace v. Rosen)
5. “Harm” means bodily pain, alteration (even beneficial), or illness; actions that affect only nerves through fear, shock or other emotion do not normally count as harm unless some other bodily harm results
II. Assault
1. If defendant acts intending to cause a harmful or offensive contact with plaintiff or another or an imminent apprehension thereof, and an imminent apprehension directly or indirectly results, he is liable for assault (Western Union Telegraph Co. v. Hill)
2. Words alone cannot constitute an assault, but words can negate an assault (“Were it not assize-time, I would not take such language from you” Tuberville v. Savage)
3. “Apprehension”=belief [1] that imminent contact is likely to follow without self-defensive action, flight, or intervention by an outside force.
4. Conditional threats are still assault, unless a privilege shields D: “Quit touching my wife, or I’m gonna shatter your jaw!” (no liability)
III. False Imprisonment
A: Elements
1. Intent to confine within bounds set by the defendant without adequate legal justification (Big Town Nursing Home v. Newman; Enright v. Groves)
2. Confinement directly or indirectly (Whittaker v. Sandford) results.
3. Plaintiff is conscious of confinement (Parvi v. City of Kingston) or harmed by it (R2 S. 42)
B: Extensions and Limitations
1. No confinement if means of escape exists, but a means of escape unknown to plaintiff, involving exposure (taking girl’s clothes while skinny dipping), or danger may not absolve D of liability
2. Negligent confinement is actionable only if P is harmed (Mouse v. Central Saving and Trust Company)[2]
3. Restrain based on threat to property or another person is FI, but threat of losing one’s job is not (Hardy v. LaBelle)
4. Threats to carry out physical force at some later time are not confinement.
5. If actor has a duty to release someone, failure to release is confinement[3]
IV. Intentional Infliction of Emotional Distress
1. Extreme and Outrageous Conduct.
a. Mere insults are not enough (Slocum v. Food Fair Stores of Florida)
2. Intent or Reckless disregard
3. Actual Severe (Harris v. Jones) Distress (State Rubbish Collectors v. Siliznoff) or Bodily Harm results.
a. The law will not compensate for neurotic overreactions.
b. But if defendant is aware of plaintiff's particular sensitivity, then many courts will allow plaintiff to recover. (Nickerson v. Hodges)
Extension: Action done to Third Person
· Where a defendant's conduct is directed at a third person, s/he is liable to plaintiff if
the other person is in plaintiff's immediate family, even in the absence of any
physical harm to plaintiff. Otherwise, there must be physical damage.
· Defendant must be aware
[2] Rest. S. 35: Just before closing time, A, a shopkeeper, sends B into a cold storage vault to take inventory of the articles therein. Forgetting that he has done so, he locks the door of the vault on leaving the premises. If in a few moments thereafter, he remembers that B is in the vault and immediately goes back and releases B, he is not liable to B for the momentary confinement to which B has been subjected. On the other hand, if he does not remember that B is in the vault until he reaches home and, therefore, although he acts immediately, he cannot release B until B has been confined in the cold vault for so long a time as to bring on a heavy cold which develops into pneumonia, he is subject to liability to B for the illness so caused (as negligence or as false imprisonment?)
[3]It is not within the scope of this Restatement to state when the duty to aid another in release from confinement may arise. Factors to be taken into account are the degree of inconvenience, effort, and expense necessary to make such aid effective, and the extent to which the actor has already made a reasonable but unsuccessful effort, as well as the availability of other sources of help. The actor is not required to do more than is reasonable under the circumstances.
[4] Restatement: A has in his possession slot machines that are forbidden by law in the state. B steals them from A. The court will not aid A to recover from B either the machines or their value.
[5] A intentionally feeds poisonous weeds to B's horse. The horse is made ill for a few hours, but promptly recovers. This is a trespass to the horse, but not a conversion. If, however, the horse is made ill for a month, there is both a trespass and a conversion.
