Select Page

Torts
University of Toledo School of Law
Slater, Joseph E.

Slater Torts Fall 2012


Intentional Torts
A.      Battery
Requirements
i.      Intent (voluntary) to cause a harmful or offensive act.
ii.      Harmful or offensive contact results.
1.       Personal touching or causing another object to touch.
Elements
i.      Intent
I.            ∆ must intend to touch in a manner that is harmful/offensive OR be substantially certain that an act will result in a harmful/offensive touching (not involuntary)
II.            A person must act objectively reasonable, rather than subjectively.
ii.      Harmful & Offensive Touching
1.       offensive, does not necessarily need to cause physical harm
2.       contact which is offensive to a reasonable sense of personal dignity/majority
3.       what an objectively reasonable person would find to be offensive
4.        if π has an unusually subjective view of what would be offensive and π has communicated this to ∆ (cohen v. smith)
c.        Transferred Intent (Applies to all intentional torts, except IIED.)
i.      Two kinds:
1.       A tortfeasor intends a tort on one person, but commits a tort on another.
2.       A tortfeasor intends one tort, but accomplishes another.
Children
i.      Minority Rule: Children under 7 can’t held liable b/c they can’t form sufficient intent.
ii.      Majority Rule: Some children under 7 can form intent, however it needs to be looked at on case-by-case basis.
iii.      Generally, parents are not liable for the behavior (torts) of their children unless they can prove the parent is directly responsible. If the parent is aware the child has a particular dangerous habit and does nothing to change it, the parent is liable.
Mentally Insane
i.      Insane people are generally held able to form necessary intent provided the person did intend a harmful or offensive act.
ii.      Minority Rule: Dual Intent –Intent to cause offensive/harmful contact AND appreciate the harmfulness/offensiveness of contact
iii.      Majority Rule: Single Intent –  If you intend something that is objectively offensive, tort law will consider that you intended harm even if you did not subjectively intend

B.      Assault
Requirements
i.      D intends to put P in immediate apprehension of a harmful or offensive touching, or other trespassory tort.
ii.      D does put P in such imminent (no significant delay) apprehension.
1.       Apprehension must be that of a reasonable person. An assault constitutes “a touching of the mind, if not the body.”
Future Threats
i.      Words negate intent to effect immediate touching:
1.       “If the cops weren’t here, I’d punch you.” No assault would occur b/c you know nothing will happen.
ii.      Future threats are not considered assaults.
c.        Conditional Threats
i.      If you hand over the wallet, I won’t kick your ass – Assault because can’t make choice between two tortious alternatives, The option that is left to someone is not a legal right.

C.      Intentional Infliction of Emotional Distress (IIED)
a.        Rule:
i.      When the ∆, by extreme and outrageous conduct, intentionally or recklessly causes the victim severe mental distress
1.       the vulnerability of the π and the relationship of the ∆ to the π can be critical
b.       Elements:
i.      Intentional (3 ways)
(1)∆ wants to cause π emotional distress; or
(2)∆ knows with substantial certainty that π will suffer emotional distress; or
(3)∆ recklessly disregards high probability that emotional distress will occur
ii.      conduct of the ∆ was extreme & outrageous to an objectively reasonable person
1.       tend to emphasize that the conduct was:
a.        repeated or carried out over a period of time or
b.       a single abuse of power or abuse of a person known to be especially vulnerable
2.       conduct does not need to be verbal
3.       objective unless, ∆ knows that π is sensitive to specific conduct
iii.      severe distress
1.       medical evidence
2.       P must prove causation
iv.      the action must be the direct cause of the severe distress
1.       a person does not need to show physical manifestation of emotional distress
c.        No IIED with mere insults or vulgarity
i.      Conduct needs to be outrageous
d.       IIED really hard to prove. IIED usually tacked on as damages for another tort.
e.       Exceptions:
i.      certain relationship increase the  standard for IIED
1.       common carriers
a.        impose a higher standard for common carriers, bus drivers etc. (courts split)
2.       employee-employer relationships
3.       Dr.-patient relationships
a.        breach of fiduciary duty
ii.      Third Party Claims:
1.       Transferred Intent for 3rd parties
2.       do not have a claim one EXCEPTION:
a.        Presence Requirement
i.      conduct that is intended to be outrageous to A and in fact outrageous to B, in this situation B can have a valid lawsuit, but only if B is present
ii.      By present, the ∆ must know that they are present or be substantially certain that they are present; so that they could have reasonably anticipated the infliction of emotional distress
iii.      Two Categories:
1.       member of such persons immediate family who is present at the time
a.        they do not need to show physical manifestation of emotional distress
2.       any other person present at the time
a.        they must show physical manifestation of emotionally distress

D.      False Imprisonment
A person intentionally confines another w/out lawful privilege and against his consent within a limited area for any appreciable time, however short.
i.      Actual harm is required, however, to support claim where P was not aware of the confinement at the time it took place.
ii.      Mental harm can be enough to recover damages when Π knows of confinement at time it happens.
Confinement – Implies limited range of movement in an area, but not necessarily a small area.

an include tangible and intangible chattels.
Damages – actual damage to the chattel.

Defenses to Intentional Torts – Privileges
A.      Self-Defense
One is privileged to use reasonable force to defend against harmful or offensive bodily contact and against confinement.
Elements
i.      reasonable belief
1.       it depends on the apparent necessity of self-defense, not actual reality
2.       D could have been mistaken and not be held liable
ii.      Timing
1.       it is judged on its immediate necessity
iii.      Amount/Level of Force
1.       can only use the amount of force that is reasonably necessary to prevent the harm, proportional
2. cannot use force likely to cause death or serious injury unless, there is a reasonable apprehension of the threat of death or serious injury
Reasonable deadly force?
i.      D’s privilege extends only so far as reasonably necessary to prevent the harm, and if the harm threatened is not itself death or serious bodily harm, D may not use force likely to cause death or serious bodily harm. PROPORTIONALITY
ii.      Escalation – Excessive force is unprivileged and D is liable for it.
Retreat
i.      Majority: D who is attacked is not required to retreat or otherwise avoid the need for self-defense.
ii.      Minority: Retreat if it is safe and reasonable if it’s an alternative to using deadly force.
Not Covered by Self-Defense
i.      Provocation
ii.      Delayed retaliation or revenge
iii.      Excessive force

B.      Defense of Third Persons
In general, one may defend others on the same basis he may defend himself.
Mistakenly aiding a 3rd party:
i.      Court is Split on Mistakes
1.       Minority Rule
a.       3rd person defending is liable for battery on the ground that the mistake destroys the privilege
2.       Maj. Rule
a.       hold that the privilege covers, so long as the defendant’s belief was reasonable
C.      Arrest and Detention
a.       Any property owner has a common law privilege to detain against his will any person be believes as tortuously taken his property
i.         Can only be used to prevent theft or to recapture property (not punishment)
ii.        If person detained does not turn out to have stolen property, than arrester is liable for false imprisonment
b.       Menard: is it reasonable to detain beyond store property? 
Court found that it was not
Restatement says, “on the premises for the time necessary” and does not comment as to off the property

D.      Defense and Repossession of Property
The owner of premises may use R force to defend property (may not use unR force) – Law values human life over property.