TORTS OUTLINE
Proffessor Slater
Fall 2010
INTENTIONAL TORTS
I. Battery: (1) An intent to touch in a harmful or offensive manner and (2) a result that is touching which is harmful and offensive
A. Must show that D intended to cause harmful or offensive contact with P
B. Touching is required
C. If person does not consent to touching then there is the possibility to offend or even harm
D. Majority Rule
1. D needs to know what most people find offensive
2. Law does not protect against the extra-sensitive: If P is subjectively sensitive to a touching that a reasonable person would not find offensive, D will not be held liable if he was unaware of this sensitivity
E. Substantial Certainty
1. If D is substantially certain act will cause harm then there is intent
2. Substantial certainty fulfills intent
3. Example
a. Throwing a rock into a crowd
b. Dropping something off an overhang of a highway
F. Contact:
1. Directly: touching the actual person. Punch, kick, etc.
2. Indirectly: the touching of something connected to person. Ex: plate in line of buffet is sufficient for contact.
G. Dual Intent v. Single Intent
1. Dual Intent—Intend to harm and appreciate that the act will cause harm
a. Retarded person doesn’t appreciate that act will harm but does intend to harm, Alzheimer’s
2. Single Intent
a. All that is needed is to intend to harm or offend, D need not appreciate act will harm or offend
b. Important to cases involving children and people with low mental capacity where intent to harm or offend can be difficult to establish
H. Insanity—rules of battery still apply to the insane. Even if their motives are irrational, still follow same rules
1. Ex. A kid kills his Dad because he thinks he’s possessed by the demon. Still intended to hurt him, regardless of reason.
I. Transferred Intent
1. If you intend to commit battery on A and end up committing it on B accidently it doesn’t matter through transferred intent
2. Note on Transferred Intent
a. Transferred Intent Person to Person
i. Intend to hit A and hit B
b. Transferred Intent Trespassory Tort to Trespassory Tort
i. If you intend one tort and commit another through that action you will be held liable through transference
c. Example
i. You intend to commit A and commit B, THEN liable for B
3. This is all deterrence of an action & for harmed to recover
II. Assault: the intentional causing of imminent apprehension of a battery or other trespassory tort and that person does put another in this situation
A. Imminent Apprehension: P had a concern for their well-being.
B. Words alone do not make an actor liable for assault, UNLESS, together with other acts or circumstances that put P in reasonable apprehension
1. Masked man holding a gun stands at end of dark alley and says I am going to shoot you
C. Long term threats are not imminent, so it does not constitute assault
1. I will beat you up if I see you in Ohio again
2. Can’t make a person choose between tortuous alternatives
a. Give me your wallet or I’ll stab you
D. Law won’t protect the extra sensitive person
BATTERY AND ASSULT MERGE UPON CONTACT
III. False Imprisonment: to intentionally restrain someone against his/her will without legal justification
A. Prima Facie Case:
1. Intentional restraint
2. Against will (must be aware of the confinement)
3. Without legal justification
B. Confinement—implies limited range of movement in an area, but not necessarily a small area. If there is a safe reasonable way out, its not considered confinement
1. If it’s a dangerous escape, then it can be considered confinement
a. If P can remain safe where she is but undertakes an unreasonable escape, she will not be permitted to recover for any damages caused in the attempt to escape
i. Teacher locks student in a closet. P jumps out of 3-story window to escape. Teacher would be charged with F.I. but not damages from her jumping.
2. Does not have to be small area, i.e. if large room, as long as no escape.
3. Exclusion from something is not F.I.—i.e. “you cannot go to Ohio”
4. Threats and Demands—Confinement by explicit or implicit threat or duress
5. Duress of Goods—D grabs P’s wallet and refuses to return it. P wishes to leave, but won’t leave without her wallet
C. Shop Keepers Privilege
1. Shop keepers have limited right to detain customers as long as they have logical reasoning to confine someone, and as long as they don’t use excessive force or for an excessive time frame.
2. Assertion of authority—subm
ereas, if you put a dent in the hood, that would just be trespass, and you would pay for the damages.
V. Intentional Infliction of Emotional Distress (IIED): the intentional or reckless infliction, by extreme and outrageous conduct, that causes severe emotional distress.
A. Prima Facie:
1. Intentional or reckless
2. To cause severe emotional distress
3. To person of ordinary sensibilities
B. Not a trespassory tort
C. Equation
1. P Must prove that D’s conduct was extreme & outrageous, AND
2. Resulting harm must meet the severe threshold
D. Extreme & Outrageous Conduct:
1. Repeated and Carried out over a period of time (regularity)
2. An abuse of power by a person with some authority over the plaintiff
3. Directed at a person known to be especially vulnerable
E. Outrageous conduct does not necessarily need to be words
1. Ex. A landlord cuts off electricity/heat to a tenant
2. Ex. A boss bringing in an employee for a long period of time just for the mere fact of staring at her
F. “Common Carriers”
1. Common Carriers are held to a higher standard (bus drivers, train conductors)
G. P must prove severe emotional distress, P has burden of proof,
H. Rules for Transferred Intent
1. Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress to
a. A member of such person’s immediate family who is present
b. To any other person who is present at the time, if such distress results in bodily harm (i.e. future ulcers)
c. Plaintiffs who are not only present at the time, but are known by D to be present, so that the mental effect can reasonably be anticipated by D.
2. HYPOs
