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Torts
University of Toledo School of Law
Pasman-Green, Nora J.

BACKGROUND

Definition: (1) A tort is a civil wrong committed by one person against another; and (2) torts can and usually do arise outside of any agreement btw the parties.
Categories

Intentional Torts
Negligence
Strict Liability

INTENTIONAL INTERFERENCE W/ PERSON

Intent (All intentional torts require the same “intent” element)

Test

Where the actor desires the act for the purpose of bringing about the consequences (purpose prong)
Where he acts with knowledge to a substantial certainty that the consequences will be brought about by his actions (substantial certainty prong)

General: It isn’t enough that the act is intentionally done, even though the actor knows or should know that it contains a great risk of bringing about the contact. Such knowledge (mere awareness) may make the actor’s conduct negligent or even reckless but unless he realizes to a substantial certainty that the contact will result, the actor does not have the intention that is necessary to make him liable under the rule.
Rules:

MISTAKE: Mistake will not negate intent once the requisite state of mind exists.
INSANITY: An insane person cannot be held liable for torts that require specific intent unless P proves that the person was capable of entertaining intent and did entertain it at the time of the act.
TRANSFERRED INTENT: If the original intent was tortuous in nature, D’s intent to cause physical contact with one person will be considered as intent against the second party.

Battery:The intentional infliction of a harmful or offensive bodily contact.

PF Elements:

Intent
Harmful(causes pain or bodily damage) or offensive (a reasonable person would be offended at the time, place, and circumstances btw the parties)
Contact

Direct:
Indirect: contact with an item closely associated with P’s body

P need not be aware: It is NOT necessary that the P have actual awareness of the contact at the time it occurs. (D kisses P while she is asleep. D has committed a battery).

Assault: Intentional causing of an imminent apprehension of immediate harmful or offensive contact.

PF Elements

Intent

Intent to create apprehension (intent to assault)
Intent to make contact (intent to commit a battery)

Imminent Apprehension

Reasonable person standard to determine P’s apprehension
P must be aware of D’s act in order to apprehend it
Fear is not required, P just needs to be aware that the act will occur
Future harm is not covered.

Apparent Ability (words of threat that a reasonable person would fear to disregard)

D must have the apparent ability to complete the act
Words alone are almost never sufficient to constitute an assault. Words must be accompanied by an overt act.

False Imprisonment: One person’s intentional restraint of another person against his will without legal justification. – An intentional confinement of one who is aware of it.

PF Elements:

Intent: Must intend to confine or act despite substantial certainty that confinement will result.
Restraint: Can be accomplished by physical barriers, force, or threats against a person, property, or third parties
No legal justification: Occurs when a lawful confinement is unlawfully extended. Assertion of legal authority, even if the D has none, will give rise to a FI claim so long as P reasonably believed D had authority.

Rules

Mere words nor threats will give rise to an action of false imprisonment unless the words or threats are such as a reasonable person would fear to disregard (giving into moral pressure or clearing one’s name will never suffice to support an action)
If a person fails to provide you with a means of release, they can be held for FI. Physical restraint is required but this does not mean actual physical force must be used. Refusing to provide one with means to overcome a physical barrier (key for locked door) can constitute restraint and such can give rise to a FI claim.
P MUST BE AWARE of the confinement

Intentional Infliction of Emotional Distress: The intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional or mental distress, even in the absence of harm.

PF Elements

Intent

D desires to cause P emotional distress
D knows with substantial certainty that P will suffer ED
D recklessly disregards the high probability that ED will occur
“Transferred intent” is applied in limited fashion to ED torts. If D attempts to cause ED to X, and P suffers ED, P usually will not recover.

Immediate family present EXCEPTION

D directs his conduct to a member of P’s immediate family; AND
P is present; AND
P’s presence is known to D

Extreme and outrageous

Exceeds all reasonable bounds of decency in a civilized society

Wrongful conduct must cause the distress
Emotional distress must be severe

A reasonable standard applied unless D had special knowledge of P’s extra-sensitivity (The extra sensitive person will not be protected).
P must show at least that distress was severe enough that medical aid is sought.

Rules

Mere expressions of insults or general abuse are not actionable unless it can be shown that they were intended to result to bring about severe ED unless there is special knowledge the offender knows regarding the victim.
For one to recover where no physical injury exists, a P must establish that D intentionally caused her to suffer from severe ED.

INTENTIONAL INTERFERENCE W/PROPERTY

Trespass to Land: The intentional invasion of another’s interest in the exclusive possession (constructive or actual) of the land.

Physical Invasion

D enters upon the land; OR
Causes another person or an object to enter the land; OR
Fails to remove something from the land which the D is under a legal duty to remove, OR
Wrongfully remains on the land, despite a legal entry

PF Elements

Intent

Old CL: was viewed as strict liability
Modern: One must intend to commit or cause the physical invasion. A reasonable, mistaken belief that the land is one’s own, is not a defense to trespass.

An Act that affects a possessory interest

Reasonable foreseeability of harm to P’s interest
Substantial damages to interest

Rules

Every unauthorized entry upon another’s land qualifies as a trespass, regardless of the degree of damage done in the process
Actual damages must be proven
OBJECTS: Knowingly causes objects (including particles or gas) to enter P’s property, most courts consider this trespass.
AIRSPACE: Most courts only find liability when

The plane enters into the immediate reaches of airspace (below FAA regulations)
The flight substantially interferes with P’s use and enjoyment

Trespass to Chattels: The intentional interference with a person’s use or possession of chattel (actual or constructive)

PF Elements

Dispossesses the other of chattel (actual harm)
Chattel is impaired in condition, quality, or value (actual harm)
Possessor is deprived of use for a substantial time (no actual harm)
Bodily harm is caused to possessor or harm is caused to some person or thing in which the possessor has a legally protected interest (actual harm)

Conversion: The intentional interference with P’s possession or ownership of property that is so substantial that D should be required to pay the property’s full value.

General

P is entitled to FMV of property at the time and place of conversion
Anything can be converted except when it is attached to land

Elements

Intentional control over property
Factors courts consider to distinguish from trespass to chattel

Duration of D’s dominion over the property
D’s good or bad faith
The harm done to the property
The inconvenience to P

Ways to commit

Acquiring possession

Bona fide purchaser: Most courts hold that a bona fide purchaser of stolen goods is a converter, even if there is no way he could have known they were stolen.

Transfer to a TP: D can commit by transferring chattel to one who is not entitled to it
Withholding goods: D refused to return foods to owner
Destruction: If D destroys the goods, or fundamentally alters them

Rules

Ideas or information are not subject to legal protectionEXCEPT:

When info is gathered and arranged at some cost and sold as a commodity
Ideas are formulated with labor and inventive genius (literary works, scientific research)
Instruments of fair and effective commercial competition, those who develop them may gather their fruits under the protection of law.

DEFENSES TO INTENTIONAL TORTS

Consent

Express: verbally agrees to conduct
Implied: where overt manifestations of the P are such that a reasonable person would be justified in believing that P has consented regardless of what D actually believed.
Exceptions

Where P is mistaken to the nature of the act
Where consent is given under coercion or duress, the consent is deemed invalid
Where the person giving consent lacks the capacity to give consent is invalid.
Cannot consent to an act in which no one can consent (illegal activity, suicide, etc.)

Rules

When consent is used as a defense to an assault action, the totality of the circumstances must be considered, but only overt acts and outward manifestations may demonstrate such consent or lack thereof.
Even in an inherently violent situation (such as football) it is possible for one to go beyond the customs to be liable for injuries.
MISTAKE WILL NOT NEGATE INTENT BUT A GOOD FAITH MISTAKE CAN AFFECT DAMAGES.
In regard to physicians, consent to perform one operation does not automatically operate as consent to perform another, similar operation.
EMERGENCY EXCEPTION:

The patient is unconscious
Risk of serious bodily harm if treatment is delayed
Reasonable person would consent under the circumstances
A physician has no reason to believe patient would refuse treatment under the circumstances.
A doctor may extend a surgical procedure without express consent if he observes a condition that threatens serious bodily harm or impairment. Some jurisdictions limit this to the zone of the original incision.

Self Defense

Privilege Generally: A person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact, and any threatened confinement or imprisonment.
Rules:

Apparent Necessity: Self-defense may be used not only where there is a real threat of harm, but also where D reasonably believes that there is one. (Objective – a reasonable person would believe that impending harm is coming & subjective standard – you must believe you are being threatened with impending harm)

Privilege will still exist where P is mistaken as to the need of force so long as both standards are met.

Only for protection: The defense of self-defense applies only where D uses the force needed to protect himself against harm.

Retaliation: D may not use any degree of force in retaliation for a tort already committed.
Imminence: D may not use force to avoid harm which is not imminent, unless it reasonably appears that there will not be a later chance to prevent the danger.

Degree of force: Only the degree of force necessary to prevent the threatened harm may be used. If D uses more force than necessary, he will be liable for damage caused by the excess.

Deadly force: Special rules limit the use of deadly force, i.e. force intended or likely to cau

Special knowledge: If D has a special relationship with either P or a TP, or special knowledge of the situation, then it may be negligence for D not to anticipate a crime or intentional tort.

PF Elements

Duty: A legal duty requiring D to conduct himself according to a certain standard, so as to avoid unreasonable risks to others

Duty is concerned with whether the law should recognize a special relationship btw the P and D, for which D should protect P from unreasonable risks.

Does a duty exist?

If none exists, negligence isn’t applicable.
Are the risks sufficiently great enough to require a reasonable person to take precaution to prevent them?

What is the duty?

Foreseeability/Risk Tests – even if formulas are misapplied, the outcome should remain the same.

Magnitude of the Risks: Look at the scope of the risks, if it is of a high magnitude then it is deemed unreasonable where death or serious injury is probable.

Foreseeability of harm is the existence of such a likelihood of damage so as to induce action to take care against it on the part of the reasonably prudent person.
Probability, even if it happens just once, makes the magnitude high. It is not part of the test but is a relevant consideration in determining foreseeability.

Risk/Utility (Turntable doctrine – used in commercial settings only) With respect to dangerous instrumentalities, the character, location, and utility of the instrumentality as well as the case of making it safer must be taken into account in determining what degree of precaution is necessary as to not be negligent.

Balance the burden on business to prevent situations where injury may occur with the risk of harm to be done without impairing the utility
Only when there is a high utility will the law not impose a duty
When reasonable, however, and where utility won’t be affected, a duty can be imposed for having failed to engage in a risk reduction alternative.

Carroll Towing: (Maritime only) Is the burden of risk less than the probability X the gravity of the injury? If yes, a duty is owed.

The probability that the injury will occur
The gravity of the injury resulting
The burden of the necessary precautions

Violation of Statute:

How should the statute be applied? (Question of law)

Inquiry into legislative intent/purpose

Whether P was in the class to be protected?
Was injury the type to be prevented?
Is there a Public policy (can override the former 2 considerations) rationale that would weigh against applying the statute in the circumstances?

As a general rule, always plead the CL and analyze the issue through the Risk Formulas because you don’t know in advance whether the court will apply the statute.

What is the effect of applying a criminal statute in the context of civil litigation?

Rebuttable Presumption (PF evidence of negligence) D is allowed to present an excuse. If it is clear and unequivocal and accepted the by the jury, the statute is not allowed. If jury rejects, it becomes negligence per se.

Once the court decides to apply the statute, it creates a presumption of negligence (under breach/duty). D is given opportunity to present an excuse for having violated the statute. You always plead the CL in the alternative in case the jury accepts the excuse. If the jury doesn’t accept the excuse, it converts to negligence per se.

Negligence Per Se (negligence as a matter of law): P is automatically entitled to duty. When a safety statute has a sufficiently close application to the facts of the case at hand, an unexcused violation of that statute is negligence per se and thus conclusively establishes that D was negligent.

Statute must apply to the facts: It will only apply when P shows that the statute was intended to guard against the kind of injury in question.
Protection against a particular harm: The statute must have been intended to protect against the particular kind of harm that P seeks to recover for.
Class of persons protected: P must be a member of the class of persons whom the statute was designed to protect.
Excuse of violation: The court is always free to find that the statutory violation was excused, as long as the statute itself does not show that no excuses were permitted.

D was reasonably unaware of the “factual circumstances” that made the statute applicable.
D made a reasonable and diligent attempt to comply
The violation was due to the confusing way the requirements of the