Select Page

University of Wyoming School of Law
Duff, Michael C.

Fall 2014
I.  Introduction to Torts
v  Tort = A civil wrong for which the law recognizes a legal remedy on behalf of a private individual.
v  Major Division of Torts
Intentional Torts (intentional) = FAULT
Negligence (careless conduct) = FAULT
Premises Liability (duty of landowner – usually fault based)
II.  Intentional Torts (Chapter 2)  [pg. 13-24] 
vDignitary Torts (violate the essence of a person): Battery, Assault, False Imprisonment
v  Battery/ Assault/False Imprisonment = “exchangeable” transferred intent
¨       Battery: Act, Intent, Harm
o    Restatement 2nd: bodily contact offensive if it would offend “a reasonable sense of personal dignity” might be offensive but NOT harmful
o    Must establish 3 elements:
§  Defendant acted (volitional – the faculty or power of using one's will)
§  Act done with intent to cause a harmful or offensive contact with another
§  Harmful or offensive contact actually resulted
1.  Intent – a person acts with substantial certainty of the consequences & purpose
a.        Garratt v. Dailey (Wash. 1955) involved a minor, who while visiting a neighbor, moved a chair right before another visitor attempted to sit.  The visitor was injured and filed for battery.  Intent found.
b.       Purpose of the actor in that he knew to a substantial certainty that it would cause harm
INTENTIONAL – purpose  or knowledge to a substantial certainty
2.  Defendant does not need to foresee outcome of action
3. Physical contact with the person is not necessary
a.       Fisher v. Carrousel (Tex. 1967) Manager of a restraint knocked plate from guys hand.  Court found that no contact was necessary as long as there is contact with clothing or an object closely identified with the body.
4.  Offensiveness is context dependent and based on a reasonable person standard in that context
5.  Transferred Intent – liability is allowed when defendant acts intentionally towards one person but injures another.  Also transfer btw torts- intent for one resulting in another.
a.        Shaw v. Williamson Tob. Corp. (D. Md. 1997) Addressed idea of can a company be held liable for battery if they caused harmful contact with an individual and acted with sub certainty that someone could be harmed – but did not act against any particular individual. Here found not to apply.
¨       Assault: apprehension of such contact
o    Restatement 2d Definition of Assault
·      An Actor is subject to liability to another for assault  if
·      (a) he acts intending to cause a harmful or offensive contact  with the person of the other or a third person, or an imminent apprehension of such a contact,  and
·      (b) The other is thereby put in such imminent apprehension
·      EXAMPLE NOT TO WORK: Intent to scare someone – take a swing but no intent to hit — they never blink — knew on some level they would not get hit
o    To maintain an action, plaintiff must establish:
a.        Intent
b.       Reasonable fear or apprehension of
c.        Imminent threat of harmful or offensive contact
1.     Apparent ability to harm is all that is necessary (gun does not have to be loaded) based on reasonable person in the circumstances.
a.        Holloway v. Wachovia (N.C. Ct. App. 1993) Agent of collections attempts to repossess car & threaten defaulter and family with gun in process.  Also inadvertently touches defaulter and her son.
2.     Apprehension not necessarily fearful
3.     But it must be:
                a.     immediate temporally (not something that is threatened for later).
                b.     close physically (not over the phone)
                c.     actual (as opposed to hypothetical)
¨       False Imprisonment:
a.  he acts intending to confine the other or a 3rd person within boundaries fixed by the actor.
b.  his act directly or indirectly results in such confinement
c.  the other is conscious of the confinement or harmed by it.
v  Volitional act + intend to confine within fixed boundaries + confinement + consciousness of confinement or harm = “prima facie” case
1.       Area of confinement must be a bounded area
a.        Techmiller v. Rogers Memorial Hospital (WI 1999) Hospital employee discharged under disputed circumstances claimed false imprisonment when her superiors physically followed her and stood in her way as she filled out her exit paperwork and tried to photocopy it.  Court said no FI.
2.       Issues of boundaries include size and strength of others.
3.       Physical restraint is not required (threat of force enough)
4.       Does the individual need to ask to leave? Consciousness of FI required.
5.       Sometimes inaction can be confinement
6.       In general the extent of time an individual is confined is irrelevant.
¨    Trespass to Land – one is subject to liability under trespass, regardless of whether there is any harm to legally protected interest if he intentionally
a.        Enters land in the possession of another, or causes a thing or a 3rd person to do so. Or
b.       Remains on the land, or
c.        Fails to remove from the land a thing which he is under duty to remove
1.     Traditionally an act of physical invasion of someone or by something
a.     Amphitheaters Inc. v. Portland Meadows (Or 1948) Owners of an outdoor movie theater sued race track next door claiming that the lights from the track crossed the boundaries of ownership and interfered with their use of their property.  Court found against them, light not physical enough.
2.     Physically is not always a determinate factor- issue is generally exclusive control of property
a.     Bradley v. American Smelting and Refining  (WA 1984) Landowners sued for trespass damages from deposit on their property of airborne particles of heavy metal from copper smelter nearby.  Can a factory demonstrate intent by releasing particles – court held it could as reasonable certainty particles would land on property near by.  Case remanded for further action, were there actual damages? 
b.     trespass is different from nuisance – trespass interference with exclusive property right; nuisance interference with use and enjoyment of land – trespass is lasting
3.     Intention is to do the action, intent to do the trespass is not necessary (mistake is no defense)
4.     Physical trespass does not require any proof of damage, non-physical trespass, courts have usually required actual damage
5.     Traditionally in trespass an owner owned property in a column, up to heaven and down to hell.  Today the rule is one of effective possession-airspace above and subsurface only owned to the extent of practice usage.
§  Cuius est solum eius est usque ad coelum et inferos
·         “whoever owns the soil, it is theirs all the way up to Heaven and down to Hell”
6.     To be technically precise:
No need to show damages
But invasions of land must be tangible
However, as we will see some states have modified these rules – must ALWAYS consult state law
Mistake but volitional entry is enough to subject actor to liability (Mistake does not matter is there was intent to enter land lawfully possessed by another – enough if land turned out to be in lawful possession of another)
¨    Trespass to Chattels – may be committed by intentionally using or intermeddling with the chattel in possession of another, but only if:
a.        he dispossess the other of the chattel, or
b.       the chattel is impaired as to it’s condition, quality, or value, or
c.        the possessor is deprived of the use of the chattel for a substantial time, or
d.       bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.
1.     In trespass to chattel (unlike trespass) there must be proof of damages deprivation of use can be harm
a.        Compuserve v. Cyber Promotions  (OH 1997) An online computer services sued anonline promotional business for sending continuous unsolicited emails to subscribers after they were unable to prevent the emails through technological actions.  The Court found this was trespass to chattels.
2.     Chattel applies to personal property, not real property (which is trespass)
3.     Like trespass intent is an element but mistake of ownership is no defense.
·         Section 217 Restatement (Second) of Torts = Intermeddling
·               Intention is present when an act is done for the purpose of using or otherwise intermeddling with a chattel or with knowledge that such an intermeddling will, to a substantial certainty, result from the act
¨ Conversion – an act that so seriously interferes with the right of another to control the property that an actor may justly be required to pay the other the full value of the chattel.
a.        The seriousness can be determined by:
1.       The extent and duration of the actor’s

     Defense of Property – A person may use reasonable force to protect property when she reasonably believes that force is necessary to prevent the intrusion (Restatement of Torts)
o    Jury instructions to use on exam:
§  Rule 5:  One may use reasonable force in the protection of his property, but such right is subject to the qualification that one may not use such means of force as will take human life or inflict great bodily injury.
§  Rule 6: An owner of premises is prohibited from willfully or intentionally injuring a trespasser by means of force that either take life or inflicts great bodily injury.
1.       Equivalence rule applies – The force used must be proportional to the threat
2.       No deadly force in defense of property
a.       Katko v. Briney (IA 1971) A property owner set up a shot gun in the room of a house not his home.  There were no signs and it was closed in a room (court held secrecy and lack of warning contributed). A petty theft entered and was injured.  Court held a property owner cannot use extreme force to protect property alone.
b.       Traditionally courts have allowed more force in defense of property and land than personal property.  The closer the property is to the person and their home and family the more this is true.
3.       “hot pursuit” rule – in addition to limiting force, courts also limit the time someone has to defend their property.
4.       Castle Doctrine – in my castle you don’t have to retreat but as long they are not threatening to you, can’t shoot
¨       Necessity  (only defense Trespass charges)– the law permits interference with another’s property under certain emergency circumstances
1.      Private necessity –  one is privileged to commit an act which would otherwise be a trespass to chattels or a conversion, if it is or is reasonably believed to be necessary to protect the person or property of the actor, the other, or a 3rd party from serious harm, unless the actor knows that the person for whose benefit he acts is unwilling that he should do.
a.     Ploof v. Putnam (VT 1908) During a large storm a boat with a man and his family were sailing and were obligated to dock.  The servant of the owner released the knot, the boat capsized, and the family was injured.  The court held necessity and gave the family a right to dock there and the owner was liable for their injury as a result if the unknotting.
b. STAY & PAY – Dock cases – if you stay, you pay any damages.
2.       The actor may be subject to liability for any harm caused by his use of necessity.
a.     Vincent v. Lake Erie Transport (MN 1910) A ship docked at a port to unload goods.  While the boat was there a storm blew in and the boat remained docked.  The court held that the boat owner was liable for damages to the dock, it had the right to remain docked but compensation for damages should still be made.
3.       Public Necessity – One is privileged to commit an act which would otherwise be a trespass to chattels or a conversion if the act is or is reasonably believed to be a necessity for the purpose of avoiding public disaster.
a.       U.S. v Caltex (Philippines 1952) WWII destruction of Caltex facilities in Manila by Army to protect from enemy.
b.       in a public necessity there is an absolute privilege, a defendant who successfully raises this defense if the government uses your property they have to compensate you for it, but if they destroy if under public necessity you get nothing; Caltex destroyed their facilities for the government during the war with Japan, afterwards they were not compensated for anything