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Torts
Villanova University School of Law
Wertheimer, Ellen

Torts
Professor Wertheimer
Fall 2011
Villanova Law
 
I.                    Intentional Torts
A.      General
1.       D liable for all consequences of their intentional actions.
2.       P does not have to show actual injury (known as a dignitary tort)
3.       Punative Damanges – extra fines may be awarded designed to protect rights of people especially torts where the harm is offensive to the “humanness of people.”
4.       Respondent Superior:  Employer is liable for their employees negligence but not for their intentional acts unless it was pursuant to their job. (bouncer, security guard)
5.       Eggshell theory – you take the victim as you find them.
B.      Intent
1.       Intent is not a desire to specifically harm or evil intent, but merely the intent to do the desired act
2.       Transferred Intent
a.       Keel v. Hainline: “hit wrong person in eye with eraser” – D was acting with intent to hit someone so he is responsible for anyone he hits.
3.       Must be substantially certain their action will cause harmful contact
a.       Garratt v. Dailey: “pulled chair from under me” – battery does not require intent to injure, but merely that the D is reasonably certain that their conduct will inflict harmful bodily contact
4.       Offensive act done with purpose of causing contact or if actor knew contact would be produced.
5.       Infancy/Insanity is not a defense if there is awareness that the act would result in contact
C.      Battery:  Intentional infliction of unwanted and unprivileged harmful/offensive bodily contact
1.       Elements:
a.       Unwanted Contact
b.       Intent to Contact (does not need to be an intent to harm)
c.        Privileged – crowded world:  there is a certain level of tolerance that should be considered
2.       Cases:
a.       Mink v. University of Chicago: “pills caused defects”
·         Administering pills was intentionally unconsented.  If there’s no disclosure then it’s a battery, when there’s some disclosure and result doesn’t go as planned it’s negligence.
b.       Fisher v. Carrousel Motor Hotel: “grabbed plate out of hand and made racial comments”
·         Held battery even though no actual contact b/c there was contact with something attached to body.  D was acting pursuant to their job so Respondeat Superior applies.
c.        Lambertson v. US: “horseplay ended with meat hook to the face”
·         Contact was intentional so D liable for all results, no Respondeat b/c not pursuant to job
D.      Assault:  an intentional act which puts a person in reasonable apprehension of imminent contact
1.       Elements:
a.       Intent to cause apprehension of contact
b.       An overt act (words alone are not enough unless there are demanding circumstances)
c.        Threat of harm must be imminent (must be in reach of completing the threat)
d.       Victim must be aware of imminent contact
2.       Cases:
a.       Bouton v. Allstate Insurance: “shot a trick-or-treator” – P did not win b/c he was not in a reasonable apprehension of imminent contact.
E.       False Imprisonment: intentional confinement by physical barriers or threat of force set by the D, resulting in confinement, and the P is aware of the confinement or harmed by it.
1.       Elements:
a.       Intentional act with the goal of confining the victim to boundaries set by the actor.
b.       Act results in confinement, and
c.        Victim is aware of their confinement (conscious) or be harmed by confinement
d.       P does not have to escape if it is dangerous but if there is an opportunity for safe escape then it might be considered there was never any imprisonment.
2.       Cases:
a.       Whittaker v. Sandford: “religious cult confines victim on boat” – no physical restraint but the sea acted as confining barrier (escape impossible).  D reasonably knew they were confined.
b.       Dupler v. Seubert: “boss trapped employee in office” – intimidation created confinement.  Reasonable threat of force is enough to confine.  If you injure yourself escaping, that injury is a product of original tort (unless you can safely escape then never false imprisoned).
F.       Intentional Infliction of Emotional Distress:  Intentional or reckless infliction by extreme and outrageous conduct of severe emotional or mental distress.
1.       Elements:
a.       Conduct must be intentional or extremely reckless (done with evil intent)
b.       Conduct must be extreme and outrageous (must be more than trivial criticism)
c.        Must be a casual connection between the wrongful conduct and the emotional distress
d.       Emotional distress must be severe according to a RP  (for public figures it must be done with malice and extremely severe b/c they are expected to have more tolerance)
2.       Deals with psychological effects which are difficult to observe and verify.  Designed to fill gap when other torts cannot be met and there is a need to tell society this behavior won’t be tolerated.
3.       Cases:
a.       Harris v. Jones: “employer makes fun of employees stutter” – employers conduct was intentional and extreme and casually linked however the distress was not “severe”
b.       Hustler Magazine v. Jerry Falwell: “offensive magazine ad” – not emotional distress bc ad could not reasonably be understood to be true and thus no casual connection.  Presents a conflict between constitutional law (free speech).  Held that a public figure can only recover if they show that publication contains a false statement which was made with actual malice.
G.      Trespass:
1.       Intentional act causing unlawful entrance by another, or an object, that interferes with exclusive possession of land.  An unauthorized intrusion, even if no harm, is enough for trespass.
a. Tangible – physical/visible trespass
b. Intangible – invisible intrusion of force.  MUST SHOW PHYSICAL DAMAGE
2.       General Cases:
a.       Dougherty v. Stepp: “D surveyed on part of P’s land” – Intentional entry onto land is trespass and no damage is required.  Trespassed used to determine property lines.
H.      Nuisance:  Intentional act that interferes with the enjoyment of property.  Designed to protect from people that do not physically intrude but causes discomfort.
I.        Trespass to Chattels:  Intentionally using/meddling with chattel owned by another and the chattel is impaired but not destroyed.
J.        Conversion: intentional exercise of control over chattel that so seriously interferes with a persons possession or ownership of property that D is forced to pay the full value of the property.  More serious than trespass to chattels b/c the chattel has been rendered useless and the interference is so serious that the only measure for remedy is the recovery the full value.  Chattels value must be destroyed and there is room for sentimental value.  Conversion can be of intangible information (ideas, research, plans) if it can be proven that suc

spected shoplifter stopped outside” – stores have privilege to check people who they reasonably believe have shoplifted.  Privilege to imprisonment can travel to a reasonable distance from the store if made under a RB.
C.      Privileges to Alleged Trespass to Land or Chattel:  A person may use reasonable force to defend their property but may not use deadly force unless non-deadly force will not suffice or the owner reasonably believes that without deadly force then death or serious bodily harm will occur.  Also allowed to trespass only in order to recover chattel that has gone onto anothers land (sheep) and you act reasonably in recovery.
1.       Cases:
a.       Katko v. Briney: “loaded spring gun in empty farmhouse” – owner may use a mechanical device to protect proprety only if he would be privileged to use a similar degree of force if he were present.
·         Responsible proportionality – can only use DF when being attacked by DF
D.      Necessity
1.       Private Necessity:  D can justify trespass if they do so to avoid injury to himself or property, or property to others.  They are liable for any damage that is caused out of the necessity.  Theory is that it is better to pay for the damages incurred than suffer the total loss.
a.       Ploof v. Putnam: “P moored boat on D’s property who untied boat and hurt P” – The court balances the potential injury to each party and justifies trespass as a necessity if there is potential injury to the trespassing party.
b.       Vincent v. Lake Erie Transp. Co: “boat moored out of necessity damaged dock” – although there was a privilege of necessity, the trespassing party is still responsible for damages bc they have to pay for what they use.  The damage done by necessity is less than what would have been lost if they didn’t trespass.
2.       Public Necessity:  If interference with the land or chattels of another is necessary to prevent harm to the community or to a number of people, this is protected by the privilege of public necessity.  Court employs a cost-spreading method for recovery.
a.       Surocco v. Geary: “blew up house so others wouldn’t catch fire” – P’s house would have been destroyed by the fire and city blew it up bc house was a threat to public safety and justified
b.       Wegner v. Milwaukee Mutual Insurance: “police destroyed house to catch felon” – the P’s house was “taken” for public benefit thus the people are liable for the damages to Ps property.
III.               Duty:  A person has a duty to those they are foreseeably endangering by their conduct, if they create a risk, or if there is a special relationship, or if they volunteer to help.  Also, if a person is acting with another in a common enterprise where the rescuee would expect the rescuer to rescue, then there is a duty.