Torts Outline – Bond Fall 2010
I. Intro
A. Definition of a Tort: no conventional definition; a civil wrong committed by one person against another, arising outside of agreement between parties.
B. Three main types:
1. Intentional: intentional behavior that causes injuries and deemed tortious
o Battery, Assault, False Imprisonment, Infliction of Emotional Distress
2. Negligence: behavior that unreasonable risks personal/property injury to another. D does not intend to bring about certain result, but behaves carelessly.
3. Strict Liability: tortious because causes personal/property damage, regardless of fault or reasonableness. D does not intend to bring about result. Two categories:
o Abnormally dangerous activities (blasting)
o Selling of a defective product that causes personal injury.
C. Significance of Categories:
a. Scope of liability: Intentional tortsfeasor is liable for a wider range of far-reaching, unexpected consequences than a negligent tortsfeasor.
b. Damages: generally, intentional torts more likely to entail broader and more culpable categories of damages (punitive).
D. Five original trespass torts: Assault, battery, false imprisonment, trespass to land, trespass to chattels. No need to prove damages for these five categories. Can be nominal.
II. Intentional Torts Against a Person
Intent
A. Definition
o Desire to bring about certain consequences; or
o Knowledge that actions are substantially certain to bring about consequences. (Malicious intent not needed)
B. Factors:
o A mistake does not negate intent. Ex.:( Ranson v Kitner). trying to kill wolf, killing a dog.
o A mental illness does not negate intent. Ex.: (McGuire v Almy) crazy person whacks D with a table leg.
o Border between intent and negligence: boils down to matter of degree, must look at (subjective) circumstantial evidence. Ex.: (Spivey v Battaglia) P hugs D; paralysis. Need to establish if risk was foreseeable to D.
o Issue of “desire” is subjective. Must establish what D actually believed, not reasonable person.
o Motives are immaterial. Can act with good motive and be liable.
o Substantial Certainty: if D knew with substantial certainty that a particular effect will occur as a result of action, deemed to have intended that result.
§ Children, but not infants are capable of intent. Ex.: (Garrett v Dailey) kid pulls chair from under a woman.
§ High likelihood not enough, recklessness not enough.
§ Intent to harm not necessary. Knowledge with subst. certainty enough.
C. Transfer of intent: Intent can be transferred:
o Among 5 original trespass torts (assault, battery, false imprisonment, tr. to land, tr. to chattels.)
o Not to/from IIED.
o Between people. Ex.: (Talmage v Smith) throw stick at one, hit another.
D. Act v Consequences:
o Restatement (2nd) § 2: An act is an external manifestation of the actor’s will and does not include any of its results, even its most direct, immediate, and intended.
o Ex.: A pulls a trigger of a rifle, hoping to hit deer, unaware of any people. B struck by bullet. A intentionally shot the gun. Yet the harm to B is not intentional; did not act with the purpose to produce the harm, did not know harm substantially likely to occur.
Battery
1. Definition: intentional infliction of a harmful or offensive bodily contact. (1) Act by the D, (2) Intent, (3) Harmful or Offensive Touching, (4) Causation.
1. Intent: not necessary that D desire to physically harm. Enough to :
i. Intent to cause harmful or offensive bodily contact, or
ii. Intent to cause imminent apprehension by P of such contact
2. Contact:
i. Harmful: causing pain or bodily damage
ii. Offensive: damaging reasonable sense of dignity
iii. Actual awareness by P not necessary. (ex: kissing while asleep)
iv. Contact beyond level of consent is a battery.
v. Contact with body (or skin) not necessary, so long as the contact with something that is attached to, or closely identified with the body. Ex: (Fisher v. Carrousel Motor Hotel) plate snatched from hands.
vi. Plaintiff’s hypersensitive reaction is insufficient. Reasonable person standard. Exception: knowledge of hypersensitivity.
3. Act
i. Volitional movement by the actor or some part of his body
ii. Unconscious acts or seizures generally not enough
iii. Reflexes: falling and extending the arm to grab on to something is an act, as the mind has grasped the situation and dictated a muscular contraction.
4. Causation
i. Injury must be caused by D’s act or some force that the act sets in motion; must be directly or indirectly caused.
ii. Liable for both foreseeable and unforeseeable injuries.
iii. Distinguish from negligence, where proximate cause rule may terminate liability for unforeseen injuries.
Assault
o Definition: intentional causing of an apprehension of harmful or offensive contact. (1) Act, (2) Intent, (3) Apprehension (less than fear) of imminent battery, (4) Causation.
o Intent: two types that will suffice:
i. Intent to create apprehension: without intention to fol
loose, cop asks for ID, arrests): claim of FE will not lie if a cop has a warrant or PC of committed offense by the arrested person. No statute for not producing driver’s license.
o Intent: must show that D either:
i. Intended to confine P, or
ii. Knew with substantial certainty that P would be confined by the actions.
o Confinement:
i. P is held within certain limits (preventing from going certain direction not enough).
ii. P held without means to escape. Escape must be reasonable and known. No duty for P to search for escape.
iii. Being prevented from entering certain places not enough.
iv. Irrelevant:
1. Voluntary arrival
2. Ability to walk around
3. Confinement in a Ritz Carlton
o Awareness: P must know of confinement or must suffer some actual harm.
i. Consciousness enough; Recollection not required. Parvi v. City of Kingston: (P drunk, picked up by cops, dropped off outside of town ) P’s present recollection of previous consciousness in not required to make a prima facie case. He was conscious, carried on conversation – deemed enough.
o Exemplary damages: possible if imprisonment intentional and in violation of rights of P.
Ex: Big Town Nursing Home v. Newman
o Reasonable exit:
i. No false imprisonment if reasonable exit available. However, some exits not reasonable (i.e. sewage pipes, high floor widows, unlawful)
ii. Risks must be assessed when making exit. Considered at trial.
iii. When making escape, P bears risk
o Expired consent (or taken away) or lesser consent (lesser car trip): can lead to FE.
o Good motives: do not matter.
Hypo: adult person abducted by cult, programmed. Parents subject to deprogramming against will. Parents’ best intentions irrelevant. Policy.
o Shopkeeper’s Privilege. Bonkowski v Arlan’s: privilege to detain temporarily (reasonable amount of time) extends beyond the store if there is a reasonable belief of shoplifting. Must protect store owners. Often, suspicion does not arise until after person leaves. No false arrest.
