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Wayne State University Law School
Browne, Kingsley R.

Prof. Browne: Torts Fall 2010

General Tortious Information

“A civil wrong committed by one person against another”


(1) Intentional Torts: where the defendant desires to bring about a particular result

– e.g. Battery, Assault, Trespass, Conversion…

(2) Negligence: where defendant did not intend to bring about a certain result, but merely acted carelessly

(3) Strict Liability: where defendant is liable even though he did not intend to bring about the undesirable result; and used the utmost care

Significance of categories

(1) Scope of Liability: the more culpable defendant’s conduct, the more far-reaching his liability for unexpected consequences (accordingly, an intentional tortfeasor is liable for a wider range of consequences than a negligent tortfeasor)

(2) Damages: Generally, more damages for more culpability

To consider:

(1) Prima Facie: Whether a prima facie case can be made for the tort…

(2) Defenses: What defenses/justifications could defendant raise, if any…

(3) Damages: What damages are applicable if the tort has been committed and no applicable defenses…

Intentional Torts

– Law often distinguishes between intent to commit an act that causes harm and the intent to cause harm itself

– Defendant must have intended to bring about some physical or mental effect upon another person…

– Intent is subjective. What is in the mind of the actor?


– Basically, anyone who deliberately violates the bodily space of another takes the risk that his actions will produce a harm greater than or different from the one he intended to commit

– Act should be distinguished from its consequences…

– “The intent controlling is the intent to complete the physical act and not the intent to cause injurious consequences” –Cleveland Park Club v. Perry

§ 1. Intent

A person intentionally causes harm if the person brings about that harm either purposefully or knowingly

(1) Purpose. A person purposefully causes harm if the person acts with the desire to bring about that harm

(2) Knowledge. A person knowingly causes harm if the person engaged in action knowing that harm is substantially certain to result.

Trespass to Persons (Battery), Land, and Chattels

Vosburg v. Putney (1891) [No intent to harm…]

– Jury instruction: Did the defendant, in kicking the plaintiff, intend to do him any harm? No.

– Plaintiff must prove intention was unlawful or that def. is at fault. By showing that kicking the plaintiff would be an unlawful act, the intention to kick plaintiff would also be unlawful. “A wrongdoer is liable for all injuries resulting from a wrongful act, even if not foreseeable”

§13. Battery

An actor is subject to liability to another for battery 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) a harmful contact with the person of the other directly or indirectly results.

Garrett v. Daily (1955) [Substantial certainty requirement for intent]

– Battery would be established if, when 5 y/o defendant moved the chair, it was his intent or he knew with substantial certainty that plaintiff would attempt to sit down where the chair had been. Without this intent/knowledge, not liable.

White v. University of Idaho

– Def. playfully played piano of plaintiff’s back causing serious injury

– Rejects restatement à No offensive intent needed

Wagner v. Utah

– Mentally impaired man battered woman in a K-mart

– Required mental state à intention to make contact with the pl, not intention to cause harm

Talmage v. Smith (1894) [Transferred intent]

– Defendant threw a stick at trespassers and injured a third, unseen trespasser. Stick labeled: “Tortious intent”

– Intent transfers among like intentional torts…

Shaw v. Brown & Williamson Tabacco Corp. [Battery by Smoke]

– Truck driver sues for exposure to smoke from driving partner

– Rejected: Not sufficient intent, didn’t know with substantial certainty smoke would affect any particular person.


Dougherty v. Stepp (1835) [Trespass to land]

– “Every unauthorized and therefore unlawful entry into the close of another is a trespass”

– Intent to be on property (it may be wrongful) à Trespass.

– Damages depends on damage done

Brown v. Dellinger[Tresspass to Real Property]

– 8 years old kids trespassed and burnt down house after lighting grill on fire in garage

– Controlling intent is intent to complete the physical act, not intent to cause injurious consequences

– Tresspass even if believe property is your own, no wrongful intent needed

PSC of Colorado v. Van Wyk [Intangible Tresspasses]

– Utility sued for intrusion of noise, radiation, electromagnetic fields from upgraded utility lines

– Trespass only if able to show physical damage from intrusion

– Ex: dogs ears pulled, if not hurt, not liable

Trespass to chattel

Definition: intentional interference with the right of possession of personal property.

– “In order that an actor who interferes with another’s chattel may be liable, his conduct must affect some other and more important interest of the possessor.”

Intel Corporation v. Hamidi(2003) [Electronic trespass of chattels]

– No trespass of chattels for “electronic communication that neither damages the recipient computer system or impairs its functioning”

– No consequential damage, and, therefore, no remedies. “Impairment by consent” would threaten to stretch trespass law…

– Must have proximately caused injury, didn’t because computers not damaged.

Ÿ ‘spider’ searches amounted to trespass to chattels

– Pl. has to show actual damage


Poggi v. Scott (1914) [Conversion / Asportation (felonious removal of goods)]

– Regarding unlawful conversion of two hundred barrels of wine in basement.

– “The foundation for the action of conversion rests neither in the knowledge nor the intent of the defendant. It rests upon the unwarranted interference by defendant with the dominion over the property of the plaintiff from which injury to the latter results”

– Motivation is irrelevant. Intent is necessary!


– Defendants bear the burden of proof for affirmative defenses (in prima facie cases)

Consensual Defenses

Mohr v. Williams (1905) [Beyond the scope of consent]

– Plaintiff claims assault and battery on left ear. Doctor’s defenses: (1) standard of care, (2) did not act with wrongful intent, and (3) not negligent

– If the operation was performed without the plaintiff’s consent, and the circumstances not dire enough to justify surgery, it was wrongful. And if wrongful, it was unlawful. Technical (was) assault and battery.

Implied Consent

– Consent may be inferred from conduct, as in smallpox vaccine case. O’Brien v. Cunard Steamship Co. (1891)

Ÿ Reasonable doctor would believe she was giving consent when held out har

– “Medical treatment will be lawful under the doctrine of implied consent when a medical emergency requires immediate action to preserve the health or life of the patient” Allore v. Flower Hospital

Substituted Judgment

– Generally, the consent of a parent is necessary for an operation on a child and incompetents. Bonner v. Moran; Brophy

Hudson v. Craft (1949) [Consent to an illegal act] ????? Review

– Generally can’t consent to illegal act (now minority rule)

– Regarding illegal boxing match. “Maxim volenti non fit injuria.” Consent to an illegal act is effective (minority rule) à barring judicial intervention. The promoter is the “activating force” for injury.

– Consent to an illegal act is usually effective to bar recovery for tortious actions (majority rule now)

– Contributory negligence defense may be used if negligence were the cause of action

§ 61. Where it is a crime to inflict a particular invasion of an interest of personality upon a particular class of persons, irrespective of their assent, and the policy of the law is primarily to protect the interests of such a class of persons from their inability to appreciate the consequences of such an invasion and it is not solely to protect the interests of the public, the assent of such a person to such an invasion is not a consent thereto”

Athletic Injuries

– Cincinnati Bengals

– Generally, a plaintiff consents to injury from blows in accordance with rules of the game, unless deliberately illegal

– However, in Nabozny and Hackbart, a player is liable for injury if deliberate or reckless disregard for safety


McGuire v. Almy (1937) [Insanity is no defense with intent…]

– Insane defendant threatens to kill nurse with chair. Is an insane person liable for his/her actions?

– An insane person will be liable for his/her torts if s/he was capable of entertaining some form of intent.

“Where a loss must be borne by one of two innocent persons, it shall be borne by him who occasioned it…” Gould


Courvoisier v. Raymond (1896) [Self-defense jury instruction not given…]

– Regarding a missing jury instruction on self-defense. If a prima facie case of battery, self-defense would be an adequate defense

– For defense of self-defense, defendant

(1) Must believe that self-defense is reasonable, AND

(2) Self-defense was reasonable

– Must be reasonable and proportionate

– Never can use more force than necessary

Exceptions to self-defense:

– One must retreat if possible to do so safely.

– Cannot use deadly force against non-deadl

st intend to confine the plaintiff, with no liability for negligently caused imprisonments.

– Also, the plaintiff must be aware of the confinement (with the exception if injured during imprisonment)

– Embarrassment (stealing clothes) could constitute confinement

Bird v. Jones (1845) [False imprisonment must contain confinement (no reasonable safe way to escape)]

– Highway traveler prevented from walking through. Not false imprisonment; just obstruction. Not liable.

Coblyn v. Kennedy’s (1971) [Merchant’s privilege]

– General restraint is sufficient to constitute imprisonment

– 70 y/o falsely imprisoned in department store for allegedly stealing. Defendant invokes merchant’s privilege. Burden of proof for an affirmative defense of merchant’s privilege includes:

(1) Reasonable length time? (Yes)

(2) Reasonable grounds for suspicion? (Yes)

(3) Reasonable manner? (No. No identification, no reasons disclosed, physical restraint in a public place)

Sindle v. NYC Transit (1973) [Reasonable measures for safety and protection]

– Prima facie case of false imprisonment on school bus with children. Defense that driver was justified? If confinement justified, defendant not liable.

– If false imprisonment, but escape, the imprisoner is liable for injuries that are reasonable under the circumstances.

**other cases

– 30 minute delay in elevator mineshaft not false imprisonment

– Removal of child from cult not false imprisonment if reasonably believe it to be a cult

– Faking danger to keep people restrained is false imprisonment [Indian workers kept in building, warned of fake danger]

– No false imprisonment if don’t realize were imprisoned.

Intentional Infliction of Emotional Distress: Extreme and Outrageous Conduct

Wilkinson v. Downton (1897) [Not battery, not assault, but fraudulent] à doesn’t require intent

– Practical joke about husband’s injury. Sued for fraud/deceit. Awarded £100 for shock. Court unwilling to adopt/create a new tort.

– “A tortfeasor is responsible for all harm, whether or not it was foreseeable”

– Requires extreme recklessness or outrageous conduct.

Parasitic Damages

Bouillon v. Laclede Gaslight Co. (1910) [Trespass à causation…]

– Meter reader trespasses and allegedly causes miscarriage. To be liable, plaintiff must prove causation. (Naturally, necessarily, directly, and proximately in consequence of his wrong)

– Pl. is assured peaceful repose of her others against unwarranted intrusion from others

– “A trespasser is liable to respond in damages for such injuries as may result naturally, necessarily, directly, or proximately in consequence of the wrong.” (If original act was unlawful)

§46. Outrage.

(1) One who by extreme and outrageous conduct intentionally/recklessly cause severe emotional distress to another is subject to liability, and if bodily harm results, for such bodily harm…

(2) Where such conduct is directed at a third person, the actor is subject to liability if intentionally/recklessly causes emotional distress (a) to a member of such person’s immediate family who is present at the time, or (b) to any other person present if bodily harm occurs

State Rubbish Collectors Assoc. v. Silizinoff (1952) [Privilege required for defense to IIED]

– “Liable if one, in the absence of any privilege, intentionally subjects another to mental suffering incident to serious threats of physical well-being, whether or not the threats are made under such circumstances to constitute an assault”


When is a defendant liable for the physical harm he accidentally or inadvertently causes?

– Traditional: defendant prima facie liable for harm caused to plaintiff’s person or property

– Negligence: plaintiff can recover only if defendant acted with insufficient care