e is no single definition of “tort”, a civil wrong committed by one person against another.
Categories of torts:
Intentional torts: (everything on pertains to intentional ONLY)
Defined: D does not have to intend to harm P. D knows with substantial certainty that a particular effect will occur as a result of her actions (ex: Garret v. Dailey: kid knew with substantial certainty old lady would hit the ground)
High likelihood: is just reckless, D must have been substantially certain.
1. Battery: intentional infliction of a harmful or offensive contact.
a. Intent: D intended to cause a harmful or offensive contact or D intended to cause an imminent apprehension on P’s part of a harmful or offensive contact.
b. Harmful or offensive contact: pain or bodily damage or damaging a “reasonable sense of dignity”
c. P need not be aware of contact for battery (ex: kiss while sleeping)
2. Assault: apprehension of harmful or offensive contact
a. Intent: 2 different intents either one is proof
i. Intent to create apprehension: to put in imminent apprehension
ii. Intent to make contact: (ex: shoot at P, but miss), i.e. intent to commit battery.
b. No hostility: No malice needed, practical joke enough.
c. Words alone: words alone are usually not sufficient , there must be some overt physical act.
i. Exception: if Ds past actions can make it reasonable for words alone to suffice.
d. Imminence: the threat must be imminent and D has the present ability to carry it out (ex: D threatens to shoot and leaves room to get revolver, no present ability)
e. P unaware of danger: P must be aware of the threatened contact
f. Conditional threat: where D threatens with a demands, the assault depends if on whether D had the legal right to make P perform. (ex: P breaks into D’s house and says get out or ill f you up, no assault because D has the right to force P)
3. False imprisonment: intentional infliction of confinement.
a. Intent: intended to confine or knew with substantial certainty that P would be confined by D’s actions. Cannot be committed recklessly or negligently.
b. Confinement: P is held within certain limits, not prevented from entering.
c. Means used: the imprisonment can be carried out by direct physical means, threats, or the assertion of legal duty
i. Threats: to use force if they try to escape.
ii. Assertion of legal duty: even if D doesn’t have legal authority but a reasonable P would believe D.
iii. P must know of confinement: P must be aware or suffer some actual harm.
4. Intentional infliction of emotional distress: extreme and outrageous conduct, of severe emotional distress. (ex: threats that P pay some people off, or he will be beat down, freaking P out)
a. Intent: broader than the others 3 possible intents
i. D desires to cause P emotional distress.
ii. D knows with substantial certainty that P will suffer emotional distress.
iii. D recklessly disregards the high probability that emotional distress will occur.
b. Transferred intent: applied limitedly, the main exception is an immediate family member
i. D directs his conduct to P’s family member
ii. P is present
iii. P’s presence is known to D
c. Extreme and outrageous: must show “beyond all possible bounds of decency” (ex: telling a woman her husband was injured on the job when he actually wasn’t)
d. Actual severe distress: P must show that her distress was sever enough she sought medical aid. Some tiny jurisdictions require results of some minor injury.
Intentional interference with property
1. Trespass to land
a. Definition: D intentionally enters P’s land, D remains after being invited rightfully, D puts object on or refuses to move said object.
b. Intent: intentional interference with P’s interest in property.
i. If D negligently enters P’s land, this is generally treated as negligence, not trespass.
c. Particles and gasses: If D knowingly causes object, including particles or gases to enter P’s property most courts consider this trespass.
d. Air space: it can be a trespass for a plane to fly over, if it enters into the immediate reaches of the airspace or If the plane substantially interferes with P’s use.
2. Trespass to chattels:
a. Definition: intentional interference with a person’s use or possession (ex: taking some ones car for a 5 minute joy ride, just have to pay damages)
a. Definition: conversion is an intentional interference with P’s possession that is so substantial, D should pay full value.
b. Intent: D intended to take possession of property of the property, mistake of ownership is not a defense. (ex: D buys painting from art dealer, really is stolen, D keeps it in his house for 10 years, D is liable for conversion)
c. Why not trespass to chattels:
i. Duration of D’s dominion over the property
ii. D’s good or bad faith
iii. The harm done to the property
iv. The inconvenience caused
d. Different ways to commit:
i. Acquiring possession: take possession from P, even if impossible to know goods were stolen
ii. Transfer to 3rd parties: (ex: messenger delivers the package to a wrong person who keeps it.)
iii. Withholding goods: refusing to return a foods to their owner for a substantial time.
iv. Destruction: or fundamentally alter the goods.
e. Forced sale: If P successful with lawsuit D can keep good but have to pay P full value.
Defenses to intentional torts:
1. Consent: express consent
a. Implied consent too: from conduct, custom, or other circumstances.
i. Objective manifestation: if it reasonably seems that someone in D’s position that P consented.
b. Lack of capacity: consent will be invalidated if P is incapable of giving that consent because she is a child, unconscious, or drunk.
i. Consent as a matter of law: but even if P is incapable of truly giving consent, can be implied as a matter of law if:
1. P is unable to give consent
2. Immediate action is necessary to save P’s
a. Reasonable force: one making an arrest may not use more than reasonable force.
a. Catch all term for good reason for exculpating D from liability from an intentional tort.
Negligence (everything below pertains to Negligence ONLY)
A. Generally: D’s conduct imposes an unreasonable risk upon another, which results in injury to another. The mental state is irrelevant.
a. Prima Facie case:
i. Duty: a legal duty requiring D to conduct himself according to a certain standard, so as to avoid unreasonable risk to others.
ii. Failure to conform: A failure by D to conform his conduct to the standard
iii. Proximate cause: casual link between D’s act and the harm suffered by P
iv. Actual damage: there must be actual damage suffered by P.
B. Unreasonable risk: P must show D created an unreasonable risk of harm on P
a. Not judged by result: P must show that D’s conduct viewed as it occurred without hindsight , imposed an unreasonable risk.
b. Balancing: negligent if risk outweighs what the law regards as the utility of the act or the manner it was done.
c. Warnings: risks of conduct can be lowered by giving warnings
i. Failure to warn can be negligent itself:
ii. Does not immunize D: if the activity is unreasonably dangerous, despite the warning, D will be liable.
C. The reasonable person: objective standard. Would a person of “ordinary prudence” in D’s position do as D did?
a. Physical and mental characteristics: “the circumstances” generally include the physical characteristics of D himself.
i. Physical disability: the standard for negligence of a person with that disability.
ii. Mental characteristics: doesn’t matter, no defense
iii. Intoxication: no defense
iv. Children: level of conduct of reasonable person that age. Unless doing an activity only adults usually do.
b. Custom: not generally conclusive evidence
i. Evidence by D: if D shows that everyone else in the industry does things the way D did them, the jury is still free to conclude the industry custom sucks.
1. (ex: TJ Hooper even though most tug boats don’t have the new radio doesn’t mean D was not negligent)
2. Proof by plaintiff: If D didn’t follow custom can be evidence of negligence.
c. Emergencies: in emergency situation, D must act merely the same as a reasonable person with the same emergency.