Torts 1 Tammy Asher 2012
Ø WHAT IS A TORT?
A. A civil wrong, other than a breach of contract, for which the law provides a remedy.
B. In the majority of cases the D is in some sense at fault either because he intends the harm or creates an unreasonable risk of harm.
C. In all tort cases, the D’s wrong results in harm to another person or entity that the law is willing to recognize as a legal injury. (Some harm is economic, other such as injury to reputation).
Ø PURPOSE OF TORT LAW
A. To provide a peaceful means of adjudicating the rights of parties
B. To deter wrongful conduct
C. To encourage socially acceptable behavior
D. Restore injured parties to their original condition
Ø TYPES OF TORTS
A. Intentional Torts – desire / purpose OR kwsc
*Bring about results that will invade the interests of another in a way the law forbids.
B. Negligence – acts or conduct that is unreasonable
ex. Cohen v. Petty-for negligence P must est. D acted unreasonably under the circumstances
C. Strict Liability – inherently / abnormally dangerous acts / conduct
ex. Spano v. Parini – liability without fault or one engaged in abnormally dangerous activity.
Ø TORTS V. CRIMES
A. Torts= Purpose of tort action is to vindicate and compensate for infringement of private interests.
*BOP is preponderance of evidence (51%)
B. Crimes= Purpose of crime action is to vindicate public interests.
*BOP is beyond a reasonable doubt
Ø Writ System
A. Writ of Trespass-
o Requires direct & immediate application of force to person / property of P whether or not intended.
o does not require proof of actual damage b/c of criminal character
o does not require culpability – liability imposed w/o D’s fault
o 5 torts originally brought under writ of trespass
a. Assault
b. Battery
c. False imprisonment
d. Trespass to land
e. Trespass to chattels
B. Writ of Trespass on the Case
o injuries intended but not forcible or direct
o requires proof of culpability
o requires proof of actual damages
Ø INTENT- for all 7 torts (BIT FACT)
· What is intent?
1. purpose or desire OR,
ex. purposely moving hand back to hit v. having a seizure and falling on them.
2. knowledge with substantial certainty (KWSC) that harmful or offensive contact will occur. (Subjective test)
a. Subjective Test is used.
I. ex. five-year-old that pulled old ladies chair remanded to determine if child knew that P would attempt to sit- thus substantially certain that a H/O contact would result
II. non-ex. D who gave P unsolicited hug that caused paralysis. That result was no reasonably foreseeable to not liable for battery, more like negligence.
b. intent is established the same way for all individuals regardless of age, mental capacity, drunkenness, etc.
i. ex. Garrett v. Dailey (age) young boy pulled chair from under lady-the issue was to determine if the child had KWSC that P is going to attempt to sit down and if you KWSC that a H/O contact would result.
ii. McGuire vs. Almy (insane) girl went crazy in her room and hit caretaker with chair
c. Goodwill does not negate intent
I. ex. a authorized surgery, even if it’s beneficial to the patient.
d. Motives are irrelevant.
I. 5 yr old again, even though he might have been trying to pull a prank it does not matter.
e. Reasonable mistake does not negate intent
i. ex. Shot at a dog because he was wolf hunting and thought it was a wolf
3. Transferred intent
a. Between Torts – if you intent to commit 1 of the 5 FBATT torts and another of the 5 FBATT torts occur, your intent transfers, and you are liable for all torts committed.
i. Assault
ii. Battery
iii. False imprisonment
iv. Trespass to land
v. Trespass to chattels
b. Between people: if one intends to commit a tort against one person, but the injury occurs to someone else, the intent can be transferred and he is liable for the injury
i. ex. Kids on shed, man shoots at one of them, but hits a different one
Ø Battery –A voluntary act (conscious volitional movement) with intent to cause a harmful or offensive contact with person of another and a harmful or offensive contact (directly or indirectly) results.
I. Interest protected: Freedom from intentional and unpermitted contacts with the P’s bodily integrity
II. exceptions: customary and reasonable contact of everyday life does not constitute a battery
ex. tapping of the shoulder to get one’s attention, being brushed up against on a busy street.
III. elements of battery
1. A voluntary act (conscious volitional movement) with intent (desire or kwsc that a certain result will occur)
i. acting with intent to cause contact, not the actual harm (intentional infliction of pain is not needed)
ii. does not require ill will or malice
2. to cause Contact
i. Direct OR
ii. Indirect OR
iii. Something intimately associated w/ones body OR
iv. Setting something in motion
v. P does not have to be aware of contact at the time it occurs
ex. while someone is sleeping
3. that is Harmful or offensive
I. Harmful= physical bodily harm OR
II. Offensive= Violate dignity of reasonable person
III. (unauthorized, against one’s will) objective test
IV. If D knows it will offend P – has specific knowledge
4. and the H/O contact results
Ø Assault: an intentional voluntary unlawful attempt to touch the person of another in a rude, insolent, or angry manner under such circumstances as to create in the mind of P a well founded anticipation of an imminent H/O contact coupled with the apparent present ability to effectuate the attempt if not prevented. (Reasonable apprehension of immediate H/O contact)
I. Interest protected: Freedom from apprehension of a H/O contact.
II. Elements
1. A voluntary act (conscious volitional movement) with Intent (desire or kwsc)
o Awareness- P must be aware of act
o Fear is irrelevant
o apparent present ability – do not need actual ability to do the act
ex. case where the man was on the other side of the counter and reached his arm across the counter to offensively touched the woman (he had the apparent ability to touch her, but the counter disable him from actually touching her)
2. to cause Apprehension of imminent harmful or offensive bodily contact
o apprehension – is anticipation or expectation of harmful contact
o imminent – no significant delay
o harmful- physical bodily harm
o offensive- offends a reasonable sense of personal dignity (objective)
3. and apprehension results from it.
ü words alone are insufficient UNLESS combined with acts or circumstance that would cause a reasonable person to have apprehension of H/O contact– defusing words
· ex. it wasn’t time for dinner I would hit you right now
ü conditional threat – If the actor intentionally puts another in apprehension of an imminent harmful or offensive contact, he is subject to liability for an assault although he gives to the other the option to escape the contact by obedience to a command given by the actor, unless the command is one which the actor is privileged to enforce by the infliction of the threatened contact or by a threat to inflict it.
Ø False Imprisonment: Direct restraint of a person of the physical liberty of another w/o adequate legal justification.
R2T definition-
(1) An actor is subject to liability to another for false imprisonment if
(a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and
(b) his act directly or indirectly results in such a confinement of the other, and
(c) the other is conscious of the confinement or is harmed by it.
(2) An act that is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for merely transitory or otherwise harmless confinement, although the act involves an unreasonable risk of imposing it and, therefore, would be negligent or reckless if the risk threatened bodily harm. (ex. intent- any appreciable amount of time- making a student stay in class if student has to go to the bathroom, teacher grabbed wrist to make her stay. Is a brief moment.)
o Interest protected: Freedom from unlawful confinement
o elements: (act, intent, result)
1. A voluntary act (conscious volitional movement) with intent (desire or kwsc)
2. to unlawfully confine (restraining a person of their physical liberty without privilege to do so) the other or a third person
o Confinement may be any appreciable amount of time (even a few moments)
3. Within boundaries (restricted area) fixed by the actor
4. and the act directly or indirectly results in such a confinement of the other
5. and the other is conscious (aware) of the confinement OR is harmed by it.
a. Don’t need to recall the confinement after the fact but need to be aware of it when it happened
i. EX Case where drunk man was picked up by police and driven to another city and dropped off at a golf course
b. Harm must be directly caused by the confinement
o Confinement or restraint (overcoming P’s will) may be accomplished by:
o Physical barriers.
o Overpowering physical force
o force or threat of immediate force against the victim, the victim’s family or others in their immediate presence, or the victim’s property.
o submission to any actual force
o Omission where the defendant has a legal duty to act – (Whittaker v. Sanford) – case where woman went on boat to America and said he would take her to land, but he stopped in the harbor and would not give her a boat to get back to land
o Improper assertion of legal authority – (Enright v. Groves). – Police officer arrested the woman for not showing him her driver’s license when being approached about the dog leash ordinance
o other forms
).
o Must have damages UNLESS it is stolen
o Elements: ONLY NEED ONE
1. Intentionally dispossess (steal) the other of the chattel, or
2. the chattel is impaired as to its condition, quality, or value, or
3. the possessor is deprived of the use of the chattel for a substantial time, or
4. 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.
i. EX CompuServe case- customers being harmed by the emails
ii. EX if car is pushed down a hill and hits me
Ø Conversion: An intentional (voluntary act) exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.
o Interest Protected: Protecting substantial interference with (or appropriation of) chattel.
o Elements: A conversion may be committed by any 1 of the following
§ INTENTIONALLY……
a. dispossessing another of a chattel – e.g. stealing the chattel;
b. damaging or altering it – e.g. intentionally running over an animal and killing it
c. using it or control over it – e.g. Bailee seriously violates the terms of the bailment;
d. receiving it – e.g. obtaining possession after you purchase from a thief;
e. disposing of it – e.g. a Billy wrongfully sells the chattel;
f. miss- delivering it– e.g. delivering to wrong person by mistake so that the chattel is lost;
g. refusing to surrender it– e.g. Bailey refuses to return the chattel
o in determining the seriousness of the interference in the justice of requiring the actor to pay the full value the following factors are important:
(a) the extent and duration of the actors exercise of dominion or control;
(b) the actors intent to assert a right in fact inconsistent with the others right of control;
(c) the actors good faith;
(d) the extent and duration of the resulting interference with others right of control;
(e) the harm done to the chattel;
(f) the inconvenience and expense caused to the other
Bona Fide purchaser of converted goods;
If innocent purchaser buys from a thief, he’s a converter & fully liable for conversion.
If innocent purchaser buys from someone with voidable title, he’s not liable for conversion & retains the chattel with impunity.
UCC: If innocent purchaser buys from someone in the business of selling those goods, he takes title to the goods.
Sale, disposal, transfer of possession;
A transfer of possession without actual sale and without gain to the D may still operate as a conversion.
Conversion- effect of good faith: protective rule for agents & bailees: An agent/bailee who receives goods for storage, safekeeping, or transport is not a converter merely b/c he acquires possession.
Conversion- Necessity of Demand & Return of Chattel:
I. Demand Minority rule: Possession by a bona fide purchaser or other innocent converter is insufficient for conversion unless the possessor refuses to return the goods on demand.
II. Demand Majority rule: As soon as D takes dominion & control over the goods in a manner inconsistent with P’s ownership, he’s liable for conversion.
III. Return Majority rule, if the converter returns the goods, it goes to damages.
IV. Return Old rule: Converter could not force goods back on the P.
Conversion- What con be converted:
I. Any type of legally protected personal property. (including protected information- formulated w/ labor or inventive genius, such as literary works or science research, info gathered for things like newpapers magazines, etc.)
II. Real property can’t be converted, but minerals, crops, and trees severed from the realty can be converted because once severed, they’re no longer considered real property.
