CHAPTER I: Development of Liability
CHAPTER II: Intentional Interference with Person or Property
1. Intent
ØGarratt v. Dailey-If the Δ “knew with substantial certainty” that his actions would cause harmful contact, then the Δ is liable for battery.
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ØAn act which, directly or indirectly, is the legal cause of a harmful contact with another’s person makes the actor liable to the other, if the act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person, the contact is not consented to by the other or the other’s consent thereto is procured by fraud or duress, and the contact is not otherwise privileged.
2. Battery
Ø Battery is the intentional infliction of a harmful bodily contact upon another
Ø If you’re angry at someone and touch them in even the slightest way, that’s battery. On the other hand, if you just graze someone by virtue of being forced in close quarters, and you didn’t mean to hurt them, that’s not battery. But if you force your way through in a rude manner or struggle in such a way that might hurt someone, that is battery.
Ø Intent to bring about a result which will invade the interests of another in a way that the law forbids.
3. Assault
Ø An assault takes place when someone makes “an unlawful attempt to commit a battery”. The court says that “there must be an intentional, unlawful, offer to touch the person of another” and that the other person must have “a well-founded fear of an imminent battery”. Finally, the perpetrator must possess “the apparent present ability to effectuate the attempt”.
Ø Assault requires only apprehension or anticipation (of contact).
Ø Future action not imminent enough
4. False Imprisonment
Ø Person must know of the confinement
Ø False imprisonment occurs when one person directly restrains another person’s physical freedom without legal justification.
Ø Two key elements: 1. restraint of individual against his will and 2. unlawfulness of such restraint.
5. Intentional Infliction of Emotional Distress
Ø An action for intentional infliction of mental distress must contain four elements: (1) intentional or reckless conduct, (2) extreme and outrageous conduct, (3) a causal connection between the conduct and the distress, (4) distress that can be considered severe.
Ø “there is liability only for conduct exceeding all bounds which could be tolerated by society”
Ø An action for intentional infliction of mental distress may lie if the distress is severe, or if an insult is suffered by a patron of a common carrier such as an employee of a hotel, theater, or telegraph office.
Ø In order for the Δ s to be liable for intentional infliction of mental distress, the beating must be done for the purpose of causing the plaintiff mental distress, or else the Δ s must possess substantial certainty that the beating will cause the plaintiff substantial distress.
Ø Measured from objective point of view
6. Trespass to Land
Ø It is an elementary principle, that ever unauthorized, and therefore unlawful entry, into the close of another, is a trespass. From every such entry against the will of the possessor, the law infers some damage; if nothing more, the treading down the grass or shrubbery.
Ø No application of “de minimis non curat lex”
Ø One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove.
Ø Bradley v. American Smelting- In order to recover in trespass by airborne pollutants, a plaintiff must show: 1) an invasion affecting an interest in the exclusive possession of his property; 2) an intentional doing of the act which results in the invasion; 3) reasonable foreseeability that the act done could result in an invasion of plaintiff’s possessory interest; and 4) substantial damages to the res.
7. Trespass to Chattels
Ø The grant or denial of a motion for preliminary injunction rests within the discretion of the trial court. In determining whether a motion for preliminary injunction should be granted, a court must consider and balance four factors: (1) the likelihood that the party seeking the preliminary injunction will succeed on the merits of the claim; (2) whether the party seeking the injunction will suffer irreparable harm without the grant of the extraordinary relief; (3) the probability that granting the injunction will cause substantial harm to others, and (4) whether the public interest is advanced by the issuance of the injunction. None of these individual factors constitute prerequisites that must be met for the issuance of a preliminary injunction, they are instead factors that are to be balanced.
Ø A trespass to chattel may be committed by intentionally using or intermeddling with the chattel in possession of another. Physical “intermeddling” is intentionally bringing about a physical contact with the chattel. An actor may commit a trespass by an act which brings him into an intended physical contact with a chattel in the possession of another.
Ø One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if, (a) he dispossesses the other of the chattel, (b) the chattel is impaired as to its condition, quality, or value, (c) the possessor is deprived of the use of the chattel for a substantial time, or (d) 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.
Ø A plaintiff can sustain an action for trespass to chattels, as opposed to an action for conversion, without showing a substantial interference with its right to possession of that chattel. Harm to the personal property or diminution of its quality, condition, or value as a result of Δ s’ use can also be the predicate for liability. An unprivileged use or other intermeddling with a chattel which results in actual impairment of its physical condition, quality or value to the possessor makes the actor liable for the loss thus caused.
Ø The owner of personal property can create a privilege in the would-be trespasser by granting consent to use the property.
Ø The use of personal property exceeding consent is a trespass.
8. Conversion
Ø Not every wrongful interference with the personal property of another is a conversion. Where the intermeddling falls short of the complete or very substantial deprivation of possessory rights in the property, the tort committed is not conversion, but the lesser wrong of trespass to chattels.
Ø Conversion is an intentional 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.
Ø The measure of damages in trespass is not the whole value of the property interfered with, but rather the actual diminution in its value caused by the interference. A judgment for conversion can be obtained with only nominal damages, whereas liability for trespass to chattels exists only on a showing of actual damage to the property interfered with.
Ø Restatement (Second) of Torts, 222A. What Constitutes Conversion
· Conversion is “‘an intentional 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.”
· How serious does the interference have to be? It must be serious enough that damages for the full market price of the chattel should be awarded. In determining that, these factors are important: 1. The extent/duration actor had control. 2. The actor’s intent to assert a right in fact inconsistent with the other’s right of control. 3. The actor’s good faith. 4. The extent/duration of the resulting interference with the other’s right of control. 5. The harm done to the chattel. 6. The inconvenience/expense caused to the other.
· Ways in which an actor may convert a chattel: 1) Acquiring possession of it-e.g. stealing it; 2) damaging or altering-e.g. running over an animal and killing it; 3) using it-e.g. a bailee seriously violates terms of the bailment; 4) receiving it-e.g. obtaining possession after a purchase from a thief; 5) disposing of it-e.g. a bailee wrongfully sells the chattel; 6) misdelivering it-e.g. delivery to the wrong person by mistake so that the chattel is lost; and 7) refusing to surrender it-e.g. bailee refuses to return chattel.
Ø Effect of Good Faith – If you deliver goods to the wrong person (like someone in disguise) or buy something from a thief, you may still be liable for conversion even if you acted in good faith.
Ø Necessity of Demand; Return of Chattel
· Demand: 1. In most jurisdictions, conversion happens as soon as someone unlawfully takes possession of the chattel. 2. In a few jurisdictions, the owner of a chattel must demand their property back from the possessor and be rejected.
· Return: 1. If the possessor gives the chattel back to the owner, it doesn’t bar an action for conversion, but the damages will be mitigated. 2. The owner doesn’t have to accept the return of the goods, except that in some jurisdictions, if the conversion was innocent and the chattel wasn’t damaged, the owner must take back the goods and won’t have an action for conversion.
Ø Damages- 1.If something gets converted from yours to theirs, you are due the full value of the property converted. How this is calculated can vary, but usually it’s done by market price. 2. Though the property may have special value to the owner, only market price may be recovered unless the Δ ’s conduct is outrageous, in which case the plaintiff may be able to get damages for emotional harm.
Ø What May Be Converted- 1. Conversion originated from trover, which applied to things that can be “lost and found”. 2. However, conversion has now been extended to apply to intangibles such as stock holdings.
Ø Who May Maintain the Action- 1. Anyone who has the chattel when it’s converted can sue for conversion. 2. One converter can even recover from another. 3. Usually, the plaintiff can show some right to the converted good.
CHAPTER III: Privileges
1. CONSENT
· O’Brien v. Cunard- If the plaintiff’s behavior indicated consent, then the Δ ’s reasonable act was not tortious.
· Hackbart v. Cincinnati- If there are rules in an organized activity to prevent the infliction of serious injuries, then the plaintiff cannot be construed to have given up his rights by participating.
· Mohr v. Williams- Any unlawful touching of the plaintiff constitutes battery unless it is necessary.
· De May v. Roberts- Consent is negated if obtained by deceit or fraud.
· Consent induced by fraud or misrepresentation as to a collateral matter, rather than fraud as to the essential character of the act itself, will not invalidate consent.
2. SELF-DEFENSE
· Anyone is privileged to use reasonable force to defend himself against a threatened battery on the part of anothe
1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: If the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B less than PL. HN2It is not in all cases a sufficient answer to a bargee’s absence without excuse, during working hours, that he has properly made fast his barge to a pier, when he leaves her.
Since there are occasions when every vessel will break from her moorings, and since, if she does, she becomes a menace to those about her; the owner’s duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B < PL.
Simply put, the test says:
If (Burden < Cost of Injury x Probability of occurrence), then the accused will not have met the standard of care required.
If (Burden ≥ Cost of injury x Probability of occurrence), then the accused may have met the standard of care.
On the facts, the Court ruled that leaving a barge unattended during the daylight hours poses significant risk such that it would be fair to require a bargee to be aboard the ship. Thus, the accused was found liable for negligence for being absent from the ship without excuse.
This case is most famous for its first expression of Judge Hand’s formula, C > GL or in the more common shorthand, BPL. The calculus of negligence is based on the Coase theorem. The tort system acts as if, before the injury or damage, a contract had been made between the parties under the assumption that a rational, cost-minimizing individual will not spend money on taking precautions if those precautions are more expensive than the costs of the harm that they prevent. In other words, rather than spending money on safety, the individual will simply allow harm to occur and pay for the costs of that harm, because that will be more cost-efficient than taking precautions. This represents cases where B is greater than PL.
If the harm could be avoided for less than the cost of the harm (B is less than PL), then the individual should take the precautions, rather than allowing the harm to occur. If precautions were not taken, we find that a legal duty of care has been breached, and we impose liability on the individual to pay for the harm.
This approach, in theory, leads to an optimal allocation of resources; where harm can be cheaply avoided, the legal system requires precautions. Where precautions are prohibitively expensive, it does not. In marginal-cost terms, we require individuals to invest one unit of precautions up until the point that those precautions prevent exactly one unit of harm, and no less.
Hand stated: The owner’s duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions.
This relationship has been formalized by the law and economics school as such: an act is in breach of the duty of care if:
B < PL
where B is the cost (burden) of taking precautions, and P is the probability of loss (L). L is the gravity of loss. The product of P x L must be a greater amount than B to create a duty of due care for the Δ .
Restatement (Second) of Torts
§291àUnreasonableness; How Determined; Magnitude of Risk and Utility of Conduct
Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.
§ 292àFactors Considered in Determining Utility of Actor’s Conduct
In determining what the law regards as the utility of the actor’s conduct for the purpose of determining whether the actor is negligent, the following factors are important:
(a) the social value which the law attaches to the intere
