Intentional Torts: General Requirements

Intentional Torts: General Requirements

• To establish a prima facie case for intentional tort liability, a plaintiff must prove act by defendant, intent, and causation.
• The defendant's act must be a volitional movement.
• Reflexive or convulsive acts are not volitional, and movement caused by someone else is not volitional.
• The requisite intent may be either specific or general.
• Specific intent is present if the actor's goal was to bring about the consequences.
• General intent is present if the actor knows with substantial certainty that the consequences will result.
• A defendant need not intend the injury, only the "consequences of the tort."
• Transferred Intent: When a defendant intends to commit a tort against one person, their intent may be transferred to the same tort against a different person, a different tort against the same person, or a different tort against a different person.
• The transferred intent doctrine applies only to the five original trespassory torts: Battery, Assault, False Imprisonment, Trespass to land, and Trespass to chattel.
• Motive is irrelevant to intent.
• A defendant is liable if they intended the consequences of the tort, even with an innocent motive.
• Minors and incompetents are liable for their intentional torts under the majority view and are held to have the requisite intent.
• The act by defendant must have caused the result that gives rise to liability or set in motion events leading to the result.
• Causation is satisfied if defendant's act was a substantial factor leading to the result.

Harms to the Person: Battery

• A defendant will be liable for battery when they cause the intentional harmful or offensive touching of another.
• Whether the contact is harmful or offensive is judged by the reasonable person test, an objective standard.
• Anything connected to a plaintiff's person is considered the plaintiff's person, e.g. something they are holding.
• A plaintiff need not be conscious that the contact occurred.
• Transferred intent applies.
• Actual damages are not required.
• A court may award nominal or punitive damages where malice was present.

Assault

• A defendant will be liable for assault when they intentionally create an apprehension of immediate harmful or offensive contact, and a reasonable apprehension of immediate harmful or offensive contact results.
• Apprehension must be reasonable.
• Fear or intimidation need not be present.
• Awareness of the imminent contact is necessary for apprehension to exist.
• Apprehension may reasonably exist even if actual contact is impossible, as long as there is the apparent ability to cause contact.
• Words alone do not constitute assault; some overt act is necessary, though words may negate an assault.
• A conditional threat combined with an overt act is sufficient for assault, so long as the defendant did not have the right to impose the condition.
• Apprehension must be of immediate contact, threats of future contact are insufficient.
• There is no assault if the defendant is too far away to do any harm or is merely preparing for a future harmful act.
• Transferred intent applies.
• Actual damages are not required.
• Nominal or punitive damages may be awarded when there is malice.

False Imprisonment

• A defendant will be liable for false imprisonment when they act to confine a plaintiff within fixed boundaries and the plaintiff is thereby confined.
• Most cases require the plaintiff to be aware of the confinement. However, the Restatement has an exception where the confined person is actually injured by the confinement.
• Confinement may be accomplished by physical barriers, physical force, threat of force (express or implied), or failure to provide escape when there is a duty to provide it.
• Lawful arrests are privileged and there is no false imprisonment. Arrests with a warrant are per se lawful. Arrests without a warrant may also be privileged.
• Felony arrests without a warrant by a police officer or private citizen acting at an officer's direction are privileged if the officer had reasonable grounds to believe that a felony had been committed, and the officer had reasonable grounds to believe the person committed it.
• Felony arrests without a warrant by a private citizen acting independently are valid only if a felony had in fact been committed, and the private person had reasonable ground to believe that the person arrested committed it.
• Misdemeanor arrests without a warrant by police officers or private citizens are privileged if the misdemeanor was a breach of the peace and was committed in the presence of the arresting party.
• Arrests to prevent crime without a warrant by police officers and private citizens are privileged where a felony or breach of the peace is in the process of being, or reasonably appears about to be, committed.
• The amount of force allowable for privileged arrests is limited.
• For felony arrests, both police officers and private citizens may use the amount of force reasonably necessary to make the arrest, but deadly force is only permissible when the suspect poses a threat of serious harm to the arresting party or others.
• For misdemeanor arrests, both police officers and private citizens may use the amount of force reasonably necessary to make the arrest, but never deadly force.
• Shopkeeper's privilege: By statute or case law, many states allow a shopkeeper to detain a suspected shoplifter when there is a reasonable belief as to the fact of theft, the detention is conducted in a reasonable manner where deadly force is not used, and the detention is for a reasonable time and only to make an investigation.
• Moral pressure or future threats are insufficient means of confinement.
• There is no requirement that the plaintiff resist the physical force or test the threat that is used to confine them.
• There is no time requirement for the confinement and it may be momentary.
• For a plaintiff to be confined within fixed boundaries, their movement in all directions must be limited.
• No false imprisonment exists if there is a reasonable means of escape of which the plaintiff is aware.
• Transferred intent applies.
• Actual damages are not necessary.
• Nominal damages are possible, and punitive damages are possible if there was malice.

Intentional Infliction of Severe Emotional Distress

• A defendant will be liable for intentional infliction of emotional distress when they act in a manner amounting to extreme and outrageous conduct, and with the intent to cause plaintiff severe emotional distress, or with recklessness as to the effect of their conduct, and severe emotional distress on the part of the plaintiff results.
• Some courts are reluctant to recognize the tort because of the difficulty of proving emotional distress without physical manifestations, and some courts require physical manifestations.
• Extreme and outrageous conduct is conduct that transcends all bounds of decency tolerated by society.
• Without extreme and outrageous conduct, it is generally held that a reasonable person would not have suffered the emotional distress suffered by the plaintiff.
• Examples of outrageous conduct: Extreme business conduct, such as extreme collection methods and misuse of authority in some circumstances.
• Offensive or insulting language will generally not be characterized as outrageous conduct unless there is a special relationship between plaintiff and defendant or a sensitivity on plaintiff's part of which the defendant is aware.
• Common carriers and innkeepers owe special duties to their patrons that will be a basis for liability even when the act is less than outrageous.
• Special sensitivity may include children, pregnant women, and elderly people.
• Bystander cases: When the defendant intentionally causes severe, physical harm to a third person and the plaintiff suffers severe emotional distress because of their relationship to the injured person, the elements of intent and causation may be harder to prove.
• Requirements for emotional distress suffered due to harm to a third person are that the plaintiff was present when the injury occurred to the other person, the plaintiff was a close relative of the injured person, and the defendant knew that the plaintiff was present and a close relative of the injured person.
• A plaintiff need not establish presence or family relationship if they show the defendant had a design or purpose to cause severe distress to the plaintiff.
• Many courts have allowed mental distress recovery where the mental distress results from intentional or reckless mishandling of a relative's corpse.
• Actual damages are required.
• Nominal damages are not awarded.
• Showing severe emotional distress is necessary to recover.
• Punitive damages are allowed where the defendant's conduct was improperly motivated.

Trespass to Land

• A defendant will be liable for trespass to land when they intend an entry onto the plaintiff's real property and entry results.
• The right protected is the right of exclusive possession of real property.
• Any physical invasion of the plaintiff's land is sufficient.
• A defendant need not enter the land, it is sufficient that they cause some object or third person to enter the land.
• A defendant may also be liable when they remain on the land after they entered lawfully but their right to be there has lapsed.
• Courts usually do not treat blasting concussions with no entry of a person or physical object onto the land as trespass, but as nuisance, or strict liability if ultrahazardous activities are involved.
• Mistake as to the lawfulness of the entry is no defense so long as the defendant intended entry onto that particular piece of land.
• Intent to trespass is not required.
• A plaintiff may be anyone in actual or constructive possession of the land, even if there is no title.
• If no one is in possession, the true owner is presumed in possession.
• Transferred intent applies.
• No actual damages are required.

Trespass to Chattel

• A defendant will be liable for trespass to chattel when they intend to act in a way that causes an interference with the plaintiff's right of possession in chattel.
• Interference may consist of intermeddling or direct damage to the plaintiff's chattel or dispossession of the plaintiff's lawful right of possession.
• Mistake as to the lawfulness of the interference is no defense so long as defendant intended the act.
• A plaintiff may be anyone with possession or the immediate right to possession of the property.
• Transferred intent applies.
• Actual damages are generally required and nominal damages are generally not awarded. However, if the trespass amounts to a dispossession, the loss of possession itself is deemed to be actual damages.
• Trespass to chattel is distinguished from conversion in that the interference is not so serious as to warrant requiring the defendant to pay the full value of the chattel in damages.

Conversion

• A defendant will be liable for conversion when they intend to act in a way that causes an interference with the plaintiff's right of possession in chattel that is serious enough to warrant that the defendant pay the full value of the chattel.
• Acts that may constitute conversion include wrongful acquisition, wrongful transfer, wrongful detention, substantially changing, severely damaging or destroying, and misusing.
• A defendant need not intend the damage to or loss of the property, they need only intend to perform the act that caused the damage or loss.
• Even a bona fide purchaser may become a converter if the chattel had been stolen from the true owner.
• Accidentally causing damage or loss is not conversion unless the actor was using the chattel without permission when the accident occurred.
• Temporarily taking, merely moving, or slightly damaging property does not amount to conversion, though it may amount to trespass to chattel.
• One's interference with another's property reaches the level of conversion when they act to exercise dominion or control over it.
• A bailee receiving goods from a thief without notice that they are stolen may return the goods to the thief without liability to the true owner for conversion.
• If the bailee has notice and the real owner makes a demand for the goods, the bailee is liable for conversion if they return the goods to the thief.
• Conversion is limited to tangible personal property, and intangibles that have been reduced to physical form and documents in which title to chattel is merged.
• Intellectual property and real property may not be converted.
• A plaintiff may be anyone with possession or the immediate right to possession. However, if the possessor is not the true owner, they are accountable to the true owner for any recovery to the extent of the owner's interest.
• Transferred intent does not apply.
• The remedies for conversion are damages and replevin.
• A plaintiff is entitled to damages for the fair market value of the chattel, usually computed as of the time and place of conversion.
• The defendant is given title upon satisfaction of the judgment so that, in effect, there is a forced sale of the chattel.
• The plaintiff is not obligated to take the chattel back should the defendant want to return it.
• If the plaintiff wishes to have the chattel returned, they may get it through the remedy of replevin.

Defenses to Intentional Torts: Consent

• A defendant is not liable if the plaintiff consented to the defendant's acts.
• Consent may be given expressly, or implied from custom, conduct, words, or by law.
• Exceptions to express consent:mistake, induced by fraud, or obtained by duress

Defenses: Self Defense

• When a person reasonably believes they are being, or are about to be, attacked, they may use reasonably necessary force to protect themselves.
• A reasonable mistake as to the threat of attack does not invalidate the defense, which also does not cover retaliation.
• Majority of courts do not require retreat, and someone may stand their ground and repel an attack.
• Deadly force cannot be used in response to non-deadly force.
• The amount of force used must be reasonable.
• An aggressor may not use the defense, unless they used non-deadly force initially and were then confronted with deadly force.
• The defense covers accidental injuries to third parties, though the defendant might be liable to the bystander for negligence.

Defense of Others

• A defendant is privileged to use reasonable force to protect another when they have a reasonable belief that such force is necessary, even if the person aided actually had no defense.
• A defendant may use the level of force that would be justified if the attack were directed at them.

Defense of Property

• Someone may use reasonable force to prevent the commission of a tort against their property.
• Deadly force may never be used, including traps, spring guns, and vicious dogs.
• A request to desist is usually required, unless the circumstances make it clear that such a request would be futile or dangerous.
• A reasonable mistake does not invalidate the defense when it involves whether an intrusion has occurred or whether a request to desist is required.
• Mistake will invalidate the defense where the entrant has a privilege to enter the property that supersedes the defense of property right, as long as the entrant did not cause the mistake.

Privileges to Enter Land

• Privileges to enter land that supersede the defense of property right: necessity, right of reentry, and right to enter another's land to recapture chattel.
• Force may not be used to recapture property unless they are in hot pursuit.

Reentry onto Land

• At common law, a person who had been tortiously dispossessed from their land (by fraud or force) could use reasonable force to regain possession if they acted promptly upon discovering the dispossession.
• Modernly, there are summary procedures that replace such self-help.

Recapture of Chattels

• The owner of chattel is privileged to enter the land of a wrongdoer to remove the chattel at a reasonable time and in a reasonable manner, where a prior demand for return of the chattel is generally required.
• Entry onto the land of an innocent party is permitted at a reasonable time and in a peaceful manner when the landowner has been given notice and refused to return the chattel.
• In this case, the chattel owner is liable for any actual damage caused by the entry.
• When the chattel is on the land of another through fault of the chattel owner, there is no privilege.

Privilege of Arrest

• Depending on the facts of the particular case, one may have the privilege to make an arrest of a third person.
• The privilege of arrest carries with it the privilege to enter another's land for the purpose of effecting the arrest.
• A defendant is still liable for any subsequent misconduct, e.g. failing to bring the arrested party before a magistrate, unduly detaining the party in jail, etc.
• One who makes an arrest under the mistaken belief that it is privileged may be liable for false imprisonment.

Necessity

• A person may interfere with the real or personal property of another where it is reasonably and apparently necessary to avoid threatened injury from natural or other forces, and where the threatened injury is substantially more serious than the invasion that is undertaken to avoid it.
• For public necessity, the defense is absolute.
• For private necessity, where the defense is to protect individual persons or property, the actor must pay for the damage they cause.

Discipline

• A parent or teacher may use reasonable force in disciplining children, considering the age and sex of the child and the seriousness of the behavior.

Ordinary Negligence

• A defendant will be liable for negligence when they breach a duty to the plaintiff, and such breach is the actual and proximate cause of the plaintiff's damages, and no defenses apply.
• Elements: Duty, Breach, Causation (two types), Damages, and Defenses

Duty

• Duty of reasonable care: Imposed on all human activity. Duty to act as an ordinary, prudent, reasonable person would act.
• Foreseeable plaintiffs under Palsgraf: When a defendant acts negligently toward one person, causing an unforeseeable injury to another.

Two Views

• Andrews View, duty is owed to everyone where if a defendant acted negligently toward one person, anyone injured by this breach may recover.
• Cardozo (majority) View, A plaintiff may recover only if they were in the “zone of danger" created by the defendant's actions.
• A rescuer is a foreseeable plaintiff so long as the rescue is not wanton.
• A defendant is thus liable if they negligently put themselves or a third person in peril and the plaintiff is injured attempting a rescue.
• A duty of care is owed toward viable fetuses.
• Prenatal injuries are actionable.
• Most states also permit a wrongful death action if the fetus dies.
• Wrongful life damages are not permitted, when the plaintiff is a person born disabled because of a failure to diagnose a birth defect.
• Parents may have an action for wrongful birth, allowing damages for additional medical costs or wrongful pregnancy for failure to provide a contraceptive procedure, allowing damages for unwanted labor.
• Intended third party beneficiaries of economic transactions are owed a duty of care if the defendant could reasonably foresee that negligence would cause harm.
• The reasonable person is judged to have the same physical characteristics as the defendant, such as a reasonable person at risk of seizures would not drive a car.
• The reasonable person has average mental ability.
• People with mental disabilities are liable for harm caused by their negligence, even if it is the result of their disability.
• A defendant is deemed to have the knowledge that an average member of their community has.
• Lack of knowledge is no defense if it is unreasonable.
• A defendant with special knowledge is required to use it.
• For child defendants, the duty is to exercise the level of care that a child of the same age, experience, and training would exercise.
• A child may be held to the adult standard if they are engaged in an adult activity or an inherently dangerous activity.
• Most courts do not have a set age at which liability cannot attach but judge each case on the evidence.
• Not likely that a court would find a duty for a child below the age of four.

Special Duties – Nonfeasance

• Nonfeasance is inaction.
• Absent a special relationship or circumstance, a defendant has no duty to take affirmative steps for another's safety.
• In the case of a special relationship or circumstance, a duty to rescue or take other affirmative steps is imposed.
• In these cases, no Palsgraf foreseeable plaintiff analysis is necessary, the special relationship or circumstance establishes the duty.

Special Circumstances

• Creating the peril, if a defendant creates the peril, they have a duty to rescue.
• Taking charge, if a defendant begins a rescue attempt, they have a duty to continue the attempt in a reasonable manner or to not leave the plaintiff worse off than they found them.
• A number of states have enacted "good Samaritan" statutes which exempt gratuitous rescuers from liability for ordinary negligence.

Land Occupier Duties

• States recognize liability for negligently caused emotional harm to family members that witness another family member being injured or killed.
• Land occupiers have a duty to provide a safe environment on their property to avoid harm to visitors, invitees, and those passing by.
• The legal principles that guide actions for emotional harm, negligence, or recklessness generally remain unchanged.
• Duty to Control or Protect: (Third party nonfeasance)
• Absent a special relationship, a defendant has no duty to control the behavior of another or protect another from harm.
• Duty to Control: Land occupiers have a duty of reasonable care for their actions and failure to act regarding individuals on or off their property.
• A special relationship between a defendant and a third party may give rise to the defendant's duty to control the third party, preventing harm to the plaintiff.
• In California, therapists must take reasonable steps to control a third party where the therapist knows, or based on professional standards, should know, that the therapist's patient presents a serious risk of physical harm to the plaintiff.

Imputed Contributory Negligence

• Plaintiff will often be found to be contributorily negligent when they are in a special relationship with one negligent party, thus barring recovery against a third negligent party.
• Master/servant: imputed
• Partners and joint venturers: imputed
• Husband and wife: not imputed, but recovery barred because loss of services is derivative to main action and will not succeed if main action doesn't.
• Parent and child: not imputed, but recovery barred because loss of services is derivative to main action and will not succeed if main action doesn't.
• Automobile owner and driver: not imputed unless they would be vicariously liable (e.g. master servant, etc.)