TORT: Torts are civil wrongs against persons or their property, not typically premised on contract, for which
the law provides monetary and sometimes injunctive private remedies. Lawyers with expertise in bringing and
defending tort actions are often called “personal injury lawyers.” Sources of tort law are statutes, cases, and the
constitution. Judges use inductive and deductive reasoning with these sources to forward optimal, forwardlooking policy. GOALS of Tort law (keep these in mind as a framework): 1) Compensation of Victims
(payment of costs of injury, moral repair, justice), 2) Deterrence of Aggression (as an economic goal, since
injury is costly, and as a moral/ethical goal, because persons are entitled to bodily integrity and dignity and it
discourages aggression), 3) Incentivizing Safety (also as an econ goal since injury is costly, and it discourages
negligence/sloppiness/lack of care), 4) Punishment of Wrongdoers (punishment for wrongdoing, public society
responding to wrongdoing by imposing a penalty/negative sanction on others), 5) Satisfying Desire for
Vengeance (an individual might want their own personal retribution on top of seeing the public respond to the
person who did them wrong, so if personal vengeance is appeased, discourages self-help, promotes law&order).
INTENT: In the legal sense, an act is deemed to be intentional if it is done either with the subjective purpose of
causing the contact or apprehension thereof, or with the knowledge that such contact or apprehension is
substantially certain to result because of the act. So, the person must either have purposefully committed the act
or knew with substantial certainty that the harm would occur (R2d 8, Garratt v. Dailey). It need not be
malicious, but simply affect a legally protected interest in a way not permitted by law. The subjective
knowledge or belief on the part of the actor that certain results are substantially certain to follow from his
conduct is determined on an objective rather than subjective basis in the sense that actual knowledge or belief,
or lack thereof, on the part of the potentially liable party is immaterial if a reasonable person in their position
would have believed that certain results were substantially certain to follow from the same conduct.
DOCTRINE OF TRANSFERRED INTENT: Under this doctrine, if a person acts intending to cause one of
these harms to X, the D will be fully liable for that intentional tort if the harm instead occurs to another person
entirely. It applies to all intentional torts! (R2d 32, Scott v. Shepherd).
DOCTRINE OF EGGSHELL PLAINTIFF: This is a well established legal doctrine that holds one liable for
all consequences resulting from his or her tortuous activity, even if the victim suffers an unusually high level of
damage (e.g. due to a pre-existing vulnerability or medical condition). Basically, you “take your victim as you
find him”. The defendant is liable for all damages resulting from the wrongful contact, even if such damages
were not reasonably foreseeable, or the tortfeasor didn’t intend to cause such severe injury. The eggshell rule
doesn’t apply to purely emotional tort cases, since we just look at a reasonable person standard for that in
interpreting the reaction. Hypersensitive plaintiffs will not recover for their ‘eggshell’-ness.
BATTERY: Battery is an intentional tort that protects the interests of bodily integrity, safety, and security by
protecting a person from unwanted bodily contact. For a court to find someone liable for battery, a party must
prove by a preponderance of the evidence that there was a volitional act, that intended to (Refer to Intent
above), and caused, harmful or offensive contact to them, or something appurtenant to them (Picard v. Barry),
without their consent or privilege (R2d 13, 18). There is no actual physical injury required to recover for
battery, as long as there was harmful or offensive contact. It must be harmful or offensive, not every mere
touching is actionable (Wishnatsky v. Huey). Conduct is offensive if it “offends a reasonable sense of personal
dignity” or an ordinary person”, and is contact “unwarranted by the social usages prevalent at the time and place
at which it is inflicted” (R2d 19). This also varies greatly with the circumstances of prior interaction.
ASSAULT: An assault is a threatening, physical act or an offer of bodily injury that gives an individual the
reasonable fear of imminent bodily harm (Picard v. Barry). Words alone are usually not sufficient to create a
tort for assault. There must be an apprehension of immediate offensive touching, and words alone usually will
not be sufficient to create this apprehension, unless there is some act or action in addition that indicates the
present ability and intention to do personal violence. Conditional threats can constitute assault if they force
someone to comply with a demand to avoid a consequence. Very similar to battery, assault also requires an
unprivileged, intentional (R2d 8, refer to Intent above) act that causes harm. Unlike battery however, contact is
not required, but rather only an offer of injury that causes reasonable, imminent apprehension of bodily harm.
The test for apprehension is not subjective, but based on what a reasonable person in the plaintiff’s shoes might
have thought. This varies greatly with the circumstances of prior interaction. The purpose of such a tort is to
protect plaintiffs from the apprehension of contact in cases where contact does not actually occur, protecting
their interests in dignity and peace of mind.
FALSE IMPRISONMENT: False imprisonment is an intentional tort that emerged from the old writ of
trespass to protect an individual’s physical integrity by protecting a person’s right to move freely from place to
place, or “freely through the world”. According to R2d 35, false imprisonment requires an intentional act that
directly or indirectly confines the victim to boundaries set by the actor. Confinement is usually in a fixed,
bounded space, but if you simply confine them with your threats if they move, that counts too. R2d lists ways in
which an action may bring about confinement: 1) actual or apparent physical barriers (no reasonable means of
escape, or way of going in another direction, so if there’s an open window right there on 1st floor, that might not
be false imprisonment), 2) overpowering physical force or submission to physical force, 3) threats of physical
force, 4) other duress, and 5) asserted legal authority. The victim must be conscious of the confinement or is
harmed by it. Neither the length of time of the confinement nor the motive is required to find false
imprisonment. For liability to attach, there must be an absence of consent and of privilege. (Lopez v. Winchell)
Defenses to False Imprisonment:
1) Consent--Issue whether was TRUE consent or coercion and whether the timeline was excessive.
2) Privilege to detain a customer to investigate apparent shoplifting
a) Privilege is not limited to police or security, but also store managers or clerks. There are limits on
the privilege—the actor must have REASONABLE belief that theft took place, and the detention
must be LIMITED to the time necessary for a REASONABLE investigation.
3) Privilege to arrest
a) Really complex, with many distinctions. In many circumstances, it is there based upon warrant or
reasonable suspicions that the person has committed a crime… but if this is untrue, then the arrest
constitutes actionable false imprisonment.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: IIED is a recent tort that arose in the second
half of the 20th century that essentially replaced alienation of affection to guard against emotional abuse, thereby
empowering a victim of emotional distress to receive compensation when he or she would otherwise be barred
for a claim such as assault. Under R2d 46(1), a person is liable for IIED when there is 1) intentional (under R2d
8, refer to Intent above) or merely reckless conduct that is also 2) outrageous and intolerable (it offends against
generally accepted standards of decency and morality), that 3) causes (causal connection between the
wrongdoer’s conduct and the emotional distress), 4) severe emotional distress (e.g.: impairment of life
activities). (Womack v. Eldridge). The conduct can be words or acts, as long as they are extreme and
outrageous, exceed all socially acceptable standards, and have caused injury of a serious kind to the plaintiff.
Physical injury manifestations are not necessary (Womack v. Eldridge), and neither is total emotional
disablement to establish serious injury. However, loss of trust, humiliation, shame, and embarrassment may not
be enough to meet the severe distress requirement if P continued normal life activities.
Emotional distress has been slow to become a basis for tort liability for 5 reasons: 1) the character of injury
suffered in mental and emotional distress is difficult to determine; you can’t see it, whereas it’s easy to see a
bodily injury like a broken kneecap. 2) The damages resulting from emotional distress are subtle and
speculative in nature )hard to assess), 3) Emotional distress can lead to fictitious claims, 4) It will open a
floodgate of litigation, and 5) Permitting recovery for emotional distress will encourage perjury, either through
overstating facts for emotion’s sake, or pure fabrication.
PROPERTY TORTS: Intentional torts protecting interests in ownership, possession, and seclusion.
1) Trespass to Real Property (Katko v. Birney): Trespass protects an individual’s personal property. It’s an
unprivileged entrance upon another’s land; the trespasser doesn’t need to know that he or she’s on
another’s land, but only needs to enter on their own volition. For trespass, the intrusion itself constitutes
the violation and the P doesn’t need to show actual harm (R2d 158)
2) Trespass to Chattel: This actually requires intent. P has an action where D either dispossesses P’s
chattel, OR “uses or “intermeddles” with their possessory interests in the personal property in a way that
impairs its quality or deprives the P of use for a substantial time (R2d 217, 218), OR causes bodily harm
to P or harms P’s legal interest in a chattel. (Easy case: borrowing someone’s laptop, Hard case: sending
unwanted spam to someone’s email customers).
3) Conversion: Conversion is a claim when the P’s personal property has been completely dispossessed by
the D. No physical damage has to be shown for there to be conversion, but rather the convertor only
needs to exercise control as to substantially interfere with the P’s right to possess the chattel. (Easy case:
smashing someone’s laptop in anger, Hard case: locking someone’s furniture in a storage unit for a
month). If they sell it, that is conversion. R2d 222A(1) sets out 6 criteria for evaluating seriousness of
interference. Remedy for conversion is the full value of the property dispossessed.
BASIC COMMON-LAW DEFENSES: Consent, Self-Defense, Defense of Another, Defense of Property,
Defense of Property of Another, Recapture of Chattel, Private/Public Necessity, Immunity/Sovereign Immunity.
1) Consent: A mentally competent adult who freely consents to another’s conduct cannot bring a tort claim for
the harm that follows from that conduct (R2d 892). Words, deeds, and contracts suffice as evidence of consent.
Consent of the plaintiff will exonerate the defendant from liability for an act which, on its face, would otherwise
give rise to tort liability. The burden is on the defendant to plead and prove the existence of consent. Consent
may be express (Hart v. Geysel) or implied (e.g. in a true medical emergy, consent to treatment is implied, even
if you’re unconscious). There’s also “mistake of fact”—if you consent to something based on a mistake as to
the nature of the D’s conduct, that doesn’t count as P’s consent (e.g. consenting to eating poison candy from D,
not knowing its poison). There’s also “mistake of law”—consent is ineffective if given under a mistake of law
(e.g. submitting to arrest under belief that an arrest warrant is valid, when it’s actually not). There’s also “fraud”
which gets rid of consent, “duress”, and “unlawful acts”.
2) Self-Defense: One is privileged to use reasonable, non-lethal force to protect onself against reasonably
anticipated non-privileged imminent harmful or offensive contact, or other bodily harm (R2d). The force used
by the actor must be reasonable under the circumstances (objective basis on what would be used by a reasonable
person under similar circumstances), and can’t go beyond the necessity of the perceived situation. So for nondeadly threats, non-deadly force is a defense, and for deadly threats, deadly force is a defense. Modern trend is
that the actor has duty to retreat before using deadly force, unless he’s in his own home or if retreating is
dangerous. Even if you make a mistake in protecting yourself, if reasonable, it’s OK. (Courvoisier v. Raymond).
3) Defense of Property: A person may use reasonable force to protect property when they reasonably believe
force is necessary to prevent intrusion. Reasonable force does not include something that is likely to kill or
inflict serious harm, unless self-defense or another privilege is involved (Katko v. Briney).
4) Public Necessity: One is privileged to enter land or interfere with chattels of another if it’s reasonably
necessary/appears necessary to avert public disaster (R2d 262). Requires 1) immediate and imperative necessity
and not just cheaper/convenient, 2) good faith, for the public good. There’s no compensation for damage.
5) Private Necessity: A person is privileged to enter land or interfere with chattels of another if it’s reasonably
necessary/appears necessary to avert emergency threatening serious bodily harm or property damage, to
yourself, or to another who wants your help (Ploof v. Putnam). If you damage another’s property in the process
of avoiding injury, even if it’s an emergency, you’re still liable for the damages (Vinccent v. Lake Erie).
NON-DEFENSES: 1) Age is not a per se defense to an intentional tort.
1) Mental Illness is not a per se defense to an intentional tort; they still behave with intent, even if it’s
completely delusional. Since there’s intent, they’re liable. Physical Ailment however, is taken into
account, and can be a defense.
2) Low Intelligence is not a per se defense to an intentional tort.