INTENTIONAL TORTS
I.
II.
III.
IV.
V.
VI.
Intent
A. No liability w/o fault [EXC: strict liability] - VanCamp v. McAfoos
B. Desire/purpose to produce forbidden result or; substantially certain knowledge (close to 100%) that result will
occur
Transferred Intent – (Baska)
A. “A” may still be liable even if harm was intended for B or A intends one tort and accomplishes another = liable
i. “Legal fiction” – but allows victim to recover damages
Liability of people of reduced capacity
A. Insane persons (Polmatier), children (Garrett) and mentally ill people are still liable if P is able to prove the
elements
B. No incapacity defenses in the field of torts
C. Parents are not vicariously liable for torts committed by their children
D. Employers are vicariously liable for their employees if the tort is committed within the workplace setting –
respondeat superior
E. Few states hold a certain age under which a child is incapable of an intentional tort
i. Most states assign liability to parents on a limited basis:
a. Child’s tort must’ve been willful or wanton
b. Damages obtained from tort are capped
Battery
A. Intent to cause harmful or offensive contact (violate personal autonomy) and the harm or offense results;
i. Offensive contact =
a. Offensive to a reasonable sense of personal dignity (Snyder)
b. Via prior knowledge, defendant knows plaintiff will be offended by the contact (Cohen)
i. Difficult to determine what would be offensive to the “ordinary person”
B. Single v. Dual Intent
i. Single = Intent to contact
ii. Dual = Intent to contact + intent to cause harm or offensive (White)
C. What can be considered bodily contact?
i. French ambassador’s cane being struck = offensive contact
ii. Extension: an extension of you (post-it on backpack hypo/man’s plate grabbed out of hand)
iii. Shining light in an eye or blowing smoke in a face can be seen as contact (argument can be made either
way as to if it is bodily contact)
D. Awareness: P does not need to be aware for it to be battery
Assault
A. Assault about the P’s peace of mind
B. There can be assault without battery and battery without assault
C. Words alone cannot create an assault because an assault involves imminent action
i. Words and action can be mixed together
D. Conditional threats – are threats unless there is a legal right to the condition
i. Actor must be privileged to enforce infliction; ex. Asking someone to leave your house
E. Cullison v. Medley
i. Facts: Cullison invites 16-year-old, Sandy Medley, to come back to his place; Medley’s family
approaches him; father has gun strapped to thigh and slaps it; mother has gun in pocket
a. Cullison had a reasonable apprehension of imminent battery despite not being physically touched
False Imprisonment
A. Elements of false imprisonment:
i. Intent to confine (knowledge or purpose) the other or a third person w/in boundaries fixed by actor
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a.
An act that is not done with the intent does not make the actor liable to the other for a 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.
i. Ex: Man accidentally locks man in freezer and releases him soon after when he realizes it
= not liable; same scenario, only he forgets until the man has pneumonia = liable for
harm caused
ii. Directly or indirectly results in confinement
a. Confinement must be complete
b. Confinement can be complete even though there is a reasonable means of escape unless the other
knows of it
i. Unless the means of escape would offend a reasonable sense of decency and personal
dignity
ii. Cannot refuse mildly inconvenient means of escape
c. Cannot be confined by preventing another from going in a particular direction in which he has the
right or privilege to go
d. Confinement can be by:
i. Physical force
ii. Threats of physical force
iii. Legal authority
a. Must be reasonable
iii. The other is conscious of confinement or harmed by it
iv. Time of confinement is not applicable except with respect to damages
B. Related Cases
i. McCann v. Wal-Mart Stores Inc. – false imprisonment
a. Facts: Two Wal-Mart employees falsely accused the family of stealing; stopped them from leaving
the store. Family was told police were being called when they were not and told to wait in area
near exit until allowed to leave an hour later
i. Wal-Mart was charged with false imprisonment b/c they confined the family against their
will, they assert legal authority but saying they were going to call the police and the
family was aware they were being detained
ii. Hardy v. LaBelle’s Distributing – no false imprisonment
a. Facts: New employee is accused of shop-lifting, lead to a showroom with large men, a police
office and high-ranking store authority
i. No false imprisonment b/c Hardy stayed and wanted to remedy the situation, did not ask
to leave; she was not told she could not leave and there was no threat of force to stay
ii. Implicit rule: P consents to confinement if they do not object to it
a. Gendered rule? Men are more likely than woman to object; can be argued that
although she did not leave, she felt coerced to stay
VII.
IIED (Intentional Infliction of Emotional Distress)
A. Elements of intentional infliction of emotional distress:
i. D acts intentionally or recklessly
ii. Conduct extreme and outrageous (usually the issue)
a. Conduct is more likely to be outrageous if
i. Exceeds all bounds of decency in a civilized society
ii. It’s repeated or ongoing
iii. D continues conduct after being asked to stop
iv. It takes place in public; humiliation
v. Deliberately target or hone in on vulnerabilities of a person.
vi. Abuse of power (power relationships)
a. Strong cases for intentional infliction of emotional distress?
1. M/F; White/Black; Straight/Gay?? (Is social construction of status as
compelling as actual status positions?)
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iii. P suffers severe distress as a result
a. Severe emotional harm is measured by intensity and duration
b. Minority of courts hold that distress must be severe enough to cause physical manifestations
c. Usually has to be severe enough that P sought medical attention
d. How to prove severe distress? [Important!]
i. A medical testimony
ii. Missed work
iii. Complaints [?]
iv. Avoiding perpetration
v. Exhibit physical symptoms
vi. Self-medication
B. Limited Transferred Intent (Homer)
i. A third person can recover for IIED if:
a. Present (D must know with substantial certainty that P is present) AND,
b. Third person is related OR suffered bodily harm
C. Related Cases
i. GTE v. Bruce
a. Facts: Bruce and two other employees were verbally degraded by a boss who did harassed
reputedly Court held that P established that D engaged in extreme and outrageous conduct due to
severity, regularity, and his abuse of power
i. Court held that GTE was liable for IIED given the ongoing and continuous abusive
conduct
ii. Employers are usually vicariously liable for employees if it happens w/in the scope of the
employment
a. Known as respondeat superior
b. EXC: Employers are not usually vicariously liable for intentional torts b/c it is
outside of the scope of the employment
1. EXC: It can be available if the employee is or thinks he is trying to
serve the intentions of the boss
c. Worker’s comp- can’t sue your boss
1. Plaintiff’s here were GTE employees
2. Maybe intentional torts are outside of worker’s comp
ii. Homer v. Long
a. Facts: Homer’s wife of many years is hospitalized for depression. While in hospital, Dr. Long
seduced her and allegedly took advantage of her, resulting in Homer’s divorce
i. Limited transferred intent does not apply here; Homer was not witness to it; family
member must be present unless child molestation/kidnapping
iii. Jones v. Clinton
a. Facts: Clinton inappropriately propositioned Jones
i. No reasonable jury could find that Jones suffered severe emotional distress
AFFIRMATIVE DEFENSES TO INTENTIONAL TORTS
I.
Self-Defense:
a. An actor is privileged to use reasonable force, not intended or likely to cause death/serious bodily harm to defend
himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that
another is about to inflict intentionally upon him
b. Self-defense only applies when the threat against you is imminent and when you have a reasonable belief (majority
rule)
c. No duty to retreat – Majority rule
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II.
III.
IV.
V.
i. Restatement says you can use non-deadly force before retreating
ii. You must attempt retreat before deadly force is used
1. UNLESS you’re in your own home (Castle doctrine)
d. May only use force that appears to be reasonably necessary to prevent harm – You can use deadly force if you’re
threatened with deadly force
e. Initial aggressor may NOT use self-defense doctrine to defend himself against the other party’s self-defense
i. This changes if victim becomes aggressor (responds with deadly force in the face of non-deadly force)
f. Touchet:
i. Rule: Words/provocation are generally not sufficient to raise the self-defense privilege
ii. Summary: Touchet left threatening voicemails on Hampton’s machine. Hampton went to Touchet.
Touchet said fuck you Hampton. Hampton attacked Touchet.
iii. No self-defense because there was no apparent harm to Hampton’s safety and if there was, he used
excessive force
Defense of third person:
a. In general, one may defend others on the same bases that he can defend himself
Defense and Repossession of Property
a. Privilege to use reasonable and non-lethal force if:
i. Intrusion is not privileged;
ii. Intrusion can be prevented only by force used;
iii. You’ve first requested the other to desist and they’re not leaving
b. Effect of reasonable mistake by D varies
i. Mistake as to danger – If owner’s mistake is about whether force is necessary, owner is protected by
reasonable mistake
ii. Privilege – If owner’s mistake is abut whether intruder has right to be there, use of force will NOT be
privileged
c. May use deadly force only where:
i. Non-deadly force will not suffice, AND
ii. Owner reasonable believes without deadly force, death or serious bodily harm will occur
d. Mechanical devices – May use mechanical device to protect property only if you’d be privileged to use a similar
degree of force if you were present and acting yourself
i. Limited to preventing commission of the tort – Once D has dispossessed P of property and tort is complete,
may not use force to recapture property.
1. Defense still operates if D is in hot pursuit of P (Menard)
e. Katko: After series of break-ins, D sets up spring gun (shotgun) to go off if there is any unlawful injury. P goes in
for bottles and gets shot in the leg.
i. Court holds human life is more valuable than property and rules in favor of P
Arrest and Detention
a. The privilege to arrest can be invoked even if it does not invade the person’s own interests if either they have
reasonable belief that someone committed a felony or if that person committed a breach of peace in your presence
i. Under RS: A mistaken belief does not confer a privilege
b. Privilege of use of reasonable force to reclaim chattels in “hot pursuit” but person must be correct that the person
has stolen chattel (act at your own peril)
c. Property owners have a right to detain for investigation of facts §(120A) if they have a reasonable belief that another
has taken a chattel upon his premises or failed to pay for it
d. Gortarez v. Smitty’s Super Valu, Inc.
i. In the case of shoplifting, there is no breach of peace and therefore, no common law privilege to arrest
ii. To invoke the shopkeepers privilege:
1. Reasonable cause, proper purpose for detention and reasonable manner and length of time for
detention – solely for the purpose of questioning or summoning the cops
2. Can profiling be a factor??
Discipline
a. Parents enjoy a privilege to discipline and use force and confinement; limits are not defined
b. Parents may use reasonable force as they reasonably believe is necessary.
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c.
VI.
Those in charge of other people’s children enjoy same privilege but not the same latitude for punishment (in loco
parentis)
i. EX: Teachers, babysitters, camp counselor, grandparents, school bus drivers, athletic coaches etc.
d. Parents have this right to educate “improve” the child or to have parental autonomy
e. Extension of privilege parents to people in loco parentis
f. Thomas v. Bedford
i. Facts: Boy’s mother sues teacher because of alleged altercation in room in which he allegedly beat up the
boy and the boy sustained minor injuries because of this, thereafter
ii. Rule: Bedford’s use of corporal punishment was unreasonable. The altercation 15 minutes later was a
separate incident and not a spontaneous reaction to the original provocation.
1. Policy arguments: Argue the disciplinary privilege by saying the rule is fine and teacher just
wasn’t reasonable OR rule should be for family members only and not for teachers OR the rule is
bad and should be repealed
a. Narrow argument: Accept the law as is and argue the facts
b. Rule modification: Attempt to modify the rule
c. Rule abolition: Attempt to abolish the rule
Consent
a. Express Consent: D not liable if P expressly consents to intentional interference with his person/property
i. Exceptions: Lacks capacity (intoxication, age, mental infirmity); Fraud (Doe); Duress
ii. These exceptions usually appear all together
1. Robins (DURESS):
a. Facts: Correctional officer and female inmate have sexual relations (fellatio); female
inmate alleges battery
b. Rule: A jailer may not claim consent as a defense for sexual misconduct with a detainee
b/c of her lack on autonomy
i. Often occurs in power relationships, employer relations
2. Kaplan (SCOPE OF CONSENT):
a. Facts: Doctor sued for performing an operation on the wrong herniated disks
b. Rule: Many cases of medical battery involve allegations that the doctor exceed the scope
of the patient’s consent or without the patient’s consent
i. Except in emergency and when obtaining consent is not possible
ii. General consent v. specific consent
3. Doe v. Johnson (FRAUD)
a. Facts: HIV person knew or had reason to know that he had a high risk of being infected
infect
b. Rule: Consent procured by fraud is not valid
b. Implied Consent
i. By virtue of what is considered customary
ii. Reasonable interpretation of conduct [body language]
1. O’brien v. Cunard S.S. Co.(IMPLIED CONSENT)
a. Facts: Irish lady (17 years old) on a ship, surgeon examined her arm and didn’t see mark,
she didn’t have a certificate; she says she got vaccinated in Ireland; surgeon vaccinated
her anyway and she did not object; she extended her arm
b. Rule: There was valid consent here because of body language. Objective test rather than
subjective
c. Public Necessity
i. Private party not liable when private party damages another private party’s property for the common good
1. When act is for the public good, the defense is absolute
2. No individual liability
3. This extends to modifications /destructions of land and also to personal property
ii. Surroco v. Geary
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1.
d.
Facts: Geary is a public officer. He destroyed Surocco’s house during a fire to prevent the fire
from spreading. Surroco was in the process of removing his belongings and would have saved
more had Geary not interfered
2. Rule: Geary not liable for damages because he was acting in public necessity
iii. Wegner v. Milwaukee Mutual
1. Facts: Criminal enters Wegner’s house. Police used tear gas and broke every window of her house
to get him out.
2. Rule: Individual police officers not liable but city has to pay damages done even though the act
was privileged. State constitution says private property cannot be taken or damaged for public use
without just compensation
iv. Cases are distinguishable because Wegner sued the government for uncompensated taking. Surroco sued
Geary as a private party
1. Governmental liability v. private liability
2. Courts are more likely to impose liability on the public than on an individual
v. Property torts have economic consequences. When we have this, we might think of socially engineering
the cost and spread it so its not so burdensome – taxation and insurance
Private Necessity
i. Actor is liable for the harm done in the exercise of remaining on land to prevent serious harm
ii. Privileged to enter/remain on someone else’s land if it’s reasonable to prevent imminent harm to actor,
land, chattels or a third person (Ploof)
1. If in the process of taking refuse you damage land, you must pay
a. Policy arguments: This rule makes one internalize the externality (when you impose a
cost on someone)
i. You sacrifice the cheaper asset to make the efficient choice
2. The owner of the land can’t resist your entry, or you’re allowed to self-defend against him
iii. Vincent v. Lake Erie Transportation Co.
1. Facts: Boat causes damage to Vincent’s dock in the amount of $500 because of securing the ties to
the dock; they were replacing the lines
2. Coase Theorem: Forces the boat owner to take into consideration the cost of the dock and choose
the least expensive option
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