Intentional torts
To establish a prima facie case for intentional tort liability, it is generally necessary that plaintiff prove
1 – Act
Volitional movement by defendant
2- Intent
Specific – actor intents his conduct if his purpose is to bring about the consequences
General – intends the consequences of his conduct if they know with substantial certainty the
consequences will result
**actor need not intend injury, only to bring about the consequences
Transferred - intends to commit a tort against one person but instead
(i) commits a different tort against that person,
(ii) commits the same tort as intended but against a different person, or
(iii) commits a different tort against a different person. In such cases, the intent to commit a tort
against one person is transferred to the other tort or to the injured person for purposes of
establishing a prima facie case.
Only to A, B, FI, TTL, TTC
intent is proven through showing
purpose to bring about result OR
knowledge result will occur
Transferred Intent Doctrine: Intent can be transferred between five torts (battery, assault, false
imprisonment, trespass to chattel, and trespass to land) and to different victims w/in these
 Ex: If A intends to assault B, but accidentally commits battery against B or C, A is liable for
battery
3- Causation
D action legally caused injury to the P
result must have been legally caused by D act or something set in motion thereby.
The causation requirement will be satisfied where the conduct of defendant is a substantial factor in
bringing about the injury.
**Causation assumed per your instructions in class
Battery
a.
Intentional
b.
Harmful or offensive touching
c.
Causation is voluntary – accidental touching does not count
d.
Non-consensual
e.
(only contact is necessary, not apprehension)
i. If there is apprehension = assault + battery
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
Transferred intent (applying to assault and battery) = where actual contact occurs but the
defendant intended only an assault (apprehension of contact or confinement), still a battery
Harmful or Offensive
The bodily contact, which is intended, and which occurs, must be either harmful or offensive.
Offensiveness is determined according to an objective standard, and this determination is made by a
jury.
Contact is harmful if it causes actual injury, pain, or disfigurement. Contact is offensive if it would be
considered offensive by a reasonable person of ordinary sensibilities
P- does not have to be aware of action
TI - a defendant acting with the intent to commit an assault who causes harmful or offensive contact to
the plaintiff has committed a battery.
Assault
a.
Intentional
b.
Act that creates of fear and or reasonable apprehension
c.
of immediate harmful or offensive contact
d.
Apparent ability to commit the crime – reasonable apprehension
Words + act can cause apprehension
But not an act alone
Act requires a result
P- must be aware of action
TI - a defendant acting with the intent to commit a battery who causes the plaintiff to reasonably
apprehend immediate harmful or offensive contact has committed an assault.
False Imprisonment
a.
b.
c.
Intent or knew with certainty to confine or restrain P to bounded area
Voluntary
Means of Confinement or Restraint
1. D is under apparent or physical confinement
2. Force or threat of immediate force
d.
“Three ways do not a prison make” – If there is a reasonable way out, then it is not false
imprisonment
Constraint can be
physical barriers
physical force
direct threats of force
indirect threats of force
failure to provide means of escape
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shopkeepers’ privilege
1. There must be a reasonable belief as to the fact of theft
2. The detention must be conducted in a reasonable manner and only nondeadly force can be
used
3. The detention must be only for a reasonable period of time and only for the purpose of making
an investigation.
** no moral pressures or future threats
** TI applies
IIED
1. An act by defendant amounting to extreme and outrageous conduct
2. Intent on the part of defendant to cause plaintiff to suffer severe emotional distress, or
recklessness as to the effect of defendant’s conduct
3.Causation
4. Damages—severe emotional distress. Must suffer emotional harm
P- must show substantial evidence of EM DIS
Outrageous conduct – subjective
Misuses of authority
Offensive or insulting language
Known sensitivity
Trespass to land
1. Physical invasion of real property by D, either direct or indirect
2. Intent to bring about physical invasion, intent to enter
3. Causation
4. No consent from owner
Intentionally enters P land, remains on the land w/o right to be there, D puts an object on P property
*also applies to particles, gases, objects
*** air above P as long as substantially interferes w/ land
Undue noise, vibration, pollution
Any rightful possessor of land can bring trespass charge
Actual damage to land does not have to occur
TI – applies
Chattels
intentional interference with use or possession, even if chattel is returned unharmed
1.
2.
3.
4.
5.
Act interferes with P right to poses
Intent to perform act bringing about the interference with P right of possession
Causation
Damages
No consent from owner
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Act – intermeddling
Dispossession
As discussed below, conversion grants relief for interferences with a chattel so serious in nature, or so
serious in consequences, as to warrant requiring the defendant to pay its full value in damages. For those
interferences not so serious in nature or consequences, trespass to chattels is the appropriate action.
-Duration of dominion
-D good or bad faith
- harm done to prop
- inconvenience to P
Conversion
Intentional interference with P possession or ownership of property that is so substantial that D pay full
value
1. An act by defendant interfering with plaintiff’s right of possession in the chattel
2. Intent to perform the act bringing about the interference with plaintiff’s right of possession;
3. Causation
4. Damages—an interference that is serious enough in nature or consequences to warrant that the
defendant pays the full value of the chattel.
no proof of damages required
Defenses
B – consent, justification, self-d, defense of others
A – consent, justification, self-d, d of other
FI – consent, justification, self-d, d- of others, sk priv. PO arrest w+w/o warrant
IIED – consent, justification
TTL – consent, justification, defense of prop, necessity
TTC – consent, justification, recapture, SK priv., necessity
CONV – consent, justification, necessity
1. Consent
Ex: If one consents to a boxing match, cannot recover for tort of battery
2. Defense of property
3. Necessity (privilege)
Threatened injury must be substantially more serious than the invasion
4. Defense of property
Person’s life always supersedes property damage
Public – usually means private property has been destroyed to preserve public interest, government
required to make compensation but amount in controversy
Private – property destroyed to protect private interests, can result in tort action
.
But can never hurt someone in doing so, people > property
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Note: In defense (of self, others, property, right to recapture chattel), there exists liability where
excessive force is used, proportional to amount of force which is considered excessive
Consent
A defendant is not liable for an otherwise tortious act if the plaintiff consented to the defendant’s
act. Consent may be given expressly; it may also be implied from custom, conduct, or words, or by law
Expressed – p shows expressed willingness to D conduct
Implied – by actions, omissions, based on contested, consent regardless of intent
1 – must show consent was valid w/o fraud
2 – w/in scope of action
3 – not consenting to a criminal act
Exceptions: Infancy (minor child), Mental incapacitation, Intoxication
Self – Defense
When a person has reasonable grounds to believe that he is being, or is about to be, attacked, he
may use such force as is reasonably necessary for protection against the potential injury.
The actor need only have a reasonable belief as to the other party’s actions;
**reasonable force only to prevent the harm
Retaliation not allowed
** does not apply to initial aggressor
OTHERS –
Actor has reasonable belief that the person being aided would have the right of self-defense.
Thus, even if the person aided has no defense (e.g., if he were the initial aggressor), his defender
is not liable as long as he reasonably believed that the person aided could have used force to
protect himself.
same force used as if he were in trouble
PROPERTY – reasonably force to prevent tort against property but non deadly unless tortfeasor is
deadly too
** warning required
may not use indirect deadly force such as a trap, spring gun, or vicious dog when such force
could not lawfully be directly used,
deadly force- only when non-deadly will not suffice OR owner reasonably believes death might occur
Necessity –
A person may interfere with the real or personal property of another where the interference is
reasonably and apparently necessary to avoid threatened injury from a natural or other force and where
the threatened injury is substantially more serious than the invasion that is undertaken to avert it.
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.
Ex: Ploof v. Putnam – docking of ship on private dock during storm (death more serious than
destruction of dock)
Public necessity v. Private necessity
Public – usually means private property has been destroyed to preserve public interest, government
required to make compensation but amount in controversy
Public Necessity Where the act is for the public good (e.g., shooting a rabid dog), the defense is
absolute.
Private – property destroyed to protect private interests, can result in tort action
1. Private Necessity Where the act is solely to benefit a limited number of people the defense is
qualified; i.e., the actor must pay for any injury he causes. Exception: The defense is absolute
if the act is to benefit the owner of the land.
Negligence
Duty + Breach are assumed in neg per se and res ipsa
To establish a prima facie case for negligence, the following elements must be proved:
1. duty on the part of D to conform to a specific standard of conduct for the protection of P
against an unreasonable risk of injury;
2. Breach of that duty by D
3. Cause in Fact (factual)
4. proximate cause (Legal)
5. Damage to the plaintiff’s person or property. (actual harm)
first sign of negligence, because without it, you have no negligence claim
Duty of care - Does it exist?
Actor has a duty to exercise reasonable care when the his conduct poses a risk of physical harm to other
people. In most cases, existence of such can be assumed
** best you could do is irrelevant
Breach of Duty-of Care
Must show D did not act to the standard of ordinary care, subjective, jury instruction
Duty of care
A duty of care is owed only to foreseeable P—the class of persons who were foreseeably
endangered D negligent conduct. Someone who is not within the “zone of danger” from the
defendant’s conduct cannot recover.
**Owed only to foreseeable plaintiffs.
Palsgraf Andrews - Some courts follow the approach of the Andrews dissent in Palsgraf, whereby a
duty of care is owed to anyone who suffers injuries proximately caused by the defendant’s negligence.
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Two approaches to establishing DUTY:
1) Hand formula  break it down into its comparative components, DUTY EXISTS when:
B < L P where B = Burden of taking preventative measures against harm
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P = Probability of harm
L = Severity or Gravity of the Loss
TJ Hooper: Custom sometimes used as a defense, but burden still rests on D to
prevent harm if it is easy to come by and cheap to do
2. Reasonable person standard - were D’s risks acceptable?
i. Objective standard
ii. Stupidity ≠ excuse
Reasonable person – objective standard
*care taken by
The Reasonable Person Defendant’s conduct is measured against the reasonable, ordinary, prudent
person. This reasonable person has the following characteristics, measured by an objective standard:
person of same intelligence, age, training, or mental defect
*reasonable person anticipates the conduct of others
individual handicaps are not considered, individual shortcoming are not considered.
Blind guy case – acted like reasonable blind guy
Negligence per se
Applied when a safety statute has a sufficiently close application to the facts of the case at hand, an
unexcused violation of that statute establishes D was negligent
 Speeding and hitting pedestrian, violation of speed limit (statute) establishes D was negligent
To apply, must show:
1.Protected harm (statute meant to protect against the harm caused)
2.Protected class (P is within the group of people the statute is meant to protect)
3.Prima facie negligence case
Court will adopt the standard of care set about by the statute
 Local ordinance
 What about a private corporation’s rules/laws?  custom
 More like evidence of what the standard of care is
 Once shown law was violated, do not need to establish any other elements of negligence
Res Ipsa Loquitur – “The thing speaks for itself”
w/o precise showing of how D behaved, they were probably negligent
 A way that the P can avoid getting his case dismissed for lack of evidence
Gets you to the court
 Burden is on the P to prove more likely than not, D is responsible
 P must show:
1. Resultant harm does not normally happen without negligence
2. Exclusive control – D is only person who could be responsible
3. Passive P, P did not cause harm directly (completely innocent, had no way of
contributing to harm caused to him, ex: surgical procedure, was knocked out)
 Special exception to exclusive control requirement:
 P could not show that his injury came at the hands of one specific D
 D uses defense that P cannot show which D had exclusive control
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
Court allows res ipsa to apply, holds that Ds cannot get away with negligence b/c all Ds had
a duty of care to P and actual harm resulted
 In group res ipsa case, burden of proof shifts to Ds
Cause in fact
Breach must actually cause harm
**But-for
Breach is the actual cause of the harm
But for D actions, the injury to the plaintiff would not have occured
Identify harm -> identify D wrongful conduct -> corrected (wrongful) action hypo -> would harm have
still occurred had D behaved correctly ->
**Substantial factor
2 causes concur to bring about an event and either one of them alone would have been sufficient to
cause identical result, some other test is needed.
Applies with multiple D
Each D must have materially contributed to P injuries
*Alternative Liability
Where the conduct of two or more Ds is tortuous, and harm to P was caused by only one of them but
there is uncertainty as to who, burden is upon each actor to prove that he was not the cause of harm
Pennfield case – Ds responsible for 100% of damages
*Market Share
Each D cannot disprove causation, is held liable for its share of the market
DES cases – If D company had 15% market share  pays 15% of damages
Problem: Usually significant amount of time has passed since D interacted with P. What if D company
has since gone bankrupt?
*Concerted Action
P must show D’s conduct is more probably than not the cause of his injuries
DES cases – all D companies chose to turn a blind eye to lack of testing, should all be held liable for
resulting effects
Drag racing example:
Two people agree to race.
One driver hits a third person during the race
Other driver is also held fully responsible for third party’s injury, though there was no
contact between them
*Lost Opportunity Doctrine
Permits P to maintain action for malpractice when it denied P an opportunity to avoid the injury, even
where opportunity was ≤50%
Policy: weak argument from corrective justice perspective
How to calculate compensation for a 5% chance?
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a. Most reasonable method would be to award 5% of what total
damages would be if 100% chance
** does not address emotional suffering
Proximate Cause (Legal Cause)
judge forms legal rule + jury instruction
jury forms fact rule + if act was proximate cause
**Always comes second to Cause in Fact – without which, it cannot be proved
**Ask: Are the action and the result close enough to draw a connection recognized by the law?
a)Direct – no time deay between D action and P harm
- D is reasonably liable to all consequences, regardless of forseeablity
b)Reasonable Foreseeable Risk – In hindsight / backward-looking
1-Start at harm    Cause
Did anything break the chain?
Defense: Intervening event would become a superseding event
2-D only liable for harms which he could reasonably see as resulting from his actions
3- P need not prove D’s actions were the only cause of harm—there can be more than one but-for cause
4 - Show P’s injury was among the array of risks the creation or exacerbation of which led to the
conclusion that the D’s conduct was negligent
Note: Different jurisdictions use different approaches, if you don’t know which, must argue both sides
and show how both tests are fulfilled
Palsgraf (box w/ firecrackers carried by train passenger)
Cardozo (majority) argues reasonable foreseeability – DO NOT OWE DUTY
OF CARE TO UNFORESEEABLE VICTIMS
Railroad negligent in duty to passenger with box who was a
foreseeable victim of their actions, not considered negligent to P
who was an innocent bystander
There is no duty, therefore no breach, no question of causation
(factual or legal) because you can never get to that stage, and
definitely no damages
Andrews dissent argues direct causation – WHEN ONE ACTS
NEGLIGENTLY, OWE DUTY OF CARE TO ALL WHO ARE
HARMED
Consequences foreseeable to a certain extent
Railroad’s actions led to P’s injuries, nothing else superseded
c)Surprise victim case
P will argue for Direct Causation – D caused P’s injuries
D will argue for Reasonable Foreseeable Risk – D had no way of seeing that his
actions would harm P
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Alt Liability for more than 1 tortfeasors
Joint and Several Liability
Typically brought on by concerted action of two or more Ds who acted with the same purpose
Burden of Proof shifts from P to Ds
Judgment is for single sum, represents total value of the P’s injury
P entitled to collect from either or both of the Ds, up to but not exceeding the amount of the judgment
Some states have gotten rid of this
Public policy support:
Maximizes likelihood that P will get 100% compensation
P will get compensation much quicker (burden put on single D, who then can
recover from others he thinks are responsible)
Also, if that specific D is broke, the other Ds must pay more to make it up in his
place
Apportioning harm
Damages should be apportioned by each Ds’ causation whenever there is a reasonable basis for doing so
Alternative approach: 4 accidents caused by 4 separate Ds, each D liable for ¼ of damages
Policy: “fairness” is key
“Single indivisible injury rule”: Indivisible injury, though caused by successive incidents. P can assert
claim against all the wrongdoers w/o burden of proof of showing extent of damage or injury caused by
each D
Burden shifted to each individual D
Duty – decided by judge
An actor had ordinary care to exercise reasonable care when the actors conduct poses a risk of physical
harm
Nonfeasance – no person is under a duty to another unless he has entered upon some course of conduct
Danger of creating laws which impose requirement of action on people, purpose of laws is to deter
negative actions, not to encourage positive actions
** no force to act on behalf of another
OMISSION – failure to perform that is required by law
Those who know how to help can provide help
Exceptions One who volunteers to assist another undertakes a duty not to make the situation worse (duty of
reasonable care)
Has duty to continue with help, if volunteer stops  nonfeasance
Different from the volunteer does step in, finishes his help, but did so negligently  misfeasance
Misfeasance – occur when individuals initiate some course of action (outside duty)
COMISSION
**stop of assistance turns duty back on
Special relationship with victim exception
Special relationships between D and P that may generate affirmative duty of care
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Common carrier w/ passengers, innkeeper + guest, business owner w/ people on premise, employer w/
on the clock employees, school w/ students, landlord w/ tenants. Custodian w/ those in its custody
Relationship w/ perpetrator
Actor owes duty to 3rd party in regards to risks that arise within scope of relationship
Parent w/ dependent children, custodian and those in its custody, employeer w/ employess
There is no duty to rescue
No duty = no liability
Non feasance
No duty purely economic
No duty purely emotional
Prox cause
Harm caused by combination of an actor’s negligent conduct and other cause (not actor’s fault)
action alone is sufficient to bring about the harm, can be held liable for whole of the damages
Plaintiff friendly:
Eggshell rule
Tortfeasor takes his victim as he finds him in his current state
**P pre accident vulnerability affords tortfeasor no excuse
Mechanism rule
Doesn’t matter the method in which the accident occurred, just the possibility an accident would occur
to the ordinary, prudent eye
**method irrelevant as long as harm was forseeable
Subsequent medical injuries
D who is liable for neg. causing 1 injury is held liable for subsequent injuries done by first responders.
** unless extraordinary circumstances
Rescuers
Deemed foreseeable, actions against tortfeasors who put innocent victims at risk, as well as those who
put themselves at risk
D liable for harm that comes to people trying to rescue the injured
Defendant friendly:
Unforeseeable plaintiffs
General rule – d is only liable for harm caused to foreseeable P of Ds actions
Unforeseeable type of harm
D not liable to harm that does not come from negligent action, act of god type action
Subsequent mechanical harm
Firefighter rule
if one does help, he will be protected from liability unless his conduct constitutes gross negligence
(breach of professional duty)
Intervening human cause
A separate act or omission that breaks the defendants actions and injury, D can escape liablity
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