Intentional Torts to Persons
Prima Facie Case
1. To establish a prima facie case for intentional tort liability, it is generally
necessary that the plaintiff prove the following
a. Act by defendant;
b. Intent; and
c. Causation
2. Act
a. A volitional movement on the defendant’s part
3. Intent
a. Specific intent: An actor intends the consequences of his conduct if his
purpose in acting is to bring about these consequences
b. General intent: An actor intends the consequences of his conduct if he
knows with substantial certainty that these consequences will result
i. If A has unusual sensibilities, and B knows of these sensibilities
and that she will be offended by contact, B could be liable for
contact.
c. Actor need not intend injury, only the conduct to satisfy this element
d. Distinguished from motive
4. Transferred intent:
a. General rule: applies where the D 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
iii. Commits a different tort against a different person
b. The intent to commit a tort against one person is transferred to the other
tort or to the injured person
c. Transferred intent may be invoked only where the tort is intended and the
tort that results are both on the following list:
i. Assault
ii. Battery
iii. False imprisonment
iv. Trespass to land; and
v. Trespass to chattels
d. It is enough that the actor intends to produce such an effect upon some
other person and that his act so intended is the legal cause of a harmful
contact to the other.
e. It is not necessary that the actor know or have reason to suspect that the
other is even in the vicinity
Battery
1. “Protecting personal integrity has always been viewed as an important basis for
battery.”
2. Trespassory tort: enough for plaintiff to recover damages
3. Elements
a. Act with intent to cause a harmful or offensive contact
1. In order that an act may be done with the intention of
bringing about a harmful or offensive contact. . . , the act
must be done for the purpose of causing the contact . . . or
with knowledge on the part of the actor that such contact . . .
is substantially certain to be produced.
2. Motive or purpose to harm or offend or knowledge that the
action will harm/offend. Intent to contact for the purpose of
harming or offending.
3. Alternative to motive: Intent to contact knowing that P will be
harmed or offended.
a. if the actor knows that the contact will be highly
offensive/harmful to the other’s unusually sensitive
personal sense of dignity
4. Alternative to motive: Intent to act in a manner that harmful
or offensive contact would be substantially certain
a. Substantial certainty test must be high: I.e 90% or
higher
5. Transferred Intent
a. Doctrine of transferred intent states, “the tort of
battery or of assault and battery may be committed,
although the person struck or hit by the defendant is
not the one whom he intended to strike or hit.”
6.
b. And a harmful or offensive contact results
i. Offensive: Contact which is offensive to a reasonable sense of
personal dignity is offensive contact (even trivial or insulting). An
intent to make offensive contact consists of battery. or if the actor
knows that the contact will be highly offensive to the other’s
unusually sensitive personal sense of dignity
1. Liability will not be imposed if it gives undue burden to avoid
the contact
ii. Harmful: “(a) the actor purposely causes bodily harm to the other,
either by the actor’s affirmative conduct or by the actor’s failure to
prevent bodily harm when the actor has a duty to prevent such
harm; and (b) the other does not effectively consent to the
otherwise tortious conduct of the actor.”
iii. Things with particulate matter and has physical properties capable
of making contact (Tobacco/cigar smoke counts sound does not)
iv. Extended personality:
1. The extended personality rule means that anything which
is closely connected to the plaintiff's person is regarded as
an extension of the physical person
2. Ex. Pulling plate out of person’s hands is battery, moving
chair out from under person
4. Extended Liability Principle
a. The defendant who commits an intentional tort, at least if it involves
conscious wrongdoing, is liable for all damages caused, not merely those
intended or foreseeable. Explains the result in most transferred intent
cases. I.e intends battery to one person and then accidentally causes
battery to another
5. Affirmative defenses against Battery liability
a. Self defense
i. A person is privileged to use physical force to defend themself from
what they reasonably believe is imminent harmful or offensive
contact (or threat of confinement)
ii. The person may use the degree of force reasonably believed to be
necessary to defend against the threat
iii. Deadly force may be used only as reasonably necessary to prevent
against death or serious bodily harm
iv. Notwithstanding the provision of subsection (a), a person is not
justified in using physical force if:
1. They were the initial aggressor, except that their use of
physical force upon another under the circumstances is
justifiable if they withdraw from the encounter and effectively
communicate to the other person their intent to do so, but
the latter person nevertheless continues or threatens the use
of unlawful physical force
v. Judged by whether the intent to use the force was reasonable
rather than the resulting harm
vi. If intent is privileged and reasonable, and the force is reasonable…
the person is not liable for extentuating or resulting damages (i.e
shoving someone so they don’t punch you in the face and they fall
on a pipe and get stitches, you’re not liable for battery bc selfdefense. Intent was for reasonable force)
b. Defense of others
i. To the same extent as you can defend yourself
ii. Possible exception: reasonable mistake… if they don’t reasonably
understand that the other person is privileged to use reasonable
force… then reasonable mistake
1. Though, dependent on what court you’re in
a. Even these allow reasonable mistakes, but only when
the victim would make it too (i.e the victim and the
hero both don’t know the aggressor is a police officer)
Assault
1. Elements
a. An act by the defendant creating a reasonable apprehension in plaintiff
of immediate harmful or offensive contact to plaintiff’s person;
b. Intent on the part of the defendant to bring about in the plaintiff
apprehension of immediate harmful or offensive contact with the plaintiff’s
person
i. Transferred intent
ii. See intent rules for battery, and above
c. Construction of apprehension
i. Apprehension must be one that would normally be aroused in the
mind of a reasonable person
1. Courts generally will not protect a plaintiff against
exaggerated fears of contact (unless the defendant knows of
the unreasonable fear and uses it to put plaintiff in
apprehension)
ii. Apprehension does not need to mean fear
iii. Must be aware of the threat (unlike battery)
iv. Defendant’s apparent ability to act is sufficient
1. A points an unloaded gun at B, and B has no reason to know
that it is unloaded. B’s apprehension is reasonable.
v. Words alone, generally do not constitute an assault… however,
words accompanied by some overt act (clenching fists)
vi. A conditional threat is sufficient (“your money or your life”)
d. Requirement of immediacy
i. Threats of future contact are insufficient (office hours for this)
e. “A touching of the mind not the body”
False Imprisonment
1. Elements
a. An act or omission to act on the part of the defendant that confines or
restrains the plaintiff to a bounded area;
b. Intent on the part of the defendant to confine or restrain the plaintiff to a
bounded area;
c. The victim is either “conscious of the confinement or harmed by it.”
2. Sufficient methods of confinement or restraint
a. Physical barriers
b. Physical force
i. P is restrained by the use of physical force directed at him or a
member of his immediate family… (possibly property)
c. Direct threats of force
d. Indirect threats of force
i. Acts or words that reasonably imply that the D will use force against
P, P’s property, or P’s immediate family
e. Failure to provide means of escape
3.
4.
5.
6.
i. Where it would be impossible to leave without defendant’s
assistance, the withholding of such assistance with the intent to
detain plaintiff will make defendant liable. (A refuses to let B leave
at the end of his jail sentence, A may be liable)
f. Invalid use of legal authority
i. False arrests: arrests for criminal offense w/o a warrant is unlawful
1. Priviliged
a. Misdemeanor arrests w/o warrant
i. Both police officers and citizens are privileged
for misdemeanor arrests without a warrant if
the misdemeanor was a breach of the peace
and was committed in the presence of the
arresting party.
b. Arrests to prevent a crime without a warrant
i. Where a felony or breach of peace is in the
process of being, or reasonably appears about
to be, committed, citizens are privileged to
make an arrest
2. Amount of force allowable
a. For misdemeanor arrests: privileged to use only that
degree of force necessary to satisfy the arrest, never
deadly force.
ii. “Shoplifting” detentions are privileged
1. Privilege to detain for investigation, following conditions must
be satisfied:
a. There must be a reasonable belief as to the fact of the
theft
b. The detention must be conducted in a reasonable
manner and only nondeadly force can be used; and
c. The detention must be only for a reasonable period of
time and only for the purpose of making an
investigation
No need to resist: not obligated to test the threat of force
Time of confinement is immaterial, except as to the extent of damages.
Awareness of Imprisonment or harmed by it
Bounded area
a. Freedom of movement in all directions must be limited
b. The area will not be characterized as “bounded” if there is a reasonable
means of escape of which the plaintiff is aware
Intentional Torts to Property
Trespass to Land
1. Elements
a. An act of physical invasion of plaintiff’s real property by defendant;
i. Defendant need not enter onto land (exists where defendant floods
plaintiff’s land, throws rocks onto it, or chases third person onto it)
ii. If lawful right of entry expires
b. Intent on defendant’s part to bring about a physical invasion of plaintiff’s
real property
i. Mistake is no defense, as long as defendant intended the entry
upon that particular land.
ii. Intent to enter onto the land is sufficient—intent to trespass is not
required.
2. If no physical object enters land, (damage resulted from blasting concussions),
generally treated as a nuisance case
3. Land
a. May occur on the surface, below the surface, or above it (reasonable
distance below and above)
Trespass to Chattels
1. Elements
a. An act by defendant interfering with plaintiff’s right of possession in
the chattel;
i. Any act of interference will suffice
1. Intermeddling: conduct by defendant that in some way
serves to directly damage plaintiff’s chattels (denting car,
striking dog)
2. Dispossession: serving to dispossess plaintiff of his lawful
right of possession
b. Intent to perform the act bringing about the interference with plaintiff’s
right of possession
i. Mistake is no defense
1. (a mistaken belief that D owns the chattel)
ii. Intent to do the act of interference with the chattel is sufficient—
intent to trespass is not required
c. Damages
i. In the absence of actual damages, an action will not lie.
ii. However, if the trespass amounts to a dispossession the loss of
possession itself is deemed to be an actual harm
d. Distinguished from conversion
i. Interferences that are not so serious in nature or consequences,
trespass to chattels is the appropriate action
Conversion
1. Elements
a. An act by defendant interfering with plaintiff’s right of possession in the
chattel;
i. Wrongful acquisition (theft, embezzlement)
ii. Wrongful transfer (selling, misdelivering, pledging)
iii. Wrongful detention (refusing to return to owner)
iv. Substantially changing
v. Severely damaging or destroying
vi. Misusing the chattel
b. Intent to perform the act bringing about the interference with plaintiff’s
right of possession;
i. Bona fide purchaser may be liable
1. May become a converter if the chattel has been stolen from
the true owner
ii. Accidental conduct insufficient
1. Does not amount to conversion unless the actor was using
the chattel without permission when the accident occurred
c. Damages—an interference that is serious enough in nature or
consequences to warrant that the defendant pay the full value of the
chattel
i. If person refuses to return the chattel when asked, or alters it,
she may be liable for her conversion bc her action so seriously
interferes with another’s chattel rights that it amounts to a claim of
dominion and control on the actor’s part.
ii. The longer the withholding period and the more extensive the use
of the chattel during this time, the more likely it is that conversion
has resulted
iii. Limited to tangible physical property and intangibles that have been
reduced to physical form (not: bakery route, customer list, or
goodwill of a business)
2. Remedies:
a. Damages
i. P is entitled to damages for the fair market value of the chattel.
ii. Generally computed as of the time and place of conversion
iii. Even if D wants to return the item, P is not obligated to take it back
once its been converted
b. Replevin
i. If P wants the chattel returned, may get it by availing himself to the
remedy of replevin
DEFENSES TO THE INTENTIONAL TORTS
1. Consent
a. Express (actual) consent exists where the plaintiff has shown a willingness
to submit to defendant’s conduct
i. Consent by mistake
1. When P consents by mistake, still valid unless the D caused
the mistake or knows of the mistake and takes advantage of
it
ii. Consent induced by fraud
1. If consent has been induced by fraud, the consent is
generally not a defense
2. Fraud must, however, go to an essential matter
iii. Consent obtained by duress
1. May be invalid. However, threats of future action or of some
future economic deprivation do not constitute legal duress
sufficient to invalidate the express consent
b. Implied (Apparent) Consent
i. Consent in which a reasonable person would infer from Plaintiff’s
conduct
c. Implied (by law) consent
i. Consent will be implied in an emergency situation where the P is
incapable of consenting and a reasonable person would conclude
that some contact is necessary to prevent death or serious bodily
harm
d. Capacity required: drunk people, children, and incompetents are deemed
incapable of tortious conduct
e. Criminal acts: majority view is that a person cannot consent to a criminal
act
f. Exceeding consent given
i. If the D goes beyond the act consented to and does something
substantially different, he is liable (consent to tonsillectomy is not
consent to perform an appendectomy) unless, emergency.
g. Sports (deemed to be regular part of sport, then participating is basically
consent)
2. Self-defense
a. 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.
b. When allowed
i. Reasonable belief: Need to have a reasonable belief as to the other
party’s actions.
1. apparent necessity, not actual necessity, is sufficient
2. Reasonable mistake as to the existence of the danger does
not invalidate the defense
ii. Retaliation not allowed
1. Limited to the right to use force to prevent the commission of
a tort
2. One may never use force where there is no longer any threat
of injury
iii. Retreat not necessary
1. Majority of courts hold that one need not attempt to escape,
but may stand his ground (and even use deadly force when
necessary to prevent death or serious bodily harm to
himself).
iv. Not available to aggressor
1. Initial aggressor is not privileged to defend himself against
other party’s reasonable use of force in self-defense
2. However, if the other uses deadly force against an aggressor
who had only used nondeadly force, the aggressor may
defend himself with deadly force
c. How much force can be used?
i. Only force reasonably necessary to prevent the harm
ii. May not use force likely to cause death or serious bodily injury
unless he reasonably believes that he is in danger of serious bodily
injury.
d. Extends to third party injuries
i. If in the course of reasonably defending himself, one accidentally
injures a bystander, he is still protected by the defense.
ii. If the action/force is privileged, then the actor is not usually liable
for the resulting injuries
3. Defense of others
a. When is defense available?
i. Need only have the reasonable belief that the person being aided
would have the right of self-defense
ii. Even if the person aided has no defense (i.e initial aggressor), his
defender is not liable as long as he reasonably believed that the
person could have used force to protect himself
b. How much force?
i. May use as much force as he could have used in self-defense if the
injury were threatened to him.
4. Defense of property
a. When is defense available?
i. Request to desist usually required
1. Unless request would be futile or dangerous
ii. Effect of mistake
1. Not allowed when entrant has a privilege to enter the
property that supersedes the defense of property right (liable
for force used against one privileged) UNLESS the entrant
didn’t tell her the reason for the intrusion
iii. Limited to preventing commission of tort
1. Once the defendant has been permanently dispossessed of
the property and the commission of the tort is complete, she
may not use force to recapture it
2. Hot pursuit exception: the other is still viewed as in the
process of committing the tort against the property
iv. Superseded by other privileges
1. Necessity, right of reentry, right to enter upon another’s land
to recapture chattels, supersedes the privilege of the land
possessor to defend her property
b. How much force?
i. Reasonable force. NOT force that will cause death or serious bodily
harm
ii. One may not use indirect deadly force such as a trap, spring gun,
or vicious dog when such force could not lawfully be directly used
(ex. Against a mere trespasser) ELABORATE MORE.
5. Recapture of chattels
a. When is defense available?
i. One may use only peaceful means to recover the chattel
ii. Force may be used to recapture a chattel only when in “hot pursuit”
of one who has obtained possession wrongfully
iii. Timely demand required:
1. A demand to return the chattel must precede the use of
force, unless the demand would be futile or dangerous
iv. Recovery only from wrongdoer:
1. Recapture may only be from tortfeasor or someone who
knew they were tortiously obtained.
b. How much force may be used?
i. Reasonable force, not including force sufficient to cause death or
serious bodily harm, may be used to recapture chattels
c. Entry upon land to remove chattel
i. If the chattels are on the land of another through the owner’s fault,
there is no privilege to enter upon the land. May be recovered only
through legal process
ii. On wrongdoers land: privileged to enter and reclaim them at a
reasonable time and in a reasonable manner
d. Shopkeepers privilege
i. May have a privilege to reasonably detain individuals whom they
reasonably believe to be in possession of “shoplifted” goods. See
false imprisonment.
6. Necessity
a. A person may interfere w 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
i. Public necessity
1. Where the act is for the public good, the defense is absolute
ii. Private necessity
1. Where the act is solely to benefit a limited number of people
(the actor ties up his boat to another’s during a storm) the
defense is qualified; the actor must pay for any injury he
causes
a. Exception: the defense is absolute if the act is to
benefit the owner of the land.
NEGLIGENCE
1. Prima facie case
a. To prove a prima facie case for negligence, the following elements must
be proved:
i. The existence of a duty on the part of the defendant to conform to
a specific standard of conduct for the protection of the plaintiff
against an unreasonable risk of injury;
ii. Breach of that duty by the defendant
iii. That the breach of duty by the defendant was the actual and
proximate cause of the plaintiff’s injury and
iv. Damage to the plaintiff’s person or property.
2. Duty of care
a. General duty of care
i. When a person engages in an activity, he is under a legal duty to
act as a reasonably prudent person under the same or similar
circumstances.
ii. It is presumed that a reasonable person would take precautions
against creating unreasonable risks to other persons
iii. No duty is imposed on a person to take precautions against events
that cannot reasonably be foreseen
b. To whom is the duty of care owed?
i. Only to foreseeable plaintiffs
3. What is the applicable standard of care?
a. Basic—reasonably prudent person: defendant’s conduct is measured
against a reasonably prudent person under the same or similar
circumstances
NEGLIGENCE PER SE

a.
Inquiry in order to determine if statute or ordinance should be incorporated
o Statute clearly defines the required standard of conduct;
o Plaintiff belongs to the class of persons the statute was designed to protect
o P’s injury is of the type that the statute was designed to prevent
A violation of a statute is excused and not negligent if
The violation is reasonable in light of the actors childhood, physical disability, or physical
incapacitation
ii.
The actor exercises reasonable care in attempting to comply with the statute
i.
iii.
The actor neither knows nor should know of the factual circumstances that render the
statute applicable
iv.
The actors violation of the statute is due to the confusing way in which the requirements
of the statute are presented to the public
v.
The actor’s compliance with the statute would involve a greater risk of physical harm to
the actor or to others than would noncompliance