Intentional Torts The Basics What is a Tort? A Tort is a civil wrong, other than breach of contract, to which the law provides a remedy. Where did the word come from? The phrase is French in origin, but much of what we base our torts system on is English. What is a wrong? An intentional or negligent injury to a person, their property, or their rights. So if I’m wronged, but there is no legal remedy, can tort law help me? No. Sorry. The law can only intervene when the wrong to be righted can actually be righted. If for whatever reason, no remedy is possible, then the law cannot intervene. What is the purpose of tort law? We as a society, want to promote a peaceful means of adjudicating conflict. We want to deter wrongful conduct, encourage responsible behavior, restore injured parties, (insofar as we can) and create clear rights of remedy. *Remember, Bias are real, and they have great effects on cases.* Development of Liability Based Upon Fault How is fault determined? The plaintiff must prove each and every element of whatever tort they have filed a claim for. Is tort law bound by statute? Yes. Like all other aspects of American law, torts are defined by state and federal legislation. (And case law) Do all torts require proof injury? Yes and no. Not all torts require proof of physical injury. All torts do require the plaintiff to show that some harm was done. In cases of assault, offensive but harmless battery, false imprisonment, and trespass to land, the rights of the plaintiff are harmed. Intentional torts have three components. What are they? ● The volitional act ● The intent ● The resulting event What does that look like? For battery, it would look like this: ● Teresa swung an Umbrella at Victoria. ● Teresa intended to cause harm to Victoria. ● Harmful bodily contact occurred. Why is the volitional act important? Creates the actual tort. If Thomas intended to batter Vernan, but never had the chance, no tort was committed. What about Intent? The intent element is what makes the tort an intentional tort. You cannot commit a battery for example, by accidentally knocking a person to the ground while running from a semi-sentient tornado that was freed from a supernatural prison. You didn’t intend to knock them to the ground, thus no tort. See the Intent section further down. Intent How do you determine intent? Well, which kind of intent do you mean? There are two types of intent. Um…. Okay. What are they? Desire intent, and belief intent. What is Desire Intent? When you intend the act and the consequence. Terry intended to strike Victor, and intended to do great harm to him. This is subjective and difficult to prove, because when questioned, Cain will likely say that he did not intend to strike Abel. What about Belief Intent? The tortfeasor must believe to a substantial certainty that the act will occur. Belief intent is a little harder to define, and easier to prove. It requires that the tortfeasor know that something bad will happen, but doesn’t intend the consequences. If Theo pushes Vicky toward traffic, intending to scare her, but Vicky trips and falls in front of an oncoming bus, then the intent element has been satisfied. Theo knew what would happen if Vicky were pushed out into traffic, and he intentionally made contact with her. This is a reasonable person test. (common test in tort law.) What is a reasonable person test? Would a reasonable person know? What is the difference between an accident and a mistake? Accidents are not intended actions, mistakes are intended actions resulting from ignorance or misinformation. Are reasonable mistakes are not a defence to trespass? Generally, mistake as to the identity of the person or animal does not negate intent and thus defendant is liable. This is an exception to the fault principle. Can someone who is mentally ill or unwell negate intent? No. An insane individual can intend to strike another person. Remember that tort law is not about harming the tortfeasor, but helping the victim. Still, there are exceptions. Torts like deceit, which require the intentionally delivery of misinformation, cannot be satisfied by individuals who are not of able mind. How do you determine Negligence? (Unintentional torts?) Negligence can be determined by an objective test: What would a reasonable person know? Why do we distinguish between intentional and negligent torts? Under rare circumstances, punitive damages may be leveled against intentional torts. Punitive damages can never be used in negligent tort cases. What is transferred intent? If an actor intends to commit an intentional tort against one person, and ends up committing a different tort against that person OR or the same or a different tort against a third person, the actor is liable for the unintended tort, or to the unintended third person. Example: If Talia throws a rock at Vesper, only intending to scare her, but instead strikes Umar, she is liable to Umar for battery and Vesper for assault. Battery The Restatement (Second) of Torts (1965) § 13. Battery: Harmful Contact “An actor is subject to liability to another for battery if “(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and “(b) a harmful contact with the person of the other directly or indirectly results.” In elemental terms: (1) A volitional act (2) Intent to cause a harmful or offensive bodily contact. (3) The harmful or offensive bodily contact results, either directly or indirectly § 18. Battery: Offensive Contact “(1) An actor is subject to liability to another for battery if “(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contract, and “(b) an offensive contact with the persons of the other directly or indirectly results. “(2) An act which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it, and therefore, would be negligent or reckless if the risk threatened bodily harm.” If I caress an unwilling person, is that a battery? Yes. Also creepy. What if I just knock something from their hands? Some objects are analogous with a person. Snatching a dollar bill from another’s hands may constitute battery if the act is done in a demeaning or offensive manner. Courts have long held that an object close enough to an individual represent an extension of that individual. Assault What is Assault? The creation of apprehension in the victim that a battery is impending. A volitional act, like swinging a hatchet The intent to strike the victim No bodily contact occurs, but the victim was fearful of such contact. Essentially, it is still a tort to miss someone you intend to batter. Is it enough to look threatening or to leer at someone? Is leering enough? No, per Fuller v. State, 44 Tex.Crim. 463, 72 S.W. 184 (1903.) If an individual is running toward you throwing rocks, when does it become an assault? When you have reasonable apprehension that contact will occur. (Reasonable person standard) Is having a gun enough? No, there must be some show of intent to use it. Are threats enough? No. Threats alone do not constitute assault. What if threats are issued by a man with a gun in his lap? Yes, if the plaintiff has reason to believe a threat will occur. Even if it remains lying in a lap, but threats occur the plaintiff has apprehension that a harmful bodily contact may occur. In civil assault, the plaintiff must know that violence is being threatened in some way. False Imprisonment Volitional Act- restraining or imprisoning another Intent- intending to impair their freedom of movement Result- such impairment occurs. False Imprisonment cannot occur if a person has a reasonable means of escape. Reasonable means of escape must not cause damage: person, property, or dignity Are physical barriers the only way to falsely imprison a person? No. Means of confinement: (1) by physical barriers that are complete (2) by use of threat of physical force (implicit threat; suspect is not required to test threat) (3) by an assertion of legal authority Intentional Infliction of Emotional Distress IIED has a hybrid fault standard. It may be intentionally done, or recklessly done. Volitional Act: Extreme and outrageous conduct (Reasonable Person Standard) Intent: Intentionally or recklessly inflicts Result: Severe emotional distress to the victim. What constitutes “Extreme and Outrageous Conduct?” Conduct beyond all possible bounds of decency and be regarded as atrocious and intolerable. Here are some things that do not constitute IIED: 1. Mere insults not enough. 2. Solicitation of intercourse not enough 3. Trivial threats of violence do not qualify typically. What does qualify? 1. Repetitive conduct can convert non-outrageous conduct into outrageous conduct. 2. Abuse of authority can convert non-outrageous conduct into outrageous conduct. 3. Serious threats of violence can qualify, especially when repeated. 4. Exploiting known sensitivity can convert non-outrageous conduct into outrageous conduct. Why does IIED exist? Intentional infliction of emotional distress is a gap-fill tort designed to compliment torts like assault. What about non-family bystanders? Non-family bystanders must show proof of physical injury resulting from emotional distress. Trespass to Land Tort elements of trespass: 1. Volitional act 2. Intent to enter possession of another. (even unknowingly) but not by accident. Like if a car drove through a living room accidentally, no intent to do so. 3. Entry results Notes: Intentional trespass is separate from negligent entry. It requires intentional entry onto or into the land. If you think you have the right to be there, can you still trespass? Yes. What if no damage occurs to the land while you are there? In trespass, the plaintiff will be awarded nominal damages if no actual damages exist. What if you overstay your welcome? Then you trespass. Even if invited, you must abide by your host if asked or told to leave. Some individuals cannot exclude others. Innkeepers, carriers, public utilities all fall into this rule. What if the trespass was useful? (like a meter checker?) When a trespassory invasion is found, the usefulness of this trespass is not a defence to the action. What if someone is authorized for a specific purpose, but acts outside of that purpose? Trespass. A trespasser is responsible for all damage caused by their presence. If the property owner is surprised by your presence and suffers a heart attack, then you are liable. Trespass to Chattel Unlike trespass to land, trespass to chattel requires actual damages. These damages may be to the actual chattel, but excluding the owner’s use still counts as harm. Tort elements of trespass to chattel: 1. Volitional act 2. Intentional interference with chattel of another. 3. One of the consequences in §218 RST 2d. Harm to chattel, or harm to the possessor deprived of the use of the chattel for a significant length of time. Conversion If plaintiff was holding $10 bill, and defendant snatched it, and immediately returned it, is that conversion? No, it does not prevent the plaintiff’s use of the bill. Battery maybe. Why conversion vs trespass? In trespass, the owner can only be compensated for damages. In conversion, the owner may be compensated for the full value of the converted chattel. This means that conversion is often much more Tort elements of Conversion: Elements of conversion: 1. Volitional act. 2. Intentional imposing of dominion over chattel of another. 3. The actor may justly be required to pay the other the full value of the chattel. What are the factors of the tort? (this determines whether or not an act is conversion.) The conduct factors: a. The extent and duration of the actor’s exercise of dominion or control b. The actor’s intent to assert a right in fact inconsistent with the other’s right of control c. The actor’s good faith The Consequence factors d. The extent and duration of the resulting interference with the other’s right of control e. The harm done to the chattel f. The inconvenience and expense caused to the other. Generally, if one of these factor sets is satisfied, that will be sufficient for the tort of conversion. Intentional theft is almost always conversion. Privileges What is a “privilege?” A privilege is some circumstance that allows actions which would normally be tortious. Consent ***********REFER TO NOTE 4 ON TORT PAGE 103 ********************* What are the restrictions on consent? Consent obtained by fraud, duress, or by an impaired individual is not consent. What are the types of consent? Subjective consent (affirmative consent), and Objective consent. (reasonable person standard based on victim’s actions.) How do the victim’s actions show objective consent? By examining the victim’s actions, and only their actions, consent can be determined. The unfortunate truth of the matter is that people lie. Actions rarely do not. Is consent really a “defense?” Yes. Consent removes the normal tortious act and all resulting consequences. What is the potential tortfeasor trying to prove in a contested consent issue? That a reasonable person in their shoes would have believed consent to be present. What is conditional consent? Consent given in the context of a specific act. A football player consents to violent acts on the field, but only so long as they comport with the rules of the game. In other words, they consent to violent conduct allowed by the rules, but not to violent conduct outside the normal rules and customs of the game. This is a two part test, you must have reasonable belief that you are in danger (and a reasonable person in your should would have to think the same), and you must use a reasonable amount of force in response. Self-Defense What are the limits of self-defense? You may only use proportional force to ward off a threat. If the threat is ended, so is the permitted use of force. When is deadly force authorized? Only when faced with deadly force. Deadly force is any force “likely to cause death of serious bodily injury.” What happens when force is applied then revoked by a bad actor? When the gun goes away, so does the privilege of self defense. If you shoot someone who is no longer threatening you, you have committed battery. What if you are provoked with actions or words? No privilege. Defense of Others Are you liable if you accidentally join the tortfeasor in the belief that you are defending a person? It depends on the state. Some states say yes, some say no, and some require the intervening plaintiff to place themselves in the victim's shoes when helping. Defense of Property Boundaries of Self-Defense : Privilege to use force is permitted when a reasonable person would believe themselves to be in danger. This is an extension of self-defense, that applies to individuals in your home or property. You cannot use traps or other inanimate object to enforce this privilege. Apprehension that conversion or damage to your property may occur is not grounds for defense of property. Only fear for your well-being or the well-being of others in your care counts. Recovery of Property What are the limits of this privilege? Reasonable force may be employed to recover property so long as fresh pursuit is undertaken. Generally any damage to a person is considered unreasonable. What is fresh pursuit? Fresh Pursuit is limited to prompt discovery of the dispossession and prompt and persistent efforts to recover the chattel. You can’t attempt to recover property that has made it out of your sight. The privileges of recovery of property does not allow for reasonable mistakes. The Merchant’s Privilege does. A shop keep can make reasonable attempts to recover property, even if the employee makes mistakes or gets the wrong guy. Necessity What is Necessity? A privilege that allows an individual to act under imminent circumstances to protect life or property from some independent cause that is not his fault. Like blowing up a house to stop a fire. Public Necessity: Protects the greater good. Allows for reasonable mistakes. May allow for others to be sacrificed for the greater good. Private Necessity: Self preservation. No reasonable mistake. Not allowed to sacrifice life as a private necessity. Negligence Robinson: Inherently dangerous activities RST 2d: Activities normally undertaken by adults RST 3d: A child’s conduct is negligent if it does not conform to that of a reasonable careful person of the same age, intelligence, and experience, except as provided in subsection (b) or ©. (b) A child less than five years of age is incapable of negligence. (c) The special rule in subsection (b) does not apply when the child is engaging in a dangerous activity that is practically undertaken by adults. Negligence requires the omission to do something which a reasonable man would do guided by considerations which ordinarily regulate conduct. Cordas v. Peerless Transportation Co. Negligence requires an individual to ignore a foressable issue. It is unreasonable for the cabbie to foresee anything with a gun to his head. . Roberts v State of Louisiana Because the plaintiff used an ordinary amount of caution, there was no negligence, just an unfortunate accident. Robinson v. Lindsay Because the activity should have taken place with adult supervision, the conduct should be judged by a reasonable adult standard.
