Introduction to Torts
I.
II.
II.
Goals of Tort Law
A. Deterrence
B. Fairness (corrective justice)
C. Social utility
D. Compensation (loss spreading)
E. Administrability
Fault
A. Van Camp v. McAfoos - Fault is an essential element of liability (3 year old defendant hit
plaintiff with tricycle, plaintiff alleged liability without fault, court disagreed).
Remedies
A. Majority of cases: compensatory damages
B. A few cases: injunction
C. Dillon v. Frazer - Damages must be awarded based on evidence, and must be sufficient.
(Jury awarded the plaintiff $6,000 when undisputed evidence amounted to damages of >
$30,000, suggesting the jury was improperly motivated).
D. Judicial powers
1. Additur: judge's power to deny a plaintiff's motion for a new trial if the defendant
agrees to pay an increased award in damages.
2. Remittitur: judge's power to deny a defendant's motion for a new trial if the
plaintiff agrees to remit part of an excessively high reward.
Intentional Torts
I.
Battery
A. To establish a Prima Facie case for battery, the following elements must be proven:
1. Intent on the part of the defendant to bring about harmful or offensive contact;
AND
2. Result: An act by the defendant which brings about harmful or offensive contact
to the plaintiff's person.
B. Intent
1. Dual vs. Single Intent
a) Dual intent: the defendant intended to contact the plaintiff and the
defendant intended for the contact to be harmful or offensive
(1) Cohen v. Smith - Good motive does not matter. (Court ruled that
an offensive contact occurred when a male nurse observed and
touched plaintiff’s body while she was giving birth. Plaintiff had
told the doctor beforehand that because of her religious beliefs,
she could not be seen unclothed by a male).
b) Single intent: the defendant intended to contact the plaintiff
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(1) The defendant does not need to intend for this contact to be
harmful or offensive
(2) Third Restatement of Torts: adopts a single intent rule because it
“affords greater protection to the plaintiff’s interest in bodily
integrity.”
2. Proving Intent
a) Purpose (Desiring to cause the required contact); OR
b) Knowledge (Defendant knows the act is substantially certain to produce
the required contact).
(1) Knowledge with substantial certainty is a SUBJECTIVE TEST.
We must ask what was in the defendant’s mind. Garratt v. Dailey
- All personal characteristics come into play for a subjective test.
(In order to recover from a battery claim, the plaintiff would
have to prove that the 5 year old defendant knew with substantial
certainty that the required contact would occur).
3. Transferred Intent
a) Intent to cause an intentional tort to one person that results in a tort to
another is sufficient
b) Intent to cause one intentional tort that results in a different intentional
tort is also sufficient
4. Insanity is not a defense for intent
C. Result: Harmful or Offensive Contact
1. Contact
a) Defendant does not need to make direct physical contact
b) Anything that is considered an extension of a person’s body can be
considered contact for a battery claim (ex: a cane)
c) Defendant may use instruments under their control to make contact
d) Trivial contact will suffice. (ex: blowing smoke in someone’s face). The
underlying policy for this is to deter retribution (goal of torts:
deterrence).
2. Harm
a) Contact is harmful if it causes any actual injury, pain, or disfigurement
3. Offense
a) Contact is offensive if it would be considered offensive to a reasonable
sense of personal dignity (objective test).
b) It must be offensive to the plaintiff; it need not be offensive to everyone.
But it still must be reasonable. We must consider the basis and
context of the offense. Cohen v. Smith - Even though a single person’s
views on religion or medical autonomy may not be shared by everyone,
they are still respected by society. Thus, those beliefs are generally
considered reasonable.
D. Actual damages not required
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1. Plaintiff need not show actual damages. Plaintiff can recover nominal damages,
and, in cases where defendant acted with malice, plaintiff can recover punitive
damages.
II.
Assault
A. To establish a Prima Facie case for Assault, the following elements must be proven:
1. Intent to cause harmful or offensive contact OR imminent apprehension of such
contact; AND
2. Result: Plaintiff is placed in reasonable apprehension of an imminent harmful
or offensive contact
B. Intent
1. Imminent apprehension of harmful or offensive contact
a) Imminent = the conduct will occur without significant delay
(1) There is no assault if the defendant is too far away to do any
harm or is merely preparing for a future harmful act
b) Apprehension = awareness of an imminent touching that would be
battery if completed
2. Transferred Intent
a) A defendant can intend to cause another tort but an assault claim can be
brought if assault is what results.
b) Ex: someone intends to assault another, but actually touches them in a
harmful offensive way and commits a battery.
C. Result
1. Reasonable apprehension of an imminent harmful or offensive contact
a) Cullison v. Medley - Apprehension must be one that is normally aroused
in the mind of a reasonable person (Defendant had a gun and kept
threatening to jump in front of Plaintiff; the jury must determine if
Plaintiff’s apprehension of a battery in this situation was reasonable)
b) A Defendant’s apparent ability to act is sufficient. It does not matter if
the Defendant is not actually capable of causing injury to the plaintiff’s
person.
2. Overt act is required
a) Words alone cannot count as assault; they must be combined with
imminent apprehension of harmful or offensive contact in order to be
reasonable.
b) Words may also negate assault by making apprehension of imminent
contact unreasonable.
D. No requirement of actual damages
1. Plaintiff need not show actual damages. Plaintiff can recover nominal damages,
and, in cases where defendant acted with malice, plaintiff can recover punitive
damages.
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III.
IV.
False Imprisonment
A. To establish a Prima Facie case for false imprisonment, the following elements must be
proven:
1. Intent to confine; AND
2. Actual confinement; AND
3. That person must be aware of confinement while it is happening, or sustain actual
harm
B. Intent to confine
1. Conduct by the actor that is intended to confine another within boundaries fixed
by the actor
C. Actual Confinement
1. Confinement must be within a boundary fixed by the actor
2. Physical constraint is sufficient
3. McCan v. Walmart - Threat of force is sufficient. (Employees held family in an
area near the store exit -- this was enough for them to believe that they would be
restrained if they tried to leave or that the employees had the legal authority to
hold them there).
a) So long as it would be reasonable to believe that there is confinement
b) Can be an implicit or explicit threat
4. Can be based on the false assertion of legal authority to confine
5. Duress of goods can be considered confinement in some circumstances
a) Taking someone’s things so that they cannot leave
b) False imprisonment only if it is reasonable to think that someone would
not leave without the thing that is being held
6. Confinement implies a limited range of movement, and does not apply to
excluding a person from some place (ex: a bar or a restaurant).
7. If there is a reasonable means of escape, there is no confinement
8. A person who instigates a confinement by a falsehood or induces another person
to unlawfully detain another would be subject to liability for false imprisonment.
D. Damages
1. Plaintiff can recover nominal damages (there need not be any actual harm)
a) Exception: actual harm is required if there is a claim where a plaintiff
was not aware that they were confined
2. Plaintiff receives damages for everything that happens as a result of the
confinement -- it need not be foreseeable or reasonable
E. False arrest
1. When an officer of the law improperly arrests someone
2. Same rules as false imprisonment
3. Plaintiff can bring a federal civil rights claim
Torts to Property
A. Trespass to land
1. Elements
a) Plaintiff must prove ownership or possessory interest in the land;
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b) Intentional (or intent to remain) and tangible invasion, intrusion, or entry
by the defendant; AND
c) That invasion harms the plaintiff's interests in exclusive possession
2. The intent
a) Do not need purpose to enter; knowledge with substantial certainty is
sufficient
(1) Knowledge with substantial certainty is a subjective test
b) Intent does not need to be “to trespass,” it is enough if the defendant
intended to enter
c) A defendant’s reasonable belief that he owns the land or that he has the
right to be there is not a defense
d) Transferred intent can apply
3. The entry
a) Personal entry; OR
b) Intentionally causing the object to enter the land
c) Rights of a landowner extend downward beneath the surface (all the way
down) and to a reasonable height above ground
d) Trespass can occur when unintentionally enters and then the defendant
refuses to leave
e) Trespass can occur when owner grants limited rights to the entrant but
does not grant permanent rights
4. Remedies for trespass
a) Trespasser is liable for at least nominal damages, even if no harm is done
b) Injunctive relief may be awarded where damages are inadequate or
where trespasses are continuing or will be repeated
c) Punitive damages may be awarded if the trespass is deliberate or
malicious
5. Extended liability
a) Trespasser is liable for damages caused directly by his trespass, even if
he did not intend them
b) Limited
B. Conversion of Chattels
1. Elements
a) Ownership or possessory interest;
b) Intent to act in such a way as to exercise substantial dominion over
another’s chattel; AND
c) Exercising substantial dominion
2. Intent
a) Defendant need not be aware of wrongdoing
b) Single intent
3. Substantial dominion
a) Never getting the chattel back is definitely substantial dominion
b) Whether something is conversion depends on how serious the
interference was (ALI determined that the interference should be serious
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enough to justify imposing the liability of paying the full value of the
chattel).
c) The following factors are important
(1) Extent and duration of control
(2) The defendant’s intent to assert a right to the property
(3) The defendant’s good faith
(4) The harm done
(5) The expense or inconvenience used
d) Second restatement of torts
(1) Conversion would not apply where the intention is good, the
duration brief, the event harmless
4. Conversion can be achieved by aiding and abetting another’s conversion
5. Bona fide purchaser
a) Even if someone purchases something in good faith, if the property has
been converted, they are liable
b) In theory, you cannot purchase something that you do not legally possess
6. Remedies
a) Damages, measured by the value of the property at the time of
conversion (fair market value)
b) Can only recover damages once
c) Since the value of some chattels can fluctuate (ex: stocks), plaintiff may
seek replevin, or return of the actual chattel itself
C. Trespass to Chattels
1. Elements
a) Intent to act in such a way as to physically interfere with the use and
enjoyment of another’s personal property, or the knowledge that such
interference is substantially certain to result
b) Result of harm to the owner’s materially valuable interest in the physical
condition, quality, or value of the chattel, or if the owner is deprived of
use of the chattel for a substantial amount of time
(1) Substantial amount of time - up to the fact finder
2. Damages
a) Nominal damages
b) Value of the time P was dispossessed of the chattel
D. Conversion of chattels vs. Trespass to chattels
1. Related. For most cases, the intent will be the same for both
2. The difference comes down to the degree of harm
a) For trespass, the defendant would have to pay back the decrease in value
b) For conversion, the defendant would have to pay back the full value
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Defenses to Intentional Torts
I.
II.
Affirmative defenses
Plaintiff has the burden to prove all the elements of a prima facie case, but the defendant
has the burden to plead and prove all elements of affirmative defenses
Standard Elements: (1) Trigger and (2) Reasonable defense
Self Defense and Defense of Others
A. Elements
1. Reasonable belief that they need to defend themselves against the use or
imminent use of unlawful physical force from another
2. They may use a degree of force that they reasonably believe to be necessary for
the threat
a) Reaction must be in proportion to the threat
3. A person is justified under the above provisions in using physical force, including
deadly physical force, and who has not engaged in any unlawful activity and is in
any place where they have no duty to retreat and have the right to stand their
ground
4. A Person is not justified in using physical force if they were the initial aggressor
a) Exception: they use physical force but withdraw from the encounter and
effectively communicate to the other person their intent to do so, but the
latter person continues or threatens the use of physical force
B. Assault or imprisonment in self defense
1. May prefer imprisonment over assault, but it still should be reasonable
confinement
2. 2nd restatement of torts says that the defendant may be privileged to put plaintiff
in apprehension of a harmful or offensive contact even though the contact itself
may not be privileged
C. Reasonable deadly force
1. Extends only so far as reasonably necessary to prevent death or serious bodily
harm (or sexual assault) to you or to another person (never property)
2. Deadly force = death or serious bodily harm
3. Serious bodily harm = objective test
D. Statutes
1. Stand your ground rules: remove the duty to retreat before using force in self
defense and allow the actor to use greater self-defense than otherwise allowed
E. Defense of others
1. 2nd Restatement
a) defendant must reasonably believe that another person was being
attacked and needed help to not be liable
b) works even if the defendant was mistaken
c) amount of force used must be reasonable
Defense and Repossession of Property
A. Elements
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B.
C.
D.
E.
F.
III.
1. Reasonable belief that property is at risk
2. Reasonable force used to protect property
3. Must have a possessory or ownership interest in the property
There is no privilege to use deadly force to defend property
1. We value human life over property
Reasonable force to protect property
1. In some situations, what is reasonable may be to not use force at all. (Ex: issuing
a warning or a threat of force). You can threaten more force than you are
privileged to release
2. However, a warning may not be sufficient if it is not going to be believed to be
effective, or if it will increase risk to the property owner
A person is liable for all force that is not privileged
Transferring intent when one tort is privileged
1. As a general rule, you can transfer intent from any tort to person to another tort to
person, but you cannot transfer intent when the tort is privileged. (Brown v.
Martinez - Only assault was privileged, but battery resulted. The court found that
the battery was not privileged, and therefore defendant was held liable)
Right to defend property also extends to outside the premises as long as it is in "fresh
pursuit" (at the moment it is taken)
1. this privilege is lost if the defendant is mistaken about the need for force
2. after the opportunity of fresh pursuit is gone, a person must go to the courts to
resolve the issue
3. cannot use force to repossess land
Arrest and Detention
A. Elements
1. Reasonable cause
2. Proper purpose (questioning or summoning a law enforcement officer)
3. Detention carried out in a reasonable manner and for a reasonable amount of time
B. Reasonable cause
1. Not dependent on guilt or innocence, or whether the crime was actually
committed. One can act on what proves to be an incorrect belief as long as it is
reasonable
C. Proper purpose
1. Proper purpose can never be to punish
D. Reasonable manner and for a reasonable amount of time
1. Can never be the use of force intended or likely to cause serious bodily harm
a) Exception: self-defense
2. Use of force for detention is never privileged unless the person has been
requested to remain
a) Exception: there is no time or the request would be futile
E. 2nd Restatement: Shopkeeper's privilege
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1. one who reasonably believes another is stealing is privileged, without arresting
the other, to detain him on the premises for the time necessary for a reasonable
investigation of the facts
a) different from the privilege to use reasonable force to recapture a chattel
-- it protects the shopkeeper who has made a reasonable mistake
regarding the guilt of the suspect
b) Allows merchants to pursue suspected shoplifters off of the premises in
order to detain them. A contrary rule would allow shoplifters to flee and
increase the risk of harm to merchants and innocent customers.
F. A person who reports a suspected crime that results in another person's detention may be
liable for false imprisonment
1. granted privilege if report was made to appropriate authorities and in good faith
G.
IV.
Consent
A. Consent can be used in two ways
1. It can serve to take away the requisite intent of an intentional tort. It is the
plaintiff’s burden to prove that intent still exists
a) Subjective test
2. All the elements of a prima facie claim are present, but the plaintiff gives up the
claim through consent. It is the defendant’s burden to prove this.
a) Objective test - Do we reasonably think that the plaintiff gave up the
claim?
3. Question to ask: How is consent operating? To undercut intent of an intentional
tort or as an affirmative defense? (There was no intent vs. there was intent, but
there was also consent).
B. Capacity to consent
1. Minors do not have the capacity to consent
2. Some adults may have someone who is adjudicated to give consent for them
C. Consent can be revoked before the contact
D. Consent can be explicit or implicit (actions)
E. Medical cases
1. Consent is not present where treatment is substantially different from that
covered by the patient’s expressed consent
a) Substantially different treatment - found by the jury
2. Ordinary rule: battery occurs where a doctor treats a patient without the patient’s
consent, or in excess of the scope of the patient’s consent
a) Exception: emergencies, substituted consent (minor or incapacitated
adult), incompetence to give or withold consent (measured by patient’s
ability to understand the condition, nature, and effect of proposed
treatment or rejection).
F. STD’s
1. (1) One who knows he has a venereal disease and (2) knows that his partner does
not know of his infection commits a battery by having sexual intercourse
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2. Substantially different test
a) Having sex with someone who has an STD is substantially different from
having sex with someone who does not
G. Consent procured by fraud is not valid
1. Induced by false information = fraud
2. It does not matter if what happened is substantially different or not
H. Plaintiff can revoke consent at anytime by communicating revocation to the defendant
I. Consent to crime: when a plaintiff is injured during an illegal activity in which he has
agreed to participate
1. some courts have held that consent to a crime is invalid, so tort claim can proceed
2. other courts have said that plaintiff's consent bars a tort claim
3. second restatement of torts: plaintiff's consent is a bar unless the statute makes
the conduct illegal to protect the plaintiff from her own consent
V.
Necessity
A. Public necessity
1. Elements of public necessity
a) Defendant had a reasonable belief that action was needed (impending
peril)
b) Action taken was a reasonable response to the need
2. Destroying property for public necessity
a) Surocco v. Geary - The right to destroy property to keep a fire from
spreading can be traced to the highest law of necessity. The plaintiffs in
this case could not recover the value of the goods that were destroyed
because they were as much subject to the necessity as anyone else.
b) Whether or not there is necessity to destroy property is an objective test
3. some states have held that in cases where the defendant is a state actor, the state
itself should compensate the property owner under the takings clause of the state
constitution
a) exception: takings clause does not extend to police destruction or seizure
of property
B. Private necessity
1. Same elements as public necessity
2. A person will not be liable for trespass if they have a sudden and temporary cause
to use someone else’s land. Ploof v. Putnam - Plaintiff moored his boat to
defendant’s dock to protect themselves from a storm. D unmoored the boat, and
the boat and all its contents were destroyed. Value of life over property prevails.
3. In cases of private necessity, the defendant is liable for harm they have
caused. In cases of public necessity, the defendant is NOT liable for harm
they have caused
a) Policy decision: public necessity is for the greater good.
b) Vincent v. Lake Eerie - Even though trespass was privileged (private
necessity), defendant was still liable for the harm he prudently and
advisedly caused to the plaintiff’s property
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C. Similarities between public and private necessity defenses
1. both require a reasonable trigger that some action is warranted
a) Surocco: trigger was impending public peril
b) Ploof and Vincent: to prevent harm to oneself, another, or one's (or
another's) property or chattel
2. Things that are not public are therefore private; if the distinction is difficult to
make, think about whether the people involved are outside of the interaction at
issue
3. Response must be reasonable
a) is there another action that would be more reasonable?
(1) calling public officials
4. An intentional killing to save a greater number of lives is not privileged
5. Cannot assert a necessity defense against torts to persons, only torts to property
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