I.
Intentional Torts
Battery: [P bears burden of proof of the elements]
 Act
 Intent: To cause harmful or offensive contact OR imminent apprehension of such contact
 Effect: Harmful or offensive contact occurs
 [link I & E]
 Causation: the act causes the effect
 Damages [briefly mention on exam]
A. Harmful Battery: Elements
2. Battery type Intent: (as a legal term of art) –RELATES TO EFFECT element [assume all acts are
intentional/volitional and focus on the object of the action: ‘intent to destroy in whole or in part an ethnic
group’ OR ‘intent to make a harmful or offensive contact’ OR ‘intent to confine’;
3 ways to establish INTENT:
#1. Restatement: subjective purpose or ‘desire’ to bring about the consequences or relevant
“Effect” [i.e. if Aurila fears for her safety, it can be inferred that she had the SPD to make harmful contact]
Act (like a kick or punch) + intent (purpose or desire) to cause a harmful
contact or imminent apprehension of the same.
*********************************************************************************************
#2. [can be inferred from unlawful act] Unlawful act = unlawful intent; MUST SPECIFY
WHAT MAKES THE ACT “UNLAWFUL”;
i. Vosburg v. Putney (1891)
(a) Facts: young D kicks young P in classroom. P becomes sick,
won’t recover the use of limb.
(b) Rule: unlawful act = unlawful intent (intent requires only that
you intend your actions, not necessarily the consequences of
those actions, i.e. the harm).
ANALOGUE IS TO KICK BEING “UNLAWFUL” BC IN CLASSROOM AND NOT ON PLAYGROUND
(where there was an IMPLIED LICENSE); here, there was NO implied license to contact; violation of the order
and decorum of the school, and necessarily unlawful
**injuries don’t have to be foreseen in order to be liable
**********************************************************************************************
#3. Knowledge w/substantial certainty that effect will occur suffices [HIGH standard]
i. Garratt v. Dailey (1955)
(a) Facts: D is child who pulled out chair while old woman (P) was
trying to sit down. P fell, broke hip, and is now suing D.
(b) Rule: knowledge w/substantial certainty that harmful or
offensive contact will occur will satisfy battery-type intent. Generally
governs situations where the actor does not subjectively desire the harmful contact. [i.e. Act (moving chair) +
substantial certainty that harmful or offensive contact will occur = battery type intent]
[example statement: “intent can be established if the defendant knew with substantial certainty that his act would
cause a harmful contact”]
EXCEPTION: passive smoking cases
__________________________________________________________________________________
#4. Transferred intent: the ill intent that the D bore toward P’s uninjured person
applied to the conduct that harmed the P/3rd party [except for IIED no
transfer UNLESS some limited circumstances may apply: same room/family member, etc.]
3. Effect: CONTACT occurs either w/ P’s person or w/something very closely associated
therewith <direct or indirect> [like plate in Carousel; or particulate matter from deliberate smoke]; or
when P/Garratt hit the ground
Harmful Contact:
1
a. Contact does not have to be direct; it can be slightly removed
(kick, hitting the ground, bullet entering body, ingestion of food/poisoning).
b. “Harm” requirement is VERY low, but perhaps not as low as b4 offensive battery was
recognized
c. Brief and/or minor pain is generally sufficient to establish the effect element, although such
contact may not merit much in terms of a damages award [if low, = low $$]
4. Causation: link b/t the act and the effect [bc boy volitionally pulled chair and P hit the
ground, injury resulted—broke hip]
5.
Harm/damages: extent to which victim was harmed by wrongful act; usually $$$
a. Bodily Harm: any physical impairment of the condition of another’s body or
physical pain or illness.
<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<
B. Offensive Battery: Elements [same as above; only difference is EFFECT]
1. Act: (assume volitional, an act of will)
a. offensive contact
ii. RESTATEMENT 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 w/the person of the other or a third person, or an
imminent apprehension of such a contact, and (b) an offensive contact w/the person
of the other directly or indirectly results.
2. Intent: Desire to commit offensive contact
a. Restatement: subjective purpose or ‘desire’ to bring about the consequences/objective
Act (like a kick or punch) + intent (purpose or desire) to cause an offensive contact or
imminent apprehension of the same.
b. Unlawful act = unlawful intent
c. Knowledge w/substantial certainty
d. Transferred intent
3. Effect: offensive contact occurs; OBJECTIVE STANDARD—A BODILY
CONTACT IS OFFENSIVE IF IT OFFENDS A REASONABLE SENSE OF PERSONAL
DIGNITY [one in which an ordinary person and as such one not unduly sensitive to his personal
dignity]—context is always relevant so always refer to FACTS in arguments [CONTEXT: time and
place important!—Sac Monarchs example] including characteristics of P [usually facts left to jury]
a. restatement §19 Offensive Contact: A bodily contact is offensive if it offends a reasonable
sense of personal dignity. It must be one which would offend the ordinary
person and as such one not unduly sensitive as to his personal dignity. It
must be unwarranted by the social usages prevalent at the time [and place] at which it is
inflicted.
i. Fisher v. Carrousel Motor Hotel (1967)
(a) Facts: D snatched plate from P, who was invited to the work lunch
conference, and shouted at him that a Negro could not be served.
--Respondeat Superior Doctrine: Master-servant relationship. The
master is responsible for the action of servants (acting in a managerial
capacity and w/in scope of employment).
(b) Rule: Actual physical contact is not necessary to constitute a battery so long
as there is contact with clothing or an object closely identified to the body.
(unpermitted and intentional invasion of one’s person)  essence of battery
is personal indignity; caused humiliation to P
ii. Leichtman v. WLW Jacor Communications, Inc. (1994)
(a) Facts: P invited to a radio show to talk about the Great American
Smokeout. D lit a cigar and continuously blew smoke in P’s face.
**Deliberate act
(b) Rule: battery results from indirect physical contact which is offensive to a
reasonable sense of personal dignity. [McCracken v. Sloan (1979) Glass
cage: however, and cannot erect a glass cage around himself and announce
that all contact comes at the expense of liability.]
2
4. Causation: DID THE ACT DIRECTLY OR INDIRECTLY CAUSE E? answer is
usually straightforward in intentional tort law; link b/t the act and the effect [sample statement: as in Garratt—
Bryan, by pulling the chair from under P as she was preparing to sit caused her to hit the ground]
5.
Harm/damages: [briefly mention this] extent to which victim was harmed by wrongful act;
usually $$$
a.
b.
Bodily Harm: physical or emotional consequences/harm associated w/ effect [or any
physical impairment of the condition of another’s body or physical pain or illness].
Jury will assign a $$$ value
C. Battery Privileges/Defenses [2 types: #1: Consensual #2: Non
consensual]
1. Consent [S/A—states do it differently; lack thereof may be an element of P’s case;
in other jxs it is an affirmative defense]; [in medical field: treatment performed w/o consent, DR
commits BATTERY vs. doctor obtains consent but fails to inform the patient of risks, P can sue for
NEGLIGENCE]
a.
Effect of Consent:
(implied consent to contact in football)
i. Restatement Section 892 A:
(1)One who effectively consents to specific conduct of another intended to
invade his interests cannot recover in action of tort for the conduct or for harm
resulting from it. (No liability)
(2) To be effective consent must be (a) by one who has the capacity to consent
or by person empowered to consent for him, and (b) to the particular conduct, or
to substantially the same conduct.
(3) Conditional consent or consent restricted as to time, area or in other
respects is effective only w/in the limits of the condition or restriction. [Dr.
cases]
(4) If the actor exceeds the consent, it is not effective for the excess.
(5) Upon termination of consent its effectiveness is terminated, except as it
may have become irrevocably by contract or otherwise, or except as its terms
may include, expressly or by implication, a privilege to continue to act.
ii. Hackbart v. Cincinnati Bengals, Inc. (1979)
(a) Facts: During a pro-football game, but not within the play, D struck a blow
to the back of P’s head. P was watching a play and was nowhere near the play.
This type of action was outside of the scope of the game and forbidden by the
rules.
(b) Rule: You don’t consent to touching outside of the rules of the game.
NARROW reading here.
b. Consent
Under Mistake, Misrepresentation or Duress:
Restatement (2d) Section 892B:
Except as stated in Subsection (2), consent to conduct of another is effective for all
consequences of the conduct and for the invasion of any interests resulting from it. (2) if
the person consenting to the conduct of another is induced to consent by substantial
mistake concerning the nature of the invasion of his interest or to the extent of harm to be
expected from it and the mistake is known to the other or is induced by the other’s
misrepresentation, the consent is not effective the for the unexpected invasion or harm.
(3) Consent is not effective if it is given under duress.
---The insurance agent case where he falsely misrepresented himself to be a physician
and conducted a full physical to his client [MISREPRESENTATION is huge here]
3
--The birth case where the doctor misrepresented his friend to be a physician bc friend
wanted to witness childbirth
****************************************************************************************************
>>>>>>>>>>>>>>>>>>>c.
Consensual: 2 types
i. Subjective/Consent in Fact: [doesn’t
have to be communicated
to D to be effective]
(a) Subjective intent is the general rule
(b) Did this person consent?
(c) Restatement §892(1): consent is willingness in fact for conduct to occur.
It may be manifested by action or inaction and need not be
communicated to the actor.
(d) Barton v. Bee Line, Inc. (1933)
(i)Facts: 15 yr-old girl claims chauffeur raped her, he said she
consented.
(ii) Rule: females under 18 have no tort cause of action against
males if willingly consent to sex. <if she knows the nature and
quality of her act, she shall not be rewarded for her indiscretion> NOT majority rule TODAY—statutory rape laws
correspond to criminal cases; in civil cases: consent by a victim does not undo civil liability.
CONSENT TO A CRIMINAL ACT: Irrelevant in a civil action [liability for: illegal abortions <physician>; illegal rape
<statutory>; illegal prize fighting]. Can still pursue a civil action even though P consented.
(e) Bang v. Charles T. Miller Hospital (1958)
(i) Facts: P complained of urinary problems to doc in hospital.
Doc wanted to investigate w/surgery, conducted surgery and
decided to sever spermadic chords (rendered sterile). P claims he never
told D to do this, nor authorized the procedure.
(ii) Rule: This Dr. had the opportunity to disclose and did not = docs
must give P reasonable opportunity (absent medical emergency) to be
given opportunity to consent. Restatement 892A (must not exceed the
scope of specific consent); NOW, such must be communicated
clearly to your patient…
(f) Kennedy v. Parrott (1956)
(i) Facts: D treated P for appendicitis. Doc recommended that
she have appendix removed and she consented. While conducting
surgery, D found and punctured ovarian cysts accidentally severing
blood vessel which caused phlebitis. P had to have additional surgery
to correct.
(ii) Rule: Ps must plead absence of consent in order to survive
summary judgment. (Not good law today; it gives too much discretion;
TODAY, we give patients more rights—most states; consent cases don’t really come up bc dr. try to cover their asses
w/mounds of consent forms). Consent has to be informed in medical context. Must assess physician’s reasonableness.
Diff btw Bang and Kennedy: in Bang, it was possibly a foreseeable complication; in Kennedy not necessarily predictable; in
Bang, there were other alternatives (non-surgical option) BUT in Kennedy there was not.
[Apparent consent will trump objective consent 892 (2)]
objectively assess whether
D was REASONABLE in believing s/he had consent from P]—tougher
cases
ii. Objective/Apparent Consent: [
perception of others
(a) Restatement 892(2): if words or conduct are reasonably understood by
another to be intended as consent, they constitute apparent consent and
are as effective as consent in fact (situation where P may not have
actually consented in fact but is inferred to have done so; the
re: whether P/victim consented to the touching.). §892 (2) consent is NOT effective if given
under duress
4
(b) O’Brien v. Cunard Steamship Co. (1891)
(i) Facts: immigrant woman (P) coming to US, ship required that
all be vaccinated. P had apparently already been vaccinated but
her arm did not have mark. Doc testified that P held up her arm
for shot and he injected her. P sued for battery.
(ii) Rule: objective appearance of consent will satisfy the privilege
if it was reasonable for D to have believed that she was consenting
[apparent consent may be INFERRED from failure to ‘speak up’ or protest; even though she did not in fact consent,
apparent consent won here].
iii. CONSENT to CRIMINAL act is totally irrelevant to civil claim based on that act
[Civil aspect: redress to the individual; Criminal: prosecution by ALL the people (redress for ALL of society)
****************************************************************************************************
d.
Emergency Action w/out Consent:
i. RS §892D: Conduct that injures another does not make the actor liable to the other, even
though the other has not consented to it if (a) an emergency makes it necessary
or apparently necessary, in order to prevent harm to the other, to act before there
is opportunity to obtain consent from the other or one empowered to consent for
him, AND (b) the actor has no reason to believe the other, if he had the opportunity to
consent, would decline. [i.e. car accident cases/trauma situations]
2. Non-Consensual Defenses [shields from liability, even if P objects to contact; emergency; self
defense]. AFFIRMATIVE DEFENSES. Burden of proof on D.
a. Self-defense
FIRST QUESTION TO ASK: HOW MUCH force was used here? Deadly force or non deadly force? Imminence…
i. Non Deadly Force: <looser>
GENERAL RULE: One can use non-deadly force to defend against a battery s/he reasonably believes another is
about to inflict intentionally upon her. There is NO requirement to retreat before resorting to non-deadly force AND
there’s no requirement to comply with a command w/which actor is under no duty to comply.
(a) Restatement 63: Self-Defense by Force Not Threatening Death or Serious
Bodily Harm [NO RETREAT NECESSARY]
(1) An actor is privileged to use reasonable force, not intended or likely to
cause death or 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. (2) Selfdefense is privileged under the conditions stated in (1), although the actor
correctly or reasonably believes that he can avoid the necessity of so
defending himself, (a) by retreating or otherwise giving up a right or
privilege, OR (b) by complying w/a command w/which the actor is under
no duty to comply or which the other is not privileged to enforce by means
threatened.
****************************************************************************************************
ii. Deadly Force:
MUST RETREAT IF YOU CAN!!
 REASONABLE MAN STANDARD [reasonableness of D’s perception]; temporal requirement; intent
 PRUITT: General rule: reasonably believe that the other is about to inflict immediate, intentional deadly
contact AND reasonably believe that you can only avoid this contact by inflicting deadly force yourself
 An actor can defend self w/deadly force ONLY when s/he reasonably believes the other is about to inflict an
impending, deadly, intentional contact upon him/her AND reasonably believes the deadly contact can only be
safely avoided by the immediate use of deadly force <a/k/a: CANNOT SAFELY RETREAT.
 An actor must give up any privilege in order to avoid the need to defend himself w/deadly force EXCEPT
that there is no duty to retreat if in home (unless attacker lives there too) OR there is no duty to permit
another to intrude upon home OR dispossess him of dwelling house OR there is not duty to abandon an
attempt at lawful arrest.
5
(a) Restatement 65: Self-Defense by Force Threatening Death or Serious
Bodily Harm
(1) Subject to the statement in (3), an actor is privileged to defend himself
against another by force intended or likely to cause death or serious bodily
harm, when he reasonably believes that (a) the other is about to inflict
upon him an intentional contact or other bodily harm, AND that (b) he is
thereby put in peril of death or serious bodily harm or ravishment,
which can safely be prevented only by immediate use of such force.
Super-Privilege:
(2) The privilege in (1) exists although the actor correctly or reasonably
believes that he can safely avoid the necessity of so defending himself by (a)
retreating if he is attacked w/in his dwelling place, which is not also the
dwelling place of the other, OR (b) permitting the other to intrude upon or
dispossess him of his dwelling place, or (c) abandoning an attempt to effect a
lawful arrest.
Removal of the Privilege:
Must retreat if you can; if attacked anywhere other than your home, you should retreat. Also, NO overkill.
(3) The privilege in (1) doesn’t exist if the actor correctly or reasonably
believes that he can w/complete safety avoid the necessity of so defending
himself by (a) retreating if attacked in any place other than his dwelling
place, or in a place which is also the dwelling of the other, OR (b)
relinquishing the exercise of any right or privilege other than his
privilege to prevent intrusion upon or dispossession of his dwelling place or
the effect is lawful arrest.
(b) Courvoiseir v. Raymond (1896) [PERCEPTION of need to use deadly
force, not reality, GOVERNS as shown by Courvoisier; perception MUST be reasonable; perception of need MUST
be actual or honest].
(i.) Facts: A group attacked Courvoisier’s store and entered the
dwelling part of the building. H tried to run them off and
ended up firing warning shots. Raymond, a police officer,
went to investigate. C mistook him for one of the “visitors”
and shot him in the stomach.
(ii.) Rule: D must be able to satisfy to the jury that he acted honestly in
using force and that his [perceptions] fears were reasonable
given the circumstances/context. Sense of urgency in this case
****************************************************************************************************
iii. Excessive Force: (Katko)
(a) PROPORTIONALITY
Restatement 70: Character and Extent of Force Permissible
(1) The actor is not privileged to use any means of self-defense which is
intended or likely to cause bodily harm…in excess of that which the actor
correctly or reasonably believes to be necessary for his protection. [i.e. 1
gunshot might be excusable…10 may not]
(b) Restatement 71: If one acting in self-defense exceed the defense, s/he is
liable only for the damage associated w/excess.
____________________________________________________________________________________________________
b. Defense of Others: [split in authority]
i. Restatement 76(c): The actor does not take the risk that the person for whose
protection he interferes is actually privileged to defend himself. He may be
guided by appearances which would lead a reasonable man in the actor’s
position to believe that the 3rd person is privileged.
ii. The force used on an intervenor is measured by the force that the person being
attacked could use.
iii.
In case of mistake, the authorities are divided/split of authority: [#1: Rest. Rule
is that the privilege of intervenor is independent of that person he’s defending,
if mistake is reasonable, privilege remains. #2 MAJORITY RULE:
6
iv.
intervenor’s privilege is derivative of person he’s defending, so if D is mistaken
about who has the privilege, law does not excuse him/her.]
At common law you could only defend those in your own household; NOW
privilege extends to total strangers
c. Defense of Property:
i. Defense of Possession By Force Not Threatening Death Or Serious Bodily Harm
Restatement §77: **CUMULATIVE (must have all requirements)
An actor is privileged to use reasonable force, not intended or likely to cause
death or serious bodily harm, to prevent or terminate another’s intrusion up the
actor’s land or chattels, if (a) the intrusion is not privileged…and (b) the actor
reasonably believes that the intrusion can be prevented or terminated only by the
force used, & (c) the actor has 1st requested the other to desist and the other
has disregarded the request, or the actor reasonably believes that a request
will be useless or that substantial harm will be done before it can be made.
[law recognizes that this may not always be practical.]
[IF: #1—Intrusion is NOT privileged, AND #2 actor reasonably believes intrusion can be prevented ONLY by force, AND
#3 actor has first requested other to desist AND other disregards request OR actor reasonably believes such a request would
be useless OR substantial harm will be done before it can be made.]
ii. Defense…Threatening Death or Serious Bodily Harm
(a) Restatement 79:The intentional infliction upon another of a harmful or
offensive contact or other bodily harm by a means which is intended or
likely to cause death or serious bodily harm for the purpose of
preventing or terminating the other’s intrusion upon the actor’s
possession of land or chattels, is privileged if, but only if, the actor
reasonably believes that the intruder, unless expelled or excluded, is
likely to cause death or serious bodily harm to the actor or to a 3 rd
person whom the actor is privileged to protect. Using deadly force
to protect your life of someone else.
(b) Katko v. Briney (1971)
(i) Facts: D set up a spring-loaded shotgun trap (which they concealed
from the windows) in an unused house D owned. P, believing
the property to be abandoned, went in w/his friend to get some
“antiques.” When he opened the door he was shot in the leg.
He lost the majority of his leg.
(ii) Rule: You can’t use deadly force just to protect property. You
cannot do by proxy w/spring gun what you could not do if present. If no one’s there, can’t use deadly force bc no risk of
deadly threat to any person.
Example AIECD: A—assume volitional/act setting up of the spring gun so it would discharge when the door opened; I—
SPD; unlawful/Vosburg; KSC/Garrat <can argue all three intents>; E—Harmful contact: the bullets striking the bone/made
contact w/P’s bone; C—the act setting up of the spring gun, to shoot when door opened, caused the harmful contact to P’s leg
and caused harmful injury; D—lost his foot
*************************************************************************************************
d. Necessity: It is the counter-defense that trumps D’s privilege
i. When human life is at stake:
(a) Restatement 263: An actor is privileged to damage the chattels of another in
order to avoid serious harm.
(b) Ploof v. Putnam (1909)
(i) Facts: During a violent storm P tried to moor his boat to D’s dock.
D’s servant unmoored the boat, which was thrown to shore
and the family suffered injuries when tossed in the water.
(ii) Rule: The necessity to protect human life is a defense to trespass
and trumps defense of property.
ii. Damages to property used during a necessity-based privilege:
(a) Restatement 197: a necessity-based privilege to enter the land of another in
order to avoid serious harm to one’s person, land, or chattels, or to
those of a 3rd person. This privilege is coupled w/an obligation on the
part of the entrant to pay for what harm he causes.
7
(b) Vincent v. Lake Erie Transportation Co. (1910)
(i) Facts: D was unloading P’s cargo at P’s dock. A violent storm
developed and was so violent D kept his ship moored to the
dock. The dock was damaged and D had to pay.
(ii) Rule: Qualified privilege/Privilege of necessity but it’s
qualified, you have to pay damages. [a qualified privilege to
enter on the land of another to avoid serious harm, but this
privilege is coupled w/a duty to pay for whatever he breaks,
damages. Where one is preserving one’s own property at the
expense of another, he SHOULD pay damages]
Acts of omission: can only sue if you have a duty to act; Ellman v. Brown example where she did not let him in on the night
of an impending blizzard. Q is whether she had a duty to let him in. her act was an act of omission.
D. Dignitary Torts: Assault—Elements
[refer back to battery AND if P saw it coming, then its assault] to protect peace of mind, dignity, productivity
1. Act: same as battery, volitional
2. Intent: Intent to cause harmful or offensive contact or to create imminent apprehension of
such contact; Intent is indispensable, negligent or reckless do not make you liable for assault (Rest. §21)
a. subjective purpose or desire to make harmful, offensive contact or imminent
apprehension of such contact
b. Vosburg—unlawful act = unlawful intent
c. Garrett—knowledge w/substantial certainty
************* 3. Effect: Apprehension MUST result—P must be AWARE of the
threat/harm—Pruitt.
Apprehension that harmful/offensive contact w/his own person is imminent [not synonymous w/immediate;
CL: PRESENT ABILITY (don’t have to be w/in striking distance):
subjective view of victim through a lens of reasonableness. Fear is not necessary—
apprehension of contact. [we give lots of credence to P; subjectively ask if he was aware of
imminent harm; ONLY exception to imminence requirement: MUST NOT be UNREASONABLE about imminence
requirement—.
Apprehension/Effect:
a. Imminent v. future contact [some present ability]
Restatement §29: Apprehension of Imminent and Future Contact
(1) To make the actor liable for an assault he must put the other in apprehension of an
imminent contact.
(2) An act intended by the actor as a step toward the infliction of a future contact, which is so
recognized by the other, does not make the actor liable for an assault under the rule in §21.
i. Imminent does not mean immediate, instantaneous. There will be no significant delay.
ii. If you don’t see the attack, then no assault
b. Fear v. apprehension
i. P doesn’t need to exhibit fear, only apprehension of an imminent touching (cognizant)
ii. §27: Unreasonable Character of Apprehension
If an act is intended to put another in apprehension of an immediate bodily contact and
succeeds in doing so, the actor is subject to liability although the act would not have
put a person of ordinary courage in apprehension. [So, P not penalized for being
unreasonably fearful or skittish [SUBJECTIVE governs w/respect to apprehension or cognizance]
c. Subjective assessment of apprehension BUT objective assessment of imminence
i. Bouton v. Allstate Insurance (Louisiana 1986): P killed a 13 year old trick-or-treater,
sued boy’s insurers, alleging assault. He lost. Illustrates subjectivity. Don’t buy P’s, “I
believed…” but reasonableness shows we don’t give P too much slack.
Words alone never make for assault.
4. Causation: same as battery
5. Damages: same as battery—desire is to protect interest in mental security; we award damages
for violation of interest in being free from perception that one is about to be touched against
8
one’s will.
E. D.T.: False Imprisonment—Elements [2 things change: Intent and Effect]
1. Act: standard, volitional act—confinement or restraint of another
a. Whittaker v. Sanford (1912)
i. Facts: P a member of a religious sect who wants to leave. She is imprisoned on a boat
but they did not let her use a small boat to leave the yacht.
ii. Rule: Moral influence is not enough for false imprisonment, need a physical
confinement: but there can be a stretching of the boundaries. The impassible sea is a
physical barrier.
2. Intent: purpose or desire/intending to confine/imprison the other person or 3rd party w/in
boundaries fixed by the actor AND
3.
Effect:
2 requirements: confinement w/in boundaries fixed by D results AND P is
conscious of confinement OR harmed by it [resulting in $$ or liberty harm]
P’s perception is what matters here as long as its reasonable
a. Confinement
i. Physical barriers (keep your mind open, the impassible sea in Whittaker)
ii. Physical force (one person restraining another)
 Coblyn v. Kennedy’s Inc. (Mass 1971)
o Facts: The old man in the dept. store who’s accused of stealing and
is hospitalized w/heart problems.
o Rule: Any genuine restraint is sufficient to constitute an
imprisonment…and any demonstration of physical power, which to
all appearances, can be avoided only by SUBMISSION, operates
effectually to constitute an imprisonment, if submitted to, as if any
amount of force has been exercised. If a man is restrained of his
personal liberty by fear of a personal difficulty, that amounts to
false imprisonment. [§39, 40] Mere moral influence is NOT
enough.
iii. Threats of force
Can be sufficient
iv. Duress: Confiinement can be by submission to duress such that consent given is
NOT meaningful (§40).
v. OMISSIONS: can be by failure to act (e.g. to provide rowboat) when there’s a
duty to act [Whittaker]
vi. TOTAL restraint
 Rougeau v. Firestone Tire & Rubber Co.
o Facts: Employee was suspected of stealing 2 lawnmowers from D,
his employer. P refused search of his home; P was asked to wait in
the guardhouse BUT both guards stated they did not consider P to
be a prisoner. P was allowed to leave when he fell ill. Total time
spent in guardhouse did not exceed 30 minutes. P never said he did
not want to stay in guardhouse = implied consent.
o Rule: P was not falsely imprisoned bc at no time was he totally
restrained. Never expressed desire to leave so = implied consent.
vii. Asserted legal authority [like Macy’s cases, WalMart cases, Rougeau]
viii. Failure to release when duty to do so (peace officers, prison guards, etc.)
 Restatement §45 (2d): If the actor is under a duty to release the other from
confinement (even if they didn’t initially do the confinement) or to aid in
such release by providing a means of escape, his refusal to do so w/the
intention of confining the other is a sufficient act of confinement to
make him subject to liability.
9
4. Causation: standard
5. Damages: standard
F. False Imprisonment Defenses
1. Implied Consent: If P does not speak up, there can be implied consent
a. Rougeau v. Firestone Tire & Rubber Co. (Louisiana 1973)
i. Facts: P a guard for D. Suspected of stealing and P refused a search. P was asked to
stay in the guardhouse. P was allowed to leave when he asked to go. He was there 30
min. at the most.
ii. Rule: A D can imply consent if the P does not speak up. When the P asks to go and
he is released, then there is no false imprisonment. Must be complete restraint.
b. Faniel v. Chesapeake & Potomac Telephone Co. (1979)
i. Facts: She consented to the car trip and never objected or asked to leave when they
made other stops.
ii. Rule: When someone gives consent for one confinement, and does not ask to leave
when the nature of the confinement changes, consent can be implied.
2. Justification:
a. Rule: It is not unlawful to restrain or detain a person if it is reasonable under the
context/circumstances and in time and manner, if it is done for the purpose of preventing
another from inflicting personal injuries or interfering w/or damaging real or personal property in
one’s lawful possession or custody. PROPORTIONALITY matters; context in protecting personal
property.
b. Sindle v. New York City Transit Authority (NY 1973)
i. Facts: Children going crazy on the bus. Bus driver tries to control them and decides to
take them to the police station. Kids began jumping out of the window. P tried to
jump out and fell and the rear wheels drove over his midsection. Trial court did not
allow him a justification defense.
ii. Rule: See rule above. People entrusted w/supervision and care of a child may use
physical force reasonably necessary to maintain discipline. [Court recognized need of
bus driver to protect persons and property in his charge, the duty to aid the investigation and apprehension of those inflicting
damage, the manner and place of the occurrence, and the feasibility and practicality of other alternative courses of action]
iii. To assess the bus driver’s actions look at reasonableness of actions, manner and
length of detention.
iv. P has a duty of reasonable care for own safety. If P is not reasonable in own actions
then he can’t recover for bodily injuries (but can still recover for mental anguish of
false imprisonment).
Shopkeeper’s privilege to detain: @ CL, was called a defense of probable cause—
MAJORITY RULE??
[Shopkeeper’s privilege to detain (a/k/a justification)—Detention must be in ‘reasonable manner’ for reasonable
length of time by authorized person and based on reasonable grounds to believe (a/k/a Probable cause) person detained
was committing or attempting to commit larceny. –Statutory formulation from Coblyn.
c. Coblyn v. Kennedy’s Inc. (Mass. 1971)
i. Facts: P, an old man, went to the store and bought a jacket. An employee stopped him
(physically) and asked him where he got the scarf and told him he needed to see the
manager. He ended up having chest pains and was hospitalized.
ii. Rule: Grounds for reasonable detention when a reasonably prudent, cautious and
intelligent person would have believe they existed. The test is objective. (In this case
there was no reasonable belief). Ct. said: “reasonable grounds” means “probable
10
cause”
d. Wal-Mart Stores, Inc. v. Resendez (Texas 1998)
i. Facts: D apprehended when hid peanut wrapper after eating peanuts in the store.
Acquitted of misdemeanor theft and then sued for false imprisonment. Court found for
Wal-Mart.
ii. Rule: If alleged detention performed w/authority of law to detain customer to
investigate the ownership of property in a reasonable manner and for a reasonable time
if employee has reasonable belief customer has stolen or is attempting to steal.
G. Intentional Infliction of Mental Upset: Elements
1. Liability for IIED [protects peace of mind <fright, horror, grief, shame, humiliation, anger,
embarrassment, chagrin, disappointment, worry, nausea>; there’s no occasion for the law to intervene in EVERY case;
there must still be some freedom to express an unflattering opinion [goes to bright line rationale]. 1st amendment does
not permit COA’s for racially hateful speech, etc.
a. Restatement §46: Outrageous Conduct Causing Severe Emotional Distress
1) One who by extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for such distress, and if bodily harm to
the other results from it, for such bodily harm.
b. §48: Special Liability of Public Utility for Insults by Servants
A common carrier or other public utility is subject to liability to patrons utilizing its
facilities for gross insults which reasonably offend them, inflicted by the utility’s servants
while otherwise acting w/in the scope of their employment. [we hold common carriers to
a higher standard since many have a monopoly and travelers usually don’t have a choice]
[INTERPLAY BTW ACT AND EFFECT]
2. Act: extreme and outrageous conduct [ P’s own sensibilities/sensitivities come into play in
assessing outrageousness, especially if D KNEW of the particular sensitivities]; CONTEXT
a. State Rubbish Collectors Association v. Siliznoff (CA 1952)
i. Facts: Rubbish Collectors Union terrorized him to join the union. Threatened physical
violence until he agreed to sign papers. Became sick and never paid the money to the
union.
ii. Rule: Countersuit w/ Cause of action for IIED when one intentionally subjects another
to the mental suffering incident to serious threats to his physical well-being, whether or
not the threats are made under such circumstances as to constitute a technical assault.
ii. Law turning a corner: Until this point would require physical harm in order to find
damages for the psychic injury as well.
b. Samms v. Eccles (Utah 1961)
i. Facts: “respectable” Housewife being solicited by D to have sex. Called her
repeatedly and showed up at the house to expose himself.
ii. Rule: Severe emotional distress is actionable when D intentionally does some conduct
toward the P. Actions of such a nature as to be considered outrageous and intolerable
in that they offend against the generally accepted standards of decency and morality
w/purpose of inflicting emotional distress OR where a reasonable person would have
known that this would result.
DISSENT: fear of a runaway court
c. Characteristics of P taken into account when determining extreme and outrageous conduct.
[Most courts consider race, ethnicity, gender, sexual orientation, and other such characteristics
relevant—particularly depending on the acts/words <Branda, Contreras, Taylor>
i. Restatement §46:
 The extreme an outrageous character of the conduct may arise from the actor’s
knowledge that the other is peculiarly susceptible to emotional distress, by
reason of some physical or mental condition or peculiarity. [gives P’s case a
boost if D KNEW of susceptibility/peculiarity and STILL acted]
 The severe emotional distress must be reasonable and justified under the
circumstances, and there is no liability where the P has suffered exaggerated and
11

unreasonable emotional distress, unless sit results from a peculiar
susceptibility to such distress of which the actor has knowledge.
Contreras v. Crown Zellerbach (WA 1977)
i.
Facts: A Mexican American P said his “Mexican nationality and background” were
relevant to determination of tort of outrage b/c his background made him
“particularly susceptible” to emotional distress. P was wrongfully terminated; was
subjected to continuous humiliation and embarrassment by reason of racial jokes,
slurs and comments made in his presence by employer’s agents.
ii.
IMMUTABLE CHARACTERISTICS (race, gender, ethnicity) ARE relevant; also,
If you’re pregnant or have heart illness. Knowledge necessary
d. Things to look for w/IIED
i. Relationship between the parties (i.e. power)
ii. Duration of conduct
iii. Characteristics of P
iv. Effects suffered by P
v. Conduct relating to vulnerability
vi. Social norms of time and community
vii. Speech v. action
e. Recent Supreme Court Cases/Sexual harassment
i. Holding an employer liable for sexually harassing acts of employee
 Did the employer exercise reasonable care to prevent harassing conduct?
 If tangible employment action like firing of P, no affirmative defense for
employer; employer per se liable for acts of employee.
 If no tangible employment action, as if there was policy to prevent sexual
harassment and procedures to be followed. If so, did employer follow them?
3. Intent:
a. intentionally OR recklessly w/ respect to causing severe emotional distress
b. Vosburg
c. Garrett
d. Transferred intent--limited
i. §46
2) Where such conduct is directed at a 3rd person, the actor is subject to liability if he
intentionally or recklessly causes severe emotional distress
a) to a member of such person’s immediate family who is present at the time,
whether or not such distress results in bodily harm, or
b) to any other person who is present at the time, if such distress results in
bodily harm <MORE $$$ if physical upset>.
4. Effect: severe emotional distress
HIGH BAR!! Test: Liability has been found only where conduct has been so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly
intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to the
average member of the community would arouse his resentment against the actor and lead him to exclaim
‘OUTRAGEOUS!’
a. Branda v. Sanford (Nevada 1981)
i. Facts: 15 year old girl berated in a public place/verbally accosted by D Called her
vulgar names. P quit her job 2 weeks later from emotional upset. [age, gender,
workplace, public, power dynamic/celebrity]
ii. Rule: Peculiar Susceptibility/Characteristics of P are taken into account when
determining extreme and outrageous conduct.
12
b. Taylor v. Metzger (NJ 1998)
i. Facts: P, a black woman, worked as a sheriff’s officer for 20 years. D said to a
colleague, “There’s the jungle bunny.” P became a nervous wreck
ii. Rule: A single racial epithet can be considered IIED.
iii. This case set apart because usually it’s words and actions. There’s recognition of
power differential in the workplace.
iv. Court spends a lot of time taking into characteristics of P when assessing
reasonableness.
c. Logan v. Sears, Roebuck & Co. (Alabama 1985)
i. Facts: Hair salon owner hears the Sears employee say he’s as queer as a $3 bill on the
phone.
ii. Rule: A homosexual in Alabama being called a queer in 1985, when no one known to
P heard, in a single act does not meet the requirement of IIED
d. Hustler Magazine v. Falwell (US 1988)
i. Facts: Hustler published a parody of an add which made sexual innuendos about
Falwell
ii. Rule: Public figure cannot recover for IIED unless offending publication contained
a false statement of fact or publisher acted w/actual malice.
 1st time the Supreme Court constitutionalized IIED.
e. Ford v. Revlon, Inc. (Arizona 1987)
i. Facts: P worked for D. Continually harassed sexually by a manager. P did everything
she could to alert the company. The company did not do anything to stop it for over a
year and until she attempted suicide. She became very sick.
ii. Rule: 3 prong test was satisfied: #1: D’s conduct was extreme and outrageous; #2
FAILURE TO ACT & RECKLESSLY disregarded agent’s conduct an and made it nearly
certain that such emotional distress would in fact occur; and #3: emotional distress DID
occur. In addition to breach of duty in failing to act, P’s RELIANCE on company policy was
another basis for them to act.
(A company can be held liable for IIED when fails to act <since they have a duty!!> in response to the agent of the company
who acted was not held liable if the negligence of the company is different from that of the employee. Was NO accident.)
f. Jones v. Clinton (Arkansas 1998)
i. Facts: D had P come to his room and he made sexual advances. Court found she failed
to establish his behaviour as extreme and outrageous and that she suffered extreme E. Distress.
ii. Rule: Mere sexual proposition, albeit an odious one, that is relatively brief in duration,
but does not involve coercion or threats of reprisal, and that is abandoned as soon as P
makes it clear advance is not welcome is not grounds for IIED. [STANDARD:
extreme emotional distress means “emotional distress so severe in nature that no reasonable
person could be expected to endure it”
iii. Contreras v. Crown Zellerbach (1977) A Mexican-American P says that his
background were relevant to determination of tort of outrage b/c his background
made him particularly susceptible to emotional distress because of racial jokes and
slurs.
5. Causation: act caused effect—conduct must cause the distress
6. Damages: assign $ to severe emotional distress AND if physical harm, then damages to that
as well
13
NEGLIGENCE
GOAL: to eliminate unreasonable risks only, but not all risks
Start with a theory of negligence and argue why it constituted a breach of duty using these:
 Weirum: running the super summer spectacular
 Carroll Towing: not having a bargee on board during daylight hours
 Washington v. LP&L: not insulating the power lines on P’s property
ELEMENTS:
Duty
Breach of Duty {Duty and Breach of duty are “opposite sides of the same coin”; their analyses are closely linked}
Actual Cause
Proximate Cause
Damage
The Duty of Care
 RPP (Reasonably Prudent Person Standard
 Context-specific analysis
 Takes into account the physical condition of the D, but not any mental disabilities
 With children, take into account age & experience
 Avoid hindsight – put yourself in the D’s shoes, but not after accident
 B<PL OR RISK UTILITY STANDARD



[REASONABLE] FORESEEABILITY
VIOLATION OF STATUTE
CUSTOM
Brown v. Kendall
Carroll Towing
Washington
Weirum
Violation of Criminal Statutes
Martin v. Herzog [contributory negligence; cannot omit willfully or heedlessly, the safeguards prescribed by law
for the benefit of another that he may be preserved in life or limb, is to fall short of the standard of diligence to
which those who live in organized society are under a duty to conform.] P’s deceased husband was driving w/o
lights on road when he was struck by D who, while the road curved, got into P’s lane, causing the accident. Since
14
P’s contributory negligence, the proximate cause of his death was NOT D’s act alone. P’s conduct was at least a
contributing cause of the disaster. [Existing STATUTE required lights and decedent didn’t comply]
Tedla v Ellman
Custom
Tips:





Don’t have to write full sentences
organize w/HEADINGS
BULLET points
Expects statement of the law for intent; hit all 3 possibilities/issues/doctrines
Structure to IRAC: state the issue [whether its one or more types of torts, i.e. battery]; Rule is the
AIECD; Analysis: apply the rule to the facts [i.e. pose a question like: “Can D successfully
defend her actions based on a defense of self defense?” then apply the facts]; Conclusion
 PRIORITIZE [write from strongest COAs to weakest]; stretches are good only after you go
through the strong points
 Debate both sides
15