Intentional Torts Flashcards
intentional torts
all intentional torts require some element of intent
battery
protects the body from harmful or offensive contacts
an act intending to contact that is harmful or offensive which results directly or indirectly
battery elements
act
intent –> intent to contact
harmful or offensive
act (battery)
an external manifestation of will
anything that is not convulsive or reflexive is considered an act
Polmatier v. Russ
Polmatier v. Russ –> a mentally ill father shoots his father-in-law and then found on a stump naked
Issue: did D act? did he have the requisite intent?
Rule: defines an act as “an external manifestation of the actor’s will”
Rule: a mentally ill person can still act, an insane person can still have intent even if it is irrational
intent [to contact] (battery)
intent to invade the interests of another
analyzed through a subjective standard using objective facts
Waters v Blackshear
Hall v. McBryde
3 types of intent
specific intent: done for the purpose of accomplishing the result
general intent: knowledge with substantial certainty that a result will occur
transfer intent: intent can transfer within torts and between persons
Waters v. Blackshear –> a minor placed a firecracker in the other minor’s shoe
Issue: was D’s conduct intentional?
Rule: a result is intended if it done for the purpose of accomplishing the result (specific intent) or with knowledge with substantial certainty that a result will occur (general intent)
Rule: a tort cannot be both intentional and negligent
Hall v. McBryde –> a boy was shooting youths at his car and hit his neighbor instead of the youths car
Issue: is D liable to P for battery, even though he only intended to cause an apprehension of imminent contact (assault) to the youths car?
Rule: when one intends assault, if bodily injury results to someone other than the person whom the actor intended to put in apprehension of imminent contact, it’s a battery actionable by the injured person
harmful or offensive contact (battery)
harm: anything that causes harm
— Nelson v. Carroll
offensive: contact which is offensive to a reasonable sense of personal dignity (objective standard)
— Leichtman v. WLW Jacor
Nelson v. Carroll. (guy demanded money for unpaid debts, hit him in the head with the gun, gunshot went off on accident and shoots D)
Issue: is D liable for battery based on the shooting even though he only meant to hit P with the gun? (didn’t mean for gun to go off)
Rule: intent required for battery is not specific intent to cause the harm that occurred, but rather a general intent to unlawfully invade another’s physical well-being
Rule: you don’t have to intend the precise harmful or offensive contact, you only have to intend to contact that results in harmful or offensive contact
Leichtman v. WLW Jacor (radio show host blew smoke into guest’s face when the guest outwardly supports anti-smoking)
Issue: is smoke touching one’s face a harmful or offensive contact sufficient to constitute a battery
Rule: contact that is offensive to a reasonable sense of personal dignity is offensive
battery helpful reminders
-be specific about what contact you are talking about
-any time the mind has control over the body it is an act
-the ONLY thing you intend is intent to contact
-particle matter can create a contact, light and sound cannot
assault
the right to be free from the apprehension of an imminent contact (battery)
assault elements
intent (actual, general, transfer)
apprehension of imminent contact (obj)
intent (assault)
person acts with intent or with knowledge of substantial certainty that a contact or an apprehension of imminent contact will occur (actual or general)
subjective standard measured with objective facts
Cullison v. Medley
Cullison v. Medley –> old man invites over young girl and late at night her father and family comes over. father threatens old man with a gun at his hip and keeps reaching for it
Issue: did D assault P?
Rule: apprehension must be one which would normally arouse a reasonable person; contact must be imminent (objective)
Rule: body language of grabbing the gun, despite conditional language, makes it possible for assault
** imminent apprehension = objective, takes into account sequence and chronology
apprehension of imminent contact (assault)
reasonable person believes they will be battered (objective standard)
psychological harm; apprehension of imminent battery; touching of the mind
apprehension is not the same as fear!
brower. v. ackerly
i de S et ux
Brower v. Ackerly –> anti-billboard activist filed a lawsuit against D. D harassed P via phone by threatening to kiss his ass and cut him in his sleep
Issue: did D assault P?
Rule: harm threatened over the phone is not imminent, no assault
Rule: words alone are not enough to create an apprehension of imminent contact therefore, no assault
— words need to be coupled with actions
*** imminence is all at once
I de S et ux –> man beats with a hatchet on the woman’s door, when she peeps her head out and almost gets hit with a hatchet
Issue: did the man commit assault even though no physical harm was done?
Rule: yes; assault protects from a touching of the mind, if not the body, no requirement of physical harm
**assault is about mental tranquility, a disturbance is this is caused by apprehension not fear
affirmative defenses
an excuse or privilege preventing them from liability, all elements of intentional tort are satisfied but plaintiff has a reason for committing the tort and should not be liable
the defendant carries the burden of proof
consent (defense)
voluntary and informed relinquishment of the right to be free from specific tortious conduct
can be expressed (actual) or implied (apparent)
consenting to the behavior (the contact in a battery)! not the harm that follows the behavior!
policy rationale for consent: the law wants to grant us agency to make decisions about is good for us (doesn’t consider power affects)
expressed (actual) consent
actually and willingly gave up something
individuals expressly communicate with words they accept the tortious contact
this type of consent generally occurs in writing
implied (apparent) consent
individuals conduct and surrounding circumstances leads a reasonable person to believe he willingly accepts the tortious contact
can be established through rules and customs
whether a reasonable person would infer that plaintiff is consenting
McQuiggan. v. Boy Scouts
McQuiggan v. Boy Scouts –> boys chase each other around with a paperclip, boy walks away but gets shot in the eye with a paperclip
Issue: did P consent to contact? did P withdraw consent before the contact occurred?
Rule: one who enters a sport, game, or contest may be taken to consent to physical contacts consistent with the understood rules of the game. only when notice is given that contact is no longer tolerated is D no longer free to assume consent
consent: affirmative misrepresentation of information or withholding material information
Hogan v. Tavzel –> spouse knew he had an STD but had intercourse with other spouse anyway
issue: did P consent to STD by consenting to intercourse?
Rule: NO; (1) P was mistaken about the nature and quality of invasion intended (2) if there is an intentional withholding of information, there is no consent
consent is not valid if:
1) obtained by a misrepresentation/fraud or made to duress (no material info can be withheld from consenter)
2) tortious conduct is outside the scope of the consent given (gun to knife fight)
3) public policy reasons deem it so
Richard v. Mangion (consent case) –> Jeremy (P) and Shawn (D), both minors, voluntarily engaged in pre-arranged fist fight
Issue: is Jeremy entitled to the defense of consent (did Shawn voluntarily participate in the altercation?) Is the defense of consent unavailable because of Jeremy’s use of excessive force?
RULE: no recovery for injuries suffered as a result of activities you voluntarily participated in unless excessive or unanticipated force was used.
RULE: when two parties agree to fight, the consent of one is not vitiated because the other strikes first
*peer pressure does not vitiate consent
Slayton v. McDonald (self defense) –> P enters D’s house and refuses to leave. P shoots D once in the knee
Issue: D entitled to self-defense
RULE: actor is allowed to use a reasonable amount of force (objective standard)
use of force must (1) be proportionate to the interest to be protected and (2) be only the force reasonably necessary to repel the attack
Young v. Warren (self-defense) –> P breaks into gf’s house and D, father of gf, tells P to leave. P turns around to do so. D says he prodded him to leave and the gun went off.
issue: can D succeed on self-defense claim by claiming defense of family?
RULE: need (1) D’s genuine fear assault to be committed (subjective) and (2) reasonable person would be in fear of same (objective)
*most courts require both subjective fear of serious bodily injury and reasonable person fear (objective)
how do we know if proportional force is used? slayton
1) character and reputation of an actor
2) possibility/impossibility of a peaceful retreat
3) belligerence of the attacker
4) difference in size, shape, and strength between parties
5) overt act by the attacker
6) threats of serious bodily harm
7) whether parties are armed
defense of self and others
when a person reasonably believes an offensive contact or bodily harm will be intentionally inflicted against them or others, they are privileged to use reasonable and proportional force to defend against contact or harm
two standards here and need to show both:
- individual must actually think the threat is real (subjective)
- a reasonable person in the shoes of the individual would have believed the threat was real (objective)
proportionality
the force used must be no more than what is reasonably necessary to repel the attack
ex: can’t bring a gun to a fist fight
for most threatened physical injuries, moderate force is permitted
deadly force is:
- only privileged when used to prevent death or serious bodily injury
- may seldom (almost never) be used against an unarmed assailant
- may never be used to defend property!
retreat
in our jurisdiction, retreat is just a factor to be considered in determining whether force used was proportional
defense of property: elements
(1) reasonable belief that property is in danger (objective
(2) can only use as much force as would be reasonably necessary (proportional) to remove the threat/protect the property (objective)
Woodard v. Turnipseed
Katko v. Briney
limitations to defense of property
- amount of force allowed is dependent upon the threat
- moderate, but not deadly force, may be used to prevent harm to real or personal property
- deadly force CANNOT be used to protect property
stand your ground laws
presumes a fear of death/GBH if a person unlawfully enters your home - allows for the use fo lethal force (this is not our general defense of property standard)
Woodard v. Turnipseed –> boy is fired by T and doesn’t leave, T worried he’ll break his clock, T hits boy w broom three times cracking the handle
Issue: did D reasonably believe for his property and use reasonable force to defend it? no
Takeaway: D must reasonably believe property in danger AND force used in defense of land/property must be proportional to harm threatened (only use a reasonable amount of force)
Katko v. Briney –> D set up a spring gun in abandoned farmhouse. P broke into house to steal old bottles and was shot in the leg
issue: can D set up a spring gun which would inflict death or serious bodily injury upon a trespasser? no
takeaway: life if worth more than property
RULE: a possessor of land cannot do indirectly and by a mechanical device that which he could not do immediately and in person
RULE: you cannot use deadly force to protect stuff
IIED
the right to be free from serious emotional distress
IIED elements
(1) intent: specific, general or reckless
(2) conduct is outrageous (high standard; objective)
(3) severe emotional distress results (high standard; subjective on objective facts)
reckless intent (IIED)
disregard of substantial probability of harm
define outrageous conduct (IIED)
conduct that:
- shocks the conscience
- utterly intolerable in civil society
- arouses resentment
may depend on:
- actual/apparent authority or control of one over the other
- knowledge of a peculiar susceptibility
- series of incidents vs. single incident
severe emotional distress expanded
when distress inflicted is so severe that no reasonable person could be expected to endure it
Zalnis v. Thoroughbred –> P bought car; salesperson realized he sold it at a lower price so called her back to dealership; car taken from her; yelled and screamed at P, continually threatened and abused her; claimed she’d been sleeping with salesman; grabbed her; D knew she watched her husband commit suicide
issue: was D’s behavior sufficiently outrageous to hold him liable for IIED? maybe
RULE: must evaluate the totality of the conduct to determine outrageousness including:
- position of power/power imbalance
- knowledge of a peculiar susceptibility to emotional distress
- minor insult v. series of incidents (harassment)
- it NOT “mere insults, indignities, threats, annoyances, petty oppressions”
Dana v. Oak Park –> video cameras installed in restrooms; taped female patrons in various stages of undress without their knowledge or consent; tapes viewed by D and others and traded between them
Issue: does the state recognize reckless IIED? yes
RULE: there is a cause of action for reckless infliction of emotional distress
Rogers v. Louisville Land Co
takeaway: provides six factors for determining whether emotional distress is severe
- physiological manifestations
- psychological manifestations
- plaintiff sought medical treatment
- duration and intensity
- impairment to daily functioning
- extreme and outrageous character of defendant
trespass to land
protects exclusive possession of your land
trespass to land elements
(1) voluntary act
(2) intent to enter into a certain space (specific, general, transferred)
- intent is met even if trespasser mistakenly believes that land is his own or that he has permission to be on the land
- D desired or was substantially certain he would be on the land in question
(3) entry actually happens
Thomas v. Harrah’s
Thomas v. Harrah’s Vicksburg Corp –> Harrah’s was building a casino and workers went on Thomas’ land to have better access to the wall of the building. The workers claimed they exercised reasonable care while on the land and were careful not to damage the property
issue: did Harrah’s trespass on Thomas’s land? yes
reasoning: the intentional tort of trespass to land protects a person’s interest in the exclusive possession of their land and their right to exclude from that land
takeaway: exercise of reasonable care has no impact on trespass. Only matters whether a person intended to be on a particular piece of land and was on that piece of land. Trespass also occurs when a party intentionally places objects on the land of the other
trespass to chattel
protects the interest in the exclusive possession, control, and integrity of one’s personal property
trespass to chattel elements
(1) act
(2) intent to use/intermeddle with chattel OR dispossess owner of the chattel
(3) dispossession OR significant deprivation of use of chattel OR damage/reduction in value
- mistake of who owns chattel does not negate intent!
- deprivation must be substantial (intermeddling part) –> value, substantial amount of time, interferes with legally protected interests
personal property
everything that falls from the earth when you shake it
how to identify dispossesion
- Taking a chattel from another without the other’s consent
- Obtaining possession of chattel from another by fraud or duress
- Assuming physical control over the chattel
- Barring the possessor’s access to the chattel
- Destroying a chattel while it is in another’s possession
- Taking the chattel in the custody of the law
if there is no possession ask … (intermeddling? substantial?)
- Did the actor impair the chattel as to its condition, quality, or value?
- Was the possessor deprived of the use of his or her chattel for a substantial period of time?
- Did the intermeddling with the chattel harm the possessor’s legally protected interest in some other person/thing?
trespass to chattel reminders
- mistake is NOT a defense to trespass to chattel
- Any dispossession satisfies a prima facie case (can get nominal damages), but intermeddling must be substantial to satisfy a prima facie case
conversion
involves more serious interference with possessor’s interests (as compared to chattel)
property is completely destroyed/no value left on the property
sentimental value does not attach to the monetary value of the chattel
conversion elements
(1) intent to perform the act causing the dispossession
(2) Exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel
defenses to trespass
necessity and consent
necessity
privileged to enter the land of another in order to prevent something that is substantially more serious than the invasion of the interference itself
Think “I needed to” / more damage would’ve been done if I didn’t
Objective standard: a reasonable person would claim the privilege under the circumstances
Balance test: value of what’s being saved/protected > value of harm being done
Still pay damages, but owner can’t kick you off if privileged
private necessity
purpose: protect one’s own interest (prevent injury to self/property)
damages: D has to pay
public necessity
purpose: protect the community/society at large (prevent injury to large number of people/property)
damages: if public official D probably doesn’t have to pay
defense to trespass: consent
- can be implied or expressed
- An action will become a trespass if it goes beyond the scope of the consent
- Consent can be revoked at which point the privilege goes away
- Consent is not a privilege if it is obtained by fraud/misrepresentation or under duress
