Intentional Torts & Privileges Flashcards
Specific Intent
An actor intends the consequences of his conduct if his purpose is to bring about those consequences
General Intent
i. requires no showing of malice, intent to injure, or other bad motive but only a volitional act (moving of chair) performed with knowledge that there is substantial certainty that the result (harmful or offensive bodily contact) will occur.
1. Ex: Garret v. Daliey
Motive Distinguished
i. Motive is what impels a person to achieve a result, while intent refers to using a particular means to affect that result.
ii. Malice is not required for a finding of general intent, but it may permit the recovery of punitive damages.
Intent definition: Rest. Ch. 2 § 1
i. A person acts with the intent to produce a consequence if:
1. (a) the person acts with the purpose of producing that
consequence [Specific Intent]; or
2. (b) the person acts knowing that the consequence is substantially certain to result [General Intent]
Factors of Intent
i. Intent to make contact is all that is necessary to meet the intent element in a battery claim.
ii. Mistake as to the identity of the person or animal that was harmed does not negate intent.
iii. A person’s mental state does not exempt them from liability for intentional torts if they can form the requisite intent.
What situations do not negate intent?
i. Age
ii. Mentally disabled
iii. Insanity
1. Intoxication
iv. Privileges
1. Consent
2. Assumption of the Risk
a. Not applicable to intentional torts
3. Contributor negligence
a. Not applicable to intentional torts
Battery Elements
i. Intent to cause contact
ii. Contact is harmful or offensive
iii. Bodily harm or offense resulted
Battery
b. No actual injury is required, offense is sufficient.
c. Offensive contact is judged by a reasonable person standard unless defendant knew of plaintiff’s idiosyncratic beliefs or sensitivities
Boundaries of Battery
Fisher v. Carrousel Motor Hotel - plate snatched out of hand w./ racial epithet
A party is liable for damages for humiliation from an intentional offensive touching of anything connected with another individual without requiring actual physical contact with the body.
Rest. Ch. 2 §§ 13 – Battery Harmful Contact
i. An actor is subject to liability to another for battery if
1. (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
2. (b) a harmful contact with the person of the other directly or indirectly results.
Rest. Ch. 2 §18 – Battery Offensive Contact
i. (1) An actor is subject to liability to another for battery if
a. (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. (b) an offensive contact with the person of the other directly or indirectly results.
2. (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.
Rest. Ch. 2 § 19 – What Constitutes Offensive Contact
i. A bodily contact is offensive if it offends a reasonable sense of personal dignity.
ii. It must be one which would offend the ordinary person and as such one not unduly sensitive as to his personal dignity. MUST be unwarranted by the social usages prevalent at the time and place at which it’s inflicted.
Assault Elements
i. Intent to either cause harmful or offensive contract or put someone in imminent apprehension of such contact.
ii. The actual contact is incomplete for whatever reason (some intervening cause)
iii. The defendant has the apparent ability to carry out the threat;
iv. Cause imminent apprehension in the mind of the plaintiff.
1. Imminent
a. Something is about to happen
b. Near or impending not nearly impossible; about to happen
2. Apprehension
a. Anxiety or fear that something bad will happen
b. Well founded sense of anxiety or awareness something bad will happen.
b. Assault is not an attempt at battery
As there is no imminent bodily contact.
The mere words problem
Words do not make the actor liable for assault unless together with other acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person.
Restatement Ch. 2 § 21 – Assault
a. (1) An actor is subject to liability to another | for assault if:
i. (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,
ii. (b) the other is thereby put in such imminent apprehension.
b. (2) An action which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm.
False Imprisonment Method of Confinement
i. Physical restraint of person or property
1. Taking their clothes so they’re naked.
2. Locked in a room
ii. Submission to legal authority
1. Confinement once they tell you to stay
iii. Threats and Duress
1. Try to leave and I’ll kill you
iv. Implicit threats and effecting a confinement
1. Situation where a security guard invites a customer to the back office as they’re suspected of shoplifting if they make no attempt to leave due to fear
v. Undue influence affecting the plaintiff’s will
1. Lose ability and dependable on staff
2. Cult members
False Imprisonment Definition
False imprisonment is the direct restraint of the physical liberty of another without legal justification.
Consciousness (Parvi v. City of Kingston)
If you are consciously aware that you are being falsely imprisoned then you cannot assert that occurred.
Moral Suasion (Hardy v. LaBelle’s Distributing Co.)
In order to hold a party liable for false imprisonment, a party must prove he was unlawfully restrained against his will.
Hardy was not restrained against her will because she wanted to stay to clarify the situation, she did not ask to leave, and she was not otherwise compelled to stay.
Conviction (Enright v. Groves)
False imprisonment occurs when an individual is taken into custody by another who claims but does not have proper legal authority.
Case abt dog not being on leash, demanded her license, she refused so he put her in jail for the dog leash violation. Groves told her to show her license or go to jail. Groves thereafter arrested Enright and charged her with violation of the dog leash ordinance. There is no city ordinance that requires Enright to produce her license on demand.
Duty to Release (Whittaker v. Sanford)
To be liable for false imprisonment, a party must demonstrate that they have been subject to some manner of restraint, but not necessarily by actual physical force by another.
Stuck on the boat and they refused to let them off unless they rejoined the religious sect.
Elements of False imprisonment (Ch. 2 section 35 False Imprisonment - 2nd Restatement)
i. An actor is subject to liability to another for false imprisonment if:
1. He acts intending to confine the other or a third person within in boundaries fixed by the actor, and
2. His act directly or indirectly results in such a confinement of the other, and
3. The other is conscious of the confinement or is harmed by it.
ii. But note:
1. Voluntary submission negates imprisonment
2. Not considered bounded if aware of reasonable means of escape
3. Length of time is immaterial.
a. Unless privileged
4. Defense: Lawful arrests and convictions.
Restatement - 36 - What Constitutes Confinement
i. (1) To make the actor liable for false imprisonment, the other’s confinement within the boundaries fixed by the actor must be complete.
ii. (2) The confinement is complete although there is a reasonable means of escape, unless the other knows of it.
iii. (3) The actor does not become liable for false imprisonment by intentionally preventing another from going in a particular direction in which he has a right or privilege to go.
Restatement - 39 - Confinement by Physical Force
The confinement may be by overpowering physical force, or by submission to physical force.
Restatement - 40 - Confinement by Threats of Physical Force
The confinement may be by submission to a threat to apply physical force to the other’s person immediately upon the other’s going or attempting to go beyond the area in which the actor intends to confine him… .
Restatement - 41 - Confinement by Asserted Legal Authority
i. (1) The confinement may be by taking a person into custody under an asserted legal authority.
ii. (2) The custody is complete if the person against whom and in whose presence the authority is asserted believes it to be valid, or is in doubt as to its validity, and submits to it.
Intentional Infliction of Emotional Distress (IIED) General Standards
a. A party can be liable for intentionally causing another party mental distress by seriously threatening his physical well-being, regardless of whether the threats technically constituted an assault under the circumstances. (See State Rubbish Coll. Ass’n v. Siliznoff)
- An inspector for the Association threatened to beat up Siliznoff, cut up his truck tires, and put him out of business if he did not make arrangements to pay Abramoff before the Association’s board meeting. Siliznoff attended the board meeting and protested that he owed nothing and told the Association he could not pay what he owed. The president of the Association told Siliznoff that the board controlled trash collection within the city. After two hours Siliznoff agreed to join the Association and pay for the Acme account, and signed notes indicating such. Siliznoff was so frightened from what occurred during the dispute that he became ill, vomited several times, and missed work for several days.
- Here, the Association intentionally frightened Siliznoff by threatening him and his business in an effort to acquire the Acme account. The Association was not permitted or privileged to make such threats against Siliznoff under these circumstances, and the Association is therefore liable for the harm.
IIED - Boundries
A party is not liable for intentional infliction of emotional distress for simple insults not intended to have real meaning or serious effect that subsequently causes another emotional distress. (Slocum v. Food Fair Stores)
* told you stink
* Food Fair is not liable for intentional infliction of emotional distress. A party is not liable for insults not intended to have real meaning or serious effect that subsequently causes another emotional distress. In this instance the comments by the employee were not so calculating that the employee knew with substantial certainty that his comments might cause severe emotional distress to Slocum. Thus, the decision is affirmed.
IIED - Severity
For a party to recover for intentional infliction of emotional distress a party must suffer a severely disabling emotional response to another’s conduct. (Harris v. Jones)
Case abt stuttering disability and bullying at work
IIED - Bystanders
A party is liable for intentional infliction of emotional distress when the act is done for the purpose of causing emotional distress or with knowledge to a substantial certainty that severe emotional distress will be produced by their conduct. (Taylor v. Vallelunga)
Taylor alleged that she was present and witnessed Vallelunga beat her father and thereby suffered severe emotional distress. Taylor does not claim that she suffered any physical disability or injury from the mental distress.
A party is liable for intentional infliction of emotional distress when one acts with the purpose of causing severe emotional distress or with knowledge to a substantial certainty that such distress will be produced. Vallelunga did not know that Taylor was present and saw him beating her father. There is no allegation that Vallelunga beat Taylor’s father for the purpose of causing Taylor to suffer severe emotional distress. Further, there is no allegation that Vallelunga knew with substantial certainty that Taylor would suffer severe emotional distress from seeing him beat up her father. SO NO IIED
Rest. Ch. 13 § 46 – Intentional (or reckless) infliction of emotional harm (3rd restatement)
i. Where such [extreme and outrageous] conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress:
1. 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
2. To any other person who is present at the time, if such distress results in bodily harm.
Rest. Ch. 2 § 2 – Recklessness
A person acts recklessly in engaging in conduct if:
(a) the person knows of the risk of harm created by the conduct or knows facts that make the risk obvious to another in the person’s situation, and
(b) the precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk.
IIED - We need outrageous conduct
Stuff you’re not expected to deal with in everyday life
Conduct that at the beginning is not but the facts get twisted -insulting language
i. Continuous conduct
ii. Type of plaintiff can change the outcome
1. Young child instead of adult is outrageous
2. Young Children, elderly person, pregnant women get special protection in tort law.
iii. Type of Defendant
1. Common carrier
2. Innkeepers
3. Screw them at every opportunity
a. You need the right type of plaintiff, or the rules won’t apply.
4. Ex: You’re on the bus as a passenger. The bus driver insults you. It outrageous. Why? Because the defendant is a common carrier.
IIED - Damages
a. You must prove damages - not physical but serve, substantial, emotional harm to make out the case.
b. You need to be aware a plaintiff can prove intent by showing recklessness on the part of the defendant.
i. Via purpose
ii. Substantially certain
iii. Recklessness with suffice
Rest. Ch. 3 §§ 158 - Trespass to Land
i. One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally
1. (a) enters land in the possession of the other, or causes a thing or a third person to do so, or
2. (b) remains on the land, or
3. (c) fails to remove from the land a thing which he is under a duty to remove.
Rest. Ch. 3 § 164 - Intrusions Under Mistake.
i. One who intentionally enters land in the possession of another is subject to liability to the possessor of the land as a trespasser, although he acts under a mistaken belief of law or fact, however reasonable, not induced by the conduct of the possessor, that he
1. (a) is in possession of the land or entitled to it, or
2. (b) has the consent of the possessor or of a third person who has the power to give consent on the possessor’s behalf, or
3. (c) has some other privilege to enter or remain on the land.
Trespass to land - general standards
Every unauthorized, and thus unlawful, entry onto the land of another constitutes a trespass regardless of whether actual damage is caused to the land. See Dougherty v. Stepp
Trespass to Land - Boundaries
A party is liable for trespass for interfering with the quiet, undisturbed, peaceful enjoyment of another’s land even without touching the actual surface of another’s land. See Herrin v. Sutherland
Trespass to Land - Means of Invasion
A continuing trespass is committed by the continued presence on the land of another of a structure, chattel or other thing, which the actor has placed there pursuant to a license or other privilege and has failed to remove after such license or privilege has been terminated. See Rogers v. Bd. of Road Com’rs
Rest. Ch. 3 § 217 - Ways of committing trespass to chattel
i. A trespass to a chattel may be committed by intentionally
1. (a) dispossessing another of the chattel, or
2. (b) using or intermeddling with a chattel in the possession of another.
Trespass to Chattels - Elements Difference
Intended entry on land is trespass. Intended touching of a chattels cannot be proven without damages
Trespass to Chattels - Elements
- Using or intermeddling (contact) with chattel in possession of another
- Intentionally
- Without consent or other privilege
- Damage:
a. Physical dispossession
b. Impair chattel
c. Deprived of use
d. Bodily harm to possessor - Liability - diminished value of the chattel because of damage to it.
Trespass to Chattels - General Principles
An individual is liable for trespass to chattel when they, without consent or privilege, use or otherwise intentionally intermeddle with chattel that is in the possession of another, and the chattel is impaired as to its condition, quality, or value. See Glidden v. Szybiak.
Trespass to Chattels - New Issues
See CompuServe Inc. v. Cyber Promotions, Inc. One is subject to liability for trespass to chattel if
i. (1) he dispossesses another of the chattel,
ii. (2) the value of the chattel is impaired,
iii. (3) the possessor is deprived of the use of the chattel or
iv. (4) harm is caused to the possessor of the chattel.
Rest. Ch. 3 § 222A - What Constitutes a Conversion
i. (1) Conversion is an intentional 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.
ii. (2) In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important:
1. (a) the extent and duration of the actor’s exercise of dominion or control;
2. (b) the actor’s intent to assert a right in fact inconsistent with the other’s right of control;
3. (c) the actor’s good faith;
4. (d) the extent and duration of the resulting interference with the other’s right of control;
5. (e) the harm done to the chattel;
6. (f) the inconvenience and expense caused to the other.
Conversion - General Standards
A conversion is an intentional exercise of 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. See Pearson v. Dodd
Transferred Intent Doctrine - Applies between the five torts:
- Battery
- Assault
- False Imprisonment
- Trespass to land,
- Trespass to chattel
Two types of transferred Intent
b. Intended to actual victim
person A fires gun at B, intending to harm B, will be liable to C if C is hit by the bullet
c. Intended to actual tort.
Person A intends to commit tort X against person B, bit commits tort Y with respect to person B, is liable for Y (Second tort (even though intent was required [ Corn v. Sheppard (Minn 1930)]
Transferred Intent Case
The rationale for the doctrine is that the tortfeasor’s act is just as culpable when her aim is bad as when it is good; it would be unconscionable if she were exonerated just because she hit the wrong person. Under transferred intent, she will be liable whether she hits her intended victim or someone else. See Talmage v. Smit
Privileges
- Self Defense,
- Defense of Others,
- Defense of Property
- Recovery of Property
- Consent
- Necessity
- Authority of Law
- Discipline
Self-Defense: Existence of Privilege
Anyone is privileged to use reasonable force to defend himself against a threatened battery on the part of another.
Self-Defense: Retaliation
i. Self defense against battery is allowed but not retaliation once the battery is over/no longer threatened. Once the battery stops privileges is terminated.
ii. Even if you attack first, once you retreat if the other party then retaliates you can use self-defense.
Self-Defense: Reasonable Belief
Exists if you reasonably believe that the force is necessary to protect yourself from Battery even if there is no necessity.
Self-Defense: Provocation
If abusive words are paired with an actual threat of physical violence that makes you reasonably apprehensive of imminent bodily harm, you can defend yourself. You do not have to wait for the attack before acting
Self-Defense: Amount of Force
You can only use force that is reasonably or appears to be necessary for your own protection against the battery.
Self-Defense: Use of Deadly Force
You must have reasonable apprehension of loss of life or great bodily injury.
Self-Defense: Retreat before use of deadly force
i. You can stand your ground and use any force short of that to cause serious injury.
ii. Restatement: The victim may use deadly force if there is the slightest reasonable doubt that retreat could be done safely “in determining whether his doubt is reasonable every allowance must be made for the predicament in which his assailant has placed him.”
iii. Majority of Courts believed you should have stood your ground and use deadly force (even kill them) without having to retreat first.
Self-Defense: Injury to Third Party
i. If in defending yourself, you accidently harm someone else you may not be held liable for the unintentional harm.
ii. The privilege of self-defense is carried over, and the defendant is held not to be liable to B in the absence of some negligence toward him. And in determining whether there is negligence, the emergency, and the necessity of defense against A, are to be considered.
Self-Defense of Others
a. Similar privilege as to self-defense for the defense of third persons
b. Reasonable Mistake
i. Some courts argue if the intervenor steps into the shoes of the person he is defending and is privileged only when that person would be privileged to defend himself. If it turns out that he has intervened to help the aggressor, he is liable.
ii. Other courts hold that the defendant is privileged to use reasonable force to defend another even when he is mistaken in his belief that intervention is necessary, so long as his mistake was reasonable.
1. The Restatement (Second) of Torts § 76 (1965) has adopted this position.
Defense of Property
Illustrated by a case, a person, in protecting his property, may not use force calculated to cause death or serious bodily injury, except where there is also a threat to personal safety that justifies self-defense. See Katko v. Briney
Recovery of Property
i. An owner whose Chattels has been taken from them by force or fraud can use force to recapture it.
Fresh Pursuit
- Limited to the prompt discovery of the dispossession and prompt and persistent efforts to recover the chattel.
- If there is any lapse of time during which the pursuit commenced or has haled that means the owner is no longer privileged to fight for the possession of the object and must rely on the law.
Merchant Privileges
A merchant has the privilege to detain a person within the immediate vicinity of his premises for reasonable investigation if he believes the person has unlawfully taken chattel. See Bonkowski v. Arlan’s Department Store.
63 - Self-Defense by Force Not Threatening Death or Serious Bodily Harm
i. (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.
ii. (2) Self-defense is privileged under the conditions stated in Subsection (1), although the actor correctly or reasonably believes that he can avoid the necessity of so defending himself,
1. (a) by retreating or otherwise giving up a right or privilege, or
2. (b) by complying with a command with which the actor is under no duty to comply or which the other is not privileged to enforce by the means threatened.
iii. Example: A strikes B with a whip. B by reasonable force disarms A. B is not privileged thereafter to inflict a similar beating upon A.
1. Basically, no eye for eye type of shit.
65 - Self-Defense by Force Threatening Death or Serious Bodily Harm
i. (1) Subject to the statement in Subsection (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
1. (a) the other is about to inflict upon him an intentional contact or other bodily harm, and that
2. (b) he is thereby put in peril of death or serious bodily harm or ravishment, which can safely be prevented only by the immediate use of such force.
ii. (2) The privilege stated in Subsection (1) exists although the actor correctly or reasonably believes that he can safely avoid the necessity of so defending himself by
1. (a) retreating if he is attacked within his dwelling place, which is not also the dwelling place of the other, or
2. (b) permitting the other to intrude upon or dispossess him of his dwelling place, or
3. (c) abandoning an attempt to effect a lawful arrest.
iii. (3) The privilege stated in Subsection (1) does not exist if the actor correctly or reasonably believes that he can with complete safety avoid the necessity of so defending himself by
1. (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
2. (b) relinquishing the exercise of any right or privilege other than his privilege to prevent intrusion upon or dispossession of his dwelling place or to effect a lawful arrest.
77 - Defense of Possession by Force Not Threatening Death or Serious Bodily Harm
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 upon the actor’s land or chattels, if
1. (a) the intrusion is not privileged or the other intentionally or negligently causes the actor to believe that it is not privileged, and
2. (b) the actor reasonably believes that the intrusion can be prevented or terminated only by the force used, and
3. (c) the actor has first 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
84 - Use of Mechanical Device Not Threatening Death or Serious Bodily Harm
The actor is so far privileged to employ, for the purpose of protecting his possession of land or chattels from intrusion, a device not intended or likely to cause death or serious bodily harm that he is not liable for bodily harm done thereby to a deliberate intruder, if
1. (a) the use of such a device is reasonably necessary to protect the land or chattels from intrusion, an
2. (b) the use of the particular device is reasonable under the circumstances, and
3. (c) the device is one customarily used for such a purpose, or reasonable care is taken
Consent: General Standards
A party is not liable for assault if the alleged unlawful contact was justified, or the accusing party otherwise consented to such contact. See O’Brien v. Cunard S.S. Co
Vaccine on boat
Consent: Scope of Consent
A party is liable for damages for the intentional, unauthorized striking of another even during the course of an otherwise violent activity. Football rules and customs do not allow players to intentionally punch or strike other players. See Hackbart v. Cincinnati Bengals
football game you consent to the hits.
Consent: Medical Consent
An absence of evil intent or negligence on the part of a defendant does not operate as a defense to the civil tort of assault and battery. See Mohr v. Williams
Consent: Fraud
If someone consents to a person’s presence in her home but later learns that the person’s credentials had been misrepresented, she may maintain an action and recover damages once she discovers the person’s true character. See De May v. Roberts
woman giving birth and guy said he had medical license but he didn’t
Rest. Ch. 4 § 892 – Meaning of Consent
- (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.
- (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.
Public Necessity
Someone who destroys property in good faith and under actual or apparent necessity to prevent the spread of a fire cannot be held personally liable to the property’s owner for the destruction. See Surocco v. Geary.
Private Necessity
A party who damages the property of another while acting out of private necessity must compensate the property owner for the resulting damage. See Vincent v. Lake Erie Transp. Co.)
Rest. Ch. 4 §§ 196 - Public Necessity
i. One is privileged to enter land in the possession of another if it is, or if the actor reasonably believes it to be, necessary for the purpose of averting an imminent public disaster.
1. the entry be made in order to protect against or repel a public enemy, or to prevent or mitigate the effects of an impending public disaster such as a conflagration, flood, earthquake, or pestilence.
2. the actor in the exercise of the privilege may break and enter a dwelling or other structure as well as a fence or other enclosure, and he may use reasonable force against the person, if it reasonably appears to the actor to be necessary to do so in order to accomplish the purpose for which the privilege exists.
3. he is not liable for such entry and for acts done prior to such unreasonable conduct. Nor does such misconduct terminate the actor’s privilege to be on the land and do acts thereon for the accomplishment of the privilege.
4. if the actor believes that the impending disaster may be prevented or mitigated in some other reasonable way, and such is the fact, the entry is not privileged.
5. The privilege here stated carries with it the privilege to tear down or destroy buildings, or to remove explosives or other dangerous articles therefrom, or to alter the surface of the soil as by digging ditches, erecting or removing a levee, or doing any other acts on the premises reasonably necessary to effectuate the purpose for which the privilege exists.
Rest. Ch. 4 §§ 197 - Private Necessity
i. One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to
1. the actor, or his land or chattels, or
2. the other or a third person, or the land or chattels of either, unless the actor knows or has reason to know that the one for whose benefit he enters is unwilling that he shall take such action.
ii. Where the entry is for the benefit of the actor or a third person, he is subject to liability for any harm done in the exercise of the privilege stated in Subsection (1) to any legally protected interest of the possessor in the land or connected with it, except where the threat of harm to avert which the entry is made is caused by the tortious conduct or contributory negligence of the possessor.
Discipline - Parents & Children
i. Given to a parent or one who is deemed to stand in place of a parent.
Restatement provides factors to determine if the conduct was within the scope of privilege
- age,
- sex, and
- condition of child;
- nature of the child’s offense and the apparent motive for it;
- influence of child’s conduct as example on other children in same family;
- whether force or confinement is reasonably necessary and appropriate to compel obedience;
- whether it is disproportionate to the offense, unnecessarily degrading, or likely to cause serious or permanent harm.
Discipline Privileges
Generally, the privilege of parents to discipline their children also covers those who are temporarily responsible for them. This may include other family members, teenage babysitters, adult daycare providers, housekeepers, piano teachers, school bus drivers, and others. The amount of force that is acceptable is less than what would be acceptable for a parent to use.
Discipline: Teachers
- the teacher’s privilege to discipline is more properly predicated on the need to maintain reasonable order in the classroom and other school facilities.
- Thus discipline may be exercised even though the parent has objected. As is the case with Authority of Law, most litigation has concerned the scope of the privilege.
- Generally, the conduct must occur on school grounds or during a school-sponsored trip although there is some case law that would extend the privilege to activities conducted away from school that have some connection with the educational program.
Discipline: Teachers pt 2
An instructor can use only reasonable and appropriate force and will be subject to liability if the force used is excessive.
1. Significant variables gleaned from the cases include (1) the nature of the punishment, (2) the conduct of the student, (3) the age and physical condition of the student, and (4) the motive of the instructor, e.g., did he act in anger or out of dislike, rather than in an attempt to discipline.
Discipline: Corporal Punishment
held not to violate the due process clause or the Eighth Amendment privilege against cruel and unusual punishment
Discipline: Others
Other examples of the privilege of discipline are those of military and naval officers over their subordinates, which are largely governed by military law and dealt with by courts martial, and the authority of the master of a ship over both the crew and the passengers.
