Torts (Read Notes)

Question 1

Definition of Intent

Answer 1

• Intentional torts share the requirement that the defendant intentionally commit the elements that define the tort.
• Intent is a term of art.
• Most contemporary courts usually adhere to the Second Restatement definition, which defines intent to mean either that the defendant desires the result or knows to a substantial certainty that it will occur.
• The definition is in the alternative and is subjective.
• The defendant must, in her mind, have desire or substantial certainty.
• The fact that a reasonable person would have been substantially certain is not dispositive, but only evidentiary in determining whether the defendant actually had the requisite mental state.

Question 2

Intent as Desire

Answer 2

• Intent is satisfied if the defendant desires the consequences of her acts.
• This becomes legally relevant if those desired consequences constitute a tort.
  
  • For example, if A desires to pick up a concrete block and then inadvertently drops it on B’s foot, A has not desired to cause harmful or offensive contact to B, and therefore is not liable for intentional battery.
• The injury is unintentional, and any potential liability depends on proving negligence. In many instances, A will not confess to having desired consequences resulting in a tort.
  
  • In those cases, the finder of fact must consider whether circumstantial evidence justifies concluding that A desired the tort.
    
    • For example, if A loads a gun and then shoots directly at B, the court will almost inevitably conclude that A desired to cause B consequences which constitute battery.
    • However, the test is subjective, meaning that the court must conclude that A in her own mind did in fact desire consequences constituting the tort.

Question 3

Intent as SUBSTANTIAL CERTIANTY

Answer 3

• Intent is usually also satisfied when the defendant is substantially certain that her acts will cause the elements of the tort to occur.
  
  • If A blows up a stagecoach, knowing B is on the coach, A has intentionally injured B, even if A had no desire to injure B.
  • The substantial certainty test is subjective.
  • The defendant must actually in her own mind know the results that constitute the tort will occur.
• Substantial certainty should not be confused with reckless conduct.
  
  • The defendant is reckless when she takes a substantial, unreasonable risk that the elements of the tort will occur, such as when A drives at a very excessive speed, risking a collision.
  • Intentional conduct requires a showing that the actor either desires or knows with substantial certainty the tortious result will occur as a result of her conduct.

Question 4

Transfer Intent

Answer 4

• Historically, the transferred intent doctrine has been applied to five intentional torts.
• The five torts are battery, assault, false imprisonment, trespass to chattel, and trespass to land.
  
  • Under transferred intent, if the defendant intends any of these five torts, but her acts, instead or in addition, result in any of the other five intentional torts, the defendant is liable, even though she did not intend the other tort.
    
    • For example, if A intends to assault B, but accidentally makes physical contact with B or another party C, A is liable for the battery.
    • As the example illustrates, not only does the intent to commit one tort satisfy the intent requirement for the other tort, but the intent to commit a tort against one victim can transfer to any other victim.
• The transferred intent rule may have emerged because these five torts were historically associated with a single action for trespass.
  
  • The concept of trespass was not limited to the contemporary meaning of trespass to land, but embodied many types of direct injuries.
  • It is important, consequently, to recognize that courts have applied the concept only to these five intentional torts.
• The Restatement does not adopt transferred intent generally.
  
  • It does accept, however, transferred intent between battery and assault and different victims within these torts.
  • The Restatement allows the intent to commit a battery or assault to satisfy the requisite intent required under the definitions for both torts.
    
    • Transferred intent can be criticized for blurring the concept of intent.
    • The intent to injure property is very different from the intent to injure a person, and yet the doctrine permits the intent requirement of one to satisfy the intent requirement of the other.
    • The concept of transferred intent also can run counter to notions of proximate cause which, in negligence, generally impose liability only for foreseeable risks.
    • On the other hand, the intentional tortfeasor is arguably more deserving to bear the risk of a different kind of tortious injury than is an innocent victim.

Diamond, John L.; Levine, Lawrence C.; Bernstein, Anita. Understanding Torts, Sixth Edition (p. 6). Carolina Academic Pr. Kindle Edition.

Question 5

The Mistake Doctrine

Answer 5

• Under the mistake doctrine, if a defendant intends to do acts which would constitute a tort, it is no defense that the defendant mistakes, even reasonably, the identity of the property or person he acts upon or believes incorrectly there is a privilege.
  
  • If, for example, A shoots B’s dog, reasonably believing it is a wolf, A is liable to B, assuming B has not wrongfully induced the mistake.
  • Similarly, if A enters B’s land, believing reasonably it is A’s land, A is liable to B for trespass to land.
  • So long as the defendant intends to enter the property, the fact that she mistook the identity of the property or other circumstances is irrelevant.
• Courts have applied the mistake doctrine to a variety of intentional torts.
  
  • Nevertheless, in many instances actors benefit from specific privileges, such as self-defense, which protect the defendant from liability for reasonable mistakes, notwithstanding the mistake doctrine.
• Is the mistake doctrine appropriate?
  
  • While a principle applied to intentional torts, it effectively imposes strict liability on a defendant who interferes with another’s property or person by mistaking the object’s identity or other circumstances that would justify interference.
    
    • From a moral perspective, the defendant may not be at fault.
    • From a deterrent perspective, the mistake doctrine, by not exonerating reasonable mistakes, can excessively discourage reasonable risks by a potential defendant.
    • On the other hand, in the context of property loss, the defendant might gain an unjust enrichment if she, for example, mistakenly consumes A’s corn without having to compensate B.
      
      • This may justify the use of the doctrine in the context of injury to or loss of property.

Diamond, John L.; Levine, Lawrence C.; Bernstein, Anita. Understanding Torts, Sixth Edition (pp. 6-7). Carolina Academic Pr. Kindle Edition.

Question 6

Insanity and Infancy

Answer 6

• Unlike in criminal law, neither insanity nor infancy are defenses for intentional torts.
  
  • However, intent is subjective and requires that the defendant actually desires or is substantially certain the elements of the tort will occur.
  • Consequently, if the defendant is extremely mentally impaired or very young, she may not actually possess the requisite intent.
    
    • For example, if A, a one-year-old, pulls the trigger of a gun, she may intend to pull the trigger, but not intend a battery and for that reason not be liable.
    • The child or the insane person need not, however, appreciate the significance or wrongness of their act.
    • If a child knows an adult will fall when he pulls a chair from under her, he intends wrongful contact and consequently a battery, without the need to prove the child intended serious harm.
  • From a moral perspective, it would appear questionable to impose liability on individuals too immature or mentally disabled to know right from wrong.
    
    • On the other hand, the law of torts is not criminal law and does not condemn, but only shifts the economic burdens of loss.
    • Should the victim bear the loss when the insane or juvenile defendant has financial assets or insurance to pay for the loss inflicted by their conduct?
    • From an accident avoidance perspective, one can argue that liability encourages those responsible for preserving the insane or juvenile’s assets to control the risks presented by such defendants.
    • Such arguments, however, ignore the proposition that the guardians themselves may, in many instances, be personally liable for their negligent failure to adequately supervise juveniles or the insane.

Question 7

Battery Overview and Definition

Answer 7

• Battery occurs when the defendant’s acts intentionally cause harmful or offensive contact with the victim’s person.
• Battery in tort law, unlike criminal law, is exclusively intentional.
• Accidental contact, in contrast, must be analyzed under negligence or strict liability.
• Battery has historically compensated not only harmful contact but also offensive contact.
• Hence, the tort from its earliest origin in English common law has recognized the validity of compensating psychological as well as physical injury.
• Indeed, by grouping offensive and harmful contact together as one tort, the tort declines to delineate what many even today would argue are at least two distinct kinds of wrongs.

Diamond, John L.; Levine, Lawrence C.; Bernstein, Anita. Understanding Torts, Sixth Edition (p. 8). Carolina Academic Pr. Kindle Edition.

Question 8

Intent Requirement

Answer 8

• Battery requires intent to cause harmful or offensive contact to another person.
  
  • Courts are divided over whether the defendant must only intend to cause the contact or alternatively must have the dual intent to both cause contact and intend that the contact be harmful or offensive.
• The Restatement (Third) and a majority of courts considering the issue only require intent to cause contact society defines as harmful or offensive and not intent by the defendant to harm or cause offense.
  
  • Once the defendant commits a battery, she can be responsible for more severe injuries than she intended.
  • Consequently, where a school boy playfully but without privilege slightly kicks a classmate without intending harm, he is responsible for the unexpected serious illness which resulted.
  • Furthermore, where a physician performs a medical procedure without the patient’s consent, thereby constituting a battery, regardless of her good intentions, she is responsible for all consequential harm even if the procedure was performed competently.
• The preceding illustrations demonstrate how, once the defendant has engaged in even a mere technical battery against the plaintiff, the risk of unforeseen harm arising from the battery is borne by the defendant.
  
  • The defendant can be liable for far greater damages than she may have intended.
  • Since battery is one of five intentional torts between which there is transferred intent, the risk of unforeseen liability can be extended much further.
  • If, for example, A intends to deface B’s book (trespass to chattel) by throwing ink at it, but in the attempt inadvertently misses and hits either B or bystander C in the eye causing a serious injury, A is liable for the unintended battery against B or C.

Question 9

Harmful or Offensive Contact

Answer 9

• Battery encompasses either harmful or offensive contact.
• As such, the tort compensates for psychological affronts where even trivial physical contact has occurred.
  
  • As the case of Cole v. Turner held, “the least touching of another in anger is battery.”
    
    • The offensive contact need not even physically touch the body so long as it touches clothing or property in contact with the individual.
  • In Fisher v. Carrousel Motor Hotel, Inc., plaintiff recovered for the aggressive and demeaning grabbing of a plate the plaintiff was holding.
    
    • Nor is there a requirement that the victim be conscious of either the contact or its harmful or offensive nature at the time of the intrusion.
  • Consequently, if A, without consent or privilege, kisses B while she is asleep, A can still be liable for battery.
  • The cause of action in battery clearly protects not only injurious physical intrusions, but personal autonomy as well.
• The Restatement (Third) defines contact as offensive when “the contact is offensive to the other’s reasonable sense of personal dignity.”
  
  • Suppose A, in a context that most people would not find offensive, touches B. Unlike the ordinary person, B finds the contact offensive and sues for battery.
  • Assuming A is unaware of B’s special sensitivity, A is not liable because the contact intended is not defined by society as harmful or offensive.
  • Suppose instead A has advance knowledge that B, unlike an ordinary person, would find the contact offensive.
  • Should A be liable for battery for touching B in a way she knows B would find offensive even when the ordinary person would not be offended?
• The Second Restatement, in a caveat, declines to decide the question, and judicial authority is sparse and ambiguous.
• The Restatement (Third) after much debate, would authorize a finding of battery only when the defendant’s “principal” purpose was that the contact be highly offensive to the plaintiff.

Question 10

Causation

Answer 10

The defendant’s voluntary action must be the direct or indirect legal cause of the harmful or offensive contact.35 However, defendant need not herself actually contact the victim. For example, if A intentionally hits B with a rock, A has committed battery.

Diamond, John L.; Levine, Lawrence C.; Bernstein, Anita. Understanding Torts, Sixth Edition (p. 10). Carolina Academic Pr. Kindle Edition.

Question 11

Assault

Answer 11

• Assault occurs when the defendant’s acts intentionally cause the victim’s reasonable apprehension of immediate harmful or offensive contact.
  
  • The Second Restatement, unlike many courts, deletes the requirement that apprehension be “reasonable.
• The tort definition must be contrasted with the traditional criminal common law definition of assault.
  
  • Under the criminal law, assault is an attempted battery.
  • Under the tort definition, only apprehension of immediate contact must be established.
  • Furthermore, an actual attempt to commit battery, while always a criminal assault, would not constitute a tortious assault unless the victim suffered apprehension of immediate contact.
  • Thus, a perpetrator swinging a bat at the head of one who was looking the other way would be vulnerable to a charge of criminal assault, but not the tort of assault.

Question 12

Assault: Intent

Answer 12

• Assault is an intentional tort.
  
  • The defendant must desire or be substantially certain that her action will cause the apprehension of immediate harmful or offensive contact.
    
    • The accidental creation of such apprehension is not assault, but may constitute the much more recently created tort of negligent infliction of emotional distress.
      
      • If A suffers fright because B is running carelessly toward A, there is no assault.
  • If, on the other hand, A insists on shooting an arrow above B and A knows with a substantial certainty it will cause apprehension to B, A is liable for assault even if A does not desire to cause apprehension.
    
    • The defendant’s motive is irrelevant, provided she either desired or knowingly created apprehension.
  • Under the transferred intent doctrine, the intent to commit any of the four other intentional torts of battery, false imprisonment, trespass to chattel and trespass to land satisfies the requisite intent for assault.
    
    • Consequently, if A intends a battery against B, but instead assaults B or C, A is liable for assault.

Question 13

Apprehension

Answer 13

The victim must perceive that harmful or offensive contact is about to happen to him.

• If the victim is attacked from behind or while asleep, there is no apprehension prior to contact and consequently no assault.
  
  • Although B may be upset at discovering, after the fact, that a rock nearly hit him, there is no assault.
  • Indeed, even if B is hit, while battery exists, assault does not without the requisite advance apprehension of contact.
• Apprehension can be created, however, without the actual attempt to cause contact.
  
  • For example, if the defendant uses an unloaded gun but intentionally leads the victim to believe the gun is loaded, assault occurs if the defendant fires at the victim, even though the defendant had neither the intent nor the ability to shoot the victim.
  • The intent to cause apprehension of imminent contact suffices to create the assault.
• To create the victim’s apprehension,
  
  • the defendant must have, however, the apparent (if not actual) ability to cause imminent harmful or offensive contact.
    
    • One illustration is Western Union Telegraph Co. v. Hill, in which the court held it was a question of fact for the jury whether the manager of a telegraph office was liable for assault when he attempted to touch plaintiff’s wife and offered “to love and pet her” while still behind a counter that divided him from the victim.

Question 14

Imminent Harmful or Offensive Contact

Answer 14

For assault to be actionable the victim’s apprehension must be of imminent harmful or offensive contact.

• In Cucinotti v. Ortmann, the court rejected attempts by the plaintiff to assert a claim for assault, since the plaintiff failed to claim in his pleading that the defendant did anything more than verbally threaten to strike him with blackjacks.
  
  • The court affirmed the traditional rule that words alone are insufficient to establish assault since the lack of an overt act in furtherance of the assault failed to establish the imminence of the attack.
• The Second Restatement argues against rigid acceptance of the traditional rule, and concludes that verbal statements can on occasion imply sufficient imminency
  
  • Under the Restatement view, for example,
    
    • A’s announcement that B is instantly to be shot, although only verbal, can create imminent apprehension.
  • The Restatement does not challenge, however, the basic assault requirement that the victim perceive imminent harmful or offensive contact.
    
    • Consequently, if A, with a perfect record of successfully carrying out his threat, promises to beat up B in 30 minutes, B cannot seek compensation for assault, at least until nearly 30 minutes has expired, and under traditional doctrine only after an overt act toward contact by A has commenced.
  • The apprehension can be of either imminent harmful or offensive contact.
    
    • Consequently, apprehension that A will throw a water balloon on B, or will spit on B, can, if perceived as sufficiently imminent, constitute assault even when the threatened contact is only offensive and not harmful.
    • Such applications of assault emphasizes the tort’s ability to compensate a purely psychological affront to the victim.

Question 15

Reasonable Apprehension

Answer 15

Many judicial recitations of the elements of assault require the victim to suffer “reasonable” apprehension.

• The Restatement rejects this requirement.
  
  • If A knows B believes, unreasonably, that a pencil is a gun and A pushes on the eraser as if to shoot B, causing B apprehension of imminent harm, the Restatement would characterize A’s conduct as assault.
  • Because A has intentionally created apprehension by exploiting B’s unreasonable beliefs or gullibility, the Restatement argues that intent is still satisfied and A’s intentional exploitation of B’s gullibility should be compensable.
• The argument is most persuasive when A’s intent to cause imminent apprehension is “purposeful” intent.
  
  • The Restatement also characterizes substantial certainty to cause a result as intent.
  • Consequently, the Restatement’s definition of assault could include the situation where A, knowing B is unreasonably intimidated by A’s appearance, proceeds to enter the elevator where A is standing.
  • The Restatement definition was, undoubtedly, not intended to encompass such a situation where A is privileged to act.

Question 16

Fear vs. Apprehension

Answer 16

• The Second Restatement and several court decisions distinguish between “fear” and “apprehension.”
  
  • The requisite apprehension of imminent contact need not produce fear in the victim.
  • The apprehension simply acknowledges the victim’s awareness that imminent harmful or offensive contact will occur unless the victim takes effective evasive action.
    
    • Consequently if A, within hitting range, strikes out at B, even though B is confident she can move to avoid A’s contact, B has still suffered an assault.
    • B’s superior strength or evasive techniques do not immunize A from liability for the attack, provided B apprehends imminent contact would occur in the absence of evasive action.
    • Furthermore, even apprehension of an offensive, but non-harmful contact, can constitute assault, even though the mere offensiveness of the imminent contact would not induce fear.

Question 17

Conditional Assault

Answer 17

• An assault made conditional on the victim’s noncompliance with an unlawful demand still constitutes an assault, even if the victim is confident no assault will actually occur if the victim complies with the unlawful request.
  
  • If A brandishes a club toward B, but offers not to strike B if he hands over his wallet, A has assaulted B.
  • Even though B may not actually apprehend contact so long as B is prepared to submit to A’s demands, courts have traditionally found A liable for assault.
• An assault made conditional on the victim’s noncompliance with an unlawful demand still constitutes an assault, even if the victim is confident no assault will actually occur if the victim complies with the unlawful request.
  
  • If A brandishes a club toward B, but offers not to strike B if he hands over his wallet, A has assaulted B.
  • Even though B may not actually apprehend contact so long as B is prepared to submit to A’s demands, courts have traditionally found A liable for assault.

Question 18

Source of Contact

Answer 18

It is not necessary that the defendant be the perceived source of the threatened harmful or offensive contact. If A persuades B that a stick A has positioned next to B is actually a snake about to strike B, A has created apprehension of imminent harmful contact and is liable for assault.

Diamond, John L.; Levine, Lawrence C.; Bernstein, Anita. Understanding Torts, Sixth Edition (p. 14). Carolina Academic Pr. Kindle Edition.

Question 19

Justifications for Tort: Morality

Answer 19

• From a moral perspective, assault reflects a wrongful affront to the victim.
• On the other hand, by requiring advance apprehension of contact, it arguably is under-inclusive.
  
  • An attack from behind is just as, if not more, reprehensible and yet excluded from the tort definition of assault.
  • While any attempted battery constitutes criminal assault, the tort definition of assault excludes compensation for the distress derived from a subsequent awareness that a battery was attempted.
• This is in contrast to the tort of battery, which allows compensation for both harmful and merely offensive contact even when the victim was not cognizant of the contact at the time.
  
  • It is also possible to argue that assault is overinclusive from a moral perspective.
    
    • The act of creating apprehension of merely offensive contact, even when no contact at all is intended, constitutes tortious assault.
    • Such behavior appears far less morally offensive than an actual attempt to seriously harm a victim, which is excluded from tortious assault if the victim was not cognizant of the attack.

Question 20

Justifications for the Tort: Compensation

Answer 20

From a compensation perspective, assault does introduce the concept that purely psychological injury constitutes compensable harm when it is intentionally inflicted.

By excluding as compensable psychological distress prompted by future threats or awareness of a past attack, the tort is extremely restrictive in what kind of psychological stress it will allow to be compensated.

While arguably perception of imminent contact reflects a special kind of psychological injury more worthy of compensation, it is hard to justify the inclusion of mental distress prompted by imminent offensive but not harmful contact, while excluding mental distress caused by threats of nonimminent but very harmful contact.

On the other hand, the strict time frame does provide a bright line dividing compensable and noncompensable distress.

Furthermore, as detailed in § 1.06, infra, the newer tort of intentional infliction of mental distress does allow severe mental distress in other categories to be compensated, mitigating the exclusionary impact of limiting recovery to apprehension of imminent contact under assault.

Question 21

Justification for Torts: Deterrence

Answer 21

• The tort of assault can deter violent retaliatory responses to an unlawful attack.
  
  • The tort provides a legal redress to the victim when apprehension of imminent attack allows a legitimate privilege of self-defense.
  • Nonimmediate threats or attacks that the victim does not perceive in advance neither constitute assault nor justify self-defense.
• In short, the tort of assault correlates with the victim’s privilege of self-defense.
  
  • Arguably the tort discourages wrongful retaliation to an assault by providing monetary compensation which could be offset by the victim’s own tortious behavior if he responded excessively to the initial attack.
  • Such deterrence, however, depends on a potential wrongdoer’s awareness that legal liability will ensue.
  • The tort definition of assault does not compensate, and therefore does not act to deter, a surreptitious attack in which the victim does not apprehend imminent contact.
  • A successful attack, however, would make the aggressor liable for battery.
• Consequently, the assault tort, while not by itself a deterrent to many forms of initial attacks, does arguably work to encourage the victims of attacks to refrain from behavior in excess of that justified by self-defense.

Question 22

False Imprisonment: Definition

Answer 22

• In false imprisonment, the defendant unlawfully acts to intentionally cause confinement or restraint of the victim within a bounded area.
  
  • Accidental confinement is not included and must be addressed under negligence or strict liability.
  • It is generally held that the victim must be aware of the confinement at the time of the restraint.
• False imprisonment compensates for psychological, physical and economic injury occasioned by the imprisonment.
  
  • A recurring issue for courts is the often factually based distinction between wrongfully coerced confinement from confinement that is lawfully encouraged or persuaded.

Question 23

False Imprisonment: Bounded Area

Answer 23

• The victim must be confined within an area bounded in all directions.
• It is not false imprisonment if the victim is free to proceed in some direction, even though she is prevented from going in the direction she wants.
• The bounded area can be, however, a large area, even an entire city.
  
  • A vehicle, although moving, can still constitute a bounded area.
• Reasonable means of escape precludes liability for false imprisonment.
  
  • The escape is not reasonable if it requires the victim to be heroic, endure excessive embarrassment or discomfort, or if the victim is unaware of the means of escape.

Question 24

False Imprisonment: Means of Confinement or Restraint

Answer 24

For false imprisonment to exist, the victim must be confined or restrained.

The confinement may be accomplished by

(1) physical barriers;
(2) force or threat of immediate force against the victim, the victim’s family or others in her immediateimmediate presence, or the victim’s property;
(3) omission where the defendant has a legal duty to act; or
(4) improper assertion of legal authority.

Question 25

False Imprisonment: Physical Barrier

Answer 25

If physical barriers are utilized to restrain the victim, the barriers to constitute false imprisonment must surround the victim in all directions so that no reasonable means of escape exists.

Question 26

False Imprisonment: Force or Threat of Immediate Force

Answer 26

• Force or threat of immediate force can also be utilized to restrain the victim.
  
  • The force may be directed at the victim, her family, companions or property.
    
    • Consequently, if A wrongfully grabs B’s coat and B refuses to leave without her coat, A is liable to B for false imprisonment.
    • Although B could have left without her coat, the restraint that results from not abandoning her property constitutes imprisonment.
  • On the other hand, if A threatens B with serious injury on the following day, if B leaves the premises, A is not liable for false imprisonment, even if B remains on the premises, since no immediate force has been threatened.
  • Presumably, in the latter instance the victim is at liberty to leave and seek protection from the threat.
• Furthermore, the use of threats of economic retaliation or termination of employment to coerce a victim to remain also do not constitute false imprisonment.
• The tort of false imprisonment recognizes the coercive restraint of immediate force, even when only applied to personal property, but fails to recognize highly coercive but non-immediate threats.
• Contemporary critics may conclude that more judicial flexibility in finding coercion is warranted.
  
  • Indeed, some contemporary cases, while ostensibly based on marginal immediate physical force, appear to be influenced by the accompanying economic coercion.
  • On the other hand, the more courts depart from requiring obvious force to find false imprisonment, the more difficult it becomes to distinguish voluntary from coerced submissions.
• Indeed, many decisions already grapple with the subtle factual distinction between voluntary compliance with a request to stay and submission to implied threats of immediate force.

Question 27

False Imprisonment: Omissions

Answer 27

False imprisonment can also result from a defendant’s omission when the defendant had a legal duty to act.

If A invites B out to his boat and promises to bring B ashore when requested, A’s failure to do so constitutes false imprisonment.

Since there is no general duty to act, the plaintiff must establish that the defendant, in the specific context, does have an obligation to act.

Question 28

False Imprisonment: Improper Assertion of Legal Authority (False Arrest)

Answer 28

• The improper assertion of legal authority can unlawfully restrain a victim.
  
  • This form of false imprisonment constitutes false arrest.
  • The victim must submit to the arrest for it to constitute imprisonment.
  • The arrest is improper if the actor imposing confinement is not privileged under the circumstances.
• The applicable privileges differ for police officers and private citizens.
  
  • For example, if A fraudulently induces B into wrongfully believing A is a police officer and B submits to detention under circumstances where only a police officer is privileged to detain, A is liable for false arrest.

Question 29

False Imprisonment: Contrast w/ Malicious Protection and Abuse of Process

Answer 29

False imprisonment compensates for unlawful confinement.

• Confinement that is privileged is not unlawful.
  
  • False arrest is a form of false imprisonment where the confinement is accomplished through the unlawful assertion of legal authority.
  • Where an arrest is privileged and therefore conforms to all requisite legal requirements to justify arrest, the possibility of liability for false arrest is precluded.
• An arrest pursuant to lawful procedures, and therefore not false imprisonment, if motivated by bad faith and satisfying other essential elements of the tort, may constitute malicious prosecution.
• The improper use of certain compulsory processes such as subpoenas, despite conforming to legal requirements, and therefore not false imprisonment, may be tortious as an abuse of process.

Question 30

False Imprisonment: Consciousness of Confinement

Answer 30

False imprisonment requires that the victim be conscious of the confinement at the time of imprisonment.

The Second Restatement modifies this requirement and finds liability for false imprisonment, even when the victim is not aware of the confinement, if the victim is harmed by the confinement.

Thus, under the Restatement view, if A, an infant, is locked in a car trunk and suffers injury, B is liable for false imprisonment, even if A is unaware of the confinement.

The general requirement of consciousness emphasizes that false imprisonment is a tort protecting a psychological perception of autonomy and not simply the denial of personal autonomy.

Question 31

False Imprisement: No M. Time

Answer 31

False imprisonment covers even minimal lengths of detention. Thus if A is detained by B for one minute, B is liable for false imprisonment. Obviously, however, the amount of the compensation awarded for false imprisonment will reflect the length of the detention.

Question 32

False Imprisonment: Transferred Intent

Answer 32

False imprisonment is one of five intentional torts where intent transfers.

If A intends an assault against B and either B or C is unintentionally imprisoned, A is liable for false imprisonment.

Question 33

Intentional Infliction of Mental Distress

Answer 33

The tort of intentional infliction of mental or emotional distress is relatively new, but gained general recognition in the latter half of the twentieth century.

Unlike most traditional intentional torts, the elements of intentional infliction of mental distress are far less precise.

While this allows for a flexible individual approach to determination of liability, it also introduces greater uncertainty and has on some occasions collided with First Amendment values.

Intentional infliction of mental distress exists when the defendant, by extreme and outrageous conduct, intentionally or recklessly causes the victim severe mental distress. Most states no longer require that the victim suffer physical manifestations of the mental distress.

Question 34

Mental Distress: extreme and outrageous conduct

Answer 34

The Restatement defines extreme and outrageous conduct as behavior which is “beyond the bounds of human decency such that it would be regarded as intolerable in a civilized community.”

• While there is no objective standard, mere rudeness or callous offensiveness is insufficient.
• The vulnerability of the victim and the relationship of the defendant to the victim can be critical.
  
  • Cruelty toward a young child or a very ill patient is more likely to be perceived as outrageous than would be comparable conduct directed towards a healthy adult.
  • The presence of a superior-subordinate relationship will also be taken into account.
• Accordingly, continuous mocking by an employer toward her employee or a principal toward his student is more likely to be characterized as outrageous than taunting among equals.
• Knowledge of the victim’s particular hypersensitivity can make otherwise non-outrageous conduct sufficiently culpable.

Question 35

Extreme and Outrageous Conduct: Sexual Harassment and Racial Epithets

Answer 35

Courts in past years have hesitated to extend the tort of intentional infliction of emotional distress to situations involving sexual and racial harassment.

Such reluctance is based on the theory that many instances of harassment are comprised of language that might be objectionable or morally repugnant, but nevertheless fail to meet the higher standard of “extreme and outrageous conduct.”

This undoubtedly reflects an historical societal tolerance of sexual and racial harassment which should change as society and courts become more sensitive to the extreme repugnancy of such behavior. Isolated propositions or attempts at seduction have, traditionally, not been actionable.

Nor, usually, has liability been imposed in the past based solely on racial slurs

However, courts have been more likely to recognize liability where a pattern of harassment is constant and on-going.

Additionally, corporations have been held liable for failing to respond to harassment perpetrated by employees, particularly those in supervisorial roles.

Most situations where liability has been imposed for racial or sexual harassment involve a combination of speech and conduct.

The trend towards recognizing liability should be viewed in the context of the evolution and various interpretations given to the phrase “extreme and outrageous conduct.”

Diamond, John L.; Levine, Lawrence C.; Bernstein, Anita. Understanding Torts, Sixth Edition (p. 22). Carolina Academic Pr. Kindle Edition.

Question 36

Extreme and Outrageous Conduct: Constitutional Limits

Answer 36

Since New York Times malice is required to be proved by public figures in media defamation, the Supreme Court concluded that public figure plaintiffs should not be allowed to use intentional infliction of emotional distress as an alternative tort to evade First Amendment protections afforded defendants in defamation cases.

Consequently, verbaldisparagement to public figures, which are not asserted as factual, would appear, however extreme and outrageous, to be protected under the First Amendment.

Public figures may presumably recover for other types of outrageous conduct under the tort.

Moreover, the Supreme Court did not suggest that private plaintiffs would also be precluded from seeking redress in a similar context.

The Court held that speech addresses “a matter of public concern . . . when it can fairly be considered as relating to any matter of political, social, or other concern to the community . . . or when it is a subject of legitimate news interest . . . of value and concern to the community.” The Court majority rejected the plaintiff’s argument that the context of picketing near an individual soldier’s funeral converted the speech to a matter of private concern, and that the speech was a personal attack against Snyder and his family disguised as a protest against “the United States’ tolerance of homosexuality or the supposed evils of the Catholic Church.”

Diamond, John L.; Levine, Lawrence C.; Bernstein, Anita. Understanding Torts, Sixth Edition (p. 23). Carolina Academic Pr. Kindle Edition.

Question 37

Recklessness to Cause Severe Mental Distress

Answer 37

For recovery under intentional infliction of emotional distress, the plaintiff must prove that the defendant intended to cause severe emotional distress or acted with reckless disregard as to whether the victim would suffer severe distress.

Although characterized as an “intentional” tort, recklessness, in addition to intent, generally suffices for liability.

The inclusion of recklessness, which is endorsed by the Restatement and derived from early precedent, includes liability for defendant’s behavior when she acts with a deliberate disregard of a high degree of probability that severe mental distress will result even when that was not the defendant’s intention.

The intentional (and reckless) tort must be distinguished from negligent infliction of mental distress, which evolved later.

Diamond, John L.; Levine, Lawrence C.; Bernstein, Anita. Understanding Torts, Sixth Edition (p. 23). Carolina Academic Pr. Kindle Edition.

Question 38

Severe Mental Distress

Answer 38

Intentional infliction of mental distress requires proof both that the defendant intended or recklessly imposed the risk of severe mental distress and that the victim actually suffered severe mental distress.

Mild distress will not suffice.

Initially, physical manifestations of severe mental distress were required, but most jurisdictions no longer require physical manifestations for the intentional tort.

Physical manifestations can range from heart attacks to serious stomach disorders attributed to stress and shock.

While physical manifestations were the original justification for compensating for intentional infliction of mental distress, the requirement evolved as an ostensible mechanism for authenticating distress and discouraging fraudulent claims.

The trend away from the requirement reflects recognition that the authenticity of severe distress can best be documented by the outrageousness of the wrongdoer’s conduct, and that a prerequisite of often unconfirmable physical manifestations, such as stomach trouble, is more prone to fraudulent claims.

Diamond, John L.; Levine, Lawrence C.; Bernstein, Anita. Understanding Torts, Sixth Edition (p. 24). Carolina Academic Pr. Kindle Edition.

Question 39

Third Party Recovery

Answer 39

• Intentional infliction of mental distress is not one of the five historic intentional torts that transfers intent between these torts and between victims.
  
  • However, since intent is defined to be either desire or substantial certainty, if A beats up B, knowing that B’s son C is present, A may be substantially certain, and therefore intend, that C will suffer severe mental distress, even if A had no specific desire to cause C mental distress.
  • Indeed, since recklessness can suffice for intentional infliction of mental distress, the defendant needs only to act with a deliberate disregard of a high degree of risk that his conduct would cause severe distress to a third party.
• Courts, however, appear concerned that this encompassing definition of intent and recklessness may cover too many individuals in the context of intentional infliction of emotional distress.
  
  • Consequently, courts have commonly awarded a third-party victim recovery only if, in addition to proving the elements of the tort,
    
    • (1) she is a close relative of the primary victim;
    • (2) she is present at the scene of the outrageous conduct against the primary victim; and
    • (3) the defendant knows the close relative is present.
• The Second Restatement is less restrictive, requiring only that a primary victim’s immediate family members be present and can prove the elements of the tort.
  
  • Non-relatives who satisfy the elements of the tort can also recover under the Second Restatement if they are present and suffer physical manifestation of severe distress.
  • The Second Restatement’s more permissive requirement allowing non-family members to recover has not received general judicial acceptance.
• The Third Restatement retreats from this position and instead endorses recovery for emotional distress for bystanders who are close family members and who contemporaneously perceive the event.
  
  • This stance is consistent with the majority of jurisdictions which allow bystander recovery for negligent infliction of mental distress when a close relative is present and witnesses the accident.
    
    • Such jurisdictions do not in negligence cases require the defendant to know the bystander is present, and presumably would not so require for the intentional tort.
    • Indeed, the argument for restricting bystander recovery in the intentional tort has weaknesses.
  • The defendant, having engaged in outrageous conduct, is highly culpable.
    
    • Intentional torts are commonly not insurable.
      
      • Consequently, there is no general economic imposition on the insured community.
      • On the other hand, the reverberations of distress suffered by relatives and friends can be great, imposing enormous liability.
      • Nevertheless, it is difficult to argue against awarding compensation for mental distress, for example, to parents whose children were sexually assaulted because the parents were not present as required by the majority rule.

Diamond, John L.; Levine, Lawrence C.; Bernstein, Anita. Understanding Torts, Sixth Edition (pp. 24-25). Carolina Academic Pr. Kindle Edition.

Question 40

Exception for Innkeepers, Common Carriers and Other Public Utilities

Answer 40

Innkeepers, common carriers, and other public utilities (such as a telegraph company) are traditionally liable for intentional gross insults which cause patrons to suffer mental distress.

• The requirement that the defendant behave in an extreme and outrageous manner to impose liability for intentional infliction of emotional distress is waived.
  
  • The plaintiff, to benefit from this lower threshold of liability, must be a patron of the defendant, although there is no requirement that, for example, a ticket be purchased by the patron prior to the tort’s occurrence.
    
    • If A, a bus driver, tells B, a pedestrian crossing the street in front of the bus, that he is an odoriferous, fat slob, A is not liable unless A’s knowledge of B’s special hypersensitivity or other unusual circumstances makes the conduct extreme and outrageous and the victim suffers severe special town emotional distress.
    • If A makes the same remark to C, a passenger preparing to board the bus, A is liable under the special exception without the need to prove extreme and outrageous circumstances or that the victim suffered severe distress.
• While the exception for innkeepers, common carriers and other public utilities is supported by venerable precedent, the original rationale for the exception is debatable.
  
  • Common carriers have traditionally owed passengers an exceptionally high duty of care, and perhaps this heightened liability is reflected in the exception.
  • As well, historically carriers and inns have been monopolies with out-of-town travelers circumstantially compelled to use their services.
  • Furthermore, others have argued that the traditional exception is explained by a class attitude toward the typical common carrier employee.
• While the Second Restatement endorses the special liability rule for common carriers and public utilities,
• the Third Restatement abandons this exception and would require ordinary proof of extreme and outrageous conduct and extreme distress for all defendants.

Question 41

Trespass to Chattel and Conversion

Answer 41

• Trespass to chattel and conversion are two separate intentional torts that protect personal property from wrongful interference.
  
  • For trespass to chattel there must be actual damage to the property, significant deprivation of use, or dispossession.
    
    • Unlike trespass to land, which awards nominal damages for technical trespass, minor intermeddling of personal property is not tortious.
  • Conversion exists only when the damage or other interference with the personal property is sufficiently serious to justify a forced sale to the defendant.
    
    • The defendant is liable for the entire market value of the chattel and not simply a smaller repair or rental cost.
    • Consequently, conversion requires more serious interference with the chattel than might satisfy the minimal threshold for trespass to chattel.
    • Adequate interference with property to constitute conversion does not preclude, however, liability under trespass to chattel. In such instances, the torts overlap.

Question 42

Tresspass to Chattel: Bad Faith Not Required

Answer 42

• Trespass to chattel does not require that the defendant act in bad faith or intend to interfere with the rights of others.
  
  • It is sufficient that the actor intends to damage or possess a chattel which in fact is properly possessed by another.
• In the classic case of Ranson v. Kitner, the defendant killed the plaintiff’s dog but argued that the “dog had a striking resemblance to a wolf,”which the defendant could have legally hunted.
  
  • The court held good faith was not a defense.
  • So long as the defendant intended to kill the particular animal, the requisite intent is satisfied, and even a reasonable mistake as to identity or ownership, unless wrongfully induced by the victim, cannot exonerate the defendant from liability.
  • Ranson is illustrative of the “mistake doctrine” which applies to both trespass to chattel and conversion. In such instances, once the defendant merely intends to act upon a chattel, the concept of “intent” approaches strict liability.

Diamond, John L.; Levine, Lawrence C.; Bernstein, Anita. Understanding Torts, Sixth Edition (p. 27). Carolina Academic Pr. Kindle Edition.

Question 43

Trespass to Chattel: Actual Damage, Substantial Deprivation or Dispossession Required

Answer 43

• Unlike trespass to land, trivial interference with another’s personal chattel is not actionable in tort.
  
  • If A knows that B does not want anyone touching his automobile, but A touches it anyway, there is no trespass to chattel in the absence of actual damage to the automobile.
  • While it could be argued that torts should vindicate any intentional interference with personal property, the prevailing law does not allow such recovery, as would be granted for similar interference with real property.
• Depriving the possessor of the use of his chattel also constitutes trespass to chattel, provided there is significant deprivation and not mere momentary interference.
  
  • For example, if A without privilege uses B’s suitcase for one week, the conduct can constitute trespass to chattel.
  • By contrast, an unauthorized one-minute use of the luggage would ordinarily not constitute the tort (unless the one minute was critical) since there is no measurable deprivation.
• Trespass to chattel also exists if the tortfeasor totally dispossesses the victim of his chattel, as by stealing or otherwise wrongfully asserting dominion and control over the property.
  
  • Such dispossession is sufficient interference to constitute the tort even if the chattel is quickly recovered from the perpetrator.
  • In such instances, the tortfeasor has more than used the chattel, but challenged the victim’s right of possession to the property.
  • Liability can be imposed in such instances, even when the defendant, as discussed in § 1.06[B][1], supra, acts in a good faith but incorrect belief the chattel is her own.

Diamond, John L.; Levine, Lawrence C.; Bernstein, Anita. Understanding Torts, Sixth Edition (pp. 27-28). Carolina Academic Pr. Kindle Edition.

Question 44

Trespess to Chattel: Transferred Intent

Answer 44

Historically, the doctrine of transferred intent has been applied to trespass to chattel (unlike conversion).

Under the doctrine, intent for any of four other torts (battery, assault, trespass to land, or false imprisonment) can be substituted to satisfy the requisite intent for trespass to chattel.

If A intends to hit B with ink and misses, but hits B’s or C’s book, A is liable for the damage to the book under trespass to chattel.

Even if the book is destroyed, conversion would not exist since the book’s destruction was not intentional and transferred intent is not applicable to conversion.

Question 45

Trespess to Chattel: Def of Conversion

Answer 45

• The Restatement defines conversion as “an intentional exercise of dominion and 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.”
  
  • It is derived from the action of trover (common-law action to recover the value of personal property that has been wrongfully disposed of by another person) which originally addressed the recovery of lost property.
  • While conversion is no longer restricted to lost property, courts still generally limit protection to tangible property unless the intangible property has distinct scientific, literary or artistic value.
  • Only very serious harm to the property or other serious interference with the right of control constitutes conversion.
  • Damage or interference which is less serious may still constitute trespass to chattel.
• The Restatement has identified six factors in determining the seriousness of the interference:
  
  • (a) The extent and duration of the actor’s exercise of dominion or control;
  • (b) The actor’s intent to assert a right in fact inconsistent with the other’s right of control;
  • (c) The actor’s good faith;
  • (d) The extent and duration of the resulting interference with the other’s right of control;
  • (e) The harm done to the chattel;
  • (f) The inconvenience and expense caused to the other.
• Applying these factors, there is a general agreement that if A intentionally destroys B’s chattel, A is liable for conversion.
  
  • If A intentionally caused minor damage to B’s chattel, A would not be liable for conversion but would be liable for trespass to chattel.
  • If A attempts to steal B’s chattel, but is caught within minutes, A is liable for conversion because of the weight placed on his bad faith.
  • If A mistakenly takes B’s chattel, but returns it within minutes after realizing her error, A is not liable for conversion.
  • If, however, A mistakenly takes B’s chattel and then accidentally loses or destroys it, A’s intentional taking, although in good faith, constitutes conversion since the deprivation is permanent.
  • Purchasing stolen property, even if the purchaser was acting in good faith and was not aware the seller did not have title, constitutes conversion by both the seller and innocent buyer.
  • Both the seller’s and the buyer’s acts seriously interfere with the ownership of the rightful owner.

Question 46

Trespass

Answer 46

• Trespass is “an actionable invasion of an interest in exclusive possession of land.”
  
  • This cause of action protects a plaintiff’s interest in the surface land itself, the earth or other material beneath the surface, and “the air space above it.”
  • A plaintiff need not prove any damage to the land invaded. Courts frequently distinguish trespass from nuisance by insisting that for a trespass claim the invasion must take a visible or tangible form.
• Restatement (Second) § 158 provides:
  
  • 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
    
    • (a) enters land in the possession of the other, or causes a thing or a third person to do so, or
    • (b) remains on the land, or
    • (c) fails to remove from the land a thing which he is under a duty to remove.
• In trespass, the interest protected is the right of “exclusive possession of land and its physical condition.”
  
  • Accordingly, a plaintiff pursuing a cause of action based on trespass must satisfy the court that she has one or more “possessory interest(s)” in the property.
  • Unlike nuisance, which can be pursued only by someone with a current possessory or beneficial use interest in a property, trespass does not require the plaintiff to be the current occupant of the property.
• Restatement (Second) § 157 defines “possession” in the trespass context in such a way as to include one with a reversionary interest, such as a landlord or other owner not in current possession of the land or premises. It also allows persons that once occupied the land with intent to control it.

Diamond, John L.; Levine, Lawrence C.; Bernstein, Anita. Understanding Torts, Sixth Edition (pp. 305-306). Carolina Academic Pr. Kindle Edition.

Question 47

Trespass: req of intent

Answer 47

• Trespass is an intentional tort, and the plaintiff must prove that an alleged trespasser had the requisite mental state to commit the tort.
  
  • Restatement (Second) § 8A states that the word “intent” is used in tort law “to denote that the actor desires to cause the consequences are substantially certain to result from it.”
    
    • Consistent with the “substantial certainty” approach to intent in general, an actor’s awareness of the high degree of likelihood that a trespass will result from his activities may be proved circumstantially, as in Bradley v. American Smelting, where the smelter’s tall smokestack alone evidenced its knowledge that particulate matter could be dispersed but not eliminated through release high above ground.
      
      • The Bradley decision teaches that a defendant need not enter the plaintiff’s land herself.
      • Intentionally propelling matter onto the land from an external source will suffice.
    • The Restatement speaks of “the entry of the foreign matter as sufficient to constitute an invasion.
  • Courts agree that the plaintiff need not prove that the defendant subjectively desired to trespass on the property.
    
    • Rather, plaintiff must prove only that defendant intended the act that resulted in the trespass, i.e.,
      
      • that defendant’s act was volitional,
      • and done either with a desire to cause a physical entry onto plaintiff’s property,
      • or with substantial certainty that the act would result in such a physical entry.
    • Mistake is not a defense.
    • A defendant may be able to show that he acted with a reasonably mistaken belief that his actions,
    • along with the consequent material invasion,
    • were authorized by plaintiff,
    • or that the property was owned by another who had given apparent consent to the intrusion;
    • however, this defendant will not prevail.
      
      • In one action involving a fuel-oil distributor’s mistaken fuel delivery to a residence and accidental spillage resulting therefrom, the court rejected a defendant’s claim that it had had a reasonable belief that the fuel had been ordered for delivery at that premises.

Question 48

Trespass: Physical Invasion and Harm

Answer 48

• An archetypal actionable trespass occurs when one by mistake places his home on property that is only partially his, and the home encroaches also on his neighbor’s property.
  
  • The well-known decision of Burns Philp, written by Judge Easterbrook of the Seventh Circuit, illustrates this type of invasion as committed by a Chicago business onto the property of another.
• Another invasion for which a plaintiff may seek redress through a trespass action is the intentional diversion of water onto the plaintiff’s premises.
  
  • In most jurisdictions, invasions of plaintiff’s property that amount to trespass may also, if they interfere with plaintiff’s use and enjoyment of the property, be actionable in nuisance.
  • In such circumstances, wrote the California Court of Appeal, “plaintiff may have his choice” of a claim in trespass or in nuisance, “or may proceed upon both.”
• It does not follow, however, that a claim in nuisance ordinarily imports facts sufficient for a claim in trespass.
  
  • Martin v. Reynolds Metals Co. is a classic decision among those that reject the traditional demand that property be invaded by a “thing” or a tangible item.
  • Martin’s claim involved the settling upon plaintiff’s property of gaseous and particulate fluorides from defendant’s aluminum smelter.
  • The Court rejected the defendant’s argument that plaintiff’s claim should fail for want of any tangible trespassory “object” or “thing”:
  • It is quite possible that in an earlier day when science had not yet peered into the molecular and atomic world of small particles, the court could not fit an invasion through unseen physical instrumentalities into the requirement that a trespass can result only from a direct invasion.
    
    • But in this atomic age even the uneducated know the great and awful force contained in the atom and what it can do to a man’s property if it is released.
    • In fact, the now famous equation E=mc2 has taught us that mass and energy are equivalents and that our concept of “things” must be reframed.
  • Some courts have disagreed.
    
    • One judicial compromise between the two stances
      
      • — that is, between recognizing a claim for trespass following an intangible invasion, as Martin did, and refusing to recognize this claim — has been to allow the claim while insisting that the plaintiff show proof of actual harm.
    • When the invasion is tangible, courts readily hold defendants liable even when the trespassory invasion causes no compensable harm to plaintiff’s property or interest in the property.
  • The invasion of plaintiff’s property need not be direct, if plaintiff can prove that an intentional act of defendant resulted in the harm.
    
    • Thus, the causal intervention of natural conditions, such as deterioration, wind, or rain, in initiating or exacerbating the trespass will not absolve defendant of liability.
      
      • This approach was applied in an action where plaintiff claimed that defendant’s dumping of asphalt waste on land contiguous to plaintiff’s fish pond eventually resulted in the pollution of the pond.
      • Here, requiring the plaintiff to prove intent to cause an invasion functions to limit liability more clearly than would a judicial focus on the directness of the intrusion.
      • Similar to the doctrine of continuing nuisance, a polluter’s failure to remove a pollutant or a contaminant from plaintiff’s land may represent a “continuing” tort.
      • The significance of the designation “continuing trespass” is primarily that of relieving some of the strictures of limitations periods within which the possessor would have to bring a toxic tort claim.
      • That the plaintiff may be entitled to an injunction or to nominal damages for a technical or minimal trespass does not resolve the question of what level of harm plaintiff must show to receive compensatory damages.
        
        • The leading decision of Borland v. Sanders Lead Co. phrased the requirement in terms of “substantial” harm.
        • Borland involved asphalt piled in a manner that permitted it to spill onto plaintiff’s property. The Alabama court stated that: a plaintiff must show
          
          • (1) an invasion affecting an interest in the exclusive possession of his property;
          • (2) an intentional doing of the act which results in the invasion;
          • (3) reasonable foreseeability that the act done could result in an invasion of the plaintiff’s possessory interest; and
          • (4) substantial damage to the res.
        • Consistent with a requirement that to receive compensatory damages, plaintiff must show a substantial intrusion, in a suit involving trichloroethylene contamination of well water, a North Carolina federal district court held that “de minimis [chemical] encroachment[s]” are not enough to sustain an action in either trespass or nuisance.

Diamond, John L.; Levine, Lawrence C.; Bernstein, Anita. Understanding Torts, Sixth Edition (pp. 308-309). Carolina Academic Pr. Kindle Edition.

Question 49

Trespass: Above and Below the Surface

Answer 49

• A Latin maxim dating back to medieval England declared that whoever owns the land owns it from the heavens to the depths.
  
  • It posits that each landholder possesses a column of air and topsoil extending up the sky and down to the core of the earth.
  • The maxim has a certain venerable charm, but it does not describe the state of modern law.
• Instead, courts apply a nuisance-like analysis to most invasions.
  
  • The plaintiff can recover in trespass for invasions that cause harm, and for extractions that yield wealth to the defendant, but usually will not recover to enforce an abstract or theoretical entitlement to exclude visitors or intruding substances.
• A handful of cases do, however, recognize plaintiffs’ absolute entitlement to keep out subterranean invasions.
  
  • The property doctrine of easement combines recognition of the possessor’s ownership with a prerogative for someone else to enter below the surface.
    
    • Governments can obtain easements over the objections of land possessors.
      
      • For example, if a local government constructing a subway network needs to lay tracks under a portion of privately held land, it will seek an easement.
  • Possessors who refuse to grant this permission will face an easement by condemnation where a court will impose the easement and award nominal compensation, reflecting how little harm the entry caused.
  • As for intrusions above the surface, land possessors may not use trespass to enjoin commercial aviation or seek damages for such an invasion when it does not cause injury.
    
    • By statute, Congress claimed navigable airspace for public use, subject to federal regulation.
    • When airplanes enter the space above privately owned land at a low enough altitude to interfere with the possessor’s use of the land, then these overflights are actionable in trespass.
• Restatement (Second) § 159 identifies the “immediate reaches” above the land as covered by the law of trespass, provided the invasions interfere with the plaintiff’s “use and enjoyment.” This term, borrowed from the law of nuisance, adds a requirement of harm to the prima facie case.

Question 50

Trepass: Animals

Answer 50

• Because trespass is formally an international tort, the Second Restatement’s reference to “Trespass by Livestock” may have been a bad choice of words.
• Human beings cannot draw reliable inferences about the mental state of cattle.
  
  • Reflecting this reality, the Third Restatement chose to paraphrase the Second’s old blackletter, and the rule is now captioned “Intrusion by Livestock or Other Animals.”
    
    • The substantive content is the same in both Restatements:
      
      • When an animal wanders onto the land of another person, the owner of the animal is strictly liable for whatever physical harm this intrusion causes.
  • The Third Restatement provides for some exceptions to strict liability for this intrusion.
    
    • Strict liability does not apply when the owner possessed the animal“in pursuance of an obligation imposed by law.”
    • Strict liability for the intrusion is also subject to apportionment based on the plaintiff’s comparative responsibility.

Question 51

Trespass: Statues of Limitation

Answer 51

• Permanent Trespass; Continuing Trespass When an invasion is permanent and unabatable, courts will deem it a permanent trespass and the limitations period begins anew with each day that the defendant has failed to remedy the trespass.
  
  • For example, a defendant may have constructed a home or a building wholly or partially upon another’s property.
  • The majority rule is that the building constitutes a trespass that remains actionable until the encroaching building is removed.
• “Discovery” Statutes of Limitation Ordinarily, for limitations periods in trespass actions, the cause of action is deemed to have accrued “at the time when the wrong upon which the claim is based was done regardless of the time when damage results.
  
  • Particularly in environmental contamination settings, the potential plaintiff may not even be aware of the trespass until the action is time barred.
  • To gain the benefit of any “discovery” statute of limitations that may apply in a given state, the plaintiff will need to do more than show that she was unaware of her potential claim until the limitations period had run.
  • Rather, she will ordinarily be required to show not only that she was unaware of the trespass, but also that she would not haven able to discover the trespass through the exercise of reasonable diligence.
  • Facts supporting the inference that the defendant concealed the trespass will militate in favor of application of a discovery statute of limitations.