The Seven Basic Intentional Torts

TWO TYPES OF INTENT1. Purpose: personal desire on the part of the actor to produce a particular result2. Knowledge: the actor is substantially certain that a particular result will occur, even if

that end is not desired

BATTERYThe intentional, unconsented, harmful or offensive touching of another.

1. Intent to make contact2. Offensive or harmful touching of the plaintiff’s person or effects3. Absence of consent

ASSAULTWhen the defendant intentionally creates in the plaintiff a well-grounded apprehension of imminent, unconsented bodily contact.

1. Intent to cause apprehension of contact2. Present apparent ability to cause contact3. A threatening gesture by the defendant (usually)4. Well-grounded apprehension of imminent, unconsented contact

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESSEncompasses fright and shock at the time of the accident, humiliation, unhappiness and depression over inability to lead one’s prior life, anxiety about the future, anger.

1. Intent to cause emotional distress or recklessness with respect to causing emotional distress

2. Extreme and outrageous conduct3. Causation4. Resulting severe emotional distress

“Extreme and outrageous” an extremely demanding standard; insulting language almost never sufficient.

- Exceptions: common carriers; when D knows P is peculiarly sensitive to distress

Restatement 2d § 46: Outrageous Conduct Causing Severe Emotional Distress(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm results from it, for such bodily harm.

FALSE IMPRISONMENTProtects some (not all) aspects of one’s personal interest in freedom from detention or restraint of movement.

1. Intent to confine2. Unconsented detention within boundaries fixed by the defendant3. Apparent lack of a reasonable exit4. Use of unreasonable force, threat of force, or assertion of legal authority by the defendant5. Harm to the plaintiff or knowledge by the plaintiff of the confinement

TRESPASS TO LAND (Q.C.F.)Protects a possessor’s interest in exclusive possession of land.

1. Intent on the part of the defendant to be present2. Unconsented physical presence on, under, or above the land of another

TRESPASS TO CHATTELS (D.B.A.)Protects a possessor’s interest in freedom from minor intentional interference with personal property.

1. Intent to affect the chattel2. Minor interference with the plaintiff’s possessory interest by

a. Dispossession;b. Use; orc. Intermeddling (physical contact; but remember CompuServe was sufficient)

3. In the absence of dispossession (from which damage may be inferred), proof of damage in the form of:

a. Substantial loss of use; orb. Impairment of condition, quality, or value

If no dispossession, damages must be proved.Dispossession may be committed by intentionally (Restatement):

- Taking without consent- Obtaining by fraud or duress- Barring access- Completely destroying- Taking into the custody of the law

CONVERSIONA more serious version of the type of interference which gives rise to trespass DBA.

- So seriously with the right of another to control a chattel that the actor may justly be required to pay the other the full value of the chattel

- Consider the extent and duration of the actor’s dominion or control; intent to assert a right in fact inconsistent with the other’s right of control; the actor’s good faith (a reasonable mistake?); extent and duration of the resulting interference; the harm done to the chattel; the inconvenience and expense caused to the other.

- Requires demand for return and refusal (unless demand would be useless)A BFP may be liable for conversion if the goods were procured by theft (no good title can pass) rather than fraud (voidable title to defrauder, but good title to BFP)

Defenses and Privileges

CONSENTAn issue relevant to P’s prima facie case, rather than a defense or privilege. Consent to an otherwise-tortious act negates the wrongful element of D’s conduct and prevents the existence of a tort. Burden of proving lack of consent is upon P for each of the basic intentional torts except trespass to land.

o Split of authority as to whether criminal acts can be consented to Consent usually invalid if statute is meant to protect the class of which P is

a member from the type of harm that occurred

Actual Consent- Manifested by words, affirmative actions, or by silence or inaction when that shows

consent to bar an action even if the consent is not communicated to this particular D.o Not effective if given under duress (not usually including economic duress)o Ineffective if youth or mental deficiency precludes appreciating the consequences

of consento Consider the scope of the consent and whether the action exceeds ito Intoxication may preclude ability to consento Consent not an effective defense to a beating excessively disproportionate to

consent or for exposure to loss of life or great bodily harm

Apparent Consent- Conduct of P might indicate willing participation when it’s not

o Active participation might override a previous resignationo Objective standard: would a reasonable person have understood this as consent?

Implied Consent- A legal fiction in place of actual or apparent consent that arises when the interests to be

furthered by the invasion or more important than those which will be sacrificed.o Especially applicable to medical situationso Circumstances when patient is unconscious and immediate operation is necessary

to preserve life or healtho Dr. should attempt to get consent, but neither he nor hospital will be held liable

for providing life-sustaining treatment (a narrow exception to battery rules)o Parents are normally the appropriate decisionmakers for children, but state can

intervene to ensure there’s not neglect or abuseo Usually to further an important public policy

Consent by Mistake- Invalid if procured by fraud- If D knows P is making a mistake, any mistake sufficiently material to play a role in P’s

decisionmaking process will invalidate consent- D may be required to remove a presumption in the P- Negligently caused mistake: liability arises b/c P could never give the requisite consent- Mutual mistakes for which D was not responsible does not invalidate consent

DEFENSE OF SELF AND OTHERSSelf DefenseAnyone other than the aggressor, who anticipates immediate physical harm, may use reasonable force in self defense.

- A reasonable mistake as to the necessity of degree or force does not destroy the privilege

o D will not be faulted for not choosing the very best course of action availableo Unreasonable force creates liability between each party

- Use of deadly force is only justified by threat of deadly force- Mere words insufficient to invoke the privilege

Defense of OthersAnyone who believes force is necessary to protect another may use reasonable force to do so.

- Split of authority as to whether reasonable mistake destroys the privilege- Reasonableness a question for the jury

PRIVILEGES RELATING TO PROPERTYDefense of PropertyReasonable force acceptable in defense of property when accompanied by reasonable belief about a threat of harm.Prosser: The law places a higher value on human safety than on mere rights in property.

- Mistake about threat of harm does not destroy the privilege- Mistake about whether P is privileged to interfere with possession does destroy privilege- No privilege to inflict deadly or seriously injuring force any more than if you were

present, even when notice is given (subject to statutes)- No privilege to kill or injure animals on your property unless its harming your turkeys

o Remedy is against the owner- Some courts may allow enlargement of the privilege through posting or visible protective

devices, but then normally classify P’s conduct as encountering a known danger

Recapture of ChattelsA possessor, wrongfully dispossessed by fraud or force, may use reasonable non-deadly force to recapture the chattel, if there is prompt discovery and fresh pursuit.

- Any mistake destroys the privilege, unless induced by Do Owner is treated as the aggressor; bears the risk of mistake

- No force is reasonable until a demand for return has been made and refused unless the demand would be futile or dangerous

- No privilege when buyer merely defaults on payments; dispossession has been freely consented to and seller must resort to the law for redress

Detention for InvestigationA shopkeeper may temporarily detain, for purposes of investigation, one reasonably suspected of theft, in or near the store.

- If a request to remain has been made and refused, reasonable force may be used to detaino For a relatively short time (may be set by statute) depending on value of item,

nature of misconduct suspected, and difficulty of consulting sources of information

- No privilege to coerce confession, demand payment, place him under arrest, or act in an unreasonable manner toward detainee

- Not destroyed by mistake to allow shopkeepers to make a reasonable investigation

Public and Private Necessity

Public: Anyone is completely privileged, to use reasonable force, actually or apparently necessary, to avoid an imminent risk of greater harm, to the community or many persons.

- Privilege is never greater than the necessity- Only available when the harm to be prevented is greater than the harm to be incurred- Not dependant upon whether the whether the action achieves the desired goal- No privilege is the actor knows the person whose interests would be protected is

unwilling for the conduct to occur- Policy: don’t deter people from pursuing the public interest- Critique: forces one person to bear the loss for the good of the public (Surrocco)

Private: same elements, but D acts merely to protect personal interests or the interests of a few other persons

- An incomplete privilege: liability arises for harm caused by assertion of the privilege (damage to dock by ship)

o Those who benefit must bear the burdens of voluntary conduct that causes losses- If possessor resists, the one asserting the privilege may use reasonable force- Available as a privilege even when necessity is of one’s own making- Must be asserted at a reasonable time in a reasonable manner- No privilege to protect a chattel of small value at the expense of a far more valuable

chattel of another (weigh the benefits of the assertion against the loss caused)

NegligenceConduct which poses an unreasonable risk of harm to others

1. Duty2. Breach3. Causation4. Damages (no nominal damages: some actual loss must have occurred for an action to lie)

1. Duty: a conclusory label for the obligation we choose to impose upon DNo concern with state of mind; concerned with character of defendant’s conduct. Conduct is judged in the light of what the defendant knew or reasonably should have known.

Palsgraf v. Long Island RR Co.Limited duty: Cardozo – only owed to those foreseeably endangeredGeneral duty: Andrews – owed to the world in general

- Andrew’s view endorsed today: In cases in which the plaintiff was, because of time or geography, truly beyond being subject to harm of the type risked by the tortious conduct, but the plaintiff somehow suffers such harm, the defendant is not liable to that plaintiff for the harm. (Restatement 3d)

The Negligence Balancing TestForeseeability of the harm is required, but how foreseeable must the harm be before liability will attach?

- No duty to guard against harm from events are so unlikely to occur that the risk, although cognizable, would commonly be disregarded (Nussbaum – golf ball)

- But when the gravity of the potential harm increases the likelihood of the harm occurring may not need to be as high (Gulf Refining – bung cap)

- Hand Balancing Test: Liability imposed if burden of avoiding the risk (B) is outweighed by the gravity of the loss (L) times the probability (P) of the threatened harm. (US v. Carroll Towing)

- Consider utility of the conduct and availability of alternative (Krayenbuhl – unlocked rr turntable; use of lock would have interfered only slightly)

o If no alternatives are available and the utility is significant, no negligence

The Reasonable Person StandardAn objective standard that doesn’t take into account D’s intent or attempt to do his best. All we care about is whether D took the precautions that would have been observed by a reasonable person.

1. Factfinder determines what is reasonable conduct under the circumstance2. Judge-made standard to establish reasonable conduct in a particular situation as a matter

of law3. Legislatively-determined standard defining the applicable level of care4. Judicially-declared standard based on legislation that implies an appropriate behavior

Circumstances may change the standard of care required from a particular defendant- Emergencies

o Sudden Emergency Doctrine: how would a reasonable person react in the circumstances? Does not change the standard of care, but alters the judgment about D’s reasonable reaction.

- Physical Disabilitieso Degree of care that must be exercised is that of a person with the disabilityo Standard of care the same, but disability determines its reasonableness

- Ageo Standard of care is that of a child of like age, intelligence, and experience under

the circumstances.o Adult standard may apply when the activity is one normally engaged in by adults

and where adult qualifications are required; when the activity is dangerous and normally undertaken by adults

- Mental Deficiencyo No special standard (reluctance to undertake intractable inquiry)o No effective deterrence otherwise (deterrence for estate)o Professional caretakers generally can’t recover when the insane person has

already been confinedo Exceptions

Sudden, unexpected, temporary insanity Inability to control actions (no liability) as opposed to inability to

understand one’s actions (liability) Probably relevant to contributory negligence, because mentally deficient

person can’t guard against harm (less likely to be contributorily N)- Superior Knowledge, Training, or Skill: Professional Malpractice

o Areas where there is an established body of specialized knowledge and clearly recognized standards for superior performance = higher standard of care

o Avoids talented people wasting their resources

o Protects consumers by assuring a professional is equipped properlyo Experience by itself generally doesn’t change the standard of careo Liability for malpractice has a great deterrent forceo Distinction b/w knowledge required by standard of care (to know of rules’

existence and practical applications) may differ from degree of skill and knowledge (the substance of the rules)

- Legal/Medical Malpracticeo Duty of care owed to anyone who becomes a client even informally; some

obligations to non-clients like third-party beneficiaries; sometimes to non-clients foreseeably relying on documents provided by an attorney

o Doctors may have a duty to non-patients when treating a communicable diseaseo Must refer clients to a specialist if a reasonably careful lawyer would so doo Lawyer doesn’t warrant success, just that he (1) possesses the minimum degree

of learning, skill, and ability ordinarily possessed by other lawyers; (2) will exercise personal best judgment; and (3) will pursue the client’s matter with reasonable care and diligence

o Malpractice action usually requires expert testimony showing not that a different result would have occurred, but that the decisions were made negligently

Broad field for exercise of discretiono Lawyers held to state-wide standard; doctors may be allowed to follow local ruleso Legal malpractice claims based on negligence: P must show that but for the

negligence P would have prevailed (a heavy burden)o Tort reform legislation likely to protect doctors’ exposure to liability

- Informed Consento Even adult has a right to determine what shall be done with his own bodyo Liability arises even if doctor exercised due care but failed to disclose material

risks (would likely have affected P’s decision; not the determinative or controlling decision) and relative alternatives to the course of treatment

Mostly an objective inquiryo Defenses available to doctor: P ought to have known; emergency; disclosure

would be detrimental to P’s best interests; contributory negligence (P not truthful)o If uninformed consent: negligence. If no consent: battery. (consequence of

classification – punitives for battery, not for negligence…)o Statutes may determine what risks must be disclosed or their materiality

- Gendero Previously the standard was specific to age and gender, but has become a more

universal standard Assumes competence; achieves more deterrence because liability is more

easily imposed

Establishing the Standard of Care Outside the Jury- Judge-made standards

o Achieves more consistency and predictability of results with recurring caseso May be too inflexible to be useful because fact-specific inquiry is reducedo Negligent as a matter of law not to administer glaucoma test

- Negligence based on violation of statute Did the statute set the standard of care? Was there an excuse for the violation? What is the procedural effect of an unexcused violation? Was the violation causally related to the P’s damages? Is recovery barred by available defense?

o Statutes may expressly provide that a violation gives rise to a tort actiono Courts may adopt a standard of care expressed by statute that’s not expressly

applicable to tort cases Gipson v. Kasey: criminal statute meant to protect the decedent from the

harm that occurred (drug overdose) Make sure the statute is meant to protect this class from this harm

o Some statutes are expressly unavailable for civil actionso Licensing statutes are meant to protect the public against lack of skill, not to

impose strict liability; if D is acting with skill and care the violation of a licensing statute doesn’t mean D was negligent

o Unexcused Violation of Statute Negligence per se Prima facie negligence (rebuttable presumption) Some evidence of negligence Some statutes permit no excuse for violation (sale of firearms to minors;

protecting a class from its inability to protect itself)o Excused Violation of Statute

Childhood, physical disability, incapacitation makes violation reasonable Actor exercises reasonable care in attempting to comply Actor neither knew nor should know of the factual circumstances that

render the statute applicable Violation is due to the confusing nature of the statute Noncompliance involves lesser risk to the actor

o Compliance with Statute Does not necessarily establish that D acting reasonably: precautions

beyond statutory minimum may be required when situation is more hazardous than usual based on the facts

P must establish that the situation was unusual

2. Proving Negligence: the burden of proving negligence is on the party alleging it, and merely establishing that an accident happened does not prove it.Evidence of Custom

- Admissible on the issue of reasonable conduct except where the custom is N as a matter of law (jaywalking)

- Raises an inference of reasonableness, but may be rebutted by facts- Adherence to custom may give rise to negligence when the custom is unreasonable

(failing to have radios was unreasonable; the whole calling unduly lagged in the adoption of new and available devices)

Circumstantial Evidence: evidence that may allow the fact in question to be inferred- Constructive Notice

o Banana peels: the exercise of reasonable care would have required its discovery and removal

o Very fact specific (condition, who was responsible for its introduction to the scene, opportunity to discover, proximity to those who should notice it)

- Mode of Operationo No notice required if the hazard is foreseeable due to D’s acts (grape storage)o Based on nature of D’s business that gives rise to a substantial risk of injury to

customerso Store has greater notice of its potential liabilityo P normally must show that D acted unreasonably, but burden may shift to D with

a rebuttable presumption of negligence (minority view)Res Ipsa LoquiturThe event giving rise to the harm must be of the type which ordinarily doesn’t occur in the absence of negligence, based on past experience or common sense.

o Eases P’s burden of proof by raising an inference (sometimes a presumption) that the D was negligent, absent evidence of how D actually behaved

o Only applies when P does not and cannot know how the accident occurredo Must be other facts which make it fair to conclude that the conduct of D was

legally a cause of the event giving rise to the injurieso P must show that the injury was caused by D, not some unidentified persono Alleged general negligence must not arise from accessible evidence or where the

precise cause of the injury is clearo Court decides when RIL applies

- Exclusive Control: Control at the time the negligence occurred, not too stricto Superior knowledge may show that D was in the best position to control the event

- Rebuttal Evidenceo Will allow the jury to consider whether D was negligent, but won’t usually be

sufficient for a directed verdicto If it conclusively shows that an outside agency was responsible for the accident

- Plaintiff’s Conducto With comparative negligence, RIL plaintiff must only show that the D’s inferred

negligence was, more probably than not, a cause of the injury, even though P’s negligent acts or omissions may also have contributed to the injury.

- Multiple Defendantso Applies when Ds have a relationship to each other or jointly control the risk

(Ybarra doctors), but each D could exculpate itself by explaining its conducto Generally not applicable when the Ds are strangers to one another, even if at least

one of them must have been negligent- Procedural Effect

o Majority: permissible inference of negligence Jury is free to accept or reject the inference

o Presumption of negligence: shifts to D either the burden of production of evidence or the burden of persuasion

D must give some evidence of why it wasn’t negligent to avoid directed verdict

3. CausationProvides a limit to the extent that liability is imposed.

- Two-step inquiry: cause in fact (‘but for’) and foreseeability. Overall: ‘proximate causation’

Causation in Fact- Was there in fact a connection between the allegedly tortious conduct and the P’s injury?“But For” Test- P must show that it was more probable than not that the injury would not have occurred

‘but for’ the D’s negligence- The D’s conduct must have multiplied the chances the injury would occur to the point

where the conduct makes at least an indispensable contribution to the harm- Evidence must show more likely than not that the D’s acts were a factual cause- Be careful of speculation (Saelzler: expert speculated that the assault was caused by

intruders because of a poorly maintained gate, but no evidence that the assailants were not residents of the apartment complex)

Independently Sufficient Causes- When two or more causes concur to bring about an event and any one of them, operating

alone would have caused the result, liability imposedo No liability if the fire is insufficient to bring about the harm on its own but merges

with another that is sufficiento Liability imposed when two insufficient fires combine to bring about the harmo Liability imposed when both fires are sufficient to bring about the harm

- Was the negligence a substantial factor in producing the harmMultiple Fault and Alternative Liability- Burden of proof on causation shifts to defendants; but only when all Ds are negligent- Summers v. Tice: defendants shooting at quail required to show which didn’t hit P

o P has no access to the information on causation- Result: joint and several liability- Burden does not shift when only one of several Ds was at fault (dent in piano moved by

three separate companies)- ‘But for’ would not apply: neither actor was a ‘but for’ causeMarket-Share Liability- Sindell v. Abbott Labs

o Alternative liability did not apply because only several of many potential Ds were before the court

o Enterprise liability not appropriate because a large number of manufacturers was involved with no common delegation of authority

o Could not be said that one of the Ds before the court had caused the injuryo Not feasible to require P to establish the certainty that one of the Ds produced the

injury by joining them allo Burden shifted to Ds for policy reasons

Unavailability of proof of causation was at least as much the fault of Ds as Ps

Ds could better absorb or spread the cost of the injury Burden on Ds would be an incentive for safety in the future

o D could prove it did not produce the particular dosage causing P’s injury; otherwise it would be responsible for the portion of the judgment proportional to its market share of liability

- Hymowitz v. Eli Lillyo Market shares based on national marketo Manufacturer can’t exculpate itself (because liability is based on marketing) but is

also only severally liable (P may not recover 100%)- Factors relevant to adoption of market-share liability (Restatement Cmt)

o The generic nature of the producto The long latency period of the injuryo The inability of Ps to discover the identity of the D even after exhaustive

discoveryo The clarity of the causal connection between the defective product and the injury

suffered by plaintiffso The absence of medical or environmental factors that could have caused or

materially contributed to the injuryo The availability of sufficient market share data to support a rational

apportionment of liabilityEnterprise Liability- Hall v. E.I. DuPont De Nemours

o Small number of manufacturers had cooperated in the design and production, adhered to industry-wide standards on safety features, and delegated safety functions to a trade association

o Evidence of interrelated conducto All Ds jointly controlled the risk

Commingled Product Theory of Causation- Manufacturer liable unless it can prove that its product was not in the relevant place at the

relevant time (for commingling and become part of the mix causing the injury)- Several liability because joint and several would be unjust when lots of actors and a small

contribution by each

Concerted Action Liability- A suit may be maintained against a person who stood in a particular relationship to the

actual wrongdoer- Encouragement or other aid to misconduct of the primary actors gives rise to liability

o Extent of participation, if any, a question for the jury- Civil Conspiracy

o An agreement between two or more persons (tacit or explicit); to participate in an unlawful act, or in a lawful act in an unlawful manner; an injury caused by an unlawful overt act performed by one of the parties to the agreement; which overt act was done pursuant to and in furtherance of the common scheme.

o No liability for conspiracy if no wrong is actually committedo Proof that plaintiff was injured essential

- Aiding and Abetting

o The party whom the defendant aids must perform a wrongful act that causes an injury; the defendant must be generally aware of his or her role as part of an overall illegal or tortious activity at the time the assistance is provided; and the defendant must knowingly and substantially assist the principal violation.

o How much encouragement or assistance is enough? Consider: The nature of the act encouraged; the amount of assistance given by D;

D’s presence or absence at the time of the tort; D’s relationship, if any, to the tortfeasor; D’s state of mind

Joint Enterprise- An agreement, express or implied, among the members of the group; a common purpose

to be carried out by the group; a community of pecuniary interest in that purpose, among the members; and an equal right to a voice in the direction of the enterprise, which gives an equal right of control.

- Another form of concerted action including partnerships and less-formal arrangements for cooperation during a more-limited period of time and for more-limited purposes

- Each is an agent or servant of the others; each charged vicariously with any act of another