To establish a prima facie case of intentional tort, plaintiff must prove:
1) Act by Defendant
* The act required is a volitional movement by D.
2) Intent
Intent may EITHER be….
- Specific = the goal in acting is to bring about specific consequences
- General = the actor knows with “substantial certainty” that specific consequences will result NOTE: Everyone is “capable” of forming intent…INCAPACITY IS NOT A DEFENSE (e.g. a minor can form requisite intent)
NY ONLY What are the 2 elements of prima facie tort?
Consists of intentional infliction of pecuniary harm without justification. The elements are:
1) intent to do harm (cf. intent to do action that then causes harm)
2) π must allege/prove special (pecuniary) damages
NOTE: This is a “catch all” tort that could apply ONLY IF no other traditional tort is available
What is tortious transferred intent?
As long as ∆ has requisite intent at beginning of an intentional tort, the intent req is satisfied even if a DIFFERENT PERSON gets hurt or a DIFFERENT TORT is committed
Which 5 intentional torts are subject to transferred intent docrtine?
Transferred intent may be invoked ONLY IF the tort INTENDED and the RESULTING tort are among these…
- assault
- battery
- false imprisonment
- tresspas to land
- trespass to chattels
What are the 2 elements of battery?
1) The ∆ must intentionally commit a harmful OR offensive contact
- Intent = is satisfied as long as the ∆ knew with subsantial certainty that the harmful/offensive contact would take place
- Offensive = violates a reasonable sense of personal dignity (i.e. if it’s unpermitted by a person of ordinary sensitivity)
2) The contact must be with the π’s “person”
- “Person” includes anything that is connected to the π (what’s he’s holding, touching, etc)
- NOTE: damages are not required (π can recover nominal damages)
What are the 2 elements of assault?
1) The ∆ must intentionally **place π in reasonable apprehension
* Apprehension = knowledge of something; doesn’t need to be definitive, just reasonable and apparent. You don’t have to fear the ∆ to have apprehension.
2) The reasonable apprehension must be of an immediate battery (harmful/offensive contact**)
- Words alone (without action/physical gesture) lack immediacy; however, words can negate OTHERWISE valid immediacy (i.e. conditional words to negate a threat OR future intent words coupled with present ability [weapon] to harm)
- NOTE: damages are not required (π can recover nominal damages even if actual damages not proved.)
What are the 2 elements of false imprisonment?
1) The ∆ must commit act (or omission) of restraint/confinement
Sufficient restraint/confinement =
i) physical barriers;
(ii) physical force;
(iii) actionable threats of immediate force;
(iv) failure to release; and
(v) invalid use of legal authority
* Act of restraint only counts if π knows of it OR is harmed by it (if π is unaware AND unharmed, then there can be no tort c/a for false imprisonment)
2) The π must be confined in a bounded area
- An area is NOT bounded if there is a reasonable way to escape that π can reasonably discover. (If it’s disgusting, hidden, humiliating OR dangerous, then it’s NOT reasonable).
- Amt of time confined is IRRELEVANT
- NOTE: damages are not required (π can recover nominal damages)
What are the 3 elements of intentional infliction of emotional distress (IIED)?
1) ∆ must engage in extreme and outrageous conduct (intentionally OR recklessly)
- Outrageous conduct = “exceeds all bounds of decency tolerated in a civilized society” NOT outrageous = (i) mere insults; (ii) ∆ exercising his 1st Am rights
- Outrageous (factors) = (i) the conduct is repetitive/continous; (ii) the ∆ is a common carrier (Amtrak) or an inkeeper (hotel) can be liable for “gross insults”; (iii) member of a certain fragile π (i.e. children, elderly, known pregnant women)
2) π must be severely distressed
- No specific evidence needs to be offered by π
- π DOESN’T need to exhibit physical symptoms from the distress BUT actual damages are necessary (π CAN’T recover nominal damages)
3) For 3d party bystander IIED, must prove:
- The π was present when the injury occured
- The π is a close relative of the injured person; AND
- The ∆ knew that the π was present AND was a close relative to the injured person
What are the 2 elements of trespass to land?
1) The ∆ must intentionally commit an act of PHYSICAL invasion
* Physical Invasion = (i) physical entrance onto real property, with intent to enter (not necessarily to do harm); (ii) propelling/throwing/tossing something physical onto land; but NOT (iii) intangible forces (light, smells, sounds, etc)
2) The act must interfere w/ π’s exclusive possession of real property
- Real property = includes not only the surface BUT ALSO airspace and subterrain (at reasonable distances)
- The cause of action belongs to person in possession, not necessarily the owner (the lessee)
- NOTE: damages are not required (π can recover nominal damages)
What is trespass to chattels? (versus conversion?)
∆ intentionally (note here that it’s intent to do the act that interferes, not intent to deprice plaintiff of possession of the chattel) interferes with π’s right of possession in a chattel.
Types of interference =
(i) intermeddling (directly damaging chattel); OR
(ii) dispossession (depriving π of lawful right to possess)
- ∆’s mistake as to ownership will not insulate from liability
- NOTE: the damage remedy is the cost of repair
re: Conversion vs. TtC
Conversion requires interference so serious that it warrants requiring ∆ to pay FULL value
Factors of serious interference:
(i) the withholding period;
(ii) the extent of the use/damage
- NOTE: the damage remedy is for full mkt value (a forced sale) at the time of the CONVERSION
- (note here that it’s intent to do the act that interferes, not intent to deprice plaintiff of possession of the chattel)
What is valid consent to an intentional tort?
1) Express (Actual) consent = spoken/written “words” by π, giving ∆ permission to behave in a certain way
Express consent is not a valid defense if:
- obtained via fraud (as to essential matter), duress (threats); OR
- π’s mistake (if ∆ took advantage of that mistake)
2) Implied consent = two types…
- Apparent consent = consent based on ∆’s reasonable interpretation of π’s objective conduct/body language or inferred from custom and usage
- (NOTE: this applies ONLY to NORMAL contact inherent in sports, ordinary incidental contact like on a train, etc)
- Consent implied by law = arises when it’s necessary to save a person’s life (or other important interest in person or property)
- NOTE: incapcitated individuals (incompetents; drunks; etc) are DEEMED INCAPABLE of consent; BUT children can consent to an age appropriate invasion of their person
- NOTE: all consents have a scope, and if ∆ exceeds the scope, then he will be liable for the tort
When can self-defense excuse a ∆’s intentional tort? NOTE: NY distinction
1) When a ∆ reasonably believes that she is being OR is about to be attacked
- The threat must be in progress or imminent →can’t use self-defense to responded to completed intentional tort (i.e. revenge)
- A reasonable mistake as to the existence of the danger is allowed.
- However, this is generally NOT available to **intital aggressor **
2) When ∆ uses such force as reasonably necessary to protect against injury
- Can use up to deadly force if the circumstances necessitate it
- No duty to retreat unless you’re in NY
NY DISTINCTION: If there is a possibility of retreat, then you CAN’T use deadly force; UNLESS…
(i) ∆ can’t retreat safely;
(ii) ∆ is in his own house;
(iii) ∆ is a police officer (or a person assisting a police officer)
When can defense of others excuse a ∆’s intentional tort?
1) When a ∆ reasonably believes that a 3d party is being OR is about to be attacked
- The threat must be in progress or imminent >> can’t use defense of others to responded to completed intentional tort (i.e. revenge)
- A reasonable mistake as to the existence of the danger to 3d party is allowed
2) When ∆ believes that the 3d party could have used force to defend himself
* Can use as much force as he could have used in self-defense if he were the one threatened with injury
When can defense of property excuse to a ∆’s intentional tort?
One may use reasonable force (but NOT deadly force) to prevent the commision of tort against her real or personal property
- E.g., A security guard’s privilege to use REASONABLE force in detaining suspects (defense to false imprisonment) OR in attempting arrest (assault)
- A request to desist or leave must first be made (UNLESS futile)
- The threat must be in progress (∆’s defense will be in hot pursuit) or imminent → can’t use defense of property to responded to completed intentional tort (i.e. revenge)
- A reasonable mistake as to whether an interference has occured is allowed;
- NOTE: mistake is NOT ALLOWED when π’s interference is privileged (e.g. necessity)
When can private necessity excuse to a ∆’s intentional tort to property (land, chattels, conversion)?
If there is an emergency, which requires protection of ∆’s private interest.
- The ∆ IS liable for actual damages to π’s property, BUT is not liable for nominal/punitive damages
- As long as the emergency continues, the ∆ CANNOT be expelled, evicted or ejected; there is a “right of sanctuary”
When can public necessity excuse to a ∆’s intentional tort to property (land, chattels, conversion)?
If there is an emergency, which requires protection of the community as a whole or a significant group of ppl
- The ∆ IS NOT liable for actual damages, nominal or punitive damages w/r/t to π’s property.
- As long as the emergency continues, the ∆ CANNOT be expelled, evicted or ejected; there is a “right of sanctuary”
