Torts: 7 intentional torts

Question 1

Prima Facie Elements for all Intentional Torts

Answer 1

1. A tortious act by the defendant, which includes any willed muscular movement,

but does not include:
	sleepwalking
	convulsions
	reflexes
	hypnosis
	being physically 
        forced by another person

2. specific or general intent by the D to commit the act:
   a. The intent element is satisfied if the defendant acts with the “purpose of producing the consequence” or “acts knowing the consequence is substantially certain to occur”
   b. Transferred Intent: an intent to commit one tort may be transferred to another tort and/or an intent to commit a tort against one person may be transferred to another person

transferred intent may be used only for:
battery, assault, false imprisonment, trespass to land, trespass to chattels

3. causation
   similar to negligence, except courts take a broader view of proximate cause
4. Damages:
   required for IIED and Trespass to Chattels

Question 2

May a person be held liable for an intentional tort (or negligence) for failure to act (i.e., an omission)?

Answer 2

General Rule: No. A person has no affirmative duty to act.

Exceptions—there may be a duty to act if

1) there is a relationship between the injured person and the defendant, such as a close family member, employer-employee, principal-agent, owner/occupier-invitee, common carrier-passenger, innkeeper-guest, driver-passenger, school-student
2) the defendant caused (innocently or negligently) the peril and then did not help
3) the defendant undertook to rescue the person and then quit, which precluded others from attempting rescue or left the plaintiff in worse condition

in addition, a defendant may have a duty to control another person (parent-child or employer-employee, but only if the parent or employer knew or should have known of the particular danger)

Tarasoff Warning. In many states, if a patient of a mental-health professional (e.g., psychiatrist) makes specific threats regarding an identifiable victim, the mental-health professional has a duty to warn the victim

Question 3

1) Battery

Answer 3

Elements:

1. defendant acts intending to bring about or with substantial certainty of
2. harmful (e.g., injury, pain, or disfigurement) or offensive contact (as judged by a reasonable person)—direct or indirect—with the plaintiff
3. causation
4. lack of consent (majority view)

Question 4

2) assault

Answer 4

Elements:

i. defendant acts intending to (or with substantial certainty that it will occur)
ii. cause a reasonable expectation
iii. of an immediate battery to plaintiff

Merger: Assault and battery do not merge under tort law.

Question 5

3) false imprisonment

Answer 5

Elements:

i. defendant acts intending to (or with substantial certainty that it will occur)
ii. confine or restrain the plaintiff to

confinement or restraint may be by physical barriers (locked room, cage, cell), physical force, or threats of immediate force to plaintiff, plaintiff’s family (not third parties), or plaintiff’s property (e.g., purse or car)

if defendant owes plaintiff a duty (or they have a prior understanding) to release plaintiff, an omission may constitute false imprisonment (e.g., a jailor must release a prisoner at the end of his sentence)

a confinement for one minute may constitute false imprisonment, but the plaintiff must be aware of the confinement (or, if unaware, must be injured by the confinement)

iii. a bounded area (i.e., an area that is bounded on all sides from which there is no reasonable and known means of escape)

the plaintiff is under no duty to search for an exit and is not required to use a dangerous or humiliating exit

iv. and causation
b. Damages: the plaintiff may recover damages for the confinement and for injuries incurred in reasonable attempts to escape

Question 6

5) Trespass to land

Answer 6

a. Elements:
1. defendant acts intending to (or with substantial certainty that it will occur)

the intent required is simply the intent to enter the land; there is no requirement to show intent to trespass or wrongfully enter the land

2. enter

defendant enters the land or wrongfully stays (or allows an item to stay) on the land

defendant pushes or chases another on to the land

defendant causes an object heavier than air to enter or cross the land

smoke, noise, shockwaves, and sound are insufficient (but see nuisance)

3. plaintiff’s land (surface and usable space above or below surface)
   b. Trespass actions may be asserted by owners or occupiers (e.g., tenants) or even adverse possessors.

In a lease, the right to sue for trespass belongs to the tenant; the landlord has standing to sue only for permanent damage to the property.

c. Proof of actual damages is not required because nominal damages are presumed.

Question 7

6) Trespass to chattel

Answer 7

.Elements:

1. defendant acts intending to (or with substantial certainty that it will occur)

the intent required is the intent to do the act, not the intent to damage or dispossess or steal

mistake of ownership is not a defense

2. interfere with or damage plaintiff’s personal property

applies to tangible property only (not land or services)

defendant’s wrongful possession or damage suffices

claims for trespass to chattels and conversion may be asserted by owners, lessees, or even adverse possessors of the property (but not thieves)

3. causation
4. damages (dispossession or injury): measure of damages is the fair rental value for any dispossession period or the cost of repair

this tort requires proof of actual damages

Question 8

7) Conversion

Answer 8

a. Elements: Same as trespass to chattels, except conversion applies if the interference or damage to personal property is serious

b. Damages: forced sale (defendant must pay the FMV of the property at time of conversion)
a plaintiff may also elect replevin, plus damages for dispossession

if the defendant borrows personal property without permission and the property is seriously damaged or destroyed (even if damage was caused by a third party), this is conversion

c. Difference between conversion and trespass to chattels: a question of degree

the greater the defendant’s bad faith (e.g., intent to steal) the more likely it will be conversion

Question 9

Defencese: 1) Consent

Answer 9

a. may be express (by words): “You may park on my land”
b. it may be implied (by conduct or custom)

participant in hockey impliedly consents to be “checked” or a participant in a pick-up basketball game impliedly consents to being pushed around a bit (but does not consent to an intentional punch in the face or a stabbing)

TEST for implied consent: would a reasonable person have expected this contact?

c. Who may give consent?

Only those with capacity; thus, no young kids, insane people, or drunks

d. Can the defendant exceed the scope of consent?

Yes

e. Consent is an affirmative defense for all intentional torts, except battery (for which the plaintiff must prove lack of consent)

Question 10

Defences: 2) Self-Defense, Defense of Others, and Defense of Property

Answer 10

a. When are such defenses available?

to use these defenses, defendant must reasonably believe that the tort is being committed or is about to be committed; the defendant does not have to be right, as long as his belief is reasonable

defendant may not retaliate or preempt (defense must be to prevent the tort); defendant may, however, pursue a thief in hot pursuit

b. How much force may be used? defendant may use whatever force is reasonable under the circumstances, including deadly force if the defendant or a third person is facing death or substantial bodily harm

to protect property, the defendant may use any force not intended or likely to cause death or serious bodily injury (actual death or serious injury is not the test)

springs guns, booby traps, land mines, etc. may not be used to protect property

for home invaders (e.g., burglars), use self-defense rules if the home is occupied, not defense of property rules (thus, deadly force may be used in the right circumstances)

ordinarily, defendant must make a request for return of property before using force to get the property back, unless obviously futile

force may not be used against someone with a claim of right (e.g., potential owner or lessee) to the property
if too much force is used, there is no defense

c. The defendant is never required to retreat before using non-deadly force. In most jurisdictions, the defendant is not required to retreat before using deadly force; in those jurisdictions requiring retreat before using deadly force, there is no duty to retreat (1) from the defendant’s own home or (2) if retreat cannot be done safely
d. If defendant acts in self-defense and an innocent party is injured, the defendant is excused for causing the injury unless he acted negligently

Question 11

Defences to property torts

Answer 11

A. Public Necessity (a complete defense to property torts, usually trespass to land or conversion)

B. Private Necessity (an incomplete defense to property torts—trespass to land, conversion, or trespass to chattels)

C. Necessity Supersedes Defense of Property:

a person may not use force to defend property against someone he or she knows entered the property out of necessity.