The Seven Basic Intentional Torts

TWO TYPES OF INTENT 1. Purpose: personal desire on the part of the actor to produce a particular result 2. Knowledge: the actor is substantially certain that a particular result will occur, even if that end is not desired BATTERY The intentional, unconsented, harmful or offensive touching of another. 1. Intent to make contact 2. Offensive or harmful touching of the plaintiffs person or effects 3. Absence of consent ASSAULT When the defendant intentionally creates in the plaintiff a well-grounded apprehension of imminent, unconsented bodily contact. 1. Intent to cause apprehension of contact 2. Present apparent ability to cause contact 3. A threatening gesture by the defendant (usually) 4. Well-grounded apprehension of imminent, unconsented contact INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Encompasses fright and shock at the time of the accident, humiliation, unhappiness and depression over inability to lead ones 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 conduct 3. Causation 4. 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 IMPRISONMENT Protects some (not all) aspects of ones personal interest in freedom from detention or restraint of movement. 1. Intent to confine 2. Unconsented detention within boundaries fixed by the defendant 3. Apparent lack of a reasonable exit 4. Use of unreasonable force, threat of force, or assertion of legal authority by the defendant 5. Harm to the plaintiff or knowledge by the plaintiff of the confinement

TRESPASS TO LAND (Q.C.F.) Protects a possessors interest in exclusive possession of land. 1. Intent on the part of the defendant to be present 2. Unconsented physical presence on, under, or above the land of another TRESPASS TO CHATTELS (D.B.A.) Protects a possessors interest in freedom from minor intentional interference with personal property. 1. Intent to affect the chattel 2. Minor interference with the plaintiffs possessory interest by a. Dispossession; b. Use; or c. 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; or b. 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 CONVERSION A 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 actors dominion or control; intent to assert a right in fact inconsistent with the others right of control; the actors 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

CONSENT An issue relevant to Ps prima facie case, rather than a defense or privilege. Consent to an otherwise-tortious act negates the wrongful element of Ds 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 consent o Consider the scope of the consent and whether the action exceeds it o Intoxication may preclude ability to consent o 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 its not o Active participation might override a previous resignation o 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 situations o Circumstances when patient is unconscious and immediate operation is necessary to preserve life or health o 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 theres not neglect or abuse o 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 Ps 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 OTHERS Self Defense Anyone 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 available

o 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 Others Anyone 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 PROPERTY Defense of Property Reasonable 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 Ps conduct as encountering a known danger Recapture of Chattels A 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 D o 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 Investigation A 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 detain o 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: dont 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 ones 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)

Negligence
Conduct which poses an unreasonable risk of harm to others 1. Duty 2. Breach 3. Causation 4. 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 D No concern with state of mind; concerned with character of defendants 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 endangered General duty: Andrews owed to the world in general - Andrews 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 Test Foreseeability 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 Standard An objective standard that doesnt take into account Ds 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 circumstance 2. Judge-made standard to establish reasonable conduct in a particular situation as a matter of law 3. Legislatively-determined standard defining the applicable level of care 4. 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 Ds reasonable reaction. - Physical Disabilities o Degree of care that must be exercised is that of a person with the disability o Standard of care the same, but disability determines its reasonableness - Age o 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 Deficiency o No special standard (reluctance to undertake intractable inquiry) o No effective deterrence otherwise (deterrence for estate) o Professional caretakers generally cant recover when the insane person has already been confined o Exceptions Sudden, unexpected, temporary insanity Inability to control actions (no liability) as opposed to inability to understand ones actions (liability) Probably relevant to contributory negligence, because mentally deficient person cant 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

Protects consumers by assuring a professional is equipped properly Experience by itself generally doesnt change the standard of care Liability for malpractice has a great deterrent force 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 Malpractice o 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 disease o Must refer clients to a specialist if a reasonably careful lawyer would so do o Lawyer doesnt 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 clients 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 discretion o Lawyers held to state-wide standard; doctors may be allowed to follow local rules o 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 Consent o Even adult has a right to determine what shall be done with his own body o Liability arises even if doctor exercised due care but failed to disclose material risks (would likely have affected Ps decision; not the determinative or controlling decision) and relative alternatives to the course of treatment Mostly an objective inquiry o Defenses available to doctor: P ought to have known; emergency; disclosure would be detrimental to Ps 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 Gender o 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

o o o o

Establishing the Standard of Care Outside the Jury - Judge-made standards o Achieves more consistency and predictability of results with recurring cases o May be too inflexible to be useful because fact-specific inquiry is reduced o Negligent as a matter of law not to administer glaucoma test - Negligence based on violation of statute

o o

o o o

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 Ps damages? Is recovery barred by available defense? Statutes may expressly provide that a violation gives rise to a tort action Courts may adopt a standard of care expressed by statute thats 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 Some statutes are expressly unavailable for civil actions 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 doesnt mean D was negligent 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) 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 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 Operation o No notice required if the hazard is foreseeable due to Ds acts (grape storage) o Based on nature of Ds business that gives rise to a substantial risk of injury to customers o Store has greater notice of its potential liability o P normally must show that D acted unreasonably, but burden may shift to D with a rebuttable presumption of negligence (minority view) Res Ipsa Loquitur The event giving rise to the harm must be of the type which ordinarily doesnt occur in the absence of negligence, based on past experience or common sense. o Eases Ps 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 occurred o 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 injuries o P must show that the injury was caused by D, not some unidentified person o Alleged general negligence must not arise from accessible evidence or where the precise cause of the injury is clear o Court decides when RIL applies - Exclusive Control: Control at the time the negligence occurred, not too strict o Superior knowledge may show that D was in the best position to control the event - Rebuttal Evidence o Will allow the jury to consider whether D was negligent, but wont usually be sufficient for a directed verdict o If it conclusively shows that an outside agency was responsible for the accident - Plaintiffs Conduct o With comparative negligence, RIL plaintiff must only show that the Ds inferred negligence was, more probably than not, a cause of the injury, even though Ps negligent acts or omissions may also have contributed to the injury. - Multiple Defendants o 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 conduct o 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 wasnt negligent to avoid directed verdict

3. Causation Provides 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 Ps injury? But For Test - P must show that it was more probable than not that the injury would not have occurred but for the Ds negligence - The Ds 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 Ds 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 imposed o No liability if the fire is insufficient to bring about the harm on its own but merges with another that is sufficient o Liability imposed when two insufficient fires combine to bring about the harm o Liability imposed when both fires are sufficient to bring about the harm - Was the negligence a substantial factor in producing the harm Multiple 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 didnt 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 cause Market-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 injury o Not feasible to require P to establish the certainty that one of the Ds produced the injury by joining them all o 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 Ps injury; otherwise it would be responsible for the portion of the judgment proportional to its market share of liability - Hymowitz v. Eli Lilly o Market shares based on national market o Manufacturer cant 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 product o The long latency period of the injury o The inability of Ps to discover the identity of the D even after exhaustive discovery o The clarity of the causal connection between the defective product and the injury suffered by plaintiffs o The absence of medical or environmental factors that could have caused or materially contributed to the injury o The availability of sufficient market share data to support a rational apportionment of liability Enterprise 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 conduct o 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 committed o 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; Ds presence or absence at the time of the tort; Ds relationship, if any, to the tortfeasor; Ds 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