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Three elements of an intentional tort:
(1) Intent (done purposefully or deliberately OR actor is substantially certain that a consequence will occur);
(2) Act (voluntary; actor must be able to control actions);
(3) Causation or harm or injury (the act legally caused or was a substantial factor in causing the resulting injury or harm
Transferred Intent
When a person intends to commit an intentional tort (assault, battery, false imprisonment, trespass to land/chattels) against one person, but instead commits either:
  • A different tort against that intended person;
  • The intended tort against a different person; or
  • A different intentional tort against a different person
(1) Harmful or offensive contact (2) with the person of another (3) caused by an intentional act of the defendant.
  • Objective test: what would a reasonable person find harmful or offensive?
  • Special sensitivities not considered unless defendant knew about them
  • A person may consent to battery
  • Can include a person's body or something closely associated with it (e.g. hat)
  • Intentional act must be the direct and indirect cause of the offensive act
Damages available for battery
*No proof of injury required to recover!
*May award for (1) physical harm; (2) harm to dignity
*Punitive damages available if there is malice
(1) Intentional (2) overt act (3) leads another to experience a reasonable apprehension of injury
  • Mere words are not enough; words associated with conduct are
  • Reasonable apprehension doesn't have to mean fear, aware of risk of imminent battery (not in future)(reasonableness standard)
  • Actual harm not needed for damages; nominal damages available, also punitive w/ malice
False Imprisonment
A person (1) intends to confine or restrain (2) another person (3) to a bounded area AND (4) those actions directly or indirectly result in such confinement
What counts as confinement or restraint for purposes of false imprisonment?

  • Physical barrier
  • Physical force
  • direct/indirect threat
  • invalid assertion of authority
  • no reasonable means of escape (e.g. bounded area)

**Moral pressure or indirect threats DO NOT count
**Not necessary to prove actual damages; punitive damages available if there is malice
How long must someone be confined to be "falsely imprisoned"?
Length of time is immaterial; plaintiff must be conscious of the confinement (if not conscious, there must be actual harm to recover)
Intentional Infliction of Emotional Distress
(1) Intentionally or recklessly (2) act with extreme or outrageous conduct (3) which causes the plaintiff severe emotional distress
  • Transferred intent does not apply
  • Defendant's acts must be a substantial factor in causing the distress
  • Actual damages for severe emotional distress must be shown (physical injury isn't necessary unless non-relative bystander)
Extreme or Outrageous Conduct
  • Standard for IIED
  • Exceeds the boundaries of decency; intolerable; usually continuous pattern of conduct
  • Heightened sensitivity taken into account for kids, pregs, elderly
  • Common carriers and innkeepers have a higher standard of care
Liability for IIED Re: Acts toward 3rd parties
When a defendant has caused severe physical harm to a 3rd party and plaintiff suffers severe emotional distress as a result, plaintiff can recover IF:
  • Immediate Family Member: (1) present at the time of conduct and (2) defendant was aware of such presence (plaintiff doesn't need to prove defendant's design or purpose was to cause the distress)
  • Non-Relative Bystander: (1) present at time of conduct (2) defendant aware of presence (3) distress causes harm or physical injury and (4) defendant intended to harm plaintiff through his actions

Actual damages for severe emotional distress must be shown (physical injury isn't necessary unless non-relative bystander)
Trespass Against the Land
Defendant's (1) intentional act (2) causes (3) a physical invasion of another's land.
  • Transferred intent applies
  • Must only intend to engage in the physical act that causes the invasion
  • Mistake of fact is not a defense
  • Can "invade" with person, rocks, pets, water, etc.; can be committed in airspace, underground
  • Can occur when you exceed the scope of your permission to be on the land
  • Plaintiff must have right of possession over the land (owner, lessee, adverse possessor)
  • Actual damages need not be proven
Trespass to Chattels
Defendant (1) intentionally (2) commits an act (3) that interferes with a plaintiff's right of possession of the chattel and (4) causes damages
  • Chattel = personal property, not real property
  • Defendant must intend to engage in the act, not specifically to interfere
  • Transferred intent applies
  • Personal having a right to possess and use the chattel has standing
Two Levels of Trespass to Chattels
Complete Dispossession: defendant put his use of the chattel above the plaintiff's use
  • Plaintiff may recover (1) actual damages (value of chattel, repair costs, and/or dimunition in value) AND (2) loss of use (e.g. reasonable rental cost of replacement)
Interference: Defendant made it more difficult for the plaintiff to use the chattel
  • Plaintiff may recover actual damages only
The defendant (1) intentionally (2) commits an act of possession or interference with the plaintiff's chattel (3) which is so serious that he deprives the plaintiff of the chattel and (4) has to pay the entire value of the chattel at the time of conversion
  • Must be (1) tangible property  OR (2) intangible property reduced to physical form (e.g. promissory note)
  • Damages include the full value of the chattel at the time of conversion
For purposes of conversion, an intention to commit an act of possession or interference means:
Defendant must intend to commit an act that interferes with possession:
  • Mistake of law or fact is not a defense
  • Accidentally damaging chattel when you had permission to use it does not qualify as conversion
For purposes of conversion, what qualifies as "dominion and control"?
  • Wrongfully acquire, substantially change, or seriously or severely damage or destroy the chattel
  • If you originally acquired the chattel lawfully, a conversion would occur if the plaintiff demanded it back and you refused
For conversion, the seriousness of interference is subject to a 5 factor test:
  • The duration and extent of the interference
  • The intent to assert a right inconsistent with a right of a rightful possessor
  • The defendant's good faith
  • Expense or inconvenience to the plaintiff
  • The extent of the harm to the chattel
Express Consent as a Defense to an Intentional Tort
Plaintiff, by words or actions, demonstrates a willingness to submit to battery; Defendant may not exceed scope of consent

Consent is invalid if
  • (1) plaintiff consented by mistake and defendant took advantage of that mistake;
  • (2) obtained by fraud; or
  • (3) obtained by duress or force
Implied Consent as a Defense to Intentional Tort
Implied by law: under the conditions, consent is presumed (e.g. car accident victim consents to surgeon touching)
Implied by Custom: e.g. participation in a sport
Who may NOT consent to an intentional tort?
A person who is (1) too young; (2) suffers from incompetency; or (3) too intoxicated.
  • Defense to intentional tort
  • Non-deadly force is ok when reasonably belief of imminent offensive contact or bodily harm
  • Deadly force ok to confront prospect of death or serious bodily harm
  • Level of force must be proportionate to the magnitude of the threat
  • If user of self-defense injures 3rd party, not liable unless deliberate
Self-Defense: When do you have a duty to retreat?

  • Majority Rule: no duty to retreat when acting in self-defense
  • Emerging trend: Duty to retreat unless you are in your home or curtilage
  • Second Restatement: Duty to retreat before using deadly force, as long as is safe
Self-Defense of Initial Aggressor
Initial aggressor may not claim self-defense unless the other party responds to non-deadly force with deadly force.
Defense of Others as Defense to Intentional Tort
Belief must be reasonable, response must be proportionate
Defense of Property as Defense to Intentional Tort
No deadly force allowed (e.g. spring guns, booby traps); no force against people privileged to enter the property
Privileges to Property/Land as Defense to Intentional Tort
  • May use reasonable force to reclaim property that has been wrongfully taken
  • If you loaned the chattel, must use peaceful means to get it back
  • Force may not be used to reclaim land (no self-help)
Parental Discipline as Defense to Intentional Tort
Parent may use reasonable force or impose reasonable confinement to discipline her own children; school has same privilege as long as parent consents
Necessity as Defense to Intentional Tort
Available to a person who enters another's land to prevent injury that is substantially more serious than the invasion itself; private and public necessities exist
Private Necessity
Harm will result to small # of people; must pay damages
Public Necessity
Harm to large number of people; no liability unless damages are unreasonable
  • Citizens can make an arrest if a felony has been committed and the citizen reasonably believes the person he/she detained committed the felony; citizen may be liable if no felony took place (police officer not liable even if felony didn't take place)
  • Same goes for misdemeanor so long as breach of the peace occurred in presence of private citizen or police officer
Negligence: Duty: Failure to Act
Generally, there is no duty to act unless you have an obligation; duty triggered by:
  • (1) Showing special relationship;
  • (2) Enhancement of risk by carelessness; or
  • (3) Voluntary assumption of duty
Negligence: Duty: Foreseeable Plaintiff
  • Majority Rule: duty owed to a reasonably foreseeable plaintiff (e.g. rescuer, viable fetus)
  • Minority Rule: duty owed to any member of the public as long as the action is reasonable (inferred from past circumstances)

Negligence: Duty: No duty to control the conduct of 3rd parties UNLESS:
You have a special relationship with (1) the person engaging in the conduct or (2) with the victim.
Standard of Care: Objective Test
What would a reasonably prudent person do under the same circumstances?
  • Can be adjusted for disability (e.g. "blind person" standard of care); but not for drunks
  • Look to customary practice in the community to determine reasonableness (not conclusive, merely a guide)(may be engaged in by a substantial minority in the same calling or business)
Standard of Care for Children
Whether a reasonable child at that age, intelligence, education and experience would act in a similar way UNLESS the child is engaged in an adult activity (the same as adult standard of care)
Standard of Care for Professionals
Must exhibit same skills and knowledge as other professionals in the same community; customary practice defines what is reasonable
Informed Consent
Doctor must disclose any common risks regarding the patient's treatment UNLESS:
  • Risk is commonly known
  • The patient waives disclosure
  • The patient is incompetent
  • Disclosure would be more harmful than helpful
Standard of Care for Common Carriers and Innkeepers
Highest degree of care required
Standard of Care for Automobile Drivers
Generally, must refrain from gross negligence or willful/wanton misconduct toward their passengers (paying passenger = duty of reasonable care)
Duty of Care Re: Bailments
The bailor has a duty to inform you about problems with the chattel, but the level of duty varies based on if you are paying or not.
  • Gratuitous Bailment: bailor has obligation to warn bailee of known defects
  • Commercial Bailment: bailor must disclose known defects and those defects that would have been discovered through reasonable inspection
  • Bailor only beneficiary: must refrain from gross negligence in use of item
  • Bailee sole beneficiary: bailee obligated to use extraordinary care
  • Bailment benefits both: bailee must use reasonable care
Duty of Care Owed to Trespassers
Landowners owe a duty of care to trespassers to refrain from willful, wanton or intentional misconduct toward the trespasser
  • If landowner knows the trespasser is likely to be on the land, duty to protect that trespasser from artificially created dangerous concealments
Attractive Nuisance Doctrine
Landowner liable if meets five part test:
  • (1) Artificial condition and landowner knows/has reason to know that children will trespass;
  • (2) Landowner knows/has reason to know condition poses unreasonable risk of death/serious bodily injury;
  • (3) Children cannot discover or appreciate the danger of the condition;
  • (4) The utility of maintaining the condition and the burden of eliminating it are slight compared to the harm presented to children; AND
  • (5) The landowner fails to exercise reasonable care to protect children.
Duty of Care to Licensees
Landowner must warn the licensee of any known passive conditions that are unlikely to be discovered
Duty of Care to Invitees
Owed the highest level of care- reasonable care- in both passive conditions and activities conducted on the property
  • Business Invitee: invited for profitable business purpose
  • Public Invitee: invited onto property that is open to the public at large
*Duty of care does NOT exceed scope of invitation
Duty of Care to Lessor of Land
Occupier/lessee owes a duty of care to others over the area that the lessee controls and possesses; lessor responsible for common areas
  • Landlord must inform tenant of any known defects that the tenant is unlikely to discover
Duty of Care Re: Recreational Land Use
Landowner is not liable, but must refrain from willful/malicious failure to warn users of a dangerous condition
Duty of Care Owed to Adjacent Land Occupants
Generally no duty owed regarding natural conditions (except trees in urban areas); artificial conditions or activity conducted on premises = duty of reasonable care to those off premises
Duty of Care Owed to Buyers of Land
Duty to disclose defects known to the seller and defects not likely to be discovered if there is insufficient time for the buyer to inspect the property
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