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#Post#: 48--------------------------------------------------
Torts Outline 1!
By: SunsetSailor Date: February 17, 2011, 8:55 pm
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Torts Outline
1. Definition of “Tort”:
a. A civil wrong committed by one person against another
2. Objectives of Tort System:
1. Compensation
2. Deterrence
1. Weaver v. Ward
1. Trained soldiers  Defendant injured
plaintiff when musket went off unintentionally
2. First time we see act done utterly without fault
still be held liable
2. Brown v. Kendall
1. Two dogs fighting  ∆ tried to separate
them, hit plaintiff in eye with stick while backing up
2. Here ∏ has burden of proof that ∆ did
not exercise due care or that it was intentional (court held
lawful act done unintentionally should not be held liable)
3. This case narrowed the scope of tort liability
 now one must prove either intent or negligence
4. PLAINTIFF HAS BURDEN
3. INTENT
1. The actor desires to cause consequences or his act, or
that he believes that the consequences are substantially certain
to result from it.
1. Not defined in a way such that it requires ∆
to have intended to harm
2. Substantial certainty  Intent
3. High Likelihood  Not enough, recklessness is
not intent.
2. Act distinguished from Consequence
1. The act must be intentional or substantially certain
but,
2. Consequences need not be (∆ intends to tap
∏ on chin to annoy him. ∏’s chin gets broken.
∆ still intended to cause the contact, and battery has
taken place, even though consequences not intended.)
3. Garret v. Dailey
1. Brian, five years nine months old, pulls chair out
from under Ruth
2. Intent? Only if he knew to a substantial certainty
the consequences of his actions
4. Act  to denote an external manifestation of the
actors will and does not include any of its results, not even
direct, immediate or intended
5. Talmage v. Smith
1. Smith had sheds on premises. Threw stick at boy he
saw, injured boy he didn’t intend to
2. Rule: If you intend to inflict an unwarranted injury
on someone, the fact that you miss the target of your injury and
injure someone else does not relieve one from responsibility.
6. Doctrine of Transferred Intent
1. Applies whenever both the trot intended and the
resulting harm fall within the scope of the old action of
trespass
1. Direct and immediate application of force to
the person or to tangible property
2. Five torts that fall within old trespass writ
1. Battery
2. Assault
3. False Imprisonment
4. Trespass to Land
5. Trespass to Chattels
b. When ∆ intends any one of the five, and accidentally
accomplishes ony one of the five, the doctrine applies and
defendant is liable.
IV. Battery
Definition: intentional infliction of a harmful or offensive
bodily contact.
§13. Battery: Harmful Contact.
An actor is subject to liability to another for battery if
1. he acts intending to cause a harmful or
offensive contact with the person of the other or a third
person, or an imminent apprehension of such a contact and,
2. a harmful contact with the person of the other
directly or indirectly results.
1. Requirements of Battery
1. Intent or desire
1. Not necessary to desire physical harm. Intent
is present if either
1. intended to cause a harmful or offensive
bodily contact
2. Intended to cause an imminent
apprehension of harmful or offensive bodily contact.
2. Contact
2. Harmful or Offensive Contact: Fisher v. Carrousel Motor
Hotel
1. Pain or bodily damage, or
2. Offensive, or damaging to a reasonable sense of
dignity
3. It is not necessary that the plaintiff have actual
awareness of the contact at the time it occurs.
1. Example: one kisses a girl while she is asleep. He
has still committed a battery.
4. Cole v. Turner
1. Least touching of another in anger is battery
2. If two meet in a narrow passage, and without any
violence or design of harm, the one touches the other gently
there will be no battery
3. If any of them use violence against the other, to
force his way in a rude inordinate manner, it is a battery; or
any struggle about the passage, to that degree as may do hurt,
is a battery.
5. Fisher v. Carrousel Motor Hotel
1. ∏, a black man, had dish snatched out of his
hand and a rude comment “Negro could not be served in the club.”
2. Holding: One’s body need not be touched in order for
battery.
V. Assault
§21. Assault
1. An actor is subject to liability to another for assault if
1. He acts intending to cause a harmful or offensive
contact with the person of the other or a third person, or an
imminent apprehension of such a contact, and
2. The other is thereby put in such imminent
apprehension
2. An action which is not done with the intention stated in
Subsection (1, a) does not make the actor liable to the other
for an apprehension caused thereby although the act involves an
unreasonable risk or causing it and, therefore, would be
negligent or reckless if the risk threatened bodily harm.
1. Definition: The intentional causing of an apprehension of
harmful or offensive contact.
2. Intent: either of two is sufficient.
1. Intent to create apprehension
2. Intent to make contact
3. Hostility
1. Not required that ∆ bear malice toward
∏, or intend to harm her.
4. Threat
1. Must be imminent and.
2. ∆ has present ability to carry it out.
5. Awareness
1. ∏ must be aware of the threatened contact
6. Conditional threat
1. If ∆ threatens ∏ only if ∏ does
not do a command. We must look and see if ∆ had the right
to compel ∏ to do the act in question.
7. Western Union v. Hill
1. Woman goes and asks for her clock to be fixed
2. ∆ reaches for her and says demeaning comment
3. It was the case that ∆ could not have reached
her physically
4. Rule: an assault consists of an unlawful attempt to
commit a battery that was incomplete by some intervening cause.
VI. False Imprisonment
Definition: “…the direct restraint of one person of the physical
liberty of another without adequate legal justification.”
§35. False Imprisonment
1. An actor is subject to liability to another for false
imprisonment if
1. He acts intending to confine to other or a third
person within the boundaries fixed by the actor, and
2. His act directly or indirectly results in such a
confinement of the other and
3. The other is conscious or the confinement or it
harmed by it.
2. An act which is not done with the intention stated in
subsection (1,a ) does not make the actor liable to the other
for a merely transitory or otherwise harmless confinement,
although the act involves an unreasonable risk or imposing it
and therefore would be negligent or reckless if the risk
threatened bodily harm.
1. Intent
1. ∏ must show that ∆ either intended to
confine, or
2. ∆ knew to substantial certainty that ∏
would be confined by his actions
3. False imprisonment cannot be committed by merely
negligent or reckless acts.
2. Damage
1. Not required for the charge of false imprisonment
3. Means of Confinement
1. Threats -- ∆ threatens ∏ if he leaves,
that is false imprisonment
2. Assertion Of Legal Authority – So long as ∏
believed, or was doubtful, that ∆ had the legal authority
to confine, or ∆’s assertion that he had the authority and
∏ believed it.
4. Knowledge of Confinement
1. ∏ must either be aware of the confinement, or
2. must suffer some actual harm
Example: False Imprisonment has not occurred if people are
locked in a room, but are not aware of the fact that the doors
are locked. Only when they gain knowledge of the locked doors
does the requisite confinement take effect.
5. Parvi v. City of Kingston
1. Drunk taken by cops to an abandoned golf course to
dry out
2. Drunk did not want to go
3. Knew at the time what was happening, but later
forgot
4. Rule:
1. Consciousness at time of false imprisonment is
enough to sustain cause of action.
VII. Intentional Infliction of Mental Distress
§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 to the other results from it, for such bodily harm
2. Where such conduct is directed at a third person, the
actor is subject to liability if he intentionally or recklessly
causes severe emotional distress
1. To a member of such person’s immediate family who is
present at the time, whether or not such distress results in
bodily harm, or
2. To any other person who is present at the time, if
such distress results in bodily harm
Note: conduct must go beyond all possible bounds of decency, and
to be regarded as atrocious, and utterly intolerable in a
civilized community. It is not enough to prove intent or
tortuous or criminal activity, or that it was malice.
Policy Justification of this tort:
The snowball of cause and effects of insults would lead to
violence (potentially) in society.
1. Intent (three types)
1. ∆ desires to cause ∏ emotional distress
2. ∆ knows with substantial certainty that
∏ will suffer
3. ∆ recklessly disregards the high probability
that emotional distress will occur
2. Transferred Intent
1. Generally limited in this tort except,
2. ∆ directs his conduct to a member of ∏’s
family and,
1. ∏ is present and,
2. ∏’s presence is known
VIII. Trespass to Land
§158. Liability for Intentional Intrusions on Land
One is subject to liability to another for trespass,
irrespective of whether the thereby causes harm to any legally
protected interest of the other, if he intentionally
1. enters land in the possession of the other, or causes a
thing or a third person to do so, or
2. remains on the land, or
3. fails to remove from the land a thing which he is under a
duty to remove.
§163. Intended Intrusions Causing no Harm
One who intentionally enters land in the possession of another
is subject to liability to the possessor for a trespass,
although his presence on the land causes no harm to the land,
its possessor, or to any thing or person in whose security the
possessor has a legally protected interest.
§164. Intrusions Under Mistake
One who intentionally enters land in the possession of another
is subject to liability to the possessor of the land as a
trespasser, although he acts under a mistaken belief of law or
fact, however reasonable, not induced by the conduct of the
possessor, that he
1. is in possession of the land or entitled to it, or
2. has the consent of the possessor or of a third person who
has the to give consent on the possessor’s behalf, or
3. has some other privilege to enter or remain on the land.
VIV. Trespass to Chattels
§217 Ways of committing Trespass to Chattel
A trespass to chattel may be committed by intentionally
a) dispossessing another of the chattel, or
b) using or intermeddling with a chattel in the
possession of another
§218. Liability to Person in Possession
One who commits a trespass to a chattel is subject to
liability to the possessor of the chattel if, but only if,
1. He dispossesses the other of the chattel, or
2. The chattel is impaired as to its condition, quality, or
value, or
3. The possessor is deprived of the use of the chattel for a
substantial time, or
4. Bodily harm is caused to the possessor, or harm is caused
to some person or thing in which the possessor has a legally
protected interest.
1. Loss of Possession
1. If ∏ loses possession of the chattel for any
time, recovery is allowed even if the chattel is returned
unharmed
Example: a car taken for a five minute “joy ride.” A trespass to
chattel has still been committed.
X. Conversion
§222A. What Constitutes Conversion.
1. Conversion is an intentional exercise or dominion or
control over a chattel which so seriously interferes with the
right of another to control it that the actor may justly be
required to pay the other the full value of the chattel.
2. In determining the seriousness of the interference and the
justice of requiring the actor to pay the full value, the
following factors are important:
1. The extent and duration of the actor’s exercise of
dominion or control;
2. The actor’s intent to assert a right in fact
inconsistent with the other’s right of control
3. The actor’s good faith
4. The extent and duration of the resulting
interference with the other’s right of control
5. The harm done to the chattel
6. The inconvenience and expense caused to the other.
1. Intent
1. Although it is an intentional tort, all that is
required is ∆ intent to take possession of the property.
2. Mistake as to ownership will generally not be a
defense
2. Distinguish from Trespass to Chattel
1. The court looks at the six factors outlined above in
determining whether the interference is severe enough to be
conversion or just trespass to chattel.
3. Ways to Commit Conversion:
1. Acquiring Possession
2. Transfer to a third person
3. Withholding Good  refusing to return goods
to their owner, if the refusal lasts for a substantial period of
time
4. Destruction (or fundamentally altering the good).
4. Payment
1. ∆ is liable for the full value of the goods,
not just the value of the use or damage (as in trespass to
chattels), but
2. ∆ gets to keep the goods
XI. Defenses to Intentional Torts
1. Express Consent
1. When one consents to intentional interference with
his person or property, ∆ will not be liable for that
interference.
2. Ex. “Go ahead, hit me in the stomach, I’ll show you
how strong I am.”
2. Implied Consent
1. Consent may be implied from Plaintiff’s
1. Conduct
2. Custom
3. Circumstances
2. Objective Manifestations of Plaintiff that count
1. If reasonably seems to one in ∆’s
position that ∏ consented, then there is consent
regardless of ∏’s subjective state of mind.
2. Example –
1. Obrien v. Cunard (vaccination on ship)
1. It reasonably appeared to ∆
that ∏ consented, and thus there is consent regardless of
∏’s actual state of mind.
3. Lack of Capacity
1. Consent will be invalidated if ∏ is incapable
of giving that consent.
1. Examples –
1. Child
2. Intoxicated
3. Unconscious
2. Even if ∏ is incapable of giving consent, it
will be implied when the following exist.
1. ∏ is unable to give consent, and
2. immediate action is necessary in order to save
∏’s life or health, and
3. There is no indication that ∏ would not
consent if able, and
4. A reasonable person would consent in those
circumstances
3. Example -- ∏ is brought into an emergency room
and needs surgery. ∆ can perform the surgery because
consent is implied as a matter of law.
4. Scope of Consent
1. If ∆ goes substantially beyond scope of
consent, he/she is not privileged.
2. Example -- ∏ consents to an operation on her
right ear, but doctor, while ∏ is under anesthetic
performs surgery on her left ear (Mohr v. Williams).
3. If an emergency situation, however, the surgery may
be extended beyond the scope.
XII. Self Defense
§63 – Self-defense by force not threatening death or serious
bodily harm.
* An actor is privileged to use reasonable force, not intended
or likely to cause death or serious bodily harm, to defend
himself against unprivileged harmful or offensive contact or
other bodily harm which he reasonably believes that another is
about to inflict intentionally upon him.
* Self-Defense is privileged under the condition stated in
subsection (1), although the actor correctly or reasonably
believes that he can avoid the necessity of so defending
himself,
 by retreating or otherwise giving up a right or
privilege, or
 by complying with a command with which the actor is
under no duty to comply or which the other is not privileged to
enforce by means threatened.
A. Generally – Entitled to use reasonable force to prevent any
threatened harmful or offensive bodily contact, and any
threatened confinement or imprisonment.
3. Apparent Necessity
1. Self-defense may be used not only where there is a
real threat, but where ∆ reasonably believes there is one
4. Only For Protection
1. Applies where ∆ uses the force necessary to
protect himself against harm.
1. Retaliation -- ∆ may not use any degree
of force in retaliation
2. Imminence -- ∆ may not use force to
avoid harm which is not imminent.
1. UNLESS it reasonably appears that
∏ will not have any opportunity to later prevent the
chance of danger.
5. Degree of Force
1. ∆ is only permitted to use the degree of force
necessary to prevent the threatened harm.
2. Deadly Force
1. Force intended or likely to cause serious
bodily injury or death
1. Danger must be serious
1. May not use unless you yourself
are in danger of death or serious bodily harm.
2. Example
1. ∏ attacks ∆ with his
fists. Even if ∆ has no other way to prevent the attack,
he may not use a gun, even if the shot is intended only to
injure ∏. He must submit to the attack rather than use a
gun.
6. Retreat
1. Restatement View
1. May use non-deadly force rather than retreat
2. May NOT use deadly force rather than retreat
1. UNLESS ATTACKED IN HIS DWELLING
7. Defense of Others
1. Permitted to use reasonable force to defend another
person against attack.
XIII. Defense of Property
§77 – Defense of Possession by Force Not Threatening Death or
Serious Bodily Harm
An actor is privileged to use reasonable force, not intended
or likely to cause death or serious bodily harm, to prevent or
terminate another’s intrusion upon the actor’s land or chattels,
if
The intrusion is not privileged or the other
intentionally or negligently causes the actor to believe that it
is not privileged, and
 the actor reasonably believes that the intrusion can be
prevented or terminated only by force used, and
 The actor has first requested the other to desist and
the other has disregarded the request, or the actor reasonably
believes that a request will be useless or that substantial harm
will be done before it can be made.
General Rule – may use reasonable force necessary to defend her
property
#Post#: 91--------------------------------------------------
Re: Torts Outline 1!
By: Gennyallan Date: May 12, 2015, 10:25 pm
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#Post#: 97--------------------------------------------------
Re: Torts Outline 1!
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#Post#: 110--------------------------------------------------
Re: Torts Outline 1!
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#Post#: 112--------------------------------------------------
Re: Torts Outline 1!
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#Post#: 130--------------------------------------------------
Re: Torts Outline 1!
By: fontthai Date: May 31, 2018, 3:16 am
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#Post#: 135--------------------------------------------------
Re: Torts Outline 1!
By: Matthewten Date: September 17, 2018, 11:38 pm
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#Post#: 146--------------------------------------------------
Re: Torts Outline 1!
By: Coconut Date: January 16, 2019, 2:50 am
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