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#Post#: 60--------------------------------------------------
Torts outline 3
By: SunsetSailor Date: February 17, 2011, 9:37 pm
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Torts Outline
I. Definition of “Tort”:
a. A civil wrong committed by one person against another
II. Objectives of Tort System:
a. Compensation
b. Deterrence
A. Weaver v. Ward
a. Trained soldiers  Defendant injured plaintiff when
musket went off unintentionally
b. First time we see act done utterly without fault still be
held liable
B. Brown v. Kendall
a. Two dogs fighting  ∆ tried to separate them,
hit plaintiff in eye with stick while backing up
b. 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)
c. This case narrowed the scope of tort liability  now
one must prove either intent or negligence
d. PLAINTIFF HAS BURDEN
III. INTENT
A. The actor desires to cause consequences or his act, or that
he believes that the consequences are substantially certain to
result from it.
a. Not defined in a way such that it requires ∆ to have
intended to harm
b. Substantial certainty  Intent
c. High Likelihood  Not enough, recklessness is not
intent.
B. Act distinguished from Consequence
a. The act must be intentional or substantially certain but,
b. 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.)
C. Garret v. Dailey
a. Brian, five years nine months old, pulls chair out from under
Ruth
b. Intent? Only if he knew to a substantial certainty the
consequences of his actions
D. Act  to denote an external manifestation of the
actors will and does not include any of its results, not even
direct, immediate or intended
E. Talmage v. Smith
a. Smith had sheds on premises. Threw stick at boy he saw,
injured boy he didn’t intend to
b. 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.
F. Doctrine of Transferred Intent
a. Applies whenever both the trot intended and the resulting
harm fall within the scope of the old action of trespass
i. Direct and immediate application of force to the person or to
tangible property
ii. 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
a) 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,
b) a harmful contact with the person of the other directly or
indirectly results.
I. Requirements of Battery
a. Intent or desire
i. 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.
b. Contact
II. Harmful or Offensive Contact: Fisher v. Carrousel Motor
Hotel
a. Pain or bodily damage, or
b. Offensive, or damaging to a reasonable sense of dignity
III. It is not necessary that the plaintiff have actual
awareness of the contact at the time it occurs.
a. Example: one kisses a girl while she is asleep. He has still
committed a battery.
IV. Cole v. Turner
a. Least touching of another in anger is battery
b. 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
c. 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.
V. Fisher v. Carrousel Motor Hotel
a. ∏, a black man, had dish snatched out of his hand and a
rude comment “Negro could not be served in the club.”
b. 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
a. 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
b. 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.
I. Definition: The intentional causing of an apprehension of
harmful or offensive contact.
II. Intent: either of two is sufficient.
a. Intent to create apprehension
b. Intent to make contact
III. Hostility
a. Not required that ∆ bear malice toward ∏, or
intend to harm her.
IV. Threat
a. Must be imminent and.
b. ∆ has present ability to carry it out.
V. Awareness
a. ∏ must be aware of the threatened contact
VI. Conditional threat
a. 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.
VII. Western Union v. Hill
a. Woman goes and asks for her clock to be fixed
b. ∆ reaches for her and says demeaning comment
c. It was the case that ∆ could not have reached her
physically
d. 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
a. He acts intending to confine to other or a third person
within the boundaries fixed by the actor, and
b. His act directly or indirectly results in such a confinement
of the other and
c. 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.
I. Intent
a. ∏ must show that ∆ either intended to confine, or
b. ∆ knew to substantial certainty that ∏ would be
confined by his actions
c. False imprisonment cannot be committed by merely negligent or
reckless acts.
II. Damage
a. Not required for the charge of false imprisonment
III. Means of Confinement
a. Threats -- ∆ threatens ∏ if he leaves, that is
false imprisonment
b. 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.
IV. Knowledge of Confinement
a. ∏ must either be aware of the confinement, or
b. 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.
V. Parvi v. City of Kingston
a. Drunk taken by cops to an abandoned golf course to dry out
b. Drunk did not want to go
c. Knew at the time what was happening, but later forgot
d. Rule:
i. 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
a. 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
b. 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.
I. Intent (three types)
a. ∆ desires to cause ∏ emotional distress
b. ∆ knows with substantial certainty that ∏ will
suffer
c. ∆ recklessly disregards the high probability that
emotional distress will occur
II. Transferred Intent
a. Generally limited in this tort except,
b. ∆ directs his conduct to a member of ∏’s family
and,
i. ∏ is present and,
ii. ∏’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
a) enters land in the possession of the other, or causes a thing
or a third person to do so, or
b) remains on the land, or
c) 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
a) is in possession of the land or entitled to it, or
b) has the consent of the possessor or of a third person who has
the to give consent on the possessor’s behalf, or
c) 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,
a) He dispossesses the other of the chattel, or
b) The chattel is impaired as to its condition, quality, or
value, or
c) The possessor is deprived of the use of the chattel for a
substantial time, or
d) 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.
I. Loss of Possession
a. 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:
a. The extent and duration of the actor’s exercise of dominion
or control;
b. The actor’s intent to assert a right in fact inconsistent
with the other’s right of control
c. The actor’s good faith
d. The extent and duration of the resulting interference with
the other’s right of control
e. The harm done to the chattel
f. The inconvenience and expense caused to the other.
I. Intent
a. Although it is an intentional tort, all that is required is
∆ intent to take possession of the property.
b. Mistake as to ownership will generally not be a defense
II. Distinguish from Trespass to Chattel
a. 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.
III. Ways to Commit Conversion:
a. Acquiring Possession
b. Transfer to a third person
c. Withholding Good  refusing to return goods to their
owner, if the refusal lasts for a substantial period of time
d. Destruction (or fundamentally altering the good).
IV. Payment
a. ∆ is liable for the full value of the goods, not just
the value of the use or damage (as in trespass to chattels), but
b. ∆ gets to keep the goods
XI. Defenses to Intentional Torts
I. Express Consent
a. When one consents to intentional interference with his person
or property, ∆ will not be liable for that interference.
b. Ex. “Go ahead, hit me in the stomach, I’ll show you how
strong I am.”
II. Implied Consent
a. Consent may be implied from Plaintiff’s
i. Conduct
ii. Custom
iii. Circumstances
b. Objective Manifestations of Plaintiff that count
i. If reasonably seems to one in ∆’s position that ∏
consented, then there is consent regardless of ∏’s
subjective state of mind.
ii. Example –
1. Obrien v. Cunard (vaccination on ship)
a. It reasonably appeared to ∆ that ∏ consented, and
thus there is consent regardless of ∏’s actual state of
mind.
III. Lack of Capacity
a. Consent will be invalidated if ∏ is incapable of giving
that consent.
i. Examples –
1. Child
2. Intoxicated
3. Unconscious
b. Even if ∏ is incapable of giving consent, it will be
implied when the following exist.
i. ∏ is unable to give consent, and
ii. immediate action is necessary in order to save ∏’s
life or health, and
iii. There is no indication that ∏ would not consent if
able, and
iv. A reasonable person would consent in those circumstances
c. Example -- ∏ is brought into an emergency room and
needs surgery. ∆ can perform the surgery because consent
is implied as a matter of law.
IV. Scope of Consent
a. If ∆ goes substantially beyond scope of consent, he/she
is not privileged.
b. Example -- ∏ consents to an operation on her right ear,
but doctor, while ∏ is under anesthetic performs surgery
on her left ear (Mohr v. Williams).
c. 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.
C. Apparent Necessity
a. Self-defense may be used not only where there is a real
threat, but where ∆ reasonably believes there is one
D. Only For Protection
a. Applies where ∆ uses the force necessary to protect
himself against harm.
i. Retaliation -- ∆ may not use any degree of force in
retaliation
ii. 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.
E. Degree of Force
a. ∆ is only permitted to use the degree of force
necessary to prevent the threatened harm.
b. Deadly Force
i. Force intended or likely to cause serious bodily injury or
death
1. Danger must be serious
a. May not use unless you yourself are in danger of death or
serious bodily harm.
2. Example
a. ∏ 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.
F. Retreat
a. Restatement View
i. May use non-deadly force rather than retreat
ii. May NOT use deadly force rather than retreat
1. UNLESS ATTACKED IN HIS DWELLING
G. Defense of Others
a. 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#: 99--------------------------------------------------
Re: Torts outline 3
By: Mazeschenk Date: June 5, 2015, 12:02 am
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I like the content of this section.
#Post#: 102--------------------------------------------------
Re: Torts outline 3
By: Zibiyazean Date: June 19, 2015, 4:24 am
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But what a shock that it was true.
#Post#: 103--------------------------------------------------
Re: Torts outline 3
By: kakanew Date: January 20, 2016, 2:11 am
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First time we see act done utterly without fault still be held
liable
#Post#: 107--------------------------------------------------
Re: Torts outline 3
By: TonyshowJr Date: July 14, 2017, 3:12 am
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The story is interesting and can be used
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