Tort – Legal terms

Intentional Interference With Person or Property A. Intent 2 types 1. Specific Intent consciously desiring the physical result 2. General Intent knowledge that the result is substantially certainty to follow -The Restatement places torts somewhat on a continuum with Negligence The most culpable form of intent would be a specific intent, or morally apprehensible form of misconduct you swing a baseball bat to hit someone in the face General intent would be next on the continuum knowing with substantial certainty.

Recklessness- Callous disregard ( I dont give a crap. Gross Negligence- aware of the harm but you are indifferent to it Negligence- foreseeable risk of harm but you fail to exercise reasonable care under the circumstances Most culpable (responsible/punishable) desiring the physical result) to play a prank or cause harm Appellate Court remanded the case to the trial court to consider if Daileys behavior had met the requisites for general intent (knowledge with a substantial certainty that pulling the chair out from under plaintiff would cause harm). They need to look at the law. Only relevance defendants age has is as it may affect the extent of ones knowledge Fromenthal v. Clark 2 year old not liable for biting an infant because court said too young to form intent Court said intent does not require bad motives, it only requires a volitional act performed with knowledge that there is a substantive certainty that bodily contact will occur.

Restatement of the court places intentional torts on a continuum with negligence Spivey v. Battaglia defendant gave shy co-worker plaintiff a friendly, unsolicited hug which paralyzed her face court held no battery because defendant could not be said to know with substantial certainty that such bizarre results would follow his conduct (may be negligence) Defendant admitted to Battery because of offensive conduct however he used the defense stating the statute of limitations had run out.

The Supreme Court, found that the intent element for battery, was not there because one could not be substantially certain that the bizarre results, paralysis, would follow but really, all that should have mattered was that the hug was offensive and was meant to embarrass the plaintiff Because the statute of limitations barred the cause of action for a battery, and the S. Ct. wanted the plaintiff to recover for their injuries, they held defendant responsible for negligence Ranson v. Kitner Kitner mistakenly shot Ransons dog thinking it was a wolf (trespass to chattel claim).

Court held Kitner liable because good faith or mistake does not negate intent A mistake, unlike an accident, does not change the intentional nature of a tort McGuire v. Almy Defendant was an insane person who struck her caretaker with a chair leg when she entered her room defendant held liable as mental illness does not negate intent Insane persons are liable for their intentional torts as long as they had the required intent (specific or general) of a sane person.

All that is needed is that the person know with substantial certainty that the volitional act intended the result that would follow What if the defendant thought the plaintiff was trying to kill/hurt her (Motivation irrelevant, she still intended to hit her. intent could arise from delusion or another consequence of the illness as long as the act was voluntary defendant is liable Talmage v. Smith Defendant threw a stick in the direction of some boys who were sitting on the roof of his sheds but instead he missed and hit the plaintiff who ended up being blinded in one eye Court held defendant liable because of his intent to hit someone with the stick regardless of whether the one who got injured was not who he intended Transferred Intent.

A defendant may still be liable if he intends to commit a tort against one person but instead (1) commits a different tort against that person (2) commits the same tort against a different person or (3) commits a different tort against a different person (this only applies to assault, battery, false imprisonment, trespass to land, and trespass to chattels so long as both the intended and actual act are among these) The defendant intended to commit assault/battery toward another, therefore satisfying the doctrine of transferred intent.

Privileged use of force If you find that a landowner has a right to throw a stick as a matter of reasonable force to get rid of kids trespassing, then there is no transferred intent because no tort is committed. What is the policy behind allowing transfer of intent 1 / 23 It expands the scope of those who can bring claims if the requisite intent was formed to bring that antisocial behavior upon someone else It works as a deterrent to prevent a person from committing such an antisocial behavior A defendant who attempts to commit any of the 5 intentional torts, and accomplishes any one of them are liable through transferred intent Assault Battery False imprisonment.

Trespass of property Trespass of chattel (the intentional interference of a property of a person) B. Battery Restatement (Second) of Torts (1965) 13 Battery Harmful Contact (must have intent and contact) 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 a harmful contact with the person of the other directly or indirectly results 18 Battery Offensive contact An actor is subject to liability to another for battery if 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 an offensive contact with the person of the other directly or indirectly results.

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 mere offensive contact with the others person although the act involves an unreasonable risk of infliction it and, therefore, would be negligent or reckless if the risk threatened bodily harm Cole v. Turner older view of which held that touching of another in anger is a battery however if the contact is made without and violence or design of harm no battery Modern view no longer requires touching in anger and includes not only harmful but also offensive contact If contact is offensive, motive is irrelevant (Clayton v. New Dreamland Roller Skater Rink found defendant who was trying to help plaintiff still liable for battery) Victim does not need to be conscious at the time of offensive or harmful contact (i. e. Sleeping Beauty and Prince Charming) however victim must be aware for assault Wallace v.

Rosen Rosen, a teacher, touched defendant (a students mother) standing at the top of the stairs on the back during a fire alarm to get her attention which resulted in her falling down the stairs Court held that standard of offensive conduct is objective and that a reasonable person would not find the touching of another on the back with her fingertips to get her attention over the noise of a fire alarm to be offensive In a crowded world, a certain amount of personal contact is inevitable and must be accepted absent to the contr.

False arrest arises when one is taken into custody by a person who claims but does not have proper legal authority Conviction of the crime for which one is specifically arrested is a complete defense to a subsequent claim or false arrest Not moral persuasion because police officer suggested that she was not free to leave one doesnt have to resist arrest to get to point of false imprisonment Whittaker v. Sandford Plaintiff was taken on defendants yacht to America however upon arrival was not given a boat to go ashore and was not allowed to leave that yacht unaccompanied (implied threat of force of duress not allowing her to leave alone).

Court held that she was constructively confined by the sea with unreasonable means to get away and defendant promised to take her to shore giving her assurance and thus had a duty to do so False imprisonment can occur if a person refuses to act when they have a duty to do so The defendant promised not to detain her therefore, had a duty to follow this agreement.

A duty can give rise to an affirmative obligation to provide a means of regress if a duty is present by the way of contractual promise or some other mechanism Contract with an airline passenger provides for travel to a specific destination and airline is under no obligation to let him out and breach that contract if he changes his mind If an owner of a store knows a customer is still in it but locks the door and goes in the back while the customer tries to leave and finds the door locked it is arguably false imprisonment because of general intent (knows the customer was in the store and would try to leave eventually and he wasnt around, thus substantially certain to occur) If he didnt know customer was there, no false imprisonment because no intent E.

Intentional Infliction of Emotional Distress One who, without a privilege to do so, intentionally causes severe emotional distress to another is liable for (a) such emotional distress, and (b) for bodily harm resulting from it Four elements must exist for one to be liable for intentional infliction of emotional distress (1) conduct must be intentional or reckless (2) conduct must be extreme and outrageous (3) there must be a causal connection between the wrongful conduct and the emotional distress and (4) the emotional distress must be severe.

Requisite intent exists when the act is done for the purpose of causing the distress or with the knowledgethat severe emotional distress is substantially certain to be produced by such conduct (specific or general) Physical injury is not required (in most jurisdictions, some still require it) Conduct must exceed all bounds which could be tolerated by society Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions or other trivialities plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language and to occasional acts that are definitely inconsiderate and unkind.

Sexual/racial harassment typically not considered extreme, outrageous conduct Must be determined on an objective standard the unwarranted intrusion must be calculated to cause severe emotional distress to a person of ordinary sensibilities Severe has been defined as where no other person could be expected to endure it Interest in freedom from severe emotional distress is regarded as of sufficient importance to require others to refrain from conduct intended to invade it as such conduct has no social utility and recovery is allowed in other torts (i. e. offensive touching in battery).

Where conduct may be even less harmful Common carriers used to be held to a higher standard with regards to emotional distress because of their degree of control over travelers however now there are a lot more options thus 4 / 23 control is lessened and rule is almost completely out of date State Rubbish Collectors Assn v. Siliznoff Defendants told plaintiff he was collecting trash within their territory and threatened to beat him up if he didnt join the association and pay for the account that he collected and as a result he was scared which cause him to became ill and miss several days of work Court allowed recovery for intentional infliction of emotional distress even without actual physical injury Slocum v.

Food Fair Stores of Florida defendants employee told plaintiff if you want to know the price, youll have to find out the best way you canyou stink to me which plaintiff claimed resulted in a heart attack and aggravation of a pre-existing heart condition Court held no intentional infliction of emotional distress because the conduct was not extreme or outrageous enough to cause severe emotional distress to a reasonable person Harris v.

Jones Plaintiff had a nervous condition and speech impediment often mimicked by defendant Court held no intentional infliction of emotional distress because although conduct was intentional, it didnt need to decide whether it was extreme and outrageous because the evidence of the humiliation suffered was not, as a matter of law, so intense as to constitute the required severe emotional distress and how or to what degree his condition worsened was not established by sufficient evidence Plaintiffs sensitivities or vulnerabilities may be taken into account if condition is apparent or known to defendant Taylor v.

Vallelunga Taylor brought suit for intentional infliction of emotional distress after watching her father be beaten by defendants Court held no claim because defendants did not know that she was present nor was there allegation that the beating was administered for the purpose of causing her to suffer emotional distress, or in the alternative, that defendants knew that severe emotional distress was substantially certain to be produced by their conduct Intent (specific or general) cannot be established if there is no proof that defendant has knowledge of plaintiffs presence However physical presence not always necessary (i. e.

mother of 5 year old permitted to recover against teenage babysitter who molested child, woman allowed to recover when defendant threatened to kill her husband and then did so outside of her presence) No transfer intent because intentional infliction of emotional distress is not one of the 5 torts to which the doctrine of transferred intent applies F.

Trespass to Land Restatement (Second) of Torts 158 One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the  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 Must have intent to invade the property and invasion of anothers property Interest that courts are protecting is possessors right to exclusive possession of the land Actual damages are not required in a trespass to land action Land does not have to be enclosed nor have no trespassing signs Liability still exists even if defendants conduct was socially useful or even beneficial Mistake does not negate intent liability still exists if trespass is done by a good faith mistake.

(i. e. person mistakenly walks onto anothers land) When alleged trespass is deliberate and accompanied by aggravating circumstances, emotional distress damages may be recovered even in the absence of physical injury Dougherty v. Stepp Defendant entered plaintiffs unenclosed land and surveyed it without marking trees or cutting bushes (no harm done) Court held every unauthorized, thus unlawful, entry into the close of another is a trespass regardless of whether actual damage is done Bradley v.

American Smelting and Refining Co. Microscopic, airborne particles of heavy metals from defendants copper plant were carried by the wind onto plaintiffs property Court held that trespass can result from intangible substances environmental trespass but they must accumulate on land and actual and substantial damages must be proven (in order to protect manufacturing plants from constantly being sued).

Trespass vs. Nuisance Trespass is an actionable invasion of a possessors interest in the exclusive possession of land Occurs when the intangible particles or substance accumulate on the land and do not pass away Nuisance is an actionable invasion of a possessors interest in the use and enjoyment of his land When airborne particles are transitory or quickly dissipate since they do not interfere with a property owners possessory rights Courts usually require some actual damage for nuisance but do not require a physical invasion of land and do take into 5 / 23 account the social utility of the defendants activity Herrin v.

Sutherland Defendant held liable for trespass for shooting over plaintiffs land while hunting birds (awarded only nominal damages main purpose was to enforce his right so defendant wouldnt keep shooting over his land) Exclusive right to possess land extends to area above and below actual land as long as it is considered reasonably usable space Different views as to whether air travel (flight) is a trespass or not (1) Air travel is a trespass only if it flies below the navigable space (2).

Some courts say flight is never a trespass but can be negligence or nuisance Rogers v. Board of Road Comrs for Kent County Defendant placed a snow fence in plaintiffs field each winter and agreed that it would be removed at the end of each season but he failed to remove an anchor post which plaintiffs husband crashed into and was killed Court held defendant liable for trespass to land for failing to remove the post after consent had expired A trespass is committed when a defendant fails to remove a thing placed on the possessors land after the consent has expired, or in cases or privilege, after the privilege has been terminated Must be aware that he no longer had the possessors consent to remain.

A privileged entry onto the land of another may be limited not only by time and space but also by purpose Damages caused by a trespasser need not be foreseeable to be enforceable Contributory negligence is not a defense for an intentional tort of trespass (sometimes plaintiff has choice between the claims of negligence and intentional tort of trespass some liability insurance policies may exclude intentional acts or difference in damages awarded) G. Trespass to Chattels One who without consensual or other privilege to do so, uses or otherwise intentionally intermeddles (brings about physical contact) with a chattel which is in possession of another is liable for trespass to such person if, (a) the chattel is impaired as to its condition, quality or value, (b).

The possessor is deprived of its use for a substantial time, or (c) bodily harm is thereby caused to the possessor or harm is caused to some person or thing in which the possessor has a legally protected interest Elements (1) Intent to interfere with plaintiffs right of possession, (2) dispossess another of possession or use or intermeddling with the chattel, (3) actual damages in the form of harm, impairment, dispossession or deprivation, (4) causation No nominal damages awarded for harmless intermeddling (unlike trespass to land).

Possessor has privilege to use reasonable force to protect his possession against even harmless interference Conduct treated as intentional even is defendant acts under good faith mistake (same as trespass to land) however no trespass action for negligence (must be intentional, volitional act) Glidden v. Szybiak 4 year old plaintiff was bit by defendants dog while jumping on his back and pulling his ears plaintiff brings suit under strict liability (some activities, animals, etc. bear such an unreasonable danger to others that those engaged in such activity are liable for injury arising from them) however defendant claims a defense to liability because the dog bite occurred while the plaintiff was engaged in the commission of trespass to chattels.

Court held no trespass because no claim that dog was injured in anyway and owner was not deprived of use of the dog for a substantial period of time Liability of owner the person who owns or keeps a dog or has it in possession is liable for any damages to anothers person or property unless the damage occurred while that person was engaged in the commission of a trespass or other tort CompuServe Inc.

v. Cyber Promotions, Inc. Defendant sent numerous spam e-mails to plaintiffs customers resulting in problems with CompuServes equipment and several complaints and lost customers Court held trespass to chattels because electronic signals have been held to constitute physical contact (thus intermeddled), defendants conduct was clearly intentional, it diminished the value of plaintiffs equipment, and plaintiffs also have a legally protected interest in its customers (actions harm their business reputation and goodwill with its subscribers) H.

Conversion similar to trespass to chattels but more severe Conversion is an intentional exercise of 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 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 actors exercise of dominion or control (b) the actors intent to assert a right in fact inconsistent with the others right of control (c) the actors good faith (d) the extent and duration of the 6 / 23.

Rresulting interference with the others right of control (e) the harm done to the chattel (f) the inconvenience and expense caused to the other Ways an actor may convert a chattel (a) Acquiring possession of it, (b) damaging or altering it, (c) using it, (d) receiving it, (e) disposing of it, (f) misdelivering it, (g) refusing to surrender it Does not require proof of actual damages Good faith does not negate intent if the interference is sufficiently serious, but good faith may be a factor in determining whether interference is serious enough to constitute conversion Pearson v.

Dodd Two former employees of Senator Dodd entered his office without the authority to do so or his knowledge, removed and copied numerous documents from his files, replaced the originals, and gave them to defendant who published them Court held no conversion because documents were returned after a very short time thus plaintiff was not substantially deprived of their use, and the information taken was not of a protected sort Protection usually limited to tangible property, unless the intangible property has distinct scientific, literary, artistic, or other commercial value (i. e. trade secrets, etc. ).

Difference between trespass to chattels and conversion Trespass to Chattels an intentional interference of the possession of personal property of another requiring actual damages (either harm or substantial deprivation) Good faith does not negate intent, transferred intent applies Conversion deprivation has to be so serious as to require a forced sale of the property (requires a much more substantial interference) Good faith may be factor in determining seriousness of interference, transferred intent does not apply Privileges Defenses to Intentional Torts A. Consent affirmative defense when the plaintiff consents to the activity that would normally constitute an intentional tort OBrien v. Cunard S. S.

Co. Plaintiff was in line on defendants ship with 200 other women waiting to get required vaccination and held out her arm allowing the surgeon to vaccinate her Court held no battery because by her actions, plaintiff implicitly consented to the vaccination Consent can be expressed or implied by conduct (must look at plaintiffs behavior by overt acts and manifestations regardless of unexpressed intentions) Conduct must be considered in relation to the surrounding circumstances Cannot imply consent by silence in the face of unreasonable threats (i. e. A threatens to punch B, B says nothing and A hits him no consent).

Hackbert v. Cincinnati Bengals, Inc. Defendant, angry that his team was losing, intentionally hit plaintiff and injured him Court held that playing football does not consent to every intentional tort that may occur, only those within the rules and customs of the game, thus defendant liable becaus.