Intentional Torts – Intentional Torts are battery, assault, false imprisonment, trespass to land, trespass to chattel, and conversion. See examples of each below. Battery – The intentional unlawful, harmful, or offensive touching of the person of another. Example: The verbal argument has escalated to the point that Susan raised her hand and slapped Joe on the cheek. Susan committed battery against Joe. Assault – The intentional threatening of another with a battery and the creating of apprehension of immediate bodily harm in the victim.
Example: The professional football player assaulted the referee by screaming that he was going to break the back of the referee and raised his helmet in the air with the gesture that he was going to strike. Fortunately, others rushed in to restrain him. Transferred Intent Doctrine – The Transferred Intent Doctrine is when a defendant, while in the process of committing a battery against one person, unintentionally causes the touching of a third person. In such a case, the defendant’s wrongful intent is transferred to include the unintended victim. The third person can therefore proceed against the defendant on a battery theory.
Example: The new member of the gang struck the bat at the policeman but instead hit the bystander that was behind the policeman when the policeman bent over and dodged the bat. The transferred intent doctrine is therefore applicable such that the gangster is liable of battery towards the bystander. Substantial Certainty Doctrine – The Substantial Certainty Doctrine holds that where the defendant does an act with the realization that it is substantially certain to result in a touching, the defendant is deemed to have intended the result and is therefore liable for the battery.
Example: The shopkeeper shot his rifle at the trespasser in close range but the rifle was defective and the bullet exploded inside the rifle itself. The substantial certainty doctrine holds that the shopkeeper has committed battery towards the trespasser even though there was no physical and actual contact. False Imprisonment – The intentional confinement of the plaintiff by the defendant, without consent and without legal privilege. Example: The angry boyfriend locked her up in his room for the whole afternoon to prevent her from seeing her new love interest.
He falsely imprisoned her. Intentional Infliction of Emotional or Mental Distress – Intentional infliction of mental distress from an act or words done by one with the intent to disturb the emotional stability of the plaintiff and must be said or done in an outrageous manner. Example: The group of gangsters keeps harassing the shopkeeper to pay them protection fee by constantly threatening his life with a weapon and jumping at him in dark alleys. The gangsters therefore intentional inflicted emotional or mental distress on the shopkeeper.
Trespass to Land – Trespass to land is an entry upon land in the possession of another, without consent and without legal privilege. Example: The squatters came back to the vacant home to stay the night whenever the police are not in the area. Trespass to Chattel – Trespass to chattel is the intentional taking or damaging of personal property in the possession of another, without consent and without legal priviledge. Example: Mary was so jealous of Jane’s engagement and her large diamond engagement ring that she snuck into her bedroom and took Jane’s engagement ring and hid it.
Conversion – Conversion is an intentional assumption of dominion and control over the personal property of another resulting in a substantial interference with the plaintiff’s possessory rights, without consent and without legal privilege. Example: Mark has been using Jane’s other cell phone without asking her. He has been making phone calls on her phone to his friends and gave away the number to others who Jane does not know. In essence, for people unaware of the situation, the phone pretty much now belongs to Mark, apparently and on the surface.
Trespass Ab Initio – Trespass Ab Initio is an entry upon the land in possession of another under a conferred legal right, and the subsequent abusing of that conferred legal right through the commission of an assault, battery, false imprisonment, or trespass. Example: The landlord of the ranch initially allowed Jack to bring his dog, a trained pit-bull, to roam in the outer perimeter of the ranch. However, the pitbull has been attacking the ranch animals. Jack has committed a trespass ab initio against the landlord of ranch.
Private Nuisance – A private nuisance results from an act or conduct by the defendant which unreasonably interferes with the plaintiff’s use and enjoyment of his or her property. Example: The crazy woman who lives above the Jones keep pounding on the floor at midnight every night. She created a private nuisance for the Jones. Public Nuisance – Public nuisance results from an act or conduct that is injurious all the public in general. Example: The old couple has this odd habit of sunbathing nude along the front yard of their house that faces the road.
Anybody in the neighborhood can see it in plain sight. What a public nuisance. Defenses to Intentional Torts – Defenses to intentional torts are consent, self-defense, defense of others, defense of property, prevention of crime, recovery of property, legal authority and necessity. See example of each below. Consent – Consent relates to the plaintiff’s state of mind and the existence of express or implied willingness that the defendant should act in the complained of manner.
Example: When Mark borrowed Jane’s phone, Jane told Mark that the reason why she no longer uses the phone is because her ex has been harassing her by calling her on that number and she would much rather have Mark use it in a way that the ex may think that the number has been discontinued or transferred to another. The Defense of Self-Defense – Self defense is a defense that relates to the general proposition that a person who reasonably believes himself to be threatened with immediate bodily harm may use whatever degree of force is apparently necessary to protect himself or herself.
Example: Matt was withdrawing money from the ATM when someone behind snuck up behind him with a sharp object in his hand. Matt happens to be holding an umbrella and struck the pointed end of the umbrella at the offender which scratched his face. The Defense of Defense of Others – The defense of others relates to the general proposition that a person who reasonably believes another to be threatened with immediate bodily harm may use whatever degree of force is apparently necessary to protect the personal safety of the other person.
Example: Tania was in the fast food line with her 5-year-old daughter when a homeless person behind them grabbed her daughter by the hair and started pulling hard and forcefully at her hair. Tania took off her high heel shoe and clocked the aggressor with the pin-heal of the shoe. Step-in-Shoes Jurisdiction (Defense of Others) – In some jurisdictions a person is not allowed to use the defense of defense of others unless the person being defended was not the aggressor and had the right to use self-defense.
Example: Janet got into a heated argument with her boyfriend who was about to punch her in the face when Janet’s cousin showed up and hit her boyfriend first. Even though Janet was in an verbal dispute, she was not the aggressor and therefore had the right of self-defense. In step-in-shoes jurisdiction, such defense of others is permitted and therefore Janet’s brother has an effective defense in committing battery against Janet’s boyfriend.
Reasonable Appearances Jurisdictions – In other jurisdictions, a person defending another in good faith and in ignorance of the fact that the person being defended is the aggressor and not entitled to use self-defense is nevertheless justified when acting upon reasonable appearances. Sometimes it is further required that the person being defended is one whom the defender is authorized by statue to protect. Jamie is a 17-year-old foster child of Abe. When Abe saw Jamie around the street corner with her boyfriend who was about to hit her Abe rushed in to kick Jamie’s boyfriend.
It turned out that Jamie was the one who first scratched her boyfriend’s face during a heated argument and caused his the injuries to his face. Abe in this case was unaware of the Jamie’s actions before he saw them and acted in good faith and based on the appearance of the circumstances to protect his foster child for whom he is statutory duty to protect as her legal guardian. The Defense of Defense of Property – The defense of defense of property relates to the general proposition that any person may be privileged to use reasonable force to protect his or her possession of real or personal property against an apparent aggressor.
Example: Mel was washing his car in his drive way when someone started backing up into his driveway and almost hit his car. Mel quickly threw a rolling cart onto the other person’s moving car and caused a dent in the person’s car. The Defense of Prevention of Crime – The defense of defense of property relates to the general proposition that any person, whether a police officer or a private person, is privileged to use reasonable force to prevent the commission of a crime which is apparently being committed in his or her presence.
Example: The school teacher saw that the boys from another school were about to break the glass cabinet to steal the expensive electronics. She rushed in to slam her pocketbook on their head. The Defense of Recovery of Property – The defense of recovery of property relates to the general proposition that a person is privileged to commit an act which would otherwise constitute an intentional tort if he or she is acting for the purpose of regaining possession of his or her property. There are three aspects to this particular defense. They are re-entry upon land, recapture of chattel, and the “Shopkeeper’s Rule”.
Example: The squatters who were arrested for dealing and using drugs in the Smith’s vacant home were there again last night. Mr. Smith happened to be onsite repairing a fence and he waived his hammer to the squatters to scare them away. One of the squatters was hit on his way out. Re-entry Upon Land Aspect – The re-entry upon land aspect relates to one’s privilege to use force to re-enter land only if the taking of the land was tortuous or wrongful and the re-entering party is entitled to immediate possession. Ordinarily, a demand must be made for the occupier to vacate unless such a demand would be a total exercise in futility.
Only force not likely to cause death or serious bodily harm may be used. Example: After the local gang broke into the restaurant and ransacked the place overnight, the restaurant manager and a few workers headed back in the early morning hours while the perpetrators were asleep and used ropes to tie them up before calling the police. Recapture of Chattel Aspect – The recapture of chattel aspect relates to one’s privilege to use reasonable force to defend against chattel being taken from his or her possession if such force is not likely to cause death or serious bodily harm.
Example: Joe punched the pick pocket who snatched his cell phone from his hand. Fortunately the pick pocket was unarmed. Shopkeeper’s Rule Aspect – The Shopkeeper’s Rule Aspect relates to a limited privilege in some jurisdictions that allow shopkeepers to detain suspect thieves, i. e. , shoplifters and embezzling employees, for the purpose of investigating the shopkeeper’s claim to the goods, even though it may be determined that no wrongful taking has been committed.
Example: The cigar shop owner dropped the gate in time to keep the two men who he thought did not pay for the cigars they had in their pockets. It turned out that cigar shop owner was not aware that the men did pay the other employee but was not given a receipt. Fresh Pursuit – Fresh pursuit relates to the requirement that a person recapturing a chattel or a shopkeeper detaining a suspected thief must do so without unreasonable delay after promptly discovering the loss.
Example: When the woman left the clothing store with shop items in her purse, the tag sets off the alarm and she was detained immediately. The Defense of Legal Authority – The defense of legal authority relates to the proposition that one is privileged in committing an otherwise tortious act if it is done under legal process or is otherwise authorized by law. It is a defense that is usually used by police officers or private persons who have made an arrest either with or without a warrant and who are now facing charges of false imprisonment in relation to their having made the arrest.
Example: The sergeant who caused the pick pocket to fall down the stairs during the chase used the defense of legal authority claiming that he was merely doing his job and exercising the legal authority of police in a hot pursuit of a suspect. The Defense of Necessity – The defense of legal authority relates to the proposition that a person may be privileged to commit an act which would otherwise be tortious if that person is acting in an emergency situation to protect himself or others from a threatened injury to person or property.
The person claiming necessity may act on appearances. A reasonable mistake is permitted. Example: The doctor yanked the crazy woman away from the baby when she entered unannounced and started strangling the baby. The woman was bruised when she fell. Reasonableness – Reasonableness is the concept that permeates all of the defenses to intentional torts. It is the standard by which the amount of force used and/or the time and manner of a re-entry, recapture, or detention is judged. Example: The doctor only yanked the woman away. He used only reasonable force to defend the baby’s life.
If he had stabbed the woman in a deadly and repeatedly manner, he would have used excessive force beyond the reasonableness required of the situation. Negligence – An action in negligence requires 1) a duty of care owing by the defendant to the plaintiff, 2) a breach of that duty by a failure to exercise due care 3) a casual connection between the breach and 4) the harm to the plaintiff in terms of actual and proximate negligence action. That is, damages must be proved. Example: The real estate agent appointed a gardener to trim the bushes of the house that he has listed on the market.
However, even though the gardener has been arrested unsuccessfully before for breaking into houses, the agent still hired the gardener. The agent, owing a duty of care to the owner of the house, breached his duty to exercise due care and caused the break in of the house of the owner. Elements of Negligence – The elements of negligence are duty, breach, causation, and damages. Example: see example above under negligence. General Duty – The general rule of duty holds that everyone owes a duty to exercise due care so as not to subject others to unreasonable risks of harm.
Example: The contractor washing the windows were especially careful to make sure that pot plants don’t accidentally fall out of the window onto the sidewalk and injuring pedestrians. Cardozo Rule on Duty – The majority opinion expressed by Justice Cardozo in the landmark and very important case of Palsgraf v. Long Island Railroad Co. held that the defendant owes a duty of care only to those persons to whom the defendant can reasonably foresee some injury to by reason of said defendant’s negligent act.
Therefore, according to the rule, there is no duty owing to the plaintiff who was in a position of apparent safety when the tortious act occurred. This is the so-called “orbit-of-danger” test. Example: The office receptionist would not have foreseen that by opening up that mysterious cage, there would be a snake that comes out and bit her manager. The manager was outside of the orbit-of-danger when she opened the cage and therefore the Cardozo rule calls for her not owing a duty of care to the manager’s injury.
The Andrews Rule on Duty – The dissenting opinion that was expressed by Justice Andrews in the Palsgraf v Long Island Railroad Co. case rejected the concept that no duty was owing to the unforeseeable plaintiff and adopted a rule of unlimited duty. Therefore, according to the Andrews view, if a defendant can reasonably foresee that he/her conduct is such that it endangers someone, anyone, then that defendant owes a duty of care to the “whole world”. The Andrews view has had substantial support and has been applied as the majority opinion in other cases.
Both the Cardozo view and the Andrews view are used today in different jurisdictions. Example: The babysitter accidentally mixed up the sugar on the countertop with baby powder and made a bottle of milk for the toddler in the morning. The cleaning maid who came over for house cleaning was going to clean the bottle but instead of pouring out the content she drink it. The cleaning maid suffered food poisoning and according to Andrews view even though the milk was not intended for the cleaner, the babysitter still owes a duty of care to her.
Owner Liability Statues – Certain statutes impose liability upon owners of vehicles for the tortious acts committed by persons whom the owner intentionally furnishes the vehicle to. Example: The flower shop owner hired employee Jane to deliver flowers. Jane hit someone’s car en route. Flower shop owner is liable for the damage to the third party whose vehicle was hit. Duty Owed to a Guest Passenger – A driver of a motor vehicle, in the absence of a statue otherwise, owes to persons riding in the vehicle a duty of driving with due care.
However, a number of jurisdictions have statues that provide a guest passenger of an automobile cannot recover from the owner or operator of the automobile unless the owner or operator is guilty of the willful misconduct, recklessness, or intoxication. Example: Sam was driving her first car when he got into a car accident while giving Mary a ride home when he ran a red light and ran into cross traffic. Mary suffered injury. Sam is liable under the theory of negligence because he owed a duty to a guest passenger.
Duty Owed to Those Injured by Drunk Driver – A person who serves alcoholic beverages to one who is intoxicated is not , in the absence of a statue stating otherwise, liable for the damages done by the drunkard. However, under statutes traditionally referred to as Dram Shop Acts, an owner, a bartender or other persons serving alcoholic beverages to persons who are intoxicated can be held liable for the foreseeable damage caused by the drunkard. Example: Jack the bartender knew that Susan was very drunk and continued to serve her alcohol.
When Susan got behind the wheel to drive home she hit someone on the way. Jack is liable under the theory of duty owed to those injured by drunk driver for damage incurred by the victim. Family Purpose Doctrine – A parent who furnishes a vehicle to members of his or her family for customary convenience, assumes the liability for the tortious acts committed by those persons when a car is driven for a family purpose. Example: Samantha customarily asks her teenage son to pick up his younger sister from school.
The son sped on the freeway and ran into the back of a truck when the freeway traffic ground to a halt because of road work delay. Samantha is liable for damage to the truck. Duty Owed to a Rescuer – A plaintiff rescuer may proceed against a defendant on a negligence theory when the plaintiff was injured by reason of the fact that the plaintiff engaged in an act of rescue and the negligent act of a defendant created the situation that necessitated the rescue. Example: The mother rescued her 3-year-old daughter from the babysitter that left the door to the patio open from which the child fell.
Fortunately, the mother got home in time to catch the child. The babysitter owes a duty to the mother, the rescuer. Duty Owed by a Good Samaritan – A person who embarks upon the performance of services for another, whether gratuitously or for consideration, is under a duty to render those services with due care. This person, however, is under no duty to complete the performance of the services unless abandonment of such performance would prejudice the other party’s position.
The rendering of aid in an emergency is a form of rendering services and imposes certain duties on the person who undertakes to render such aid. The rendering of other gratuitous services for other individuals will likewise create certain duties upon the person who undertakes the performance of those services. Some jurisdictions have enacted statutes designed to encourage the rendering of emergency aid by physicians by limiting the liability that could otherwise be imposed upon them. Generally speaking, liability could only be imposed upon them for reckless or wanton misconduct.
Example: Ann has been watering the flower garden for her next door neighbor. One day she left the water on and it flooded the neighbor’s house. Her negligence makes her liable even though she waters the garden regularly as a favor to her neighbor. Omission to Act – An omission to act, or nonfeasance, creates a no tort liability where the defendant fails to act to prevent injury to the plaintiff unless, because of a special relationship or special circumstance the defendant has an affirmative duty to protect the plaintiff.
Such a relationship or circumstance may arise out of a relationship between husband and wife, parent and child, hotel keeper and guest, common carrier and passenger, or by the way of statutory duty such as duty imposed by hit and run statues which require driver of vehicles involved in an accident to stop and aid one who has been injured. Example: The mother saw her child hanging from the window and did not even pull the child back into the room. Business Invitee – A business invitee is a person who has an express or implied invitation to enter certain business property to do business with the land occupier thereon.
Example: The restaurant owner invited the energy consultant to help reduce energy use for the business. Public Invitee – Public invitee enters land, in the possession of another, for a purpose for which the land is held open to public. It is not required that a business purpose is involved. Example: The courtyard of the brewery is open on weekends for tours by public. Licensee – A licensee is a person who enters certain property with the express or implied permission of the land occupier. Such entry is not for the purpose of doing business. Example: The Jones allows their neighbor to park their van in his driveway.
Trespasser – A trespasser is someone who enters the real property of another without express or implied consent to do so. Example: The squatters came back to spend the night at the vacant house again. Constant Trespasser Upon a Limited Area – A constant trespasser upon a limited area is a person who enters the real property of another without express consent, however, the land occupiers knows or should know of the presence of the trespasser because of the trespasser’s repeated acts of trespassing. Example: The Smiths have been parking their van on the lot of the Jacksons but the Jacksons.
However, there was never expressive acknowledge or permission from the Jackson’s authorizing Smiths’ entry and use. Duty Owed to a Business Invitee – The land occupier owes to the business invitee the duty of rendering the premise reasonably safe was to known and discoverable dangerous conditions. This includes the duty of inspecting the premises to discover those defects which a reasonable inspection would reveal. Example: Jane was invited to be the host for the client appreciation dinner by the building owner when the chandelier came down on her.
Duty Owed to Licensee – The land occupier owes to the licensee the duty of warning of known dangerous conditions, unless they are obvious. The licensee assumes the risk of obvious dangers and those of which he or she is aware. While the land occupier has the option of avoiding liability by correcting the dangerous condition, he or she owes no duty to do so and need only give a warning that the condition exists. Example: Jen’s is a leaning fence in her backyard. Her next door neighbor Mark regularly uses her patio. The fence’s condition is very obvious. One day the fence fell over and injured Mark.
Jen never warned Mark because she presumed that Mark is aware of the leaning fence. Duty Owed to a Trespasser – The land occupier generally owes no duty of care to the trespasser unless the trespasser is a constant trespasser upon a limited area or a child. Example: The squatters who broke in and spent the night at the vacant home were bitten by bedbugs, the owner of the property owes no duty to the squatters. Duty Owed to a Constant Trespasser Upon a Limited Area – A land occupier owes a duty to constant trespassers upon a limited area to warn them of known dangerous artificial conditions unless such conditions are obvious.
Example: The Smiths who have been parking their van on the lot of the Jacksons tripped over the broken concrete in the driveway. Because the broken concrete has been obvious from the beginning, the Jacksons owes no duty to warn the Smiths of the condition. Duty Owed to the Child Trespasser – A land occupier owes a child trespasser the same duty as owed to an adult trespasser unless the case is one in which the attractive nuisance doctrines applies. Example: See below.
Attractive Nuisance Doctrine – The Attractive Nuisance Doctrine, recognized by most jurisdictions, provides for the imposition of certain duties upon landowners for the protection of young children whose trespasses are to be anticipated and whose immaturity renders them particularly susceptible to injury from dangerous conditions upon the land. A duty is imposed upon land occupiers to exercise reasonable care to eliminate the danger or to otherwise protect the children when the following elements are present: * Foreseeability of trespass * Foreseeability of serious harm
* The child is unaware of the danger, and * The utility of the condition is great and the burden of eliminating the condition is slight when balanced against the risk of harm to children. Example: At the pond owned by the Jacksons is this old hanging tire that was tied to the tree. The tree has been leaning for years and the branch is so old and fragile that it could break at anytime. One day a passing 7 year old child climbed the tree and got on the tire. The old branch broke and the child fell into the pond. Fortunately the child was saved in time.
The landowner owes a duty to the child. Duty Owed to Persons Off the Premises – The land occupier owes a duty to maintain the premises in a reasonably safe condition for the protection of passersby and occupiers of adjoining premises. This includes the duty of inspection to discover and correct those defects which a reasonable inspection would reveal. Example: The Summer’s just put on their front yard this year’s Christmas lights when it failed and caused a fire due to defective parts. Rowland v. Christian – The modernly recent landmark case of Rowland v.
Christian eliminated the distinction between business invitee, licensee, and trespasser and found that the land occupier owes a duty to act as a “reasonable man” for purposes of rendering the occupied property safe for others. Example: Even though the homeless people were trespassing the Jackson’s driveway, the fact that the driveway had a big hole covered by newspaper made it a dangerous condition for anyone unaware of the hole. It did not matter whether the homeless person was a trespasser or invitee, it is simply unreasonable for such dangerous condition to exist that may cause harm to anyone.
Natural Conditions – A land occupier traditionally owes no duty to others for the care of natural conditions on the occupied property. However, a court in one recent case imposed a duty of reasonable care as to natural conditions at least in those situations where the condition is known to the landowner. Example: The loose soil has been a danger whenever it rains heavily. Finally a storm came and the heavy rain caused a landslide that caused damage to the next door neighbor’s property.
Res Ipsa Loquitur – The doctrine of Res Ipsa Loquitur (“the thing speaks for itself”) is a rule of evidence which aids the plaintiff in proving the element of breach of duty when the plaintiff is unable to establish by other evidence that the defendant acted unreasonably. The doctrines proceeds upon the theory that the occurrence itself speaks of negligence and it is unnecessary for the plaintiff to show the exact circumstances whereby defendant breached his or her duty of care. The plaintiff must prove that * Defendant was in complete control of the instrument that caused the harm * Plaintiff is not guilty of contributory negligence
* Defendant is in a better position to explain what happened, and * Injuries of this type do not normally occur absent such negligence. Example: Janet was walking on the sidewalk when a large box fell out of the window above and hit her. She has no idea what happened and which exact window the box came from. However, per the doctrine, the land occupier of the unit 1) has complete control of the box 2) Janet did not contribute to the negligence 3) land occupier certainly is in better position to explain what happened 4) boxes don’t normally fall out of the sky
Actual Cause or Cause in Fact – Actual cause or cause in fact is that cause which starts, ignites or makes possible the act that follows and that which satisfies the “but for” or “substantial factor” test. Example: The actual cause of the box falling out of the window is because the Jack fell over and pushed the box that was sitting on the table during the fall. Proximate Cause – Proximate cause is an act which in a natural and continuous sequence of events, unbroken by foreseeable, independent, intervening acts, causes injury to the plaintiff without which the injury would not have occurred.
Example: The pile of wood planks leaning against the door is bound to fall on someone when the person opens and comes through the door. Independent Intervening Act – The independent intervening act is one which would have occurred even in the absence of the original negligence. The act must be foreseeable, otherwise it breaks the chain of causation. Example: Mary burnt the food while cooking causing a lot of smoke in the kitchen and the sprinkler came on resulting in water damage to the property. However, it turned out that there was an actual fire in the hallway set by a trespassing homeless per