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76 Cards in this Set

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THEORIES OF TORT RECOVERY
INTENTIONAL TORTS
NEGLIGENCE
STRICT LIABILITY
JUSTIFICATION AND PURPOSES OF TORT LAW
i. Compensation
People who have been harmed by other people deserve compensation. The D has to pay to “make the D whole.”
ii. Punishment
Tort law is needed to punish people for conduct that society recognizes as wrongful.
iii. Deterrence
People who act wrongfully will be deterred to do so in the future.
iv. Prevention of Violence
Tort law provides a peaceable alternative to taking the law in one’s own hands.
INTENTIONAL TORTS V. CRIMES IN CRIMINAL LAW
1. In criminal law, there has to be a criminal intent (mens rea).

2. In criminal law, the Burden of Proof is “Beyond A Reasonable Doubt.” In a civil law case, the Burden of Proof is by a “Preponderance of the Evidence.”

3. In a criminal case, the P is a governmental official. In a tort case, the P is usually a private party (such as an Individual or a Corporation).
NATURE OF INTENT REQUIRED
 INTENTIONAL ACTS MUST BE VOLUNTARY (VOLITIONAL) AS OPPOSED TO INVOLUNTARY (NON VOLITIONAL).

 INTENT REQUIRED IS INTENT TO INVADE AN INTEREST OF THE P WHICH THE LAW PROTECTS (THE INTEREST IN FREEDOM OF MOVEMENT, THE INTEREST IN FREEDOM FROM UNCONSENTED PHYSICAL CONTACT, …).

 INTENT TO CAUSE THE P HARM IS NOT REQUIRED (Vosburg v. Putney).
BATTERY: ELEMENTS AT MODERN LAW
 THE D INTENDS TO HAVE PHYSICAL CONTACT WITH THE P, OR D INTENDS TO CAUSE APPREHENSION (FEAR) OF SUCH CONTACT IN THE P
AND
 PHYSICAL CONTACT WITH THE P’S PERSON RESULTS FROM THE D’S ACTION.

» Battery protects un-permitted physical contact with the P. P’s person includes his body and those things in contact or closely connected to it and identified with it.

» The tort is the “Contact”, and thus, the P need not have been aware of it at the time. Compare this to the tort of Assault, where apprehension is required.
BATTERY: UNIQUE OR SPECIAL FEATURES
 TRANSFERRED INTENT: THE INTENT ELEMENT IS SATISFIED IF THE D INTENDED TO CAUSE CONTACT, OR THE APPREHENSION OF CONTACT, IN A THIRD PARTY.

 EGGSHELL P RULE: OTHERWISE LIABLE D’S MUST COMPENSATE FOR HARM WHICH WOULD NOT HAVE OCCURRED UNLESS THE P WAS ESPECIALLY VULNERABLE TO INJURY, EVEN WHERE THE P’S VULNERABILITY COULD NOT HAVE REASONABLY BEEN FORESEEN.
BATTERY: POSSIBLE DEFENSES
 CONSENT
 DEFENSE OF SELF (SELF DEFENSE)
 DEFENSE OF A THIRD PARTY
 DEFENSE OF PROPERTY
 RECAPTURE OF PROPERTY

* INSANITY IS NOT A DEFENSE
Vosburg v. Putney 1891
Case where a 12 year old school boy kicked the 14 year old P. The court in this case established that an intent to harm is not a necessary element for the tort of battery. The court then goes on to discuss the fact that the incident took place inside the classroom as distinguished from “on the playground, where the P and D could have been engaged in usual boyish sports.” The classroom in which the incident took place does not support an “implied license” of boyish activity in which one is allowed to kick the other under the table.
THE THIN SKULL OR EGGSHELL PLAINTIFF RULE
This means that the D is responsible for all harm that results from his actions even if he could not have reasonably foreseen that that harm would result. This rule always applies in intentional torts cases, sometimes applies in negligence cases and does not apply in strict liability cases.
Garratt v. Dailey 1955
P brought a battery suit against 5 year old D for a fractured hip that was caused when Dailey was a guest in D’s backyard. The Washington SC addressed the issue of intent in the tort of battery and said “a battery would be established if, in addition to P’s fall, it was proved that, when Brian moved the chair, he knew with
THE THIRD RESTATEMENT ON INTENT
A person intentionally causes harm if the person brings about that harm either purposefully or knowingly.

PURPOSE. A person purposefully causes harm if the person acts with the desire to bring about the harm.

KNOWLEDGE. A person knowingly causes harm if the person engaged in action knowing that harm is substantially certain to occur.
TRANSFERRED INTENT
The court in Talmage v. Smith (1894) held that “the right of the P to recover was made to depend upon an intention on the part of the D to hit somebody, and to inflict an unwarranted injury upon someone. Under these circumstances, the fact that the injury resulted to another than was intended does not relieve the D from responsibility.” As such, it is an act willfully dangerous to A, resulting by misadventure in injury to B.
TRESPASS TO LAND: ELEMENTS
A. UNAUTHORIZED ENTRY (OR HOLDING OVER) BY THE DEFENDANT
B. ON THE PROPERTY OF ANOTHER
TRESPASS TO LAND: UNIQUE OR SPECIAL FEATURES
 HARM TO D’S PROPERTY IS NOT AN ELEMENT OF PROOF OF TRESPASS TO LAND.

 WHERE DAMAGE TO THE P’S PROPERTY OCCURS DURING A TRESPASS, THE D TRESPASSER MUST COMPENSATE THE P FOR SUCH DAMAGE.

 THE LANDOWNER’S EXCLUSIVE PROPERTY RIGHTS EXTEND UP INTO THE SKY AND BELOW THE SURFACE OF THE GROUND.

 AN “INTANGIBLE INTRUSION” (OF NOISE WAVES, RADIATION, ELECTROMAGNETIC FIELDS, ETC.) MAY NOT BE THE BASIS FOR LIABILITY FOR TRESPASS TO LAND.
TRESPASS TO LAND: POSSIBLE DEFENSES
 CONSENT
 NECESSITY

MISTAKE IS NOT A DEFENSE.
» THUS, THIS TORT IS SOMETIMES CALLED A “STRICT LIABILITY” TORT.
Dougherty v. Stepp 1835
D entered P’s unenclosed land with a surveyor and chain carriers. He did not mark any trees or bushes, however, he claimed it as his own. The court holds that anytime anyone goes on someone else’s land without that person’s permission, it has to be assumed that “from every such entry against the will of the possessor, the law infers some damage; if nothing more, the treading of the grass or the herbage or as here, the shrubbery.” The court went on to say that “it is the entry that constitutes the trespass. There is no statute, nor rule of reason, that will make a willful entry into the land of another, upon an unfounded claim of right, innocent, which one, who sat up no title to the land, could not justify or excuse.” Therefore, every unauthorized, and therefore unlawful entry, into the close of another, is a trespass.
TRESPASS TO REAL PROPERTY
Designed to protect P’s interest in the exclusive possession of land and its improvements. This intrusion takes place not only on the surface, but also with any intrusion above or below the surface of the land. Further, the strict nature of the prima facie case should not exclude any justification for entry onto the land. In trespass cases, the court stresses that “the intent controlling is the intent to complete the physical act and not the intent to cause injurious consequences.” An INTANGIBLE INTRUSION may give rise to a claim for trespass, but only if an aggrieved party is able to prove physical damage to the property caused by such intangible intrusion.
Brown v. Dellinger
There, the court said that “the acts of the minor D’s were all voluntary and purposeful and were acts which they even at their tender years had sufficient capacity to do and they must be held civilly liable for the consequences which directly flowed from their unauthorized acts of igniting the fire in question.”
TRESPASS TO CHATTEL AT COMMON LAW
In order that an actor who interferes with another’s chattel may be liable, his conduct must affect some other and more important interest of the possessor. Therefore, one who intentionally intermeddles with another’s chattel is subject to liability only if his intermeddling is harmful to the possessor’s materially valuable interest in the physical condition, quality, or value of the chattel.

EXAMPLE: A child climbs upon the back of B’s large dog and pulls its ears. No harm is done to the dog, or to any other legally protected interest of B. A is not liable to B.
TRESPASS TO CHATTELS: ELEMENTS
 D INTENTIONALLY INTERFERES WITH THE P’S POSSESSION OF THE P’S PERSONAL PROPERTY (“CHATTELS”)
AND
 1. D’S ACTION CAUSES INJURY OR HARM TO THE P’S PERSONAL PROPERTY OR
2. P IS DEPRIVED OF THE USE OF HIS OR HER PERSONAL PROPERTY FOR A SIGNIFICANT AMOUNT OF TIME.
TRESPASS TO CHATTELS: POSSIBLE DEFENSES
 CONSENT
 RECAPTURE OF PROPERTY
TRESPASS TO CHATTELS: UNIQUE OR SPECIAL FEATURES
 SENDING A COMPUTER VIRUS THAT DAMAGES THE COMPUTERS OF OTHERS MAY CONSTITUTE TRESPASS TO CHATTELS.

 SENDING COMMERCIAL SPAM EMAILS AT VERY FREQUENT INTERVALS MAY CONSTITUTE TRESPASS TO CHATTELS.

 SENDING UNCONSENTED TO EMAILS THAT NEITHER DAMAGE THE RECIPIENT’S COMPUTER SYSTEM NOR IMPAIR ITS FUNCTIONING HAS BEEN HELD NOT TO BE TRESPASS TO CHATTELS.
Intel Corp. v. Hamidi 2003
D sent over 35,000 e mails criticizing Intel’s employment practices to numerous current employees. This communication caused neither physical damage nor functional disruption to the company’s computers. The court said that Intel’s claim does not constitute an actionable trespass to personal property, i.e. computer system, because it does not interfere with the possessor’s use or possession of the personal property itself. The court then reiterated the absence of damage to the P’s computer system and said that “the theory of impairment by content threatens to stretch trespass law to cover injuries far afield from the harms to possession the tort evolved to protect.”
MINTZ ON TRESPASS TO CHATTELS.
The difference between conversion and trespass of chattels is that in conversion, the property is more valuable and the person who is taking it intends to keep it.
Mohr v. Williams 1905
After putting the P under anesthesia, D found that her ear did not need to be operated upon, while the left ear had a serious condition that needed surgery. D successfully performed the operation on the left ear. P sued for battery. The court ruled that “every person has a right to complete immunity of his person from physical interference of others, except in so far as contact may be necessary under the general doctrine of privilege; and any unauthorized or unlawful touching of the person of another, except it be in the spirit of pleasantly, constitutes an assault and battery.”
CONSENT
 MAY BE IMPLIED IN EMERGENCY SITUATIONS.
 AS TO SURGERY THE P’S CONSENT MUST BE TO THE SPECIFIC TYPE OF OPERATION (ABSENT GENERAL WRITTEN CONSENT FORM).
 CONSENT IS VITIATED WHERE THE P HAS BEEN THE VICTIM OF FRAUD OR DURESS BY THE D.
 CONSENT IS NOT AVAILABLE AS A DEFENSE IN MUTUAL COMBAT CASES IN MOST STATES. (THE 2ND RESTATEMENT TAKES A CONTRARY, MINORITY VIEW.)
 A PERSON’S CONSENT TO PHYSICAL CONTACT MAY BE INFERRED FROM CONDUCT SUCH AS NODDING OR SILENT ACQUIESCENCE.
 GENERALLY, MINORS ARE REGARDED AS LEGALLY INCAPABLE OF GIVING OR WITHHOLDING CONSENT TO MAJOR SURGERY.
» The Courts are divided as to how much deference must be given where a minor’s Parent or Guardian Refuses to Consent to a Medical Procedure. Some courts will always defer to the Parent or Guardian’s Decision. Other Courts will be willing to override a parent or guardian’s decision where doing so will, in their view, further the best interests of the Minor.
 GENERALLY, PARTICIPANTS IN SPORTING EVENTS ARE DEEMED TO HAVE CONSENTED TO ANY PHYSICAL CONTACT WHICH TYPICALLY OCCURS AT SUCH EVENTS.
» However, a defense of consent is generally not available where a participant is injured by intentional physical contact that violates a safety rule of the sport in question.
CONSENT IMPLIED IN FACT
The court has held that “If the P’s behavior was such as to indicate consent on her part, the surgeon was justified in his act, whatever her unexpressed feelings may have been. In determining whether she consented, he could be guided only by her overt acts and the manifestation of her feelings,” O’Brien v. Cunard Steamship 1891.
EMERGENCY RULE
An unauthorized operation is a technical assault and battery. But it is equally well established that whenever an emergency endangers the life or health of the P, consent is implied from the circumstances. “Medical treatment also will be lawful under the doctrine of implied consent when a medical emergency requires immediate action to preserve the health or life of the patient.”
MINORS, INCOMPETENTS, AND “SUBSTITUTED JUDGMENT"
The general rule is that the consent of the parent is necessary for an operation on a child. Substituted Judgment becomes more delicate when the treatment or operation is for the benefit of another. In Lausier v. Pescinski, the court held that it did not have the power to permit the removal of one of the incompetent’s kidneys, necessary to save the life of his brother, even though the risk of harm to the incompetent was slight.
CONSENT, NONDISCLOSURE, AND THE SEXUAL TRANSMISSION OF DISEASES
Normally, the defense of consent of physical contact can be overridden if the consent was induced by fraud or even by nondisclosure of some material fact. In McPherson v. McPherson, the court held that the D’s conduct was actionable if he intentionally misrepresented or failed to affirmatively disclose his diseased condition to his wife, in light of their 13 year marriage.
Hudson v. Craft 1949
P’s complaint clearly alleged that the D’s wholly disregarded the prize fight and boxing regulations. The court ruled that a promoter is liable where he conducts boxing matches or prize fights without a license and in violation of statutory provisions, regardless of the rights as between the contestants, and the consent of the combatants.

MINTZ: This case could have been brought under theories in strict liability or negligence per se.
PRIVATE RIGHTS OF ACTION FOR STATUTORY RAPE
Should a consenting female under the age of eighteen have a cause of action if she has full understanding of the nature of her act? It is one thing to say that society will protect itself by punishing those who consort with females under the age of consent; it is another to hold that knowing the nature of her act, such female shall be rewarded for her indiscretion. The very object of the statute will be frustrated if by a material return for her fall we should unwarily put it in the power of the female sex to become seducers in their turn.
ATHLETIC INJURIES
It is generally held that P’s consent to injury from blows administered in accordance with the rules of the game, but not when blows are deliberately illegal. In Hackbard v. Cincinnati Bengals, the court dismissed P’s action on the ground that in the absence of legislation it was inappropriate to impose upon one professional football player a duty of care for the safety of another . . . The court noted that personal injury cases arising out of an athletic event must be predicated on reckless disregard for safety and D must act “willfully, wantonly or recklessly.”
McGuire v. Almy 1937
An insane person, capable of entertaining intent and actually intending to damage another’s person or property by his act, is liable for damage done thereby, though delusion or other consequence of his affliction caused him to entertain such intent.
THE RESTATEMENT ON “ACTS”
A muscular reaction is always an act unless it is purely reflexive in which the mind and the will have no share. Although courts will hold that D can not form a rationale choice, it can find that D could make a schizophrenic or crazy choice.
SELF DEFENSE
 THE D IS GENERALLY PRIVILEGED TO USE REASONABLE FORCE IN SELF DEFENSE.

 DEADLY FORCE MAY ONLY BE USED IN SELF DEFENSE WHERE THE D IS FACED WITH A THREAT OF LOSS OF LIFE OR GREAT BODILY HARM.

 MISTAKEN SELF DEFENSE RULE: THE PRIVILEGE APPLIES WHERE THE D ACTS IN A MISTAKEN, BUT REASONABLE BELIEF THAT HE OR SHE IS THREATENED WITH HARM.

 IN MOST STATES, A PERSON THREATENED WITH HARM DOES NOT HAVE A DUTY TO RETREAT BEFORE TAKING REASONABLE SELF DEFENSIVE MEASURES.
DEFENSE OF THIRD PARTIES
1. PEOPLE MAY DEFEND OTHERS FROM INTENTIONAL HARM WHERE THEY REASONABLY BELIEVE:
a. THE INTERVENTION IS NECESSARY TO DEFEND THE OTHER PERSON, AND,
b. THE OTHER PERSON WOULD HAVE BEEN PRIVILEGED TO ACT IN SELF DEFENSE.
Courvoisier v. Raymond 1896
Appellant shooter sought review of a decision that held him liable for his assault on a police officer. The court said that although the evidence for the P tends to show that the shooting, if not malicious, was wanton and reckless, the evidence for the D nevertheless shows that the circumstances surrounding him at the time of the shooting were such as to lead a reasonable man to believe that his life was in danger, or that he was in danger of receiving great bodily harm at the hands of the P.
SELF DEFENSE AND THE INNOCENT BYSTANDER
The court usually holds that the accidental harming of an innocent bystander by force reasonably intended in self defense to repel an attack by a third party is not actionable. The Restatement concurs but notes that the D is liable to a third party “only if the actor realizes or should realize that his act creates an unreasonable risk of causing such harm.”
SAMPLE JURY INSTRUCTION
. . . if at the time the D is alleged to have assaulted and struck the P in doing what he did was acting in an effort to protect his own person or life, and the circumstances surrounding the D were such that the exercise of reasonable judgment would justify or induce in his mind an honest belief that he was in danger of receiving some great bodily harm, judging from the standpoint of the D, then the D would be justified in doing what he did, and your verdict should be for the D.
DEFENSE OF PROPERTY
 PEOPLE MAY USE REASONABLE FORCE TO DEFEND THEIR PERSONAL OR REAL PROPERTY.

 IF POSSIBLE, THE PROPERTY OWNER MUST REQUEST THAT THE OTHER PARTY LEAVE OR DESIST BEFORE USING FORCE.

 AS LITTLE FORCE AS POSSIBLE SHOULD BE USED AS THE CIRCUMSTANCES PERMIT.

 THE USE OF WOUNDING (OR DEADLY) FORCE IN DEFENSE OF ONE’S PROPERTY IS NOT PRIVILEGED CONDUCT (UNLESS IT IS IN RESPONSE TO A DANGEROUS PERSONAL ATTACK.)

 THE REMOTE USE OF DANGEROUS MECHANICAL DEVICES (IN EXAMPLE, SPRING GUNS) IN DEFENSE OF PROPERTY IS NOT PRIVILEGED, UNLESS THE PROPERTY OWNER WOULD HAVE BEEN PRIVILEGED TO USE DEADLY FORCE IF HE OR SHE WERE PRESENT.
Bird v. Holbrook 1825
D activated a spring gun to protect the garden from intruders. The court imposed liability upon the D. Distinguishing earlier authority, one of the judges emphasized that the D had not only failed to give notice that the gun was there but had tried to keep it a secret in order to wound the tulip thief. Another judge emphasized that if the spring gun were justified, it would be justified only at night when the thief might come.

MINTZ ON BIRD V. HOLBROOK
i. D may not do indirectly what he may not do directly.
ii. The privilege of an absent property owner to protect property, by using things like spring guns, is not greater than if he or she would have been present on the property at the time of the intrusion.
iii. Generally, things like spring guns on the property is not permissive and the home owner is liable. However, if an intruder is there to commit a felony or threatens deadly force, then the absent homeowner is not liable for any injury caused to the intruder.

» The court in M’ILVOY V. COCKRAN said that “where one enters the close without actual force, although his entry will be construed a force in law, there must be a request to depart before the possessor can lay hands upon him and turn him out.”
Katko v. Briney 1971
In this case, the court said that “an owner of premises is prohibited from willfully or intentionally injuring a trespasser by means of force that either takes life or inflicts great bodily harm. Therefore, a person owning a premise is prohibited from setting out spring guns and like dangerous devices. The fact that the trespasser may be acting in violation of the law does not change the rule. The only time when such conduct of setting a spring gun or a like dangerous device is justified would be when the trespasser was committing a felony of violence or a felony punishable by death, or where the trespasser was endangering human life by his act.”
RECAPTURE OF PROPERTY (CHATTELS)
 REASONABLE FORCE CAN BE EMPLOYED TO RECAPTURE WRONGFULLY TAKEN PERSONAL PROPERTY, SO LONG AS THE PROPERTY OWNER ACTS REASONABLY PROMPTLY (“FRESH PURSUIT REQUIREMENT”).

 THE PRIVILEGE TO RECAPTURE PROPERTY EXTENDS TO SITUATIONS WHERE THE OWNER’S PROPERTY HAS BEEN TAKEN BY FRAUD OR TRICK.

 THE PRIVILEGE OF RECAPTURING PROPERTY DOES NOT EXTEND TO SITUATIONS WHERE THE PROPERTY OWNER MISTAKENLY BELIEVES THAT ANOTHER HAS TAKEN HIS OR HER PROPERTY (EVEN WHEN THIS MISTAKE IS REASONABLE).
Kirby v. Foster 1891
If one takes another’s property from his possession, without right and against his will, the owner or person in charge may protect his possession, or retake the property, by the use of necessary force. But this right of defense and recapture involves two things: First, possession by the owner; and, second, a purely wrongful taking or conversion, without a claim of right. If one has entrusted his property to another, who afterwards, honestly, though erroneously, claims it as his own, the owner has no right to retake it by personal force.

» In dicta, the court said that “the law does not permit parties to take the settlement of conflicting claims into their own hands. It gives the right of defense, but not of redress. The circumstances may be exasperating; the remedy of law may seem inadequate, but still, the injured party cannot be arbiter of his own claim.”
RECAPTURE OF CHATTELS AND THE UCC
Today, many transactions are governed by the UCC, which permits a secured party to repossess collateral in the event of default without judicial proceeding “if this can be done without a judicial proceeding and “without breach of the peace.” Any privilege of recapture must be exercised promptly; the so called hot or fresh pursuit requirement, or else it will be lost.
NECESSITY
 PEOPLE ARE PRIVILEGED TO ENTER OR REMAIN ON THE LAND OF ANOTHER IF THAT IS NECESSARY TO PREVENT SERIOUS BODILY HARM TO THEIR PERSON OR PROPERTY, OR THE PERSON OR PROPERTY OF ANOTHER.

 THIS PRIVILEGE IS CONDITIONAL. PEOPLE WHO INVOKE IT, MUST COMPENSATE THE LANDOWNER FOR ANY HARM WHICH RESULTS FROM THEIR NECESSARY ACTION(S).
Ploof v. Putnam 1908
While P was sailing, a violent tempest arose and P moored the boat to D’s dock. One assaulted and in peril of his life may run through the close of another to escape from his assailant. One may sacrifice the personal property of another to save his life or the lives of his fellows.
Vincent v. Lake Erie Transportation 1910
D docked his Steamship “Reynolds” to P’s dock during a storm and P’s dock was damaged by D’s ship. The court said that “this is not a case where life or property was menaced by any object or thing belonging to the P, the destruction of which became necessary to prevent the threatened disaster. Nor is it a case where, because of the act of God, or unavoidable accident, the infliction of the injury was beyond the control of the D, but is one where the D prudently and advisedly availed itself of the P’s property for the purpose of preserving its own more valuable property, and the P’s are entitled to compensation for the injury done.”

LIMITS OF THE PRIVILEGE: LIABILITY FOR ACTUAL HARM.
The private necessity privilege is incomplete because it protects against liability for technical trespass and deprives the landowner of his usual counter privilege to rebuff the trespasser, but it does not protect the D against liability for actual harm done. In other words, an incomplete and partial privilege exists, which does not extend to the infliction of any substantial harm.
PUBLIC NECESSITY
In New York v. Lord, the court held that it was well settled that the privilege was absolute in cases of actual necessity, to prevent the spreading of a fire, or any other great public calamity. The private property of an individual may be lawfully taken and used or destroyed, for the relief, protection or safety of the many, without subjecting those, whose duty it is to protect the public interests, by or under whose direction such private property was taken or destroyed, to personal liability for the damage which the owner has thereby sustained.
ASSAULT: ELEMENTS
 THE D INTENDS TO CAUSE HARMFUL OR OFFENSIVE PHYSICAL CONTACT WITH THE P, OR TO AROUSE AN APPREHENSION OF IMMINENT PHYSICAL CONTACT IN THE P.
AND
 THE D’S ACTS CAUSE AN APPREHENSION OF IMMINENT PHYSICAL CONTACT IN THE P.

» Assault protects a person’s right to bodily integrity, or to protect his “dignity.”

» The tort is committed when the P “Perceives” the threat. Thus, the P must be aware at the time of the act.
ASSAULT: UNIQUE OR SPECIAL FEATURES
 THE TRANSFERRED INTENT DOCTRINE APPLIES TO THIS TORTS AS WELL.
ASSAULT: POSSIBLE DEFENSES
 DEFENSE OF SELF (“SELF DEFENSE”)
 DEFENSE OF PROPERTY
 RECAPTURE OF PROPERTY
I de S and Wife v. W de S 1349
D approached the house of P and his wife to buy wine. D pounded on the door and the wife, sticking her head out of the window, asked him to stop. D then threw a hatchet at the wife that missed her. The court held that D caused an “imminent apprehension of harmful or offensive touching” toward P. As such, there is no need for the P to have been actually touched and physically harmed by the D.

DIGNITARY HARM WITHOUT PHYSICAL HARM
When the trespassory tort causes no physical harm, the traditional tort rule is that the P can nevertheless recover substantial, as distinct from nominal damages. The idea is loosely linked to the idea of mental distress, but no actual proof of mental distress is required.
Tuberville v. Savage 1669
Action of assault, battery and wounding. D said “if it were not assize time, I would not take such language from you.” The court agreed that this was not an assault because “the intention as well as the act make an assault.” As such, mere words alone are not enough.
W. Blackstone, Commentaries 1790
Assault is an attempt to offer to beat another, without touching him: as if one lifts up his cane, or his fist, in a threatening manner to another, or strikes him but misses him; this is an assault, insultus, which Finch describes to be “an unlawful setting upon one’s person.”

» Whether there is an assault in a given case, depends more upon the apprehensions created in the mind of the person assaulted than upon what may be the secret intentions of the person committing the assault. However, “mere words are not enough.” Allen v. Hannaford 1926
THE RESTATEMENT DEFINITION, ASSAULT
 An actor is subject to liability to another for assault if
i. He acts intending to cause a harmful or offensive contact with the person of another or a third person, or an imminent apprehension of such contact, and
ii. The other is thereby put in imminent apprehension.
EXAMPLE: Threatening phone calls at night are not enough because of the absence of an immediate threat.
OFFENSIVE BATTERY: ELEMENTS
 THE D INTENDS TO HAVE OFFENSIVE CONTACT WITH THE P, OR D INTENDS TO CAUSE APPREHENSION OF SUCH CONTACT IN THE P,
AND
 OFFENSIVE CONTACT WITH THE P’S PERSON RESULTS FROM THE D’S ACTION.
OFFENSIVE BATTERY: UNIQUE OF SPECIAL FEATURES
 TRANSFERRED INTENT DOCTRINE APPLIES.
 PUNITIVE DAMAGES ARE A COMMON REMEDY
Alcorn v. Mitchell 1872
There was a trial for trespass. At the close of the trial, in the presence of a large number of people, D deliberately spat in the face of the P. The court said that it is customary to instruct juries that they may give vindictive damages where there are circumstances of “malice, wantonness, outrage and indignity attending the wrong complained off.” The P in this case prevailed because the court found the act to be done for the “mere purpose of insult and indignity.”

MINTZ: There is no privilege of self defense here because it is only allowed for one’s safety and not to be used in retaliation.
BASIS OF LIABILITY FOR OFFENSIVE BATTERY
The protection afforded against offensive battery covers not only cases of direct contact with the P’s person, but also contact with “anything so closely attached to the P’s person that it is customarily regarded as a part thereof and which is OFFENSIVE TO A REASONABLE SENSE OF PERSONAL DIGNITY.”
FALSE IMPRISONMENT: ELEMENTS
i. THE D INTENDS TO CONFINE THE P WITHIN FIXED BOUNDARIES, AND
ii. P IS CONFINED WITHIN FIXED BOUNDARIES AS A RESULT OF D’S ACTIONS, AND
iii. P IS AWARE OF HIS OR HER CONFINEMENT.

» Protects freedom of movement and freedom from restraints of movement (or, the right to be free from wrongful confinement.)
FALSE IMPRISONMENT: UNIQUE OR SPECIAL FEATURES
 INTENT TO CONFINE IS NOT A NECESSARY ELEMENT WHERE THE D HAS ACTED NEGLIGENTLY AND THE P HAS BEEN HARMED BY HIS OR HER CONFINEMENT.

 TRANSFERRED INTENT DOCTRINE APPLIES.

 P IS PRIVILEGED TO USE REASONABLE FORCE TO ESCAPE FROM CONFINEMENT. IN EXERCISING THIS PRIVILEGE, THE P MUST TAKE REASONABLE CARE FOR HER SAFETY.
FALSE IMPRISONMENT: POSSIBLE DEFENSES
 CONSENT
 JUSTIFICATION
 DETENTION OF SUSPECTED SHOPLIFTERS (BY STATUTE IN SOME STATES)
Bird v. Jones 1845
Part of a public highway was enclosed, and appropriated for spectators of a boat race. P was prevented from passing onwards in the direction in which he declared his wish to go. The court held that this did not amount to false imprisonment, stating “false imprisonment is something more than mere loss of freedom; it includes the notion of restraint within some limits defined by a will or power exterior to your own. The court then said that there must be something like “personal menace of force accompanying the act of obstruction.”

DISSENT: The dissent said that “as long as I am prevented from doing what I have right to do, of what importance is it that I am permitted to do something else?”

» THE RESTATEMENT suggests that wrongfully excluding the P from the United States would not amount to false imprisonment even though, in a sense, the P “may be said to be confined within the residue of the habitable world.”
Coblyn v. Kennedy’s 1971
Court held that D employee was not reasonably justified in believing that 70 year old P was engaged in shoplifting. Any genuine restraint is sufficient to constitute an imprisonment and any demonstration of physical power which, to all appearances, can be avoided only by submission, operates as effectually to constitute an imprisonment. As such, forced detention constitutes false imprisonment unless the grounds for restraint are reasonable under the circumstances. Note that the standard is objective, rather than subjective.

» Also, a parent, guardian or teacher entrusted with the care or supervision of a child may use physical force reasonably necessary to maintain discipline or promote the welfare of the child.
IIED: ELEMENTS
 D’S CONDUCT IS INTENTIONALLY OR RECKLESSLY “EXTREME AND OUTRAGEOUS”,
AND
 D’S CONDUCT INTENTIONALLY OR RECKLESSLY CAUSES THE P SEVERE EMOTIONAL DISTRESS (WITH OR WITHOUT BODILY HARM).
IIED: UNIQUE OR SPECIAL FEATURES
 TRANSFERRED INTENT DOCTRINE APPLIES UNDER LIMITED CIRCUMSTANCES.
» SPECIFICALLY, PEOPLE WHO INTENTIONALLY OR RECKLESSLY CAUSE SEVERE EMOTIONAL DISTRESS TO ANOTHER BY EXTREME AND OUTRAGEOUS CONDUCT THAT IS DIRECTED TOWARDS A THIRD PARTY ARE LIABLE FOR IIED WHERE:
a. The person distressed is present at the time of the Extreme and Outrageous conduct
AND
b. The distress results in bodily harm (1) to the person distressed (whether or not the distressed person is related to the persons at whom the Extreme and Outrageous Conduct is Directed) Or, (2) the person distressed is a member of the Immediate Family of the Person at Whom the Extreme and Outrageous Conduct is directed (whether or not the distressed person suffers bodily Harm).

 PUNITIVE DAMAGES ARE A COMMON REMEDY.

 THE EXTREME AND OUTRAGEOUS CHARACTER OF THE D’S CONDUCT MAY ARISE FROM THE D’S KNOWLEDGE THAT THE P IS PECULIARLY SUSCEPTIBLE TO EMOTIONAL DISTRESS BY REASON OF SOME PHYSICAL OR MENTAL CONDITION OR PECULIARITY.

 THE D IS USUALLY NOT HELD RESPONSIBLE FOR HARM TO A P WHO IS PECULIARLY SUSCEPTIBLE TO EMOTIONAL DISTRESS WHERE THE D COULD NOT REASONABLY HAVE KNOWN OF THE P’S UNIQUE VULNERABILITY.
» The Eggshell P Rule does not apply here.
IIED: POSSIBLE DEFENSES
 D’S CONDUCT WAS NOT “EXTREME AND OUTRAGEOUS”; AND, OR,
 P’S DISTRESS WAS NOT SUFFICIENTLY SEVERE.
Wilkinson v. Downton 1897
The effect of the falsely and jokingly made statements on the P was a violent shock to her nervous system. These consequences were not in any way the result of previous weakness. The court held that D’s acts were so plainly calculated to produce the effect on the P that an intention to produce them must be imputed on the D and he must be held liable for damages.

PROSSER § 12 Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, utterly intolerable in a civilized community. The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. There is no occasion for the law to intervene in every case where someone’s feelings are hurt. There must still be freedom to express an unflattering opinion.

MINTZ At modern law, D’s have also been held liable for IIED where there was a high probability that the D’s conduct would cause the P some distress and the D went ahead in reckless disregard of that probability.
(Professor Magruder)
“AGAINST A LARGE PART OF THE FRICTIONS AND IRRITATIONS AND CLASHING OF TEMPERAMENTS INCIDENT TO PARTICIPATION IN A COMMUNITY LIFE, A CERTAIN TOUGHENING OF THE MENTAL HIDE IS A BETTER PROTECTION THAN THE LAW COULD EVER BE.”
SEXUAL HARASSMENT
Title VII comes into play before the harassing conduct leads to a nervous breakdown. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychologically injurious. Primarily, the perspective of a reasonable women is adopted because the court believes that a sex blind reasonable person standard tends to be male biased and tends to systematically ignore the experiences of women.
RESTATEMENT 2ND § 48, SPECIAL LIABILITY OF PUBLIC UTILITY FOR INSULTS BY SERVANTS
A common carrier or other public utility is subject to liability to patrons utilizing its facilities for gross insults that reasonably offend them, inflicted by the utility’s servants while otherwise acting within the scope of their employment.

» This is a lesser standard than the Restatement § 46. The courts want to make it easier to sue for utility services.
RESTATEMENT 2ND § 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 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.
JUSTIFICATION: ELEMENTS
PEOPLE ARE PRIVILEGED TO CONFINE OTHERS WHERE;
A. THE CONFINEMENT IS TO PREVENT PERSONAL HARM OR PROPERTY DAMAGE TO THE D OR A THIRD PARTY,
B. THE CONFINEMENT IS FOR A REASONABLE TIME, AND
C. THE CONFINEMENT IS IN A REASONABLE MANNER.
MERCHANT’S PRIVILEGE TO DETAIN SUSPECTED SHOPLIFTERS
 EXISTS IN SOME STATES BY COMMON LAW, IN OTHER STATES BY STATUTE.

 MERCHANT IS USUALLY REQUIRED TO HAVE “PROBABLE CAUSE” TO BELIEVE HIS OR HER CUSTOMER IS ATTEMPTING OR COMMITTING LARCENY.
» In some states, Merchant must have “reasonable grounds” for his or her belief, that the customer is shoplifting.

 DETENTION MUST BE FOR REASONABLE TIME AND IN A REASONABLE MANNER.