Torts - Term 1

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Intentional Torts this Semester

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[Introduction]

(1) Harmful Battery

(2) Offensive Battery

(3) Assault

(4) False Imprisonment

(5) Intentional Infliction of Emotional Distress (IIED)

(6) Fraudulent Misrepresentation (Fraud)

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Act

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[Introduction]

{2} An external manifestation of the actor's will - does not include results.

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Intent

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[Introduction]

{8A} The actor desires to cause the consequences of his act or believes that the consequences are substantially certain to result.

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Harmful Battery

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[Battery]

{13} A person is liable to another for battery if he:
(i) acts intending to cause to the other or a 3rd party a harmful/offensive contact or an imminent apprehension of a harmful/offensive contact, and

(ii) a harmful contact to the other directly/indirectly results.

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Offensive Battery

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[Battery]

{18} A person is liable to another for battery if he:

(i) acts intending to cause to the other or a 3rd party a harmful/offensive contact or an imminent apprehension of a harmful/offensive contact, and

(ii) an offensive contact to the other directly/indirectly results.

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Bodily Harm

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[Battery]

{15} Any physical impairment of the condition of another's body, or physical pain, or illness.

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Offensive Contact

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[Battery]

{19} A bodily contact is offensive if it offends a reasonable sense of personal dignity.

19 Comment A: It must be one which would offend the ordinary person, and not an unduly sensitive person. It must be a contact which is unwarranted by the social usages prevalent at the time/place at which it is inflicted.

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Vosburg v. Putney (1891)

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[Battery][Intent] What Consequences Must D Intend?

Even in a case with no intent to harm, if an act is unlawful, the actor is liable for all injuries resulting from the wrongful act. "If the intended act is unlawful, the intention to commit it must necessarily be unlawful."

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Garrat v. Dailey (1955)

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[Battery][Intent] Which Mental States Constitute Intent?

It is not enough that the act itself is done intentionally, even if the actor realizes that there is a very grave risk of contact/apprehension. Liability in battery requires that the actor intend or realize to a substantial certainty that conduct/apprehension will result from the act.

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Majority Rule of Intent in Battery

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[Battery][Intent]

"The law... requires... that D both intend the contact and intended it to be harmful or offensive." White v. Muniz (2000)

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Fisher v. Carrousel Motor Hotel (1967)

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[Battery][Contact]

D can still be liable in battery to P, even if there is no physical injury. An intentional snatching of an object from a person's hands is clearly an offensive invasion of that person, just as an actual contact would be.

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Vicarious Liability for Punitive Damages

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[Introduction]

ARRM:

(1) Employer Authorized tortious act

(2) Employer was Reckless in hiring unfit employee

(3) Employer Ratified the act afterwards

(4) Employee is a Manager acting within the scope of their duties

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Leichtman v. WLW Jacor Communications, Inc. (1994)

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[Battery][Contact] "Radio Host Blows Smoke"

Contact is offensive if it is offensive to a reasonable sense of personal dignity. The court defined offensive to mean disagreeable, nauseating, or painful because of outrage to taste and sensibilities or affronting insultingness.

The court held that tobacco smoke (as "particulate matter") has the physical properties of capable of making contact.

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Assault

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[Assault]

{21(1)} A person is liable to another for assault if he:

(a) acts intending to cause to the other or a 3rd party a harmful/offensive contact or an imminent apprehension of a harmful/offensive contact, and

(b) the other is thereby put in such imminent apprehension.

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Reed v. Coker (1853)

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[Assault] "Paper-Maker Threated by Goons"

Although mere words are insufficient, they may constitute an assault when coupled with some action that indicates the ability to carry out the threat.

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Beach v. Hancock (1853)

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[Assault] "Unloaded Gun Still Scary"

To be liable for an assault, the actor must have placed P in imminent apprehension - but the apprehension must be reasonable.

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False Imprisonment

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[False Imprisonment]

{35(1)} A person is liable to another for false imprisonment if he:

(a) acts intending to confine the other or a 3rd person within boundaries fixed by the actor; and

(b) his act directly/indirectly results in such a confinement of the other; and

(c) the other is either conscious of the confinement or harmed by it.

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Whittaker v. Sanford (1912)

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[False Imprisonment] "Cult Keeps Mother on Yacht"

P can recover for false imprisonment even if they are not confined to a small space and even if they are not restrained by the use of physical force.

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Rougeau v. Firestone Tire & Rubber Co. (1973)

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[False Imprisonment] "Employee Accused of Theft"

False imprisonment is the intentional confinement of another within a specific area against their will.

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Coblyn v. Kennedy's, Inc. (1971)

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[False Imprisonment] "Rude Employee Gives Man Heart Attack"

A merchant has a defense against a claim of false imprisonment if, on reasonable grounds for believing that larceny is occurring, they act in a reasonable manner to detain the suspect for a reasonable length of time.

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Sindle v. New York City Transit Authority (1973)

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[False Imprisonment] "Last Day of School on Bus"

A party entrusted with the care and supervision of a child is justified in using a reasonably necessary amount of force to maintain discipline to promote the welfare of the child.

A person falsely imprisoned has a right to try to escape and D is liable for injuries sustained during the escape, unless the person acted negligently in their attempt. The person falsely imprisoned is not relieved of the duty of reasonable care for their own safety.

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Outrageous Conduct Causing Severe Emotional Distress (IIED)

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[IIED]

{46}

(1) A person is liable to another for emotional distress and bodily harm who, by extreme and outrageous conduct, intentionally/recklessly causes severe emotional distress to another.

(2) Where such conduct is directed at a 3rd person, the actor is subject to liability if he intentionally/recklessly causes severe emotional distress:

(a) to a member of that 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.

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Cases Where the Court is More Likely to Find IIED

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[IIED]

(1) Where P has a particular vulnerability to emotional distress (e.g., a funeral, the "fetus in a jar" cases)

(2) Where D intentionally reports the death of a close family member as a joke

(3) Where D acts in a manner just short of tortious or criminal conduct

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State Rubbish Collectors Association v. Siliznoff (1952)

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[IIED] "Trash Mob is Aggressive"

A person is liable when they, in the absence of any privilege, intentionally subject another to the mental suffering incident to serious threats of physical well-being, even if it does not constitute an assault.

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Snyder v. Phelps (2011)

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[IIED] "Westboro Baptist Church Protests Military Funeral"

The 1st Amendment is a defense to IIED if:

(1) P is a public official; or

(2) P is a public figure; or

(3) the speech is a matter of "public concern".

The 1st Amendment does not bar IIED if the matter is a non-public concern and P is a private party.

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Ford v. Revlon, Inc. (1987)

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[IIED] "Company Does Nothing to Stop Harassment"

An employer may be found independently liable for IIED against an employee. Worker's compensation law generally covers unexpected, accidental, or physical injuries, and thus IIED was not barred by worker's comp.

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Consent

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[Privileges][Consent]

{892} Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor.

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O'Brien v. Cunard Steamship Co. (1891)

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[Privileges][Consent] The Vaccinated Irish Girl Case

Consent is based on an objective standard; P's subjective consent is not the focus. Therefore, the test for consent is whether a reasonable person in D's position would believe that P had consented.

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Barton v. Bee Line, Inc. (1933)

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[Privileges][Consent]

An underage female who consents to sexual relations has no civil cause of action, if she know the nature and quality of their act.

The rationale is that the statute is attempting to protect underage girls; the public policy is to not compensate a consenting female for her willing participation in that which the law sought to originally protect her against.

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Hackbart v. Cincinnati Bengals, Inc. (1979)

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[Privileges][Consent]

When a player engages in an inherently dangerous activity/game, he does not consent to all injuries that could result from that activity/game.

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State Farm Fire & Casualty Co. v. SS & GW (1993)

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[Privileges][Consent] The Herpes Insurance Case

While GW intentioanlly had sexual relations with SS, the court found that GW did not intend to cause SS bodily harm. To establish intent, GW must have known that sex with SS would result or was substantially certain to result in herpes transmission.

The court refuses to infer intent; intent in sexual misconduct is usually only inferred in cases with minors or forcible sex [in this jurisdiction].

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Bang v. Charles T. Miller Hospital (1958)

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[Privileges][Medical Consent] The Spermatic Cord Surgery Case

Where a physician can ascertain in advance of an operation alternative situations and no immediate emergency exists, a patient should be informed of the alternative possibilities and given a chance to decide before the doctor proceeds with the operation.

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Kennedy v. Parrott (1956)

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[Privileges][Medical Consent] The Punctured Cyst/Phlebitis Case

The old principle was that a doctor must have informed consent and may not proceed past their approved procedure without informed consent or an emergency.

The new principle is that whenever a patient has voluntarily submitted to a doctor, there will be a presumption that there is consent to that doctor without evidence to the contrary.

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Emergency Action Without Consent

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[Privileges][Medical Consent]

{892D} An actor is not liable for injurious conduct, even without consent, if:

(a) an emergency makes it necessary or apparently necessary, in order to prevent harm to the other, to act before there is opportunity to obtain consent from the other or one empowered to consent for him and

(b) the actor has no reason to believe that the other would decline, if he had the opportunity to consent.

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Character and Extent of Force Permissible

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[Privileges]

{70} An actor is not privileged to use any means of self-defense which is intended/likely to cause a bodily harm in excess of that which the actor correctly/reasonably believes to be necessary for his protection.

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Force in Excess of Privilege

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[Privileges]

{71} If an actor uses a force on another which is in excess of that which is privileged, then the actor is liable for only so much of the force as is excessive.

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Courvoisier v. Raymond (1896)

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[Privileges][Self-Defense] The Wild-West Jewelry Store Case

D may claim self-defense as a defense to a civil claim, but he must be objectively reasonable in both his belief that self-defense is necessary and his use of self-defense.

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Non-Deadly Self-Defense

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[Privileges][Self-Defense]

{63} Anactor is privileged to use reasonable force, not intended/likely to causedeath/SBH, to defend himself against unprivileged harmful/offensive contact or otherbodily harm which he reasonably believes that another is about to inflictintentionally upon him.

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Deadly Self-Defense

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[Privileges][Self-Defense]

{65} Anactor is privileged to use force intended/likely to cause death/SBH when hereasonably believes that (a) the other is about to inflict upon him anintentional contact or other bodily harm and (b) he is thereby put inperil of death/SBH or ravishment, which can safely be prevented only by theimmediate use of self-defensive force.

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Defense of Third Person

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[Privileges][Defense of Others]

{76} An actor is privileged to defend a 3rd person from a harmful/offensive contact under the same conditions and by the same means as those under and by which he is privileged to defend himself if the actor correctly or reasonably believes that: (a) the circumstances are such as to the give the 3rd person a privilege of self-defense and (b) his intervention is necessary for the protection of the 3rd person.

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Mistaken 3rd Party Defense

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[Privileges][Defense of Others]

Majority Rule: Mistaken defense of another is not privileged and the defending party is liable.

Minority Rule (and the Restatement Rule): Mistaken defense of another is privileged if it is objectively reasonable.

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Katko v. Briney (1971)

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[Privileges][Defense of Property] The Spring-Shotgun Case

An actor may not use deadly force to protect merely his property, but he may use reasonable force. In this case, the building D was defending (through the use of a spring-loaded shotgun) was abandoned. If D actually lived in the building, he may have been privileged to defend his property and himself.

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Non-Deadly Defense of Possession

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[Privileges][Defense of Property]

{77} An actor is privileged to use reasonable force, not intended/likely to cause death/SBH, to prevent/terminate another's intrusion upon the actor's land/chattels if: (a) the intrusion is not privileged, and (b) the actor reasonably believes that the intrusion can be prevented/terminated only by the force used, and (c) the actor has first request the other to desist and the other has disregarded the request, or the actor reasonably believes that a request will be useless, or the actor reasonably believes that substantial harm will be done before a request can be made.

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Deadly Defense of Possession

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[Privileges][Defense of Property]

{79} An actor is privileged to intentionally inflict upon another a harmful/offensive contact or other bodily harm by a means which is intended/likely to cause death/SBH, for the purpose of preventing/terminating the other's intrusion upon the actor's possession of land/chattels, if but only if the actor reasonably believes that, unless expelled/excluded, the intrude is likely to cause death/SBH to the actor or to a 3rd party whom the actor is privileged to protect.

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Ploof v. Putnam (1908)

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[Privileges][Necessity] The Boat Family in a Storm Case

Necessity caused by an "act of God" or other disaster resulting in an inability to control movements justifies entries upon land and interferences with personal property that would otherwise have been unlawful.

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Vincent v. Lake Erie Transportation Co. (1910)

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[Privileges][Necessity] The Boat Kept Tied to the Harbor Case

While "acts of God" may necessitate reasonable action, a party who damages the property of another while acting out of private necessity still must compensate the property owner for the resulting damages.

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Private Necessity

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[Privileges][Necessity]

{197}

(1) An actor is privileged to enter/remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to the actor or his land/chattels or the other or a 3rd person (or the land/chattels of either) unless the actor knows or has reason to know that the one for whose benefit he enters is unwilling that he should take such action.

(2) Where the entry is for the benefit of the actor or a 3rd person, the actor is subject to liability for any harm done in excess of the privilege in 197(1).

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Privilege Created by Private Necessity

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[Privileges][Necessity]

{263}

(1) Anactor is privileged to commit an act which would otherwise be a trespass tochattel of another or a conversion of it, if it is or is reasonably believed tobe reasonable and necessary to protect the person or property of the actor, theother, or a 3rd person from serious harm, unless the actor knowsthat the person for whose benefit he acts is unwilling that he should do so.

(2) Where the act is for the benefit of the actor or a 3rd person, he is subject to liability for any harm caused by the exercise of the privilege.