Torts Outline

Purposes of tort law: (1) to provide a peaceful means for adjusting the rights of parties
who might otherwise “take the law into their own hands”; (2) to deter wrongful action;
(3) to encourage socially responsible behavior; and, (4) to restore injured parties to their
original condition, insofar as the law can do this, by compensating them for their injury.
1. Daiagi v. Florida Water Management – Riding dirt bike,
2. Holden v. Wal-Mart- Lady in parking lot, stepped in hole, needed knee
surgery. Who was accountable, who was at fault (What %)? Clear
liability?
3. Estevez- Measure of Damages- Past, Present, Future.

I. Intentional Torts
A. Assault, Battery, False Imprisonment, Intentional Infliction of Emotional
Distress (IIED), Trespass to Chattels, and Trespass to Land
B. Intent
 The actor desires to cause the consequences of his act, or believes that the
consequences are certain to result from it.
 Substantial certainty: If D knows with substantial certainty that a
particular effect will occur as a result of her action, she is deemed to have
intended that result.
1. Children- Those with diminished capacity (children and mentally
handicapped) are liable for the harm they do (battery, assault, IIED),
but are given some slack when harm is done to them (FI).
2. Transferred intent

A. Battery
 Definition: 1) intentional, (2) harmful or offensive (3) contact with the
(4) plaintiff. intentional, unconsented-to contact with another. An act
which directly or indirectly, is the legal cause of a harmful or offensive
contact.
 Elements – Intent, Offensive/Harmful unconsented to Contact, Harm
 Intent: It is not necessary that D desires to harm P. (1) D acted intending
to cause a harmful or offensive bodily contact (direct or indirect); or (2) D
intended to cause an imminent apprehension on P.
 P need not have been aware of the contact at the time.
 D need only have intended the contact. It does not matter that D intended
no harm or offense.
 If P consents to the contact, D is privileged to make it and there is no tort
 Extends to personal effects: not only by contact with plaintiff’s body, but
also contact with her clothing, an object she is holding (e.g., a cane), etc.
This applies to indirect contact, too (e.g., by ordering his dog to attack the
plaintiff).
  Scope of harm: If you put a course of harm into motion, you are
responsible for all the harms to that person regardless of foreseeability

1. VanCamp v. McAfoos – 3 yro (CHILD) rode tricycle into VanCamp’s leg, needed
surgery. Cannot impose liability w/o fault. Will not extend concept of invasion of
person alone is tort to childish acts. Will not recognize liability w/o fault for
otherwise innocent childish actions. Did not satisfy the elements, no
distinguished fault/intent. No Battery
2. Synder v. Turk- Scrub nurse, Doctor yelled at nurse, put face in surgery. Contact
which is offensive to a reasonable sense of personal dignity is offensive contact.
Yes Battery
3. Cohen v. Smith- Religious pregnant women, male nurse touched her. The
hospital accepted the plaintiff’s requests, thus forming a contract. Breached
contract, plaintiff did not consent to the touching.
4. Leichtman- antismoking advocate, smoke intentionally blown in face. Intent-
cause to offend you, personal dignity. “Particulate matter” properties of making
physical/bodily contact. Yes, battery
5. Fisher- Black person at club, employee snatches tray, racist. Intentionally
snatching the tray, offensive invasion of his person. Yes, battery.
6. Mullins- plaintiff against VanHoey, did not consent for surgery to have student
present. No indication that VanHoey knew of the contract or that she intended
to harm Mullins. No Battery
7. Garratt v. Dailey- 5 yro pulling chair out from under. Substantial Certainty Test
for intent -Did defendant know w/ certainty the outcome would be a battery.
Knowledge vs. Purpose. Yes Battery
8. White v. Muniz-- caregiver hit by elderly women w/ Alzheimer’s. Dual intent not
satisfied, No battery
i. Dual Intent- The actor must intend the contact and intend that the
contact be harmful and offensive. Appreciate the offensiveness of the
contact.
9. Stoshak- Teacher gets in the middle of fight btwn students, gets hit. Yes, Battery
i. Transferred Intent- Liable for any intentional torts, even when they are
transferred onto a third party. Doesn’t matter what intent was/wasn’t if
acting in tort and lands on another, you are liable, intended to cause a
tort.
10. Baska- Women hit by two boys fighting. Would have been transferred intent,
watch statute of limitations, not negligence.
11. Wagner- women attacked by MR in a store. Is MR person capable of state of
mind for intent? Was battery, single intent
i. Single Intent- Any contact that is unconsented to. The actor does not
need to intend contact to be harmful/offensive. All that is necessary is
deliberate contact, which satisfies objective test of what is
harmful/offensive. Draw the line at just the contact.

B. Assault
  Intentionally causing imminent apprehension of harmful or offensive
contact.
a. Intent: The defendant must either have intended to cause the apprehension
or contact. Intent to cause harm, offense or immediate apprehension of
contact w/o significant delay. done with the required intent, which arouses
in P a reasonable apprehension of an imminent battery. intending to cause a
harmful or offensive contact, or to cause an imminent apprehension of such a
contact.
b. Apprehension test:
i. Must be reasonable
ii. Apprehension is not to be confused with fear or intimidation.
iii. Apparentability will meet the apprehension requirement.
c. “Words alone” rule:
i. Words alone are not sufficient, must be an act or gesture.
ii. Must look at the context
d. Imminence:
i. It must appear to P that the harm being threatened is imminent, and
that D has the present ability to carry out the threat.
ii. Steps taken/movement towards battery
iii. w/o significant delay
e. Awareness-
i. P must be aware of the threatened contact/act.
ii. There is no assault if the plaintiff does not realize that the act has
occurred.
iii. Awareness of an imminent touching that would result in a battery
if completed.

1. Cullison- rednecks, Cullison met girl (16 yro), invites her back, family shows
up intimidated/threatened him. No actual battery. Assault- reasonable
apprehension of imminent contact, invasion of the mental place, touching of
the mind. Yes, assault
2. Koffman v. Garnett- coach slammed student to ground, demonstrate tackle.
No assault, no warning of imminent forceful tackle.

C. False Imprisonment
 An act of intentional restraint that (2) confines P to a (3) bounded area
any size for any amount of time. Without consent or lawful privilege,
against the will of the plaintiff. Intent to confine w/o privilege against
consent, in a limited area for any time. Protecting freedom of movement
a. Intent:
i. P must show that D either intended to confine him,
ii. or at least that D knew with substantial certainty that P would be
confined by D’s actions.
b. “Confinement”
i. P is held within certain limits, not that she is prevented from entering
 certain places, doesn’t matter what size
c. Bound Area
i. An area is not bounded if there is a reasonable means of escape and P
is aware of the egress point.
ii. If there is a reasonable means of escape (e.g., a known way out), there is
no false imprisonment.
d. Means used:
i. The imprisonment can be carried out by direct physical means,
ii. Also by threats or by the assertion of legal authority.
e. Awareness: P must know of confinement:
i. P must either be aware of the confinement, or must suffer some actual
harm.
f. Special Beliefs can be taken advantage of
i. Witch in a circle

2. McCann v. Wal-Mart- children though to be suspected shoplifters, held family from

leaving, had to go with them, threatened calling police. False assertion of legal
authority, direction/orders, continued presence. Yes FI.
a. Shopkeepers may have a privilege to detain persons suspected of shoplifting for
a reasonable time for the purpose of conducting an investigation.
3.

i. Intentional Infliction of Emotional Distress (IIED)

 Intentional or reckless (negligent) infliction, by extreme and outrageous
conduct, of severe emotional or mental distress, even in the absence of
physical harm.
 Restatement of Torts
a. Intent
i. D desires to cause P emotional distress,
ii. D knows with substantial certainty that P will suffer emotional
distress, or
iii. D recklessly disregards the high probability that emotional distress
will occur.
b. Transferred Intent Only When
i. D directs his conduct to a member of P’s immediate family
ii. P is present at the time; and
iii. P’s presence is known to D.
iv. Or there is bodily harm done
c. “Extreme and outrageous” conduct:
i. P must show that D’s conduct was extreme and outrageous.
ii. D’s conduct has to be intolerable, “beyond all possible bounds of
decency.”
d. Offensive language is, by itself, not sufficient for the tort, unless
i. Continuous, repetitive, not one time
ii. D is aware of super sensitivities/vulnerability of P
iii. Special relationship, link btwn parties (abuse of power)
 e. P must suffer severe emotional distress.
i. Distress was severe enough to seek medical aid.
ii. Severity- physical symptoms, “Vomit Test”
f. Reasonable Persons Test
i. What normally classifies the situations that cause ED

2. GTE Southwest Inc v. Bruce- The ongoing acts, regular pattern of harassment,
intimidation, and humiliation despite objection going beyond the bounds
of tolerable conduct, no longer tolerable. The severity + regularity of abusive
and threatening conduct brings behavior to the realm of extreme and
outrageous conduct. Markers of outrageous- repetition, abuse of power,
knowledge of vulnerability.
3. Homer- Husband sues Shrink for Wife’s actions. Plaintiffs who are not only
present at the time, but are known by the defendant to be present, so that the
mental effect can reasonably be anticipated by the defendant. The conduct
was not directed to the third person.

J. Trespass to Land
 D intentionally enters P’s land, without permission,
 D remains on P’s land without the right to be there, even if she entered rightfully,
 D puts an object on (or refuses to remove an object from) P’s land without
permission.
o No actual damage is necessary
a. Intent
i. Intended is merely to be on or enter another’s property or remain
ii. D’s good faith belief that he has a right to be there is no defense
b.Boundaries
i. extend above and below the surface
c. Particles and gases:
i. If D knowingly causes objects, including particles or gases, to enter P’s
property, most courts consider this trespass.
d.Air space
i. immediate reaches of the airspace and
ii. substantially interferes with P’s use and enjoyment of his land
e. Nuisance
i. Something that interferes with the enjoyment of the land.
ii. Requires a balancing of factors between the harms & benefits of that
which is creating the nuisance.

Jacquene – hauling mobile home across fields. Punitive damages may be awarded if
the trespass is deliberate. No actual damages the actual harm is the trespass, thus
punitive damages.
Amaral v. Cuppels- living near a golf course. A continuing trespass, the golf balls.
Cause damage, the golf balls deprive the plaintiffs the exclusive possession of their
land.

K. Trespass to Chattels
 Any intentional interference with a person’s use or possession of a chattel.
o D only has to pay damages, not the full value of the property
o Protects the right to unfettered possession of things.
o About possession (requires damage)
a. Intent
i. No wrongful motive is necessary
ii. The mere act upon the chattel
b. Loss of possession, Dispossession
i. Taking a chattel from P’s possession without his consent
ii. Recovery is allowed even if the chattel is returned unharmed.
1. “Joy Ride”
c. Damages
i. P must prove actual damages.
ii. But any dispossession is a trespass for which at least nominal damages
may be awarded.

School of Visual Arts v. Kuprewicz- pornographic emails. The defendant acted with
the intent to interfere with the property or with the knowledge that such
interference would occur.

L. Conversion of Chattels
 An intentional interference with a P’s possession/ownership/control of property
 So substantial that D should be required to pay the property’s full value.
o A trespass of such magnitude as to justify forcing D to purchase it
o Forced sale
o About usage (does not require damage)
a. Intent
i. An intent to exercise dominion or control over the chattel
ii. Good faith or honest mistake is no defense
b. Damages
i. The full value of the property converted
ii. The market value is determined at the time and place of the conversion
iii. P is never required to (but may) accept a tender of the chattel’s return in
mitigation of damages.
c. Test to Constitute Conversion over Trespass
i. Duration of D’s dominion over the property
ii. D’s intent to assert a right which is in fact inconsistent with P’s right of
control
iii. D’s good or bad faith
 iv. The extent and duration of the resulting interference with P’s right of
control
v. The harm done to the chattel
vi. The inconvenience and expense caused to P
d. Bona fide purchaser: (Innocent Purchaser)
i. A bona fide purchaser of stolen goods is still a converter, even if there
was no way for him to know they were stolen.
ii. Cannot obtain title from a thief
iii. The purchaser acts at her peril and may be sued for conversion by the
true owner.
e. When Conversion Occurs
i. D takes possession of the property from P
ii. Withholding the good, refuse to return
iii. Unauthorized transfer by D
iv. Destruction of the good by D
v. Moves the chattel

Prosser v. Keeton- selling of the stolen watch. Bona fide purchaser. Never had true title.

Defenses to Intentional Torts

Privileges
various defenses in which special circumstances justify conduct which would otherwise be
tortious.
Affirmative defenses

Consent
 Consent is a defense to almost any tort
 Willing for conduct to occur.
o It is a matter of P’s subjective state of mind.
o It is valid whether or not communicated.
o Express – words or writing was used.
o Implied – apparent consent. Evident by:
 Plaintiff’s conduct or
 Custom/usage.
a. Apparent-
i. P’s words or conduct manifesting consent are sufficient to create a
privilege to D
ii. Even if P’s actual (but undisclosed) state of mind was to the contrary.
b. Objective manifestation-
i. Conduct can manifest consent.
ii. Consent may be inferred from custom and usage, from prior dealings
between the parties, or some relationship.
Implied consent
When an emergency actually or apparently threatens death or serious bodily harm and there
is no time or opportunity to obtain consent, consent will be implied.
Exceed the boundary/scope of consent.
D’s privilege is limited to the conduct consented to or acts substantially similar.
The consent may be conditioned or limited as to time, place, duration, area, and extent.
Consent given under duress is not effective
the consent is not effective if the conduct consented to is a crime,
Lack of capacity: Consent will be invalidated if P is incapable of giving that consent,
because she is a child, intoxicated, unconscious, etc.