Bar secrets

Torts Rules

I. 3 Elements of all Torts

A. Act a voluntary/volitional movement of muscles

Distinguish between Intent to act and intent to cause

B. Intent(Two Types of Intent: The intent requirement in this is Restatement is disjunctive (i.e. serves to separate/divide the definition into two parts. The intent requirement is met either by):

1. Desire/Purpose/Motivei. Wants the consq to occur

ii. Also known as specific intentOR

2. Knowledge to Substantial certainty that such contact would occuri. Knows consq’s will occur

Two elements:

1. Desire (actions before event will be telling) of (triangle) defendant to cause particular consequences

(or)

2. KTSC (Knowledge to Substantial Certainty—requires 99% certainty) that such consequences would result.

***Motive (can be used to prove desire, and therefore intent)=the REASON the actor desires or knows particular consequences will result

No contact is intentional if it is not the result of a voluntary act Voluntary movement does not necessarily equal Intent.

C. Causation Act was a substantial factor in bringing about the harm. Act must be causally connected to the harm causation can be satisfied either directly or indirectly subjective state of mind (must be conscious)

II. Blameworthy Continuum of ConductHow you characterize the conduct determines:

1. if you can ask for money2. how you determine defendant’s like mode of defense3. if defendants’ are covered by insurance (may not be able to pay if insurance doesn’t

cover intentional torts)4. defenses that can be raised

(Defenses are different for intentional vs. unintentional torts).First two are Intentional Torts, Second two are not

1. Desire

Wants consq’s to occur, Also known as specific intent

2. KTSCKnows consq’s will occur

3. Recklessness

Taking a substantial unreasonable risk

4. Negligence

recklessness unreasonableness just being careless

III. Intentional Torts

A. Personal Invasion

1. BatteryBattery Defined:

Definition #1:

Intentional act that results in harmful or offensive contact to the plaintiff’s person.

Definition #2:

The intentional harmful or offensive act of another, without consent or privilege.

Two Types of Unacceptable Contact (relevant to the act) : To distinguish between socially accepted contacts and actionable batteries, courts require defendant to intentionally cause harmful or offensive contact:

1. Harmful : “Any physical impairment of the condition of another’s body, or physical pain or illness (Restatement (Second) Sec. 15).”

Illness : ex. Dilliberately transmitting an STD Physical Alteration: any unconsented to physical alteration is in

violation of battery law If you can’t identify any harm done for an intentional tort—you can get

nominal damages2. Offensive : “offends a reasonable sense of personal dignity” (Second

Restatement) Look to current social mores and context—i.e. NY subway bump Offensive vs. Socially Acceptable

Contact Rules:

Can be direct or indirecto “to the plaintiff’s person”—anything “intimately connected” to one’s body

Any unauthorized contact Need not actually touch the plaintiff at all (indirect causation)

ActWhat kind?

Intentional Actcausing...

Contactwhat kind of contact?

Harmful or Offensive Contact

Need not be present at the time of the contact (indirect causation) Need not be aware of the contact: Ex. Kissing when asleep. Contact beyond level of Consent Rule: Sports or Medial/ Sugical

No Intent but Contact:

If contact is a result of failure to take improper precautions (NO INTENT) –may be liable for negligence—but has not committed a battery.

Distinguish between acting with:o Carelessness—but still harmful or offensive contact vs.

1. Intent requirement not met—negligence

o Acting with Purpose –to harm/offend vs.1. Intent requirement met—battery

o Acting with substantial certainty –pushing someone to get them out of the way (KTSC).1. Intent requirement met—knew to substantially certainty that person would find contact offensive—battery

Good-Faith Intentions:

o Even if the actor’s intentions are good, if they are unwelcome and harmful or offensive, the intent requirement for Battery is met.

Insane or Young Children/Intent (McGuire v. Almy):

o Defendants must be capable of entertaining thoughts of intento Defendants must ACTUALLY have entertained such thoughts of intent, in facto Must have acted on those thoughts and caused harmful or offensive contact

Distinction Between Act/Contacts and Consequences:

If you commit an intentional contact, you are liable for its consequences, even if you did not intend them. (see Ranson v. Kitner).

Harm: Distinguish between: Intent to cause Harm vs. Intent to cause Imminent Apprehension that causes Harm, Both = Battery

Battery Outline

a) Act 1. Act

Results in:2. Harmful CONTACT

or3. Offensive CONTACT

(…to the plaintiff’s person)

b) Intent1. Intent (desire or KTSC)

to cause:2. Harmful CONTACT3. Offensive CONTACT

c) Causation

1. The ACT

must be a:

2. SUBSTANTIAL FACTOR

in causing the:

3. Harmful CONTACT

or

4. Offensive CONTACT

2. AssaultAssault Defined:

Act that results in an apprehension (perceived) of an imminent harmful or offensive contact to the Plaintiff’s person.

Assault Visual Aids

#1.

Intentional Actcauses...

AprehensionClassify the Aprehension:Apprehesion of what?

Aprehension of... CONTACTClassify/Describe the contact?

IMMINENT (Contact)AND

Harmful or

Offensive (Contact)

#2.

Other Rules:

UNLIKE BATTERY MUST BE CONSCIOUS: Unlike battery, that can take place when you’re not conscious, assault cannot occur if you are

not conscious

ACT, INTENT, & CAUSATION

a) Act

Act (volitional movement of the muscles) results in apprehension of imminent harmful or offensive contact to the plaintiff’s person.

1. Act ( Voluntary movement of muscle)

Results in

2. Apprehension ***Apprehension is an Expectation that the contact (resulting from the

defendant’s act) will occur, unless some other force intervenes—this is perception or anticipation.

Assault

Rules

A. ACT a voluntary movement of muscles (results in)

2. APREHENSIO

N of

3. IMMINENT

4. HARMFULor5.

OFFENSIVE

6. contact to the plaintiff's

7. PERSON

B. INTENT2. DESIRE

OR3. KTSC

To Cause an

4. *** APPREHENSION

of

5. *** IMMINENT

6. HARMFULOR7.

OFFENSIVE

8. CONTACT

C. CAUSATION 1. ACT

2. SUBSTANTIA

L FACTOR3. causing

4. ***APPREHE

NSION

of an***5.

IMMINENT

6. HARMFULcontact

or7.

OFFENSIVEcontact

Defenses

Consent

Self Defense

Defense of Others

Defense of Property

of

3. Imminent about to happen (temporally describes the contact)

4. Harmful “Any physical impairment of the condition of another’s body, or physical pain or

illness (Restatement (Second) Sec. 15).”o Illness : ex. Deliberately transmitting an STDo Physical Alteration : any unconsented to physical alteration is in violation

of battery law No harm identified—you can get nominal damages

Or

5. Offfensive “offends a reasonable sense of personal dignity” (Second Restatement)

o Look to current social mores and context—i.e. NY subway bump6. Contact

To the plaintiff’s person

b) Intent

Intended (Desir/KTSC) to cause an apprehension of imminent harmful or offensive contact.

1. Desire or Purpose/Motive Wants the consq to occur Also known as specific intent

OR

2. Knowledge to Substantial Certainty that such contact would occur Knows consq’s will occur

(Intent above) To cause…

3. Apprehension (This is the key part of Assault—Imminent is descriptive of apprehension/helps define or classify it):

o ***Apprehension is an Expectation that the contact (resulting from the defendant’s act) will occur, unless some other force intervenes—this is perception or anticipation .

The contact is IMMINENT AND

The contact is either HARMFUL or Offensiveo Apprehension is not the same thing as fear—i.e. it is perception or anticipation.

You can apprehend a contact, but you are not afraid—water gun—perceive that an offensive contact is imminent

FEAR is not necessaryo **Common Law Position : Apprehension by “REASONABLE PERSON” Standard

***Traditional Aproach to Apprehension: Apprehension must be reasonable: Western Union Case

o Restatement position : (Also Valid for IIED?) (WHICH §???)—if the defendant acts in the face of plaintiff’s known weakness the apprehension does not need to be “reasonable…”

***Restatement Rule: Knowledge about one’s sensitivity nullifies the “reasonableness doctrine” so the outcome really depends on if we are in a Restatement Jurisdiction.

4. of an imminent: about to happen (temporally describes the contact)

5. Harmful “Any physical impairment of the condition of another’s body, or physical pain or illness

(Restatement (Second) Sec. 15).” Illness : ex. Deliberately transmitting an STD Physical Alteration: any unconsented to physical alteration is in violation of battery law No harm identified—you can get nominal damages

6. Offensive : “offends a reasonable sense of personal dignity” (Second Restatement)

Look to current social mores and context—i.e. NY subway bump Offensive vs. Socially Acceptable

7. Contact Contact is:

Imminent

AND

Harmful or Offensive

to the Plaintiff’s person.

c) CausationAct is a substantial factor causing apprehension of imminent harmful or offensive contact.

1. Act Volitional movement of muscles

2. Substantial Factor Dependent variable—with out the act, harm/offense would likely have not happened.

Causing

3. Apprehension Apprehension is an expectation that the contact will occur, unless another force intervenes. Apprehension is expectation, perception, and anticipation. (Restatement (Second) §15)

Of

4. Imminent Happening now (temporally describes the contact)

5. Harmful Any physical impairment of another’s body, including: pain, unconsented alteration, &

illness.6. Offensive

Offends a reasonable sense of a person’s dignity.o Social Norms help to define what is offensive and not.

7. Contact. Contact must be imminent And Contact must be HARMFUL or OFFENSIVE.

3. False Imprisionment

a) Act That:

1. CONFINES

OR

2. RESTRAINS (Plaintiff)3. Against Plaintiff’s Will (Within a)4. Bounded Area

Principles to keep in mind in analyzing the ACT Element:

1. Restraint must be complete; no reasonable means of escape2. Methods of Restraint:

a. Physical Barriersb. Force or threat of IMMEDIATE FORCE (Against P, P’s ppty, or third person)c. Omission where D has legal duty to act (e.g. duty to release)d. Improper assertion of legal authority

3. Act Must Be Against P’s Willa. P must be conscious of confinement (or according to RSTMNT Suffer Harm)b. Consider Evidence of P’s Consent

4. Confinement or restraint must be within a bounded area

Intentional Actthat does what?

Confines or Restrains(plaintiff)

Against Plaintiff's

Will

Within Bounded

Area

b) Intent

1. Intent (desire or KTSC) to CAUSE:2. Confinement

OR

3. Restraint

c) Causation1. ACT

(must be a):

2. SUBSTANTIAL FACTOR

(in Causing the):

3. Confinement

OR

4. Restraint

4. IIED

a) Act1. Extreme

AND

2. Outrageous 3. ACT

Resulting in

4. Severe

Actwhat kind?

Extreme and Outragious Act

Intended to, or Recklessly

Caused

And Does Cause

Severe(more than a reasonable person can

endure, physical injury not required)

Emotional Distress

5. Emotional Distress

b) Intent1. Intent (desire or KTSC)

To cause2. Severe3. Emotional Distress

c) Causation1. The ACT

must be a:

2. SUBSTANTIAL FACTOR in Causing the

3. Confinementor

4. Restraint

B. Defenses to Intentional Torts

1. Consent Beyond the consent factor: Medical or Sporting Events

o

2. Self-Defense

3. Defense of Others

4. Defense of Property

IV. Property Invasions

1. Trespass to Land : Defined:

Intentional and unauthorized act that results in an invasion of P’s possessory interest in real property.

a) Act1. Unauthorized act

that results in an

2. Invasion

of

3. p’s possessory interest

in

4. real property

b) Intent1. Intent (desire or KTSC)

to

2. Enter property

or

3. Remain on property

c) Causation1. Act

must be a

2. Substantial Factor

in bringing about

3. Invasion

ActWhat kind?

IntentionalAND...

Unauthorized actresults in

Invasionof what?

P's Possessory Interestin what?

Real Property

2. Trespass to Chattels /ConversionDefined:

Intentional and unauthorized act that results in a substantial interference with P’s possessory right in a chattel so that D should be required to pay full value.

a) Act1. Unauthorized act

that results in

2. Interference

with P’s

3. possessory right

in a

5. Chattel

b) Intent

1. Intent (Desire or KTSC)

2. Act (will)

3. Affect

3. Chattel

c) Causation1. Act

must be a

2. Substantial Factor

in bringing about

3. Dispossession

or

4. Damages

3. Defense: Necessity

V. Transferred IntentTransferred Intent:

Although intentional tort law requires a very specific type of intent, that standard may be met if the actor intends to commit battery on one person and actually inflicts it on someone else.

Restatement (Second) of Torts sec. 16 (2). Where the actor tried to batter one person and actually causes harmful or offensive contact to another, she will be liable to the actual victim.

Transferred intent also allows recovery when the actor meant to cause one intentional tort, but actually caused another.

o Ex. Tries to hit someone with axe. Even though you missed, you can still be held liable for assault; or if you try to scare someone, but you actually hit them with the axe instead, you are liable for battery.

Transferred intent only applied to the original 5 torts:

Battery

Assualt

False Imprisionment

Trespass to Land

Trespass to Chattels

******DOES NOT APPLY TO IIED OR THE PROPERTY TORT, CONVERSION

Intent can transfer from person to person

Or from tort to tort

VI. Negligence

VII. Paradigm Distinctions:

A. Assault, Apprehension, & “The Reasonableness Doctrine”(Regarding the Courtroom Theatrics Exercies):

o **Common Law Position : Apprehension by “REASONABLE PERSON” Standard ***Traditional Aproach to Apprehension: Apprehension must be reasonable:

Western Union Case

o Restatement position : (Also Valid for IIED?) (WHICH §???)—if the defendant acts in the face of plaintiff’s known weakness the apprehension does not need to be “reasonable…”

***Restatement Rule: Knowledge about one’s sensitivity nullifies the “reasonableness doctrine” so the outcome really depends on if we are in a Restatement Jurisdiction.

B. Assault, IMMINENT, & Mere Words MUST KNOW WHAT JURISTICTION YOU ARE IN—if you don’t know what jurisdiction you

are in then you must display your understanding that there are two possible outcomes IMMINENT (contact) Under Common Law:

Mere words are not enoughOr IMMENENT (contact) Under Restatement (Second):

mere words are enougho glannon on page 31—henne

C. Trespass to Land Tangible and Intangible: Distinuish between Tangible and Intangible matter:

o Tangible does not require harmo Intangible has a harm requisite

D. Key Distintions For all Torts

E. Applies to All Torts:

1. ACT/Contact distinguished from the Consequences of the ACT/Contact

a) The act must be intended and or substantially certain, but the consequences need not be Even if you did not intend to break Bill’s Nose, but you acted in an

intentional in trying to slap him lightly and ultimately caused it, you are still responsible battery.

b) Related to Transferred intent doctrine: if D held nec. intent with respect to person A, he will be held to have committed an intentional tort against anyone else that is injured

2. Re: INTENT: KTSC vs. High Likihood

a) If D knows with substantial certainty that a particular act will occur as a result of her action, she is deemed to have intended the result

b) BUT if she it is merely “highly likely,” not “Substantially Certain,” that the bad consequences will occur then the ACT is not an intentional tort—“Recklessness “by D is not enough.

F. Applies to Battery:1. Distinguish between: Intent to cause Harm vs. Intent to cause

Imminent Apprehension that causes Harm,

a) Both = Battery

b) Ex. Of Transferred intent?

2. Awareness in Bat. Vs. Awareness in Asslt.

G. Applies to Assault:

1. Re. Intent: Caused Apprehension vs. Failed Contact (Must See it)

a) Both= Assault

2. Re Act: Hostility (Real Gun=Apprehension of Harm) vs. No Hostility (Water Gun=Apprehension of Offensive Contact)

a) Both can cause assault

3. Re: “Words Alone” Rule vs. Words Plus Act/Gesture by D

a) Words alone generally do not constitute Assault

b) Special Circumstances:

(1) Surounding Circumstances

(2) D’s Past Acts

4. Re. Causation: Actual vs. Attempted Apprehension

a) Failed Prank where P knows not real=No Apprehension

5. Regarding Imminence: Present Ability vs. Not

a) D threatens to shoot P, and leaves room to get the gun=No Assault

6. Awareness of Threat vs. Not

a) P must be aware of the threatened contact, unlike battery

7. Regarding Apprehension:

a) Self vs. Third Person

(1) Apprehension of H/O Contact to Self= Assault

(2) Apprehension of H/O Contact to Other= Not Assault

8. Legal Right vs. Not

a) Is there a legal defense that would negate the Assault?

H. Applies to False Imprisonment

1. Act: An Act the Confines or Restrains Plaintiff

2. Intent Vs. Neglegence or Recklessness

a) FI Cannot be Committed by Negligent or Reckless Acts

(1) Ex. Shop Keeper that lock someone in store by accident

3. Re. “Confinement”: Held Within Vs. Prevented From Entering

a) Ex. D refuses to allow P to return to her home. This is not FI. D can go anywhere else, so she has not been confined

4. Imprisonment—Means Used: 1. Direct Physical Means Vs. 2. Threats Vs. 3. Assertion of Legal Authority

1. Threats: This id D threatens to use force if P trys to escape, the requisite CONFINEMENT exists.

2. Assertion of Legal Authority: Also, confinement may be caused by D’s assertion that he has legal authority to confine P—this is true even if D does not in fact have the legal authority, SO LONG AS P REASONABLY BELIEVES THAT D DOES.

a. Shop keeper “I’m making a citizens arrest!”

5. Confinement: Awareness or Harm

a) P must be aware of the confinementOr

b) P must suffer harm (Rstmnt)Applies to IIED

6.