Sunday, November 21, 2010

Comprehensive Brief of Palsgraf, v Long Island Railroad Co:


 

CITATION: Palsgraf, v Long Island Railroad Co, 248 N. Y. 339; "162 N.E. 99 "1928"

PARTIES: Palsgraf /Plaintiff/Plaintiff at trial/Respondent / Respondent, Court of Last Resort

Long Island/Defendant/Defendant at trial/Appellant/ Appellant, Court of Last Resort

OBJECTIVE OF PARTIES: Palsgraf was seeking payment of damages she sustained when a railway scale fell on her.

     Long Island railroad was seeking to avoid paying damages to Palsgraf.

THEORIES OF THE LITIGATION: 1. TRIAL: Palsgraf sought damages from the Long Island Railroad Using the tort of negligence; a jury found for the plaintiff Palsgraf. The opinion does not state the railroad defenses at trial but it is assumed they argued they were not negligent.

2. APPEAL: The railroad appealed stating that Palsgraf "failed to establish that her injuries were caused by the negligence of the defendant and it was error for the court to deny the defendant's motion to dismiss the complaint". And respondent said "The judgment of affirmance was amply sustained by the law" the court affirmed the trial courts finding.

3. APPEAL TO COURT OF LAST RESORT: The Majority decision of the court was to overturn the lower court based on the element PROXIMATE CAUSE (the legal theory of the unintentional tort of negligence requires 4 elements all of which must be met).

HISTORY OF THE LITIGATION: 1. TRIAL COURT: Palsgraf the plaintiff brings suit against Long Island Railroad for damages from negligence.

RESULT: Judgment by the jury for Palsgraf

Prior Proceeding; 2. First Appeal: The appellant court affirms trial courts judgment for respondent Palsgraf

Present Proceeding; 3. Appeal by Long Island Rail Road at court of last resort

FACTS: "Plaintiff was standing on a platform of defendant's railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station bound for another place two men ran forward to catch it . One of the men reached the platform of the car without mishap, though the train was already moving. The other man carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act the package of small size about fifteen inches long and it was covered by a newspaper. In fact it contained fireworks. But there was nothing in the appearance to give notice of its contents. The fireworks when they fell they exploded. The shock of the explosion threw down some scales at the other end of the platform, many feet away. The scales struck the plaintiff, causing injuries for which she sues.

ISSUE: Is the act of the servant (employee of the railroad) the proximate cause of the damages to Palsgraf?

HOLDING: NO

A reasonable person would not have been able to foresee that the newspaper covered parcel would pose a threat to someone not in the vicinity of it; so the employee of the railroad was not the proximate cause of the damage to Mrs. Palsgraf. The explosion was the proximate cause. Using the same rationale the court says the only actionable wrong committed was the damage done to the dropped packages contents. One wrong does not transfer into a different type of wrong i.e. the negligence against property does not make what happens next to be any ones fault if it is not foreseeable to a uninterested reasonable person.

DISPOSITION: The appeals court judgment is reversed with costs levied against Palsgraf. Writing for the Majority was Justice Cardozo

DISSENTING OPINION: written by ANDREWS In a nut shell all people should be held accountable for their actions and pay to right the wrongs that those actions caused and if a direct line can be drawn to something that they did that ultimately caused that harm they should right the wrong or make that person whole again.

MY OPINION: This case is about limiting suits, that not everything is somebodies fault sometimes things just happen and you have to bear the loss yourself.


 
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Assignment 10 brief


 


 


 


 


 

November 22, 2010


 

Via Hand Delivery


 


 

Kellogg Community College

Paralegal Course 110 - section 01

Instructor Susan M. McCabe, J.D.

450 North Avenue

Battle Creek, Michigan 49017-3397


 

Re: Assignment #10: Brief of Palsgraf v Long Island Railroad


 

    Dear Ms. McCabe:


 

    As requested by the Course Materials Packet for PARA 110 Section 01, please find enclosed a copy of assignment #10. That is due on today's date Monday November 22, 2010 at the beginning of class


 

Please review the assignment at your convenience and return it to me at a future class session.


 

If any additional information is required I would be pleased if you would contact me at 269-580-8889 or by email at k0018598@kellogg.edu.


 


 

Sincerely


 


 

----------------------------------------------

Paralegal Student ID # 7676

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Monday, November 15, 2010

Midterm not quite finished

Question #1: Interviewing is one of the fundamental skills that paralegals and legal assistants must master. Assume that you have been asked by an attorney at your law firm to train a new paralegal to be a proficient interviewer. In a comprehensive and detailed memorandum to your new colleague, provide the following information:
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Saturday, October 30, 2010

  1. Clients Name:


 

  1. Current Address:


 


 

  1. How Long:


 


 

  1. Phone number:


 


 

  1. Do we need to use discretion when we call you?


 


 

  1. Should we use a special way to contact you?


 

  1. Email address:


 

  1. SS#


 


 

  1. Do you have a job? Title : How long ?
  2. What do you do i.e. duties?


 

  1. Employer:


 

  1. Address and Phone number


 


 

  1. Your Annual salary:
  2. Name of Spouse: SS#
  3. Their job? Title : How long ?
  4. What do they do i.e. duties?


 

  1. Spouses Employer and address:


 


 

  1. Address and Phone number


 


 

  1. Annual salary:


 

  1. Does your spouse have a lawyer


 

  1. How long married
  2. Any children with spouse
  3. Names and ages:


 


 

  1. Have you been married before


 

  1. Names and dates of previous marriages and divorces


 


 


 

  1. Have you left your spouse already?


 

  1. If so when and where did you last live together and who has the children?


 


 

  1. Any violence to you or your children?


 


 


 


 

  1. Assets:
  2. Home


 

  1. Car(s)


 

  1. Bank Accounts


 

  1. Stocks and bonds 401k etc.


 

  1. Insurance
  2. Life
  3. Health
  4. Liabilities


 


 


 


 


 

  1. Unpaid taxes?


 

  1. Why are you seeking divorce?


 


 


 


 


 


 


 


 


 


 


 


 

  1. What do you want to happen i.e. keep home , child custody, pet custody


 


 


 


 


 


 


 

  1. Any Questions I should have asked?


 


 


 


 


 


 


 


 


 

  1. Any Questions for me?


 


 


 


 


 
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Monday, October 25, 2010

By Dan Branum, Fall of 2006

danbranum@mail.utexas.edu

www.danbranum.com

www.seekingtruthnow.com God Bless!

Best viewed in Word w/"Document View"

§ refer to ALI's Restatements on Torts 2d

QR = "Quick Review Book" by WestGroup


 

IT'S A LONG WAY TO THE TOP IF YOU WANNA ROCK & ROLL – AC/DC


 

TABLE OF CONTENTS


 

By Dan Branum, Fall of 2006    1

TABLE OF CONTENTS    1

Intentional Torts against the Person    2

I.     "INTENT" DEFINED    2

II.    DAMAGES FOR INTENTIONAL TORT    3

III.    BATTERY (§13 & §18)    3

IV.    ASSAULT (§21)    4

V.     FALSE IMPRISONMENT (§35)    6

VI.    IFLICTION OF MENTAL DISTRESS (§46)    8

Defenses to Intentional Torts to Persons    11

I.     Intro    11

II.    Consent (§49 & §892)    11

III.    Self-Defense    13

IV.    Defense of Others    15

V.     Defense of Property    15

VI.    Recapture of Chattels – Retrieval of Personal Prop in Hot Pursuit:    16

VII.    Arrest    16

VIII.    Justification    17

Intentional Interference with Property    18

I.     Trespass to Land    18

II.    Trespass to Chattels    21

III.    Conversion    22

Torts to Economic Interests (p135 QR)    24

I.     FRAUD    24

Other Torts    26

I.     Defamation (p111 QR)    26

II.    Nuisance (p133 QR): Person has duty in use of his land to avoid unreasonable interference w/use of other's land use.    26


 

 

Intentional Torts against the Person


 

  1. "INTENT" DEFINED
    1. "Intent" means diff things for diff intentional torts.
      1. In Intentional Interference w/prop all required is dft intended to do act
      2. For intentional torts against person, there's no liability unless dft was purposeful or knowing as to consequences of act.
        1. Ex: X goes to gun shop, Y picks up gun to show, but X thinks he's pointing. This isn't an intentional tort.
    2. Insane & Immature Persons May Have Intent
      1. Children are capable of forming intent required
      2. Insane persons liable for their intentional torts
    3. Intend Need Not Be Hostile (§16.1)
      1. Not required that dft have intent to harm ptf; Just required that dft meant to do action & knew result of actions.
      2. If Don throws axe at Tim thinking he's Hitler, he has intent
    4. Substantial certainty: If dft knows w/substantial certainty that a particular effect will occur as a result of action, she had intent.
      1. High Likelihood of result is not enough. That would qualify for recklessness instead.
    5. Tiers of intent:
      1. Mere Negligence, Gross Negligence, Recklessness, then actual intent.
      2. Recklessness is treated as intentional.
        1. Ex: shooting at class w/eyes shut is recklessness & is interpreted as intentional
    6. Act distinguished from consequences: Act must be intentional but not consequences
      1. Ex: If I tap Tom's chin w/intent to annoy & I kill, I'm liable
      2. Person can have tortuous intent w/out ill will towards victim.
        1. Ex: A purposely dumps water on B from window; doesn't matter that A was only emptying bucket.
    7. Must be voluntary – ex: if one faints or is pushed, that doesn't count.
      1. Still voluntary act may not be "intentional" in torts.
      2. Ex: if A purposely steps off bus causing A to bump into B walking by; while A meant to step off bus, he did not intend to bump.
        1. "A" may be liable for negligence but not battery.
      3. For Int Tort, dft must not only intend to act, but act for purpose of harm or offense or know likelihood of it.
    8. Transferred Intent Between Victims (§16.2)
      1. If dft had nec intent w/respect to person X, he will have committed an intentional tort against any other person who happens to be injured.
    9. Transferred Intent between Torts
      1. Dft liable in tort if his intentional conduct causes an injury of a diff type than originally contemplated. Most common w/assault & battery
        1. Ex: X shoots to scare, but hits Y; changes from assault to battery.
        2. Crts wont go too far: If you intend something minor & harm was very so great you might get let off the hook – maybe.
    10. "Privilege"
      1. Dft can argue that his conduct was just result of incidental bumping in elevator, etc. Also in past smoking was more of a privilege.
      2. There are many socially acceptable intentional contacts which are not battery such as tapping someone on shoulder, etc.
      3. We must use societal norms to determine what touchings are privileged
  2. DAMAGES FOR INTENTIONAL TORT
    1. Most important reason to distinguish between negligence cases & intentional torts is in differences in recoverable damages.
    2. Types of Damages
      1. Compensatory / Actual Damages – actual cost of damages
      2. Nominal Damages – when no actual physical injury suffered, ptf can get minor damages to compensate for offending
      3. Mental Disturbance – compensation for pain, suffering, embarrassment, or other mental effects, in conjunction w/or in absence of physical harm.
      4. Punitive Damages – If dft's conduct was particularly outrageous or malicious ptf can recover damages above & beyond the other types of damages to penalize dft & deter similar wrongdoers
  3. BATTERY (§13 & §18)
    1. Battery is an intentional harmful or offensive contact w/ptf's person, or something closely attached to him.
    2. Tort of battery requires: (a) An affirmative act by dft (b) w/intent to touch another (c) resulting in an unwanted touching (i.e., a harmful or offensive contact). The tort of battery protect a person's bodily integrity
    3. ACT: To be liable for battery, dft must do some volitional act which causes an offensive or harmful touching of ptf. (§14)
      1. Personal Touching Not Required: Not nec that dft personally touch ptf as long as dft sets touching instrumentality into motion.
        1. Ex: Dot is liable for throwing rock or causing Dog to hurt Pip
        2. Qualifies if you use poll to hurt someone or set wire to trip
        3. If X plays dominoes down elevator, guy on bottom can sue X who pushed top person. Don't need to go to transferred intent; instead its just b/c guy created force, like bullet from gun.
      2. Traditionally, light/sound wouldn't qualify for battery; today these prob do, but people gen don't succeed b/c playing music may be privileged activity
    4. INTENT: To be liable, dft must have done act w/intent to inflict the unwanted touching (i.e., intent w/regard to consequences). Ultimate test is whether dft desired to make contact or intended to do an act which she knew was substantially certain to result in contact.
      1. Not nec that dft desires to physically harm. Dft has the nec intent for battery if dft either intended:
        1. To cause a harmful or offensive bodily contact, or
        2. Assault: To cause imminent apprehension of harmful/offensive bodily contact
      2. When intent for battery is lacking or cannot be proved, dft may still be liable under tort of negligence, but in neg damages must be shown
    5. INJURY: Harmful or Offensive Touching/Contact: Battery isn't complete unless there's actual contact w/person of ptf or w/something closely & physically associated w/her.
      1. Contact requirement extends to lots of situations:
        1. Physical invasion of sphere of personality
          1. Touching of something closely associated w/ptf constitutes physical invasion of person. Ex: Knocking hat off pft
        2. Awareness of Touching not required
          1. Ex: Kissing a sleeping person is a battery
      2. Harmful or Offensive Contact: Qualifies if
        1. Contact is harmful: causes pain or bodily damage (§15); or
        2. Contact is offensive: if damaging to a "reasonable sense of dignity." (§19)
      3. Is touching offensive?: Normally an Objective Standard
        1. Whether touching is offensive, is gen determined by whether an ordinary person, not unduly sensitive as to her dignity, would be offended by contact. However if dft is aware that a certain type of touching is peculiarly offensive to a particular person, she may be liable for battery even if such touching wouldn't offend ordinary person.
      4. Eggshell Rule
        1. In cases of physical injury, tortious wrongdoer "takes ptf as she finds him."
      5. Unforeseen Consequences: Once battery is proven, dft is liable for any consequences which ensue even unintended or unforeseeable ones.
      6. Proof of Damages Not Required
        1. Ptf can get damages as jury sees, even w/out specific proof of loss.
        2. Ptf can get punitive damage when dft has particular state of mind


 

  1. ASSAULT (§21)
    1. Assault is intentional causing of an apprehension of harmful or offensive contact.
    2. Assault committed when dft's (a) affirmative intentional act (b) places ptf in apprehension (c) of an immediate (d) harmful or offensive touching.
    3. OR Elements: (a) Act which; (b)Causes; (c) reasonable apprehension of immediate orimmenant harmful contact; & (d) done w/intent of causing harmful or offensive
    4. (Assault was first tort to recognize interference w/mental tranquility as a legally cognizable harm.)
    5. ACT: Assault requires affirmative intentional act by dft.
    6. INTENT: Intent of dft must relate to consequences of dft's act. It must be the subjective intent of dft to induce apprehension of a harmful or offensive touching in mind of ptf or dft must know it's substantially certain that ptf will suffer apprehension.
      1. Intent to Batter Sufficient: An assault will be found if dft had requisite intent to commit battery regardless of any intent w/regard to any apprehension of such a contact due to transferred intent.
      2. Assault & Battery often but not always come together
      3. No hostility: It's not nec that dft bear malice or intend harm (§34)
        1. Ex: If dft plays joke on ptf by pointing toy pistol, hoping ptf will falsely think he's about to be shot he can be guilty of assault.
    7. INJURY: Apprehension of Imminent Touching: dft's act must create reasonable apprehension of harmful or offensive touching in mind of ptf (§24).
      1. Obviously, ptf must be aware of threatened harm, since w/out awareness he could not be under apprehension (§22).
      2. Reasonableness of Apprehension
        1. Dft's act must be sufficient to cause apprehension in mind of reasonable person of ordinary sensibilities (Unless dft knows of this particular ptf's special susceptibilities). It is not nec that ptf' be in fear, however, only that he reasonably apprehend that dft will commit an immediate battery.
      3. Imminence Requirement (§29)
        1. It must appear to ptf that threatened harm is imminent & that dft has present ability to carry out threat.
        2. Ptf must be aware of threatened contact
        3. Raises slippery-slope prob. Ex: If X swung axe 1ft away, 2, 3, etc?
        4. Restatement say ptf doesn't have to be in striking distance, just no significant delay.
        5. Threat to 3rd persons: Ptf must have apprehension that he will be subjected to bodily contact. He may not recover for her apprehension that someone else will be touched.
      4. Source of Danger: "To make actor liable for an assault the actor need not have put the other in apprehension that the actor will himself inflict a bodily contact upon him. (§25)"
      5. Special Probs of Threats
        1. "Mere Words" rule: Ordinarily, words alone are not sufficient, to give rise to an assault. Norm, there must be some overt/physical act or gesture by dft before ptf can claim assault (§31).
        2. Restatements allow that surrounding circumstances can make mere words alone create apprehension. Restatements 21, 27, 29
          1. Words can be important when:
            1. Words negate a threat. "If you weren't from Kansas I'd kill you."
            2. Words that give choice. "Give me your car or I'll kill you."
        3. Dft's intent or ability to carry out threat irrelevant: Normally held that dft's actual intent or ability to touch ptf is irrelevant for civil liability for assault. All that's required is that dft intends that ptf be apprehensive of contact & ptf reasonably believes. Ex: Pointing unloaded gun at ptf
      6. Conditional Threats (§30)
        1. Whether a conditional threat may constitute an assault depends on if it would reasonably cause ptf to be apprehensive of touching.
        2. Also depends on whether dft had legal right to compel ptf to perform act in Q; Ex: I can threaten a burglar
        3. Conditional Threats don't count as Assault if they are of this nature: "If you were not an old man I'd beat you up!"
        4. However they are assaults when threat gives alternatives like "get off this street or I'll kill you." Otherwise bullies could rule.
      7. Proof of Damage Not Required: Unnecessary to ptf's prima facie case to prove damages. Damage are assumed to result from any intentional invasion of one's person. Jury may award substantial amounts for actual pain & suffering as well as for any other harm that follows from the tort under the extended consequences rule. Also, punitive damages may be appropriate in many cases of intentional torts.
    8. Criminal Assault - Differences
      1. Historically crim assault has been defined as: attempt to commit battery.
      2. In Criminal Assault, victim doesn't have to be in fear at all like in tort.
      3. But A throwing Javelin at B just to scare doesn't count as criminal assault b/c A didn't intent to hurt B, though it counts as Tort Assault
      4. However, a majority of states make either act - attempted battery or placing in fear of a battery – a crim offense.
    9. Mike Tyson can sue kid for assaulting him. Thus, person must have reasonable apprehension of coming harm but he doesn't have to have reasonable courage.
      1. Lady w/feather-fear can sue person who feathers her.


 

  1. FALSE IMPRISONMENT (§35)
    1. False imprisonment is the unlawful detention of a person in such a way as to deprive that person of her liberty.
    2. FsImp occurs when (a) an act or omission by dft (b) w/intent to confine someone (c) resulting in actual confinement of ptf & (d) either awareness of confinement or injury resulting there from.
      1. (FsImp protects a person's freedom of movement)
    3. ACT or OMISSION: FsImp requires some act or omission by dft which has effect of detaining ptf or confining him to particular area. Dft need not personally confine ptf as long as he instigated & caused the restraint of liberty (§37).
      1. Physical Barriers (§38): FsImp norm comes from making physical barriers; actual or apparent physical barriers
      2. Physical Force (§39): "overpowering physical force,"
      3. Threats: FsImp can also be accomplished by intentional use of threats for purpose of confining & restraining ptf. As w/assault, however, threat must be of imminent injury & it must be sufficient to overbear the will of the ordinary, reasonable person (unless dft knew of this particular ptf's unusual sensibilities).
        1. Kinds of Threats: Traditionally, only threats of physical violence (§40) to pft or ptf's family (§40A) would be sufficient intimidation, but recently cases have held that threats directed at ptf's valuable prop may also give rise to FsImp if ptf in fact stays due to threat.
        2. Assertion of legal authority: Confinement may be caused by dft's assertion that he has legal authority to confine ptf – this is true even if dft does not in fact have the authority, so long as ptf reasonably believes that dft does, or is in doubt whether dft does (§41).
          1. Ex: Crossing guard claims citizen's arrest & claims authority to keep jaywalker until cops arrive. If reasonably believed, then counts
      4. Omission: Duty to Release: When dft has special duty to relase someone validly confined, failure to do so is fsimp. Ex: Jailer failing to release criminal who is due to be released (§45).
    4. INTENT: Dft's acts must be purposeful or knowing w/regard to consequences of confinement of a person. Thus, dft's intent to confine need not be directed toward the specific ptf or any particular individual or group.
      1. FsImp can't be committed merely by negligent or reckless acts.
        1. Ex: If a rocketier negligent & unknowingly locks retarded guy in rocket, this is not false imprisonment.
      2. Hostility or desire to offend is not required (§44)
    5. RESULT: Actual Confinement: Its not nec that ptf be confined by 4 walls or to a very small area – even confinement to particular city has been held to be FsImp. All that's required is that there be substantial interference w/ptf's freedom to leave (§36.1).
      1. Idea of confinement is that ptf is held w/in certain limits, not that she is prevented from entering places.
        1. Ex: Locking Homeless man out of library is not confinement.
      2. Blocking way or Locking Out Distinguished: It's not false imprisonment merely to block a person's way so long as reasonable alternatives are available (§36.3)
      3. Time Period Irrelevant: Length of confinement is not material element of false imprisonment; even detention of few seconds is actionable, but damages will be small.
      4. Reasonable Means of Escape: In spite of intent of dft, ptf has no action for FsImp if she could have escaped by reasonable means of which she knew.
        1. Dangerous or Embarrassing Escape: Any method that's unnecessarily dangerous or unduly embarrassing is not a "reasonable" means of escape. Ex: If X steals Y's clothes while in shower, X has confined Y if its embarrassing for Y to run through house naked in front of guests.
      5. Leaving Prop: Since reasonable person doesn't leave valuable prop behind, an offered release conditioned on leaving prop behind does not preclude liability for FsImp.
    6. AWARENESS or ACTUAL HARM: Traditionally, there's no action for FsImp unless ptf knew that she was confined at time.
      1. If victim is unconscious of confinement that doesn't count (§42)
      2. According to Restatements, however, such knowledge is not required when ptf suffers some actual injury due to confinement.
    7. SELF-DEFENCE AGAINST CONFINEMENT: "Actor is privileged to use any means of self-defense to protect himself against confinement which he is privileged to use to protect imself against a harmful or offensive contact or other bodily harm (§69)."
    8. DEFENSES: In addition to other defenses to intentional torts to person, here are those that typically arise in FsImp context:
      1. Arrests by Police Officers: A police officer acting upon a warrant which is valid on its face may physically restrain person & isn't committing FsImp even if warrant is ultimately determined invalid. Moreover, officer has no duty to inquire beyond face of warrant.
        1. Arrests w/out Warrants: Officer may arrest w/out warrant if he reasonably believes that a felony has been committed & he believes that person arrested is perp. An officer may arrest a person for a misdemeanor if she ahs probably cause to believe (more likely than not) that the arrested person committed the crime in her presence. IF there is probable cause, the officer is not liable for FsImp even if person did not commit crime in fact.
      2. Citizen's Arrest: Private person may lawfully arrest another for a felony if felony has, in fact, been committed & he reasonably believes that person arrested committed the felony. It is not nec that the felony has been committed in the private person's presence, however.
        1. Misdemeanor Arrest: A private person may arrest another for misdemeanor only if it was committed in her presence & constituted or threatened a breach of the peace. Dft acts at her peril both as to whether misdemeanor has occurred & whether person arrested is guilty. Any mistake, however reasonable, defeats this privilege.
      3. Shopkeeper's Immunity: Most states, by statute or case law, grant immunity to shopkeeper if merchant or her agent had probable cause for believing that ptf was shoplifting. Note, however, that shopkeeper's actions must not extend beyond that which would be reasonably permissible under circumstances as to both length of detention & force applied.
        1. Consent: There's no false imprisonment where ptf consents. Ex: If store asks Y to stay & Y says it would be her pleasure, then it prob wont be FsImp regardless


 

  1. IFLICTION OF MENTAL DISTRESS (§46)
    1. AKA Intentional Infliction of Emotional/Mental Distress
    2. Despite absence of physical injury, ptf may recover for emotional injuries caused intentionally by dft. This relatively new tort action requires: (a) an extreme & outrageous act by dft with (b) the intent to cause serious emotional distress or recklessness w/regard to such injuries (c) resulting in severe emotional distress (d) by actual & proximate causation.
      1. Started as way for rich to sue railroad or employees for cursing around fancy women. Cursing today wouldn't be considered shocking, but maybe racial slurs, etc would be if caused harm.
    3. ACT - Extreme & Outrageous Conduct: Conduct must be extreme & outrageous. It isn't sufficient that conduct would not be done by a reasonable person or that the conduct is unprivileged. The threshold is a high one; many crts require that the conduct go beyond all notions of common decency.
      1. Mere Words May Be Sufficient: to support a cause of action for intentional infliction of emotional distress. However, mere insults are insufficient. Look for dft abusing a position of authority & using particularly offensive language (e.g., racist epithets).
      2. Special Standards (§48): Those who owe special duties to public like common carriers, innkeeper & public utilities, will be held to diff standard of conduct than other person or businesses. Ptf must of course be dealing w/dft in a bus capacity as opposed to merely being lawfully on the dft's premises. Ex: if conductor for Railroad uses abusive language causing Paula emotional distress, Paula may recover only if she was a paying customer but not if she just walking through station. Paula does not have to show that conduct was "extreme & outrageous"; proof that dft's conduct was reasonably calculated to cause emotional distress is enough.
      3. Special Susceptibilities of Ptf: As w/other intentional torts relating to psychological injury (non-injurious battery, assault, & false imprisonment), the dft is not responsible for special susceptibilities of the ptf unless she had actual knowledge of them. Absent such knowledge, act must be so outrageous as to cause injury to an ordinary, reasonable person.
    4. INTENT: Mental state for this tort differs from other intentional torts. In addition to the usual "intent," whereby the dft must be purposeful or knowing w/regard to severe emotional distress, it is sufficient if dft is reckless w/regard to likelihood of causing such distress. Since liability is imposed only for conduct exceeding all tolerable bounds, a finding of recklessness is often easy to make once it is concluded that the dft's conduct was in fact extreme & outrageous.
      1. Recklessness: is found if dft consciously disregards significant risk of harm. It suggests more culpability than negligence – there must be a consciousness on the part of dft. But, standard requires less than "intent" b/c dft doesn't have to be aware of a substantial certainty. Mental state for intentional infliction of emotional distress is satisfied if dft consciously disregards a significant risk that her conduct will cause the ptf severe emotional distress.
      2. Intent Need Not Be Malicious: Although spite or ill will is commonly found in cases of intentional infliction of emotional distress, such a morally reprehensible motive is not required so long as act is extreme or outrageous. Thus, a tasteless practical joker may be liable for this tort even if she acted in fun.
        1. Ex: If A commits suicide in B's kitchen, A's estate is liable
      3. No Transferred Intent: Unlike other intentional torts, neither of 2 forms of transferred intent will apply
        1. Transferred intent is applied only very limitedly for emot distress torts. If dft attempts to cause emot distress to X (or to commit some other tort on him), & ptf Y suffers emot distress, ptf usually will not recover.
        2. Immediate family present: Main exception is when: (1) Dft directs his conduct to a member of ptf Y's immediate family, (2) Ptf Y is present, & (3) Ptf Y's presence is known to dft.
    5. INJURY – Severe Emotional Distress: Despite dft's intent, an action for intentional infliction of emotional distress cannot succeed unless ptf actually suffers severe mental or emotional distress. While it is impossible to quantify how serious distress must be, crts look to intensity & the duration of distress. It's clear that ptf's mere annoyance is not enough> In any case, there I sno requirement that any physical injury be shown. However, if ptf sought medical attention for distress that helps of course.


 

Defenses to Intentional Torts to Persons

  1. Intro
    1. Dft may either defend against a tort by either negating one or more of the elements of the tort or taking the position that even if the elements of the tort are shown, he is not liable anyway b/c of additional facts that allow her to avoid liability. Such facts are often referred to as affirmative defenses.
    2. Some affirmative defenses don't have to do w/incident itself.
      1. Ex: Dft claims that statute of limitations has ran; dft claims ptf signed a liability release agreement;
    3. Other affirmative defenses relate directly to events that gave rise to claim.
  2. Consent (§49 & §892)
    1. Consent is a defense to all intentional torts. B/c most consent issues arise in battery context, focus here is on consent to battery.
      1. Ex: If dft proves ptf consented to harmful touching, ptf can't recover
    2. Common sense dictates scope of consent.
      1. You can consent to touching w/out words, like glance leading to kiss
      2. Consent to kiss doesn't automatically consent to sex, etc.
    3. Consent must be judged by overt acts, not internal unseen feelings
    4. EXPRESS/ACTUAL CONSENT: words or conducts which are intended by ptf to express willingness to submit to touching & which are understood as consent by person accused of invading interest.
    5. APPARENT CONSENT: Ptf may be deemed to have consented to battery w/out expressly saying so. Any words or conduct which would lead a reasonable person to believe that there was consent to touching & which are understood by dft as permission can amount to apparent consent (§50 & §892).
      1. Issue is not what ptf subjectively intended, but whether dft reasonably believed there was consent.
      2. It's the object manifestation by ptf that counts.
        1. Ex: D offers to vaccinate all passengers on ship. Pt holds up her arm & receives. She reasonably appeared to have consented.
        2. Ex: If X participates in game where harsh contact is inevitable, X consents to injuries caused by such contact, but, X does not consent to extraordinary harmful conduct that's far outside realm of "acceptable" rule violations.
    6. IMPLIED CONSENT: Typically will arise from conduct of dft.
      1. Contact as part of living in a society: A technical battery will be excused if touching was committed as part of inherent contact arising from living in populous world.
        1. Ex: jostling received in crowd or tap on shoulder to get attention
      2. Emergency Aid: As matter of public policy, there's no battery when person renders emergency aid to unconscious victim. Of course, negligent care in such circumstances may be actionable subject to special rules relating to emergencies & "Good Samaritan Statutes."
    7. Informed Consent: Validity of consent may depend on the info available to consenting person at time of consent. Under certain circumstances, a lack of informed consent may negate the defense, b/c valid consent may require that consenting party understand that to which she is consenting (§53).
      1. Ex: Pete boasts he can take any punch & consents to the unknown Tom punching him. Tom is karate expert & punches to kill Pete. Pete did not consent to be so injured.
      2. Ex: consent to sex but don't know person has aids.
    8. Scope of Consent: Permission to accept 1 sort of contact for a certain purpose is not equivalent of consenting to all types of touching. Any contact beyond scope of consent is not privileged (§53).
      1. Ex: Pete consents to Tom showing a karate chop after seeing Tom pull punches w/others, but then Tom strikes full force killing Pete. Tom can't rightly use defense of consent.
    9. Medical Situations: Informed consent issues often arise in medicine. Now they're normally dealt w/in law of negligence as part of medical malpractice, originally importance of informed consent was a defense to tort of battery.
      1. Failure to Warn of Inherent Risks: Under doctrine of informed consent, doc may be liable if he performs operation subject to conset which is given under circumstances where patient is not fully aware of risks involved.
        1. Ex: Patient consents to eye operation w/30% chance of blindness that's not nec to save life, doc traditionally was liable for results in battery if he didn't inform patient of risk. Under battery theory, lack of disclosure invalidates consent. Again, more recently, failure to disclose such risks is treated as form of medical malpractice.
      2. Need for Additional or Separate Treatment: When surgeon w/authority to perform an operation discovers compelling need for additional or separate surgical treatment, difficulty arises as to scope of consent granted by patient. While this is gen handled by having patient sign general waiver form allowing surgeon to use her best professional judgment in such an event, in absence of express consent, the following rules apply:
        1. Immediate Need: Surgeon may go beyond bounds of express authority if she reasonably believes that added treatment could not be postponed w/out causing serious additional risks & she knows that a reasonable person would consent to operation if she knew of the condition.
        2. Related to Original Cure or Life Saving: Surgeon must be seeking either to save patient's life or to accomplish the cure originally desired when ptf consented to operation.
        3. Patient's wishes Paramount: If doc knew that even under all conditions that patient would not consent to performance of additional procedures, there will be a battery even if a reasonable person would have consented.
        4. Here doctor might seek a substituted consent from a family member, but it is unclear if this is valid.
        5. Limited privilege extends to surgeon w/in the area of the initial incision, unless extension involves the destruction of a bodily function, such as loss of limb.
        6. Consent as a matter of law: if ptf is incapable of truly giving consent, consent will be implied "as a matter of law" if these factors exist: (1) ptf is unable to give consent; (2) immediate action is necessary to save ptf's life or health; (3) there is no indication that ptf would not consent if able; & (4) a reasonable person would consent in the circumstances.
      3. Gross Deviations from Initial Consent: Even today, a physician's gross deviation from patient's consent gives rise to a battery action as where ptf consents to an appendectomy & doc amputates foot.
    10. Consent to Invasion Constituting Crime: Gen, one may consent to battery even though dft's conduct violates criminal law (§60).
      1. If X asks Y to jab w/knife to keep him on diet. If Y jabs X when X is about to eat cookie, Y may be guilty of crime but can't be liable b/c of consent
      2. Mutual Combat: Maj of crts, for largely historical reasons, permit participants in street fight to recover from each other on ground that each one's conduct is an illegal breach of peace. Here the loser collects difference between his damage & winner's damage.
        1. However a large minority bar both from recovery on grounds of consent & pari delicto (in equal part).
    11. Consent Vitiated: Even "actual" consent will fail as defense if ptf was incapable of giving consent or the consent is invalidated by fraud or duress.
      1. Incapacity (§59): Young child, mentally incompetent, unconscious or drunk person has no effective consent for purposes of tort law. Thus, doctor who performs operation based on incompetent person's consent would be liable for battery. The consent of a properly appointed guardian is required.
      2. Duress (§58) or Fraud (§55-57): Consent given under threats or pressures constituting duress will not provide a defense to a civil action. Similarly, consent obtained on basis of fraudulent misrepresentation may not be used as a defense .
      3. Insufficient Threats: Threats of future violence or some future economic deprivation do not constitute legal duress. Thus, an insurance company's threat to cut off disability benefits unless the insured submits to certain reasonable surgical treatments would not vitiate the insured's consent to the operation on the theory of duress.
  3. Self-Defense
    1. As in criminal law, person is privileged to use force in self-defense if the other person acts so as to lead her to know, or reasonably believe, that the other intends to inflict harm to him (§63.1).
      1. One who acts in self-defense incurs no liability regardless of harms.
    2. Privilege generally: A person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact & any confinement or imprisonment.
    3. Apparent Necessity: Self-defense may be used not only where there is a real threat of harm, but also where dft reasonably believes that there is one.
    4. Only For Protection: The defense of self-defense applies only where dft uses force needed to protect him against harm.
      1. Retaliation: Thus dft may not use any degree of force in retaliation for a tort already committed.
      2. Imminence: Dft may not use force to avoid non-imminent harm, unless it reasonably appears there won't be a later chance to prevent danger.
      3. Self-defense is authorized solely to prevent a further intrusion that cannot be avoided by waiting for legal redress. There is no right to attack just b/c someone deserves it or to "take law into your own hands"
    5. Aggressor Limitation: Dft is not entitled to raise defense of self-defense if she was the initial aggressor (i.e., the one who first used or threatened unprivileged force) & the person she attacked has used reasonable force in responding to the attack.
    6. Reasonable Belief that Force is Nec: To successfully assert a claim of self-defense, the dft must reasonably believe that use of force is nec to prevent ptf from inflicting an offensive contact or bodily harm upon her.
      1. Threat Must Reasonably Be Believed To Persist: Force isn't privileged after aggressor is disarmed or helpless, or after danger has clearly passed
    7. Degree of force: Only the degree of force which reasonably appears to be nec to prevent threatened harm may be used (§70.1)
      1. If dft uses more force than nec, he will be liable for damages caused by the excess only (§71.a)
      2. Reasonableness: Jury must decide what is reasonable under circumstances; must analyze what options person had available to defend; In gen you can't cause more harm than you were threatened w/but this gets fuzzy
      3. If X threatens to slap Y, Y isn't privileged to shoot X in self-defense even if that's Y's only option. If slap can't be stopped w/out shooting, then Y must accept & sue for battery.
      4. Deadly Force (§65) – force calculated to cause death or which raises the substantial likelihood of causing death or great bodily harm
        1. To use, danger must be serious: dft may not use deadly force unless he himself is in danger of death or serious bodily harm.
        2. Duty to Retreat?
          1. In maj of jurisdictions, party acting in self-defense need not retreat, even when contemplating using deadly force.
          2. In a substantial minority of Am jurisdictions impose duty upon a person attacked to retreat prior to the use of deadly force. This rule does not apply, however, unless dft knew that she could retreat in full safety, or if dft is in her own home.
    8. Self-Defense Against Negligent Conduct (§64):
      1. Actor is privileged to use reasonable, non-deadly force to defend himself when he reasonably believes to be threatened by negligent conduct of another (§64.1)
      2. However, actor is not privileged to defend if there is a reasonable means of escape (§64.2).
      3. One is privileged to use deadly force to defend himself against negligent conduct of another if he reasonably believes that the other's conduct will cause him death or serious bodily harm which can be prevented only by use of such force (§66).
    9. If actor has consented to a bodily contact, he's not privileged to defend himself unless consent was obtained by fraud or has been w/drawn (§69).


 

  1. Defense of Others
    1. Virtually all jurisdictions allow use of reasonable force to protect the victim of an attack. Crts differ, however, as to what the consequences are if dft erroneously uses force.
    2. The same rules apply as in self-defense: defender may only use reasonable force & may not use deadly force to repel a non-deadly attack (§76).
    3. Mistake as to Justification: Major prob in this area arises when the person defended had no right to use the type of force utilized by his "defender."
      1. Traditional View: the person asserting the privilege of defense of another, "stands in the shoes" of the person he sought to defend. If that person was not privileged to use force, then neither is the interloper. Thus, a defender of another bears the burden of his own mistake.
      2. Minority View: Growing # of states supported by Restatements have abandoned traditional view & allow dft to successfully defend a suit so long as dft reasonably believed that the person defended had the right of self-defense even if this belief was erroneous.
  2. Defense of Property
    1. Gen rule: A person may generally use reasonable force to defend prop, both land & chattels (§77).
      1. Prior Demand/Warning required first (§77.c & §92): Before using force to protect prop or to eject trespasser, there must be a verbal request to cease and/or depart unless it appears that harm will occur immediately, or that the request to stop will be futile.
    2. Mistake: The effect of a reasonable mistake by dft varies:
      1. Mistake as to danger: If dft's mistake is about whether force is nec, dft is protected by a reasonable mistake.
        1. Dft uses non-deadly force to stop a burglar whom he reasonably believes to be armed. In fact, burglar is not armed. Dft can rely on defense of prop.
      2. Privilege: But if owner's mistake is about whether intruder has a right to be there, the owner's use of force will not be privileged.
        1. Ex: Dft reasonably believes ptf is a burglar, but ptf is a friend. Even non-deadly force by dft will not be privileged.
    3. Deadly force: The owner may use deadly force only where: (1) non-deadly force will not suffice; & (2) the owner reasonably believes that w/out deadly force, death or serious bodily harm will occur (§79).
      1. If dft sees ptf trespassing in backyard & asks ptf to leave, but ptf doesn't, he can't just shoot him down dead (§94).
      2. Burglary: But a homeowner is gen allowed to use deadly force against a burglar, provided that she reasonably believes that nothing short of this force will safely keep the burglar out.
    4. Mechanical Devices: An owner may use mechanical devices to protect prop only if she would be privileged to use a similar degree of force if she were present & acting himself (§84 & §85).
      1. Reasonable Mistake: Owner's right to use a dangerous mechanical device in particular case will be measured by whether deadly force could have been used against that particular intruder. A spring gun is allowed against an actual burglar, but not against a postal worker.
    5. Actor is liable for so much of force or confinement is excessive (§82 & 95).


 

  1. Recapture of Chattels – Retrieval of Personal Prop in Hot Pursuit:
    1. A prop owner has right to use non-deadly force to repossess prop which was, at that moment, taken from him by another. While he will be given reasonably latitude if in "hot pursuit" to pursue the taker of his prop, there is a strong preference that owner use peaceful, lawful means (i.e., the legal process) to regain poss (§100).
      1. Fresh/Hot Pursuit: The privilege exists only if prop owner is in "fresh pursuit" to recover his prop. That is, owner must act w/out unreasonable delay (§103)
        1. Ex: Jim shouldn't wait a week to reclaim stereo w/force
      2. Reasonable Force: The force used must be reasonable, & deadly force can never be used.
      3. Wrongful taking: The privilege exists only if prop was taken wrongfully form owner. If owner parts willingly w/poss & an event then occurs which gives him the right ot repossess, he en will not be able to use force to regain it.
        1. Ex: Blockbuster can't punch me to get back a DVD.
      4. Necessity of Demand: "Use of force against another for the purpose of reception is not privileged unless actor first requests the other to give up poss of the chattel, except where the actor correctly or reasonably believes a request to be useless, dangerous to himself or third person, or likely to defeat the effective exercise of the privilege (§104)."
      5. Excessive Force: Actor is liable only for amount of excessive force (§107)
      6. Actor can also use reasonable force to retain prop once he has recaptured it (§109).
      7. You can assist a third party in recapture of his prop if he has right (§110)
    2. Merchant: Where a merchant reasonably believes that a person is stealing his prop, many crts give merchant the privilege to temp detain person to investigate
      1. Limited Time: Detention must be limited to a short time, gen 10-15 min.
  2. Arrest
    1. Arrest w/Warrant: Where a police officer executes an arrest w/an arrest warrant that appears to be correctly issued, he will not be liable even if it turns out that there was no probable cause or the procedures used to get the warrant were not proper (§122-126).
    2. Arrest w/out Warrant:
      1. Felony or breach of peace in presence: A police officer may make a warrantless arrest for a felony or for a breach of the peace, if the offense is being committed or seems about to be committed in his presence. A citizen may do the same.
      2. Past Felony: Once a felony has been committed, an officer may still make a warrantless arrest, provided that he reasonably believes that the felony has been committed & also reasonably believes that he has the right criminal. A citizen may make an arrest only if a felony has in fact been committed (though a citizen is protected if she makes a reasonable mistake & arrest the wrong person.
    3. Reasonable Force: One making an arrest may not use more force than is reasonably nec (§132).
      1. Prevention: Where the arrest is made to prevent a felony which threatens human life or safety, even deadly force may be used, if there is no other way to prevent the crime. But where the felony does not involve such danger, deadly force may not be used.
      2. Apprehension after crime: If a crime has already been committed, the police may use deadly force only if the suspect poses a significant threat of death or serious physical injury to others.
  3. Justification
    1. Gen: Even if dft's conduct does not fit w/in one of the narrower defenses, she may be entitled to the general defense of "justification," a catch-all term used where there are good reasons for exculpating dft from what would otherwise be an intentional tort.
    2. "A parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his child as he reasonably believes to be necessary for its proper control, training or education (§147.1)."
    3. Teachers, etc get same privilege (§147.2 & 152-155)


 


 

Intentional Interference with Property

  1. Trespass to Land
    1. A trespass to land consists of (a) an affirmative, intentional act by the dft which (b) invades the ptf's possessory interest (c) in land.
    2. ACT: To be liable, dft must perform some volitional act which brings physical invasion of ptf's possessory rights in land.
      1. Dft need not personally trespass: Not required that dft actually enter land himself as long as he causes any person or instrumentality to invade the exclusive possessory right of ptf. Thus, trespass may occur if:
        1. Dft builds a fence on ptf's land;
        2. Dft shoots gun across ptf's land;
        3. Dft's tree overhangs ptf's land;
        4. Dft floods ptf's land;
        5. Dft chases 3rd persons on ptf's land; or if
        6. Dft deposits some object on pt'fs land, like throwing ball onto land
      2. 3 categories (§158):    
      3. As §158 states "One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or third person to do so."


 

  1. POSSESSORY INTEREST: ptf must have a possessory interest in land at time of the invasion since tort is premised on an interference w/ptf's possessory interest in the land. Ownership is not the relevant focus. Fee owner may have no cause of action for trespass if land is leased to another & she may in fact be guilty of trespass herself if she enters prop w/out tenant consent
  2. Definition of "land:" Common law notion that ptf's prop extended upward to infinity & downward to center of earth ahs been discards by modern case. Instead, a common sense test is applied on a case-by-case basis.
    1. It can be a trespass for plane to fly over ptf's prop, but today most crts find liability only if: (1) plane enters into the immediate reaches of the airspace (below federally-prescribed min flight altitudes) & (2) flight substantially interferes w/ptf's use and enjoyment of his land (w/noise, pollution, vibrations, etc) (§159)
    2. Question of what is reasonable use of land below surface is a Q of fact. A utility company commits no trespass for installing pipes 50 ft below ptf's residential prop, though same act would be trespass if alnd was being used for mining.
  3. INTENT W/REGARD TO ACT: Unlike intentional torts to person, dft need not be purposeful, knowing, or even negligent w/regard to consequences of her acts. All that's required is the act which causes the trespass be done intentionally. Dft is liable if ptf proves dft desired to enter land or knew entry was substantially certain.
    1. Mistake No Defense: B/c dft needs only the intent to enter land, not any wrongful intent, dft's mistake as to ownership, consent or even as to where dft is, is no defense (§164).
      1. If X tells Y to take short cut across his prop, & Y takes shortcut across Z's prop on accident, Z can recover for trespass.
    2. Reckless or Negligent entry is not enough for trespass (§165).
      1. Ex: It's not trespassing for Tim to crash land plane on Bill's land b/c he didn't intentionally do it
      2. Negligence: If dft negligently enters ptf's land, this is gen treated as the tort of negligence, not trespass.
    3. Accidental Entry onto Land: Except where actor is engaged in abnormally dangerous activity, he is not liable for trespass when he accidently intruded onto land (§166).
  4. INJURY – Invasion of Interest: Nominal damages are presumed upon a showing of the intentional act resulting in an entry on ptf's land. In addition, once trespass is proven, dft is strictly liable for all damages caused to ptf's land or chattels regardless of foreseeability. Punitive damages may be awarded where dft is particularly culpable, as where the ptf has repeatedly ordered the dft off the ptf's prop.
    1. Ex: X trespasses on Y's land. Due to Y's negligence in maintaining driveway, it cracks under weight of X's car & pinches leg of one of Y's cows. X is liable for damage to Y's driveway & cow (§162).
  5. Particles & Gasses: If dft knowingly causes object, including particles or gases, to enter ptf's prop, most crts consider this trespass.
    1. Ex: Factory spewing pollutants onto ptf's land
    2. Martin v. Reynolds, 1959
      held that "      Yes, if airborne compounds from an industrial plant that caused sufficient damages to a farm they should be considered trespass."
  6. Nuisance Compared: Trespass must be accomplished by something w/a particulate nature. Where invasion is brought about by something wholly intangible like noise, consider Nuisance.


 


 

  1. DEFENSES
    1. CONSENT: If dft has consent from rightful possessor to enter realty, he has a complete defense to a charge of trespass even against 1 who may be in actual poss of realty at time of entry. However, only a person w/right of present poss may consent (§167).
      1. Scope of consent goes only so far as given (§168).
    2. PRIVILEGE TO RECLAIM PROP: If dft's prop has somehow entered ptf's land (as when dft's sheep break through fence), dft may enter ptf's land to reclaim prop (§198).
      1. Prior Request: Dft normally must make a reasonable request of the land possessor for return of the prop or permission to enter before entering land. However, if facts demonstrate that such a request for return would have been futile, no such request is required.
      2. Normally, a Limited Privilege: Normally, the privilege to enter another's land in order to reclaim prop is a limited privilege; although dft will not be liable in trespass, he normally will be liable for any actual damages causes by his entry (like damages to crops) (§198.2).
      3. Complete Privilege If Ptf Acted Wrongfully: If dft's prop is on the ptf's land through the ptf's wrongful act, the dft will be privileged to enter to recapture his prop & he will not be liable for any harm done as long as he does not unreasonably exercise the privilege (§199).
    3. ENTRY UNDER NECESSITY: Under this defense, dft has privilege to harm prop interests of ptf where this is nec in order to prevent great harm to 3rd persons or to dft himself.
      1. Public Necessity: If interference w/land or chattels of another is nec to prevent a disaster to community or to many people, the privilege is that of "public necessity." Here no comp has to be paid by person doing the damage (§196).
        1. Similarly, if a public highway becomes impassable due to some calamity, motorists are privileged to make a reasonable entry onto land to bypass area of obstruction.
        2. Ex: Firefighters destroy house to stop fire from spreading will prob not have to pay b/c they were protecting a public nec.
        3. Ex: Fleeing bad guy retreat to Ma's house. Swat team comes in w/grenades hurting house but catching bad guy.
        4. States divided over requirement of comp here.
          1. Arg for comp is that its public good, all must pay to prevent one from having to pay. Also it makes things efficient b/c they'll only attack when cost efficient & cops will try to minimize harm to house.
        5. Doesn't have to actually be a necessity, but needs to reasonably appear that it is.
      2. Private Necessity: If a person prevents injury to himself or his prop, or to the person or prop of a 3rd person, this is protected by the privilege of "private nec," if there is no less-damaging way of preventing harm (§197).
        1. As w/privilege to reclaim prop which is on ptf's land through no fault of ptf, dft's privilege to enter/interfere w/land under a private nec is a limited privilege which only excuses liability for trespass itself. Dft will still be liable for all actual damages caused by entry.
        2. Actual Damage: Where the privilege of private nec exists, it will be a complete defense to a tort claim where ptf has suffered no actual substantial harm, but if actual damage did occur, ptf must pay for the damage (§197.2).
        3. Ex: Jim's boat caught in storm & must moor to Tim's dock wont be guilty of trespass.
        4. Owner may not resist: The main purpose of this doctrine of private nec is to prevent the person whose prop might be injured from defeating the exercise of privilege.
        5. Ploof vs. Putnam – ptf moors ship to dft's dock, dft unmoors ship & ptf is injured.
        6. Doesn't have to actually be a necessity, but needs to reasonably appear that it is.
        7. Good Q: Man runs to door for private necessity, but woman is scarred to let him in. Can she reject his trespass?
    4. ENTRY TO ABATE NUISANCE:
      1. Public Nuisance: Under certain circumstances, public officials may enter private prop to abate a public nuisance (§202).
        1. Abatement of Public Nuisance by Private Person (§203)
      2. Private Nuisance: If a nuisance on ptf's land causes damages only to land of a specific landowner, that person may be privileged to enter ptf's land to abate nuisance only if: (a) he has made a demand & has been refused; (b) he has a possessory right in the damaged land; (c) she has used reasonable means prior to entering ptf's land in order to avoid the injuries caused by the nuisance; & (d) he has used no force causing personal injury or constituting a breach of peace. Of course, persons should gen seek relief from judicial system rather than engaging in self-help remedies (§201).
    5. ENTRY TO ARREST FOR CRIMINAL OFFENSE:
      1. "Privilege to make an arrest for a criminal offense carries w/it the privilege to enter land in the possession of another for the purpose of making such an arrest…(§204)"


 

  1. Trespass to Chattels
    1. "Trespass to chattels" is defined as any intentional interference w/ a person's use or possession of a chattel (§217).
      1. Unlike Conversion, Dft must only pay damages, not full value of the prop
    2. Trespass to chattels requires: (a) an affirmative, intentional act by dft which (b) interferes w/ptf's possessory interest (c) in movable personal prop (d) resulting in injury.
    3. ACT: In order to be liable, dft must have acted intentionally.
    4. POSSESSORY INTERST: Act must interfere w/ptf's possessory rights (the right to presently use & enjoy the chattel). As a condition precedent to an action, ptf must show that his interest in chattel immediately before the act complained of was one of actual poss or the right to immediate poss.
    5. FORMS OF INTERFERENCE:
      1. Dispossession: The act may consist of taking poss of the chattel from the ptf, including the dft's assertion of a proprietary interest in the chattel as against the rights of the true owner (§221). If dispossession seriously interferes w/the right of other ot control chattel, the actor may also be subject to liability for conversion (§222).
      2. Intermeddling: Trespass may also be accomplished by intermeddling, which is the mere interference w/prop rights in the chattel w/out any intent to assert ownership over it (ex: joyriding).
    6. INTENT W/REGARD TO ACT: As in trespass to land, dft must intend to do act which results in interference w/ptf's right of poss in the chattel, but she need not intend wrongfully to interfere w/the poss (i.e., she is liable even if she is acting under a mistake or a claim of right).
    7. INJURY: Unlike trespass to land (& assault, battery & false imprisonment), ptf's exclusive right to control the chattel must cause some actual injury or no recovery is allowed whatsoever (§218 & 219).
    8. MEASURE OF DAMAGES: Ptf is always entitled to recovery for any injury to chattel itself. Additionally, dft is liable for ptf's loss of poss/use of chattel even if for a very short amount of time.
    9. DEFENSES
      1. CONSENT is the most common defense here, but all defenses to intentional torts to persons might be applicable in appropriate circumstances.


 

  1. Conversion
    1. Conversion is an intentional interference w/ptf's poss or ownership of prop that is so substantial that dft should be required to pay the prop's full value (§222A.1).
      1. Ex: D steal's P's car & seriously wrecks car, D liable for car
    2. Conversion consists of (a) an act or omission by dft (b) w/intent to assert dominion & control over a chattel (c) which in fact belongs to ptf (d) resulting in substantial injury to the chattel or significant dispossession to ptf.
    3. ACT: To be liable, dft must do an act (or refrain from acting) which amounts to a claim of ownership in ptf's chattel (i.e., dft must assert dominion & control over chattel which is inconsistent w/rights of true owner).
    4. FORMS OF CONVERSION (§223): Conversion can be committed in several ways:
      1. Acquiring poss: Dft takes poss of prop from ptf
      2. Acquiring poss from third party (§229)
      3. Transfer to 3rd Person: Dft can also commit conversion by transferring a chattel to 1 who is not entitled to it.
        1. Messenger can commit by delivery goods to wrong person (§234 & 235).
      4. Storing converted item w/knowledge of conversion (§230)
      5. Refusal to surrender chattel on demand when ptf has right to poss at time of demand; if for substantial period of time
        1. Ex: Parking garage wont give ptf her car for a day
      6. Destruction of chattel (§226)
      7. Fundamental Alteration of chattel
      8. Unauthorized use of chattel (§227), or exceeding authorized use (§228)
      9. Conversion when you pay w/forged endorsement (§241A)
    5. INTENT W/REGARD TO ACT: To be liable, dft's assertion & control over chattel must be intentional (negligence alone wont work), but intent doesn't need to be hostile. Thus, a mistake, however reasonable, is no defense (§244);
      1. Even an innocent purchaser of stolen prop is still a converter!
    6. SEVERAL PERSONS MAY BE LIABLE: While ptf can only recover once, she may sue several TF's regarding same prop.
    7. INJURY – Substantial Interference Required: To be liable, dft's interference w/possessory rights of ptf must be substantial. There is no conversion action for insubstantial violations of prop interests.
    8. OWNERSHIP INTERST: Unlike trespass, ptf w/conversion claim may recover if she has a present or future right (§243) of lawful poss. Of course, a converter will not have to pay for the same injury 2x, but she may not raise the superior rights of someone else as defense against a lawful possessor. Procedurally, the converter may protect herself by proper joinder of all possible ptfs.
    9. REMEDY – Forced Purchase: When dft has converted ptf's prop, she may be required to pay full fair value of prop at time it was converted. In essence, the converter is required to "purchase" the personal prop.
      1. Ptf may also have right to repossess the prop (as opposed to the value of it) by an action in Replevin, detinue, or claim & delivery, she is not required to accept the return of the item even if dft is willing to return it in an undamaged condition.
    10. Conversion is diff than trespass to chattels: To distinguish, crts consider several factors in determining whether dft's interference w/ptf's possessory rights is severe enough to be conversion, or just trespass to chattels. Factors include: (1)duration of dft's dominion over prop; (2) Dft's good or bad faith; (3) the harm done to prop; & (4) the inconvenience caused to ptf (§222A.2).
    11. Trover – seeks damages for the conversion; forced sale rationale.
    12. Replevin – seeks specific recovery of the personal prop itself & maybe damages
    13. DEFENSES
      1. IN addition to defenses to intentional torts to persons, if dft has appropriated or destroyed ptf's prop under necessity (whether public or private), she is not a converter, although she may still be liable for trespass to chattels (& thus liable for actual damages, but not full value of chattel)
  2. LIABILTY OF ANIMAL OWNERS: §504-518
    1. §504 – Strict liability for escaped livestock
    2. §506 – Defining domestic & wild animals
    3. §507 – strictly liable for wild animal
    4. §509 – strictly liable for abnormally dangerous domestic animal
    5. §510 – contributing actions of third persons & forces of nature don't change liability of animals
    6. §511 – not liable to trespassers
    7. §513 – liable to licensees & invites
    8. §515 – ptf's conduct not a defense but assumption of risk is
    9. §518 – liability of domestic animals that are not abnormally dangerous


 


 


 

Torts to Economic Interests
(p135 QR)

  1. FRAUD
    1. Also known as deceit or misrepresentation
    2. Vitally important practical trot at intersection of tort & contract law
    3. Elements:

      (a) There must be a misrepresentation by dft of past or present material fact;

      (b) Dft must be acting either w/knowledge of falsity or w/reckless disregard as to the falsity of the representation (called "scienter");

      (c) The dft must have the specific intent to induce reliance on part of ptf;

      (d) The ptf must, in fact, have relied upon the misrepresentation;

      (e) The ptf's reliance must have been justifiable under the circumstances; &

      (f) Ptf must have been damaged by his reliance on the misrepresentation.

    4. ACT: Not every misrepresentation of fact is actionable.
      1. Materiality: The misrep must be of a material fact – a fact which a reasonable person would have considered in making the relevant decision.
      2. Past or present fact: Dft must misrepresent a past or present fact
      3. Promise w/no intent to perform: Deceit may be predicted upon a promise to act in future only if promise is accompanied by a present intention not to perform. The dft's misrep of his state of mind is sufficient to warrant an action in fraud. But, if dft plans on performing when he makes promise, he is not liable for deceit if he subsequently changes his mind (although he may be liable for conversion or some other tort).
      4. Problem of Omissions: As gen rule, a failure to disclose pertient & material fact is not sufficient to show fraud. Exceptions:
        1. Duty to Disclose: When dft is under an affirmative duty to make disclosure as when he's specifically asked about matter or there is a special relationship between parties, his failure to disclose will be actionable in deceit.
        2. Active Concealment: If dft actively conceals material fact, his concealment is an affirmative misrep & not a non-disclosure.
        3. Opinions: Expression of opinion, gen recommendation, or "seller's talk" may not be held to be a statement of fact. However these factors are analyzed as issue of whether reliance was reasonable
    5. INTENT – SCIENTER: Deceit is committed only if dft knows of the falsity of his rep or acts in reckless disregard for truth of rep & when he has specific intent to have ptf act upon the facts as he represents them (For negligent misrep, p40 QR)
    6. RESULT – REASONABLE RELIANCE: Ptf must have reasonably relied on misrep
      1. Fact vs. Opinion: To determine whether ptf's reliance was reasonable, crts distinguish between misrep of fact & opinions. Norm, reps made in opinion form may not be basis for reasonable reliance. An exception is if dft has superior knowledge, skill, or expertise in area which would induce a reasonable person to rely on dft's opinion.
    7. INJURY: to support claim for deceit, ptf must prove that reliance caused actual injury; nominal damages will not be awarded. Whether ptf recovers out-of-pocket loss or loss of his bargain depends on jurisdiction & equities of case.
    8. DEFENSES: There are no special defenses for deceit. Ordinary defense is an attempt ot negate elements. Attempts to waive liability by contractual provision are generally deemed void & have no effect.
  2. DISPARAGEMENT (OR INURIOUS FALSEHOOD)
  3. INTERFERENCE W/CONTRACTUAL RELATIONS
  4. INTEREFERNCE W/PROSPECTIVE ECONOMIC ADVANTAGE

 


 

Other Torts

  1. Defamation (p111 QR)
    1. Following is from class, see QR for more
    2. Elements: (a) False statement of fact, (b) Defamatory content, (c) Communicated, & (d) Causation of reputational damage
    3. Gen calling a woman unchaste is defamatory but calling a man unchaste is not.
    4. You can say whatever you want if its true.
    5. You can say whatever you want to someone if its just you & him in room.
    6. Someone has to hear what you said for it to be defamation, talking in woods doesn't count.
    7. The intent is the intent of making statement, but reckless disregard may count too. Ex: Yelling in forest or leaving note on open desk would leave you liable.
    8. Public Figure
      1. It has to be false & have really reckless intent about falsity.
      2. Students could say bad things about prof to other students as long as student doesn't know that it's completely not true & has malice.
      3. Celebrities generally don't sue b/c to prove something is not true requires discovery & skeletons can come out of closet.
    9. Standards change. Calling someone gay used to not be bad when it meant happy, but then it became bad, but then okay again for some groups. Depends on group & if that's defamatory.
    10. DEFENSES
  2. Nuisance (p133 QR): Person has duty in use of his land to avoid unreasonable interference w/use of other's land use.
    1. Private Nuisance – is an act or condition on dft's land that substantially and unreasonably interferes w/ptf's use and enjoyment of ptf's land
      1. (§821D) "A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land."
      2. Invasion is usually an intangible invasion like smells, light, sounds, vibrations, dust, & pollution of air & water rather than a physical invasion which is subject of trespass claim.
      3. §821E says who can recover for private nuisance
    2. Public Nuisance is a condition caused by dft which damages the public in gen. Public nuisance affects community at large by affecting use of public prop or offending public sense of values.
      1. (§821B)"(1)A public nuisance is an unreasonable interference with a right common to the general public. (2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following: (a) Whether the conduct involves a significant interference with the public safety, the public peace, the public comfort or the public convenience, or (b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or (c) whether the conduct is of a continuing nature or has products a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right."
      2. Norm action based on public nuisance is brought by state, but may by individual when ptf suffered special damages above the ordinary damage caused to gen public. Some recent cases allow anyone to bring in relation to pollution.
      3. §821C describes who can recover for a public nuisance
    3. Nuisance vs. Trespass
      1. It's easier for ptf to prove trespass than nuisance.
        1. If borderline case between nuisance or trespass, like w/dust, ptf prefers it to be trespass and dft prefers it to be nuisance.
      2. Sometimes its easier to seek zoning ordinance than to prove nuisance
      3. Crt doesn't do same analysis w/trespass. Trespass is a strict liability tort.
      4. One reason why we don't allow trespass w/out explicit permission is that at some if co wants to use land enough they'll pay for it.
        1. This is same reason Cross wants Nuisance to be strict liability!
    4. History – 3 approaches
      1. Traditionally, dft not allowed to interfer w/ptf's use & enjoyment at all.
      2. W/Industrial Rev in early 1800s, crts accommodated progress by taking a:
        1. Balancing of the Utilities Approach – each landowner must tolerate some inconveniences for benefit of technological advances, & only if harm of ptf outweighs social utility of dft's activities will an injunction be issued. Ptf is not entitled to damages if not a private nuisance.
      3. Crts still use approach, but allow monetary damages when ptf seems entitled to some relief but injunction seems inappropriate.
        1. Recent decisions have used diff approaches, but lean towards last.
      4. FACTORS TO CONSIDER:         (from class)

      (1) Use is inappropriate for area

      (2) Noncompliance w/regulation or industry standards, e.g., decibel limits on music, machinery, etc.

      (3) First in time, i.e., ptf was there first (didn't come to harm)

      (4) Harm or injury to ptf


       

      (5) Benefit to dft

      (6) Availability of alternatives to dft

      (7) Societal importance/benefit of dft's operations

              State vs Shack – if serves societal benefit, we let things slide

      In Atlantic Cement Case, dust, but great benefit to society, thus crt just made co reimburse people being harmed.

      1. Each side shows different factors to try & get way
        1. Crts must analyze all factors together for conclusion
    5. Intentional & Unintentional Interferences (§822)
      1. Unintentional Interference – usually from neg, or very dangerous activities.
        1. Many want to impose traditional negligence or strict liability here.
      2. Intentional Invasion / intentional interference – doesn't mean the dft intends interference w/ptf's land.
        1. "Intentional" means the dft didn't act accidentally, rather knew actions would affect others' use of prop but felt society should tolerate dft's activity despite inconveniences to neighbors.
        2. (§825)
    6. Act or Failure to Act
      1. Conduct that makes an actor liable for either public or private nuisance may consist of either (§824) "(a)an act, or (b) a failure to act under circumstances in which the actor is under a duty to tatke positive action to prevent or abate the interference with the public interest or the invasion of the private interest."
    7. Coming to Nuisance: §40D
      1. In past coming to nuisance might mean no recovery
      2. Its' a factor to be considered but not 100% either way.
      3. You don't want people to be buying lawsuits. If nuisance is already there you could buy land & sue on purpose.
    8. Interference must be Unreasonable!
      1. To be unreasonable, ptf's harm must outweigh any justification that dft may have in nuisance's creation (826). &
      2. Ptf must be reasonable person: nuisance requires that condition caused by dft be such tat it would offend a reasonable person, not someone who is unduly sensitive (§821F)
      3. Harm must be significant! (§821F)
      4. Crts disagree on how exactly to determine unreasonable interference and what remedies are available once a private nuisance is found.
        1. §826 describes
        2. Restatements & Crts allow a nuisance if (§825-931):

        Dft's acts or the condition on dft's prop will be a private nuisance if either:

        (a) the gravity of harm to ptf's use and enjoyment outweighs the social utility of dft's conduct or the condition on dft's prop;

        (b) the harm to ptf is "severe" and greater than the ptf should be required to bear w/out compensation;

        (c) the harm to ptf is "serious" and the financial burden of dft's compensating for the harm and for similar harm to others would not make the continuation of the dft's activities infeasible;

        (d) the harm to ptf is "significant" and the dft could avoid interference in whole or in part w/out "undue hardship"; or

        (e) the harm to ptf is "significant," ptf's use is well-suited to character of locality, & dft's conduct or prop condition is unsuited to locality.

      5. Not all crts have adopted Restatement's view. Some crts limit dft to §826(a) "gravity of the harm outweighs the utility of the actor's conduct." & deny in other 4 & some states look only at severity of interference w/ptf's use of his prop w/out considering at all social utility of dft's activities
    9. Various Restatements
      1. §832 Pollution of Waters,
      2. §833 Interference w/flow of surface water,
      3. §834 – A person is also subject to liability if he just participates to a substantial extent in carrying it on.
      4. §839 – Possessor who fails to abate an artificial condition
      5. §840 – Failure to Abate a Harmful Natural Condition
      6. §840E – "Except as it may affect the character of the locality, the fact that other persons contribute to a nuisance is not a bar to the dft's liability for his own contribution."
    10. Injunctions and Damages
      1. Some crts hold that once a private nuisance is found by balancing the utilities, the ptf is entitled to an injunction or relief.
        1. An injunction seems appropriate if harm to ptf outweighs social good of dft's conduct or where dft can avoid harm w/out undue hardship.
        2. Today most crts will instead grant damages under equitable principles, sometimes in addition to an injunctive relief.
        3. However in some places ptf can only avoid injunction if there is good for public at larger instead of just for dft.
      2. Windmill Case
        1. Woman sues for loud windmill & guy says her heater makes noise, but she winds b/c she asserts health probs & it's a nuisance to all
    11. REMEDIES: Damages or Injunction?
      1. Actual damages can be awarded for losses created by dft's nuisance
      2. Ptf may seek injunction when:
        1. Nuisance is of a continuing nature.
        2. When ptf's remedies at law are inadequate. However, this is norm b/c its difficult to measure degree of harm in nuisance
        3. Equity crt must balance equities to ensure injunction wont cause undue hardship upon dft. Included here is if dft came to nuisance.
        4. Injunction more likely when nuisance constitutes a trespass.
    12. MAKE IT STRICT LIABILTY – BEST CONCLUSION!
      1. We shouldn't adjoin any nuisance or excuse any nuisance we should just make it a strict liability tort where one party has to pay other if it's a nuisance. Factory just pays damages if its worth it to them
      2. Here factory must include these paid damages into cost of product
      3. Objections include: is there public good that wouldn't be done that needs to be? Company's can set up for short time & them let it die when damages come
      4. But objections aren't reasons for injunction against factory, instead we need EPA. In 1996, Clean Air Act's made it where you had to pay to pollute. This worked better b/c it let factories do things in most efficient way rather than imposing certain standards to a factory.


 
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