Chapter 3: Establishing a Claim for Intentional Tort to

Person or Property
How to organize tort claims
(A) Interests tort actions can protect against:
a. Physical injury to person or property
b. Dignitary and emotional harm AND
c. Economic harm
(B) Levels of culpability tort actions require
a. Intent or malice
b. Lack of reasonable care
c. Strict liability

A. Battery
-> “A person is subject to liability for battery when he acts intending to cause a harmful
or offensive contact, and when a harmful [or offensive] contact results.”
->”Battery protects an interest in being free from an intentionally inflicted harmful or
offensive contact.”
>Contact which is offensive to a reasonable sense of personal dignity is offensive
contact
CASE: Snyder v. Turk
-> “Battery” is defined as an intentional, unconsented-to consented with another
CASE: Cohen v. Smith
->Restatement (Second) of Torts provides, “an actior commits a battery if:
>(a) he acts intending to cause a harmful or offensive contact with the
person of the other or a third person, or an imminent apprehension of such
a contact, and
>(b) a harmful [or offensive] contact with the person of the other directly or
indirectly results”
-> Liability for battery emphasizes the plaintiff’s lack of consent to the touching
-> “Offensive contact” is said to occur when the contact “offends a reasonable
sense of personal dignity.”
->Bodily Contact. Neither harm nor offense would be sufficient for a claim in the
absence of bodily contact
NOTE: Damages for Battery
-> No need for physical harm
>Battery is one of the so-called “trespassory torts,” that group of torts that
are accomplished by the use of some physical force and are regarded as
harmful in and of themselves
>These “are actionable even if the plaintiff has no proven physical
harm”
>Damages are “presumed to flow from the trespassory tort itself
-> Nominal Damages
>Thus a plaintiff who suffers only trivial harm or offense may still be
entitled to some money
 >No matter how trivial the incident, a battery is actionable, even if
damages are only one dollar
-> Economic damages
>If the intentional contact causes damages such as medical expenses or
lost wages or earning capacity, those damages are readily recoverable
upon proper proof
->Pain and suffering and emotional distress damages
>Damages for the distress are readily recoverable whether or not the
plaintiff has suffered physical harm
>The measure of damages is simply that which is fair and reasonable
>Battery that is offensive but not physically harmful, then, can give rise to
a substantial damages award
->Punitive damages
>Courts may allow punitive damages against an intentional tortfeasor who
is guilty of “malice” or wanton misconduct
CASE: Garrett v. Dailey
->Character of actor’s intentions: In order that an act may be done with the
intention of bringing about a harmful or offensive contact. . . the act must be done
for the purpose of causing the contact. . .or with knowledge on the part of the
actor that such contact. . . is substantially certain to be produced.
-> ”It is not enough that the act itself is intentionally done and this, even though
the actor realizes or should realize that it contains a very grave risk of bringing
about the contact or apprehension. Such realization may make the actor’s
conduct negligent or even reckless but unless he realizes that to a substantial
certainty, the contact or apprehension will result, the actor has not that intention
which is necessary to make him liable under the rule”
->The Restatement Third of Torts defines intent to produce a consequence as
either a purpose to produce that consequence or knowledge that the
consequence is substantially certain to result.
->Willful or wanton conduct is “a course of action which shows actual or
deliberate intent to harm or which, if the course of action is not intentional, shows
an utter indifference to or conscious disregard for a person’s own safety or the
safety or property of others. [It is] a hybrid between acts considered negligent
and behavior found to be intentionally tortious.”
-> ”When a person’s conduct creates a known risk that can be reduced by
relatively modest precautions,” that conduct should be considered reckless rather
than simply negligent
NOTE: Child Liability
->General rule
>In most states, children may be liable for torts they commit as long as the
injured plaintiff can prove the required elements, including intent
->Young children
>In some states, however, particularly young children are “conclusively
presumed to be incapable of harmful intent”
>Age seven is frequently used as the cut-off point
 >A few states go further and hold that children under a particular age
(again, often seven) are conclusively presumed to be incapable of
committing any tort at all
NOTE: Parental Liability for the Torts of Their Minor Children
-> The common law rule is that parents are not vicariously liable for the torts of
their children simply by virtue of their being parents
->Statutes imposing liability on parents for their children’s torts exist in virtually
every state, but they are usually limited in two significant ways:
(1) the child’s tort must have been committed willfully or wantonly
(2) the damages that may be obtained are limited
->The court’s inquiry in a statutory claim will be whether the child’s acts fit the
particular statutory definition that gives rise to parental liability
->Plaintiffs who sue parents for the parents’ own fault will often allege that the
parents negligently supervised their child, and that this caused the plaintiff’s harm
CASE: White v. Muniz
->State courts and legal commentators generally agree that an intentional tort
requires some proof that the tortfeasor intended harm or offense
->A victim need only prove that a voluntary movement by the tortfeasor resulted
in a contact which a reasonable person would find offensive or to which the
victim did not consent.
->A jury can, of course, find a mentally deficient person liable for an intentional
tort, but in order to do so, the jury must find that the actor intended offensive or
harmful consequences.
>As a result, insanity is not a defense to an intentional tort according to
the ordinary use of that term, but is a characteristic, like infancy, that may
make it more difficult to prove the intent element for battery
NOTE: Liability of the Mentally Impaired
->”An insane person may have an intent to invade the interests of another, even
though his reasons and motives for forming that intention may be entirely
irrational”
CASE: Baska v. Scherzer (Doctrine of Transferred Intent)
->”[T]he doctrine of transferred intent states that [t]he tort of battery or of assault
and battery may be committed, although the person struck or hit by the
defendant is not the one whom he intended to strike or hit.”
->The extended liability principle. The defendant who commits an intentional
tort, at least if it involves wrongdoing, is liable for all damages caused, not
merely those intended or foreseeable.

B. Assault
An assault constitutes “a touching of the mind, if not of the body.”

CASE: Cullison v. Medley

->The damages which are recoverable for an assault are damages for mental
trauma and distress
 ->”An act intended to create”: the defendant must act with the intent to create the
state of fear or danger in the victim. Accidental acts do not result in an act of
assault
->”A reasonable apprehension”: This means that the victim had a reasonable
belief that they would be harmed by the defendant. The victim must perceive
(apprehend) the defendant’s acts
->”Of imminent harm”: The victim must experience fear in response to a threat
that is imminent, or immediately about to occur. Also, the harm must present
some of perceived physical danger to the victim, and so words by themselves
generally do not constitute assault
>”Imminent does not mean immediate, in the sense of instantaneous
contact. . . it means rather that there will be no significant delay.”
->”That is either harmful or offensive”: the defendant’s conduct must present
either a physical threat or offensive behavior to the defendant.
->”Words alone do not make the actor liable for assault unless together with
other acts or circumstances they put the other in reasonable apprehension [of
imminent contact].”
>Words may negate the intent to effect immediate touching
-Hypo: The defendant draws back his arm as if to strike, but at the
same time says, “If the police officer were not here, I’d punch your
nose.”
->Revisiting transferred intent. One who intends an assault “but touches this
person in a harmful or offensive manner and claims the touching is inadvertent or
accidental, is liable for battery.”
NOTE: Related Statutory Claims
->Legislatures have crafted some causes of action that allow plaintiffs to sue for
damages on particular facts that might also give rise to common-law actions for
assault
->Statutes in a number of states create a claim against stalkers who follow or
stalk someone.
->Stalking is based on a pattern of conduct where the “intent of which was to
follow, alarm, or harass the plaintiff,” with resulting reasonable fear by the plaintiff
for herself or an immediate family member.

C. False Imprisonment
“False imprisonment occurs when a person confines another intentionally without lawful
privilege and against his consent within a limited area for any applicable time, however
short.”

CASE: McCann v. Wal-Mart Stores, Inc.

The following elements must be present in false imprisonment:
 There must have been a willful detention
 The detention must have been without consent; and
 The detention was unlawful
 ->Mere threats of physical force can be settled
->It is settled that the threats may be implicit as well as explicit and that
confinement also based on a false assertion of legal authority to confine
->The Restatement provides that confinement may occur by other unspecified
means of “duress”
->The reference to the necessity of “actual, physical restraint” is best understood
as a reminder that a plaintiff must be actually confined
->Exclusion. Confinement implies limited range of movement and it is not
enough to exclude the plaintiff from some place such as a bar or restaurant
->Confinement by threat or duress
>Threats or demands: When the claim is confinement by explicit or implicit
threat or duress, factual details are critical
>Assertion of authority: Submission to an officer’s assertion of assert
under colorable legal authority is sufficient to show confinement
>Duress of goods
-> A defendant who instigates a confinement, or induces another person to
unlawfully detain another, may also be subject to liability for false imprisonment
->The plaintiff can recover damages even if she sustains no actual harm.
>Actual harm is required, however, to support a claim where the plaintiff
was not aware of the confinement at the time it took place

D. Torts to Property
Only 3 torts involve direct application of force and thus furnish substantial analogy to
personal injury cases (assault, battery, or false imprisonment). These torts are as
following: (1) trespass to land, (2) conversion of chattels, and (3) trespass to chattels

1. Trespass to Land
Elements: the plaintiff must prove-
 An ownership or possessory interest in the land AND
 An intentional and tangible invasion, intrusion, or entry by the defendant onto that
land that harms the plaintiff’s interest in exclusive possession
->Intentional entry. Intentional entry onto plaintiff’s land might be accomplished
by personal entry or by intentionally causing an object to enter the land.
->The object of intent. The object of intent need not be “to trespass”
>Once intent to enter is shown, the defendant does not escape liability
merely because the defendant did not intend to harm plaintiff’s property or
to interfere with plaintiff’s rights of possession
>”Trespass is an invasion of the plaintiff’s interest in the exclusive
possession of his land, while nuisance is an interference with his use and
enjoyment of it.”
->Remedies for trespass: damages.
>A trespasser will be liable for at least nominal damages even if no
physical harm is done
>When the defendant’s trespass physically damages the land, the plaintiff
can get damages measured either by the cost of repair or by the
diminution in the value of the premises resulting from the tort.
 >Upon proper proof the plaintiff can also get compensatory damages for
loss of use of the land and for emotional distress or annoyance caused by
the trespass
->Remedies for trespass: injunctive relief
>Where damages are inadequate, as where trespasses are continuing or
will be repeated, the plaintiff may be entitled to an injunction to stop the
trespassing or to force a trespasser to leave or remove something placed
on the plaintiff’s land
->Punitive damages. May be awarded if the trespass is deliberate or “malicious”
->Extended Liability. The trespasser is liable for damages directly caused by
his trespass, even if he never intended harm and could not foresee that harm

2. Conversion of Chattels-Trover
Conversion is the deprivation of another’s right to use or possess personal property.
The elements of conversion are:
 The plaintiff’s ownership or right to possession of the property
 The defendant’s conversion by wrongful act inconsistent with the property rights
of the plaintiff; and
 Damages
->Intent. The defendant must intend to exercise substantial dominion over the
chattel. There is no requirement that the defendant be conscious of the
wrongdoing
->Substantial dominion. In some cases, defendant merely takes the property
for a short period of time. The interference should be serious enough to justify
imposing such liability and that a number of factors were important including:
>extent and duration of control
>the defendant’s intent to assert a right to the property
>the defendant’s good faith
>the harm done; and
>expense or inconvenience caused
->New Forms of Property. The traditional common law rule was that conversion
would lie on for tangible personal property.
>Thus neither land nor intangible property such as paper money or
promissory notes could be converted
>Shares of stocks or bonds and other documents which are strongly
identified with the right itself can be converted
->Conversion may be accomplished by aiding and abetting another’s conversion
->Remedies. The usual remedy for conversion is damages, measured by the
value of the chattel at the time of conversion.
>Some courts have accordingly permitted the plaintiff to recover the
highest market value of the chattel that occurs within a reasonable time for
replacement
>The plaintiff might seek “replevin or claim and delivery” instead
-that is, an action return of the chattel itself
>Injunction suit might be brought also
3. Trespass to Chattels
Elements are the following:
1) The lack of the plaintiff’s consent to the trespass
2) Interference or intermeddling with possessory interest and
3) The intentionality of the defendant’s actions
->One who intentionally interferes with another’s chattel is liable only if there
results in harm to “the owner’s materially valuable interest in the physical
condition, quality, or value of the chattel, or if the owner is deprived of the use
of the chattel for a substantial time.”