Bar secrets
Torts Rules
I. 3 Elements of all Torts
A. Act
a voluntary/volitional movement of muscles
Distinguish between Intent to act and intent to cause
B. Intent
(Two Types of Intent: The intent requirement in this is Restatement is disjunctive (i.e. serves to
separate/divide the definition into two parts. The intent requirement is met either by):
1. Desire/Purpose/Motive
i. Wants the consq to occur
ii. Also known as specific intent
OR
2. Knowledge to Substantial certainty that such contact would occur
i. Knows consq’s will occur
Two elements:
1. Desire (actions before event will be telling) of (triangle) defendant to cause particular
consequences
(or)
2. KTSC (Knowledge to Substantial Certainty—requires 99% certainty) that such
consequences would result.
***Motive (can be used to prove desire, and therefore intent)=the REASON the
actor desires or knows particular consequences will result
No contact is intentional if it is not the result of a voluntary act
Voluntary movement does not necessarily equal Intent.
C. Causation
Act was a substantial factor in bringing about the harm.
Act must be causally connected to the harm
causation can be satisfied either directly or indirectly
subjective state of mind (must be conscious)
II. Blameworthy Continuum of Conduct
How you characterize the conduct determines:
1. if you can ask for money
2. how you determine defendant’s like mode of defense
3. if defendants’ are covered by insurance (may not be able to pay if insurance doesn’t
cover intentional torts)
4. defenses that can be raised
(Defenses are different for intentional vs. unintentional torts).
First two are Intentional Torts, Second two are not
Wants
consq’s to
occur,
1. Desire Also known
as specific
intent
Knows
2. KTSC consq’s will
occur
Taking a
3. substantial
Recklessness unreasonabl
e risk
recklessness
unreasonabl
4. eness
Negligence just being
careless
III. Intentional Torts
A. Personal Invasion
1. Battery
Battery Defined:
Definition #1:
Intentional act that results in harmful or offensive contact to the plaintiff’s person.
Definition #2:
The intentional harmful or offensive act of another, without consent or privilege.
Act Intentional Contact Harmful or
What kind? Act what kind of Offensive
causing... contact? Contact
Two Types of Unacceptable Contact (relevant to the act) : To distinguish between socially
accepted contacts and actionable batteries, courts require defendant to intentionally cause
harmful or offensive contact:
1. Harmful: “Any physical impairment of the condition of another’s body, or
physical pain or illness (Restatement (Second) Sec. 15).”
Illness: ex. Dilliberately transmitting an STD
Physical Alteration: any unconsented to physical alteration is in
violation of battery law
If you can’t identify any harm done for an intentional tort—you can get
nominal damages
2. Offensive: “offends a reasonable sense of personal dignity” (Second
Restatement)
Look to current social mores and context—i.e. NY subway bump
Offensive vs. Socially Acceptable
Contact Rules:
Can be direct or indirect
o “to the plaintiff’s person”—anything “intimately connected” to one’s body
Any unauthorized contact
Need not actually touch the plaintiff at all (indirect causation)
Need not be present at the time of the contact (indirect causation)
Need not be aware of the contact: Ex. Kissing when asleep.
Contact beyond level of Consent Rule: Sports or Medial/ Sugical
No Intent but Contact:
If contact is a result of failure to take improper precautions (NO INTENT) –may be liable for
negligence—but has not committed a battery.
Distinguish between acting with:
o Carelessness—but still harmful or offensive contact vs.
1. Intent requirement not met—negligence
o Acting with Purpose –to harm/offend vs.
1. Intent requirement met—battery
o Acting with substantial certainty –pushing someone to get them out of the way (KTSC).
1. Intent requirement met—knew to substantially certainty that person would find contact offensive—battery
Good-Faith Intentions:
o Even if the actor’s intentions are good, if they are unwelcome and harmful or offensive,
the intent requirement for Battery is met.
Insane or Young Children/Intent (McGuire v. Almy):
o Defendants must be capable of entertaining thoughts of intent
o Defendants must ACTUALLY have entertained such thoughts of intent, in fact
o Must have acted on those thoughts and caused harmful or offensive contact
Distinction Between Act/Contacts and Consequences:
If you commit an intentional contact, you are liable for its consequences, even if you did not
intend them. (see Ranson v. Kitner).
Harm: Distinguish between: Intent to cause Harm vs. Intent to cause Imminent Apprehension that
causes Harm, Both = Battery
Battery Outline
a) Act
1. Act
Results in:
2. Harmful CONTACT
or
3. Offensive CONTACT
(…to the plaintiff’s person)
b) Intent
1. Intent (desire or KTSC)
to cause:
2. Harmful CONTACT
3. Offensive CONTACT
c) Causation
1. The ACT
must be a:
2. SUBSTANTIAL FACTOR
in causing the:
3. Harmful CONTACT
or
4. Offensive CONTACT
2. Assault
Assault Defined:
Act that results in an apprehension (perceived) of an imminent harmful or offensive contact to the
Plaintiff’s person.
Assault Visual Aids
#1.
Intentional Aprehension Aprehension IMMINENT Harmful
Act Classify the of... (Contact)
causes... Aprehension: AND
or
CONTACT
Apprehesion of Offensive
what? Classify/Describe
the contact? (Contact)
#2.
2. 4. HARMFUL
APREHENSIO 6. contact to
a voluntary movement 3. or
A. ACT (results in) N the plaintiff's
of muscles IMMINENT 5. 7. PERSON
of OFFENSIVE
4. *** 6. HARMFUL
2. DESIRE
Rules APPREH 5. *** OR
B. INTENT OR To Cause an ENSION 8. CONTACT
IMMINENT 7.
3. KTSC of 6. HARMFUL
OFFENSIVE
contact
2. 4. of an
C. or
1. ACT SUBSTANTIA 3. causing ***APPREHE ***5.
CAUSATION 7.
Assault L FACTOR NSION IMMINENT
OFFENSIVE
Consent contact
Self Defense
Defenses
Defense of
Others
Defense of
Property
Other Rules:
UNLIKE BATTERY MUST BE CONSCIOUS:
Unlike battery, that can take place when you’re not conscious, assault cannot occur if you are
not conscious
ACT, INTENT, & CAUSATION
a) Act
Act (volitional movement of the muscles) results in apprehension of imminent harmful or offensive
contact to the plaintiff’s person.
1. Act ( Voluntary movement of muscle)
Results in
2. Apprehension
***Apprehension is an Expectation that the contact (resulting from the
defendant’s act) will occur, unless some other force intervenes—this is
perception or anticipation.
of
3. Imminent
about to happen (temporally describes the contact)
4. Harmful
“Any physical impairment of the condition of another’s body, or physical pain or
illness (Restatement (Second) Sec. 15).”
o Illness: ex. Deliberately transmitting an STD
o Physical Alteration: any unconsented to physical alteration is in violation
of battery law
No harm identified—you can get nominal damages
Or
5. Offfensive
“offends a reasonable sense of personal dignity” (Second Restatement)
o Look to current social mores and context—i.e. NY subway bump
6. Contact
To the plaintiff’s person
b) Intent
Intended (Desir/KTSC) to cause an apprehension of imminent harmful or offensive contact.
1. Desire
or Purpose/Motive
Wants the consq to occur
Also known as specific intent
OR
2. Knowledge to Substantial Certainty that such contact would occur
Knows consq’s will occur
(Intent above) To cause…
3. Apprehension
(This is the key part of Assault—Imminent is descriptive of apprehension/helps define or classify it):
o ***Apprehension is an Expectation that the contact (resulting from the defendant’s
act) will occur, unless some other force intervenes—this is perception or anticipation .
The contact is IMMINENT
AND
The contact is either HARMFUL or Offensive
o Apprehension is not the same thing as fear—i.e. it is perception or anticipation.
You can apprehend a contact, but you are not afraid—water gun—perceive that
an offensive contact is imminent
FEAR is not necessary
o **Common Law Position: Apprehension by “REASONABLE PERSON” Standard
***Traditional Aproach to Apprehension: Apprehension must be reasonable:
Western Union Case
o Restatement position: (Also Valid for IIED?) (WHICH §???)—if the defendant acts in the
face of plaintiff’s known weakness the apprehension does not need to be “reasonable…”
***Restatement Rule: Knowledge about one’s sensitivity nullifies the
“reasonableness doctrine” so the outcome really depends on if we are in a
Restatement Jurisdiction.
4. of an imminent:
about to happen
(temporally describes the contact)
5. Harmful
“Any physical impairment of the condition of another’s body, or physical pain or illness
(Restatement (Second) Sec. 15).”
Illness: ex. Deliberately transmitting an STD
Physical Alteration: any unconsented to physical alteration is in violation of battery law
No harm identified—you can get nominal damages
6. Offensive:
“offends a reasonable sense of personal dignity” (Second Restatement)
Look to current social mores and context—i.e. NY subway bump
Offensive vs. Socially Acceptable
7. Contact
Contact is:
Imminent
AND
Harmful or Offensive
to the Plaintiff’s person.
c) Causation
Act is a substantial factor causing apprehension of imminent harmful or offensive contact.
1. Act
Volitional movement of muscles
2. Substantial Factor
Dependent variable—with out the act, harm/offense would likely have not happened.
Causing
3. Apprehension
Apprehension is an expectation that the contact will occur, unless another force intervenes.
Apprehension is expectation, perception, and anticipation. (Restatement (Second) §15)
Of
4. Imminent
Happening now
(temporally describes the contact)
5. Harmful
Any physical impairment of another’s body, including: pain, unconsented alteration, &
illness.
6. Offensive
Offends a reasonable sense of a person’s dignity.
o Social Norms help to define what is offensive and not.
7. Contact.
Contact must be imminent
And
Contact must be HARMFUL or OFFENSIVE.
3. False Imprisionment
Intentional Confines
Act or Against Within
Restrains Plaintiff's Bounded
that does
what? Will Area
(plaintiff)
a) Act
That:
1. CONFINES
OR
2. RESTRAINS (Plaintiff)
3. Against Plaintiff’s Will (Within a)
4. Bounded Area
Principles to keep in mind in analyzing the ACT Element:
1. Restraint must be complete; no reasonable means of escape
2. Methods of Restraint:
a. Physical Barriers
b. Force or threat of IMMEDIATE FORCE (Against P, P’s ppty, or third person)
c. Omission where D has legal duty to act (e.g. duty to release)
d. Improper assertion of legal authority
3. Act Must Be Against P’s Will
a. P must be conscious of confinement (or according to RSTMNT Suffer Harm)
b. Consider Evidence of P’s Consent
4. Confinement or restraint must be within a bounded area
b) Intent
1. Intent (desire or KTSC) to CAUSE:
2. Confinement
OR
3. Restraint
c) Causation
1. ACT
(must be a):
2. SUBSTANTIAL FACTOR
(in Causing the):
3. Confinement
OR
4. Restraint
4. IIED
Act Severe
what kind? (more than a
Intended to, reasonable
Extreme and And Does Emotional
or Recklessly person can
Outragious Act Cause Distress
Caused endure,
physical injury
not required)
a) Act
1. Extreme
AND
2. Outrageous
3. ACT
Resulting in
4. Severe
5. Emotional Distress
b) Intent
1. Intent (desire or KTSC)
To cause
2. Severe
3. Emotional Distress
c) Causation
1. The ACT
must be a:
2. SUBSTANTIAL FACTOR
in Causing the
3. Confinement
or
4. Restraint
B. Defenses to Intentional Torts
1. Consent
Beyond the consent factor: Medical or Sporting Events
o
2. Self-Defense
3. Defense of Others
4. Defense of Property
IV. Property Invasions
1. Trespass to Land :
Defined:
Intentional and unauthorized act that results in an invasion of P’s possessory interest in real property.
Act Intentional Unauthorized Invasion P's Possessory
What kind? AND... act of what? Interest Real Property
results in in what?
a) Act
1. Unauthorized act
that results in an
2. Invasion
of
3. p’s possessory interest
in
4. real property
b) Intent
1. Intent (desire or KTSC)
to
2. Enter property
or
3. Remain on property
c) Causation
1. Act
must be a
2. Substantial Factor
in bringing about
3. Invasion
2. Trespass to Chattels /Conversion
Defined:
Intentional and unauthorized act that results in a substantial interference with P’s possessory right in a
chattel so that D should be required to pay full value.
a) Act
1. Unauthorized act
that results in
2. Interference
with P’s
3. possessory right
in a
5. Chattel
b) Intent
1. Intent (Desire or KTSC)
2. Act (will)
3. Affect
3. Chattel
c) Causation
1. Act
must be a
2. Substantial Factor
in bringing about
3. Dispossession
or
4. Damages
3. Defense: Necessity
V. Transferred Intent
Transferred Intent:
Although intentional tort law requires a very specific type of intent, that standard may be met if
the actor intends to commit battery on one person and actually inflicts it on someone else.
Restatement (Second) of Torts sec. 16 (2). Where the actor tried to batter one person and
actually causes harmful or offensive contact to another, she will be liable to the actual victim.
Transferred intent also allows recovery when the actor meant to cause one intentional tort, but
actually caused another.
o Ex. Tries to hit someone with axe. Even though you missed, you can still be held liable
for assault; or if you try to scare someone, but you actually hit them with the axe
instead, you are liable for battery.
Transferred intent only applied to the original 5 torts:
Battery
Assualt
False Imprisionment
Trespass to Land
Trespass to Chattels
******DOES NOT APPLY TO IIED OR THE PROPERTY TORT, CONVERSION
Intent can transfer from person to person
Or from tort to tort
VI. Negligence
VII. Paradigm Distinctions:
A. Assault, Apprehension, & “The Reasonableness Doctrine”
(Regarding the Courtroom Theatrics Exercies):
o **Common Law Position: Apprehension by “REASONABLE PERSON” Standard
***Traditional Aproach to Apprehension: Apprehension must be reasonable:
Western Union Case
o Restatement position: (Also Valid for IIED?) (WHICH §???)—if the defendant acts in the face of
plaintiff’s known weakness the apprehension does not need to be “reasonable…”
***Restatement Rule: Knowledge about one’s sensitivity nullifies the
“reasonableness doctrine” so the outcome really depends on if we are in a
Restatement Jurisdiction.
B. Assault, IMMINENT, & Mere Words
MUST KNOW WHAT JURISTICTION YOU ARE IN—if you don’t know what jurisdiction you
are in then you must display your understanding that there are two possible outcomes
IMMINENT (contact) Under Common Law:
Mere words are not enough
Or
IMMENENT (contact) Under Restatement (Second):
mere words are enough
o glannon on page 31—henne
C. Trespass to Land Tangible and Intangible:
Distinuish between Tangible and Intangible matter:
o Tangible does not require harm
o Intangible has a harm requisite
D. Key Distintions For all Torts
E. Applies to All Torts:
1. ACT/Contact distinguished from the Consequences of the ACT/Contact
a) The act must be intended and or substantially certain, but the
consequences need not be
Even if you did not intend to break Bill’s Nose, but you acted in an
intentional in trying to slap him lightly and ultimately caused it, you are still
responsible battery.
b) Related to Transferred intent doctrine: if D held nec. intent with
respect to person A, he will be held to have committed an intentional tort
against anyone else that is injured
2. Re: INTENT: KTSC vs. High Likihood
a) If D knows with substantial certainty that a particular act will
occur as a result of her action, she is deemed to have intended the result
b) BUT if she it is merely “highly likely,” not “Substantially Certain,”
that the bad consequences will occur then the ACT is not an intentional
tort—“Recklessness “by D is not enough.
F. Applies to Battery:
1. Distinguish between: Intent to cause Harm vs. Intent to cause
Imminent Apprehension that causes Harm,
a) Both = Battery
b) Ex. Of Transferred intent?
2. Awareness in Bat. Vs. Awareness in Asslt.
G. Applies to Assault:
1. Re. Intent: Caused Apprehension vs. Failed Contact (Must See it)
a) Both= Assault
2. Re Act: Hostility (Real Gun=Apprehension of Harm) vs. No Hostility
(Water Gun=Apprehension of Offensive Contact)
a) Both can cause assault
3. Re: “Words Alone” Rule vs. Words Plus Act/Gesture by D
a) Words alone generally do not constitute Assault
b) Special Circumstances:
(1) Surounding Circumstances
(2) D’s Past Acts
4. Re. Causation: Actual vs. Attempted Apprehension
a) Failed Prank where P knows not real=No Apprehension
5. Regarding Imminence: Present Ability vs. Not
a) D threatens to shoot P, and leaves room to get the gun=No
Assault
6. Awareness of Threat vs. Not
a) P must be aware of the threatened contact, unlike battery
7. Regarding Apprehension:
a) Self vs. Third Person
(1) Apprehension of H/O Contact to Self= Assault
(2) Apprehension of H/O Contact to Other= Not Assault
8. Legal Right vs. Not
a) Is there a legal defense that would negate the Assault?
H. Applies to False Imprisonment
1. Act: An Act the Confines or Restrains Plaintiff
2. Intent Vs. Neglegence or Recklessness
a) FI Cannot be Committed by Negligent or Reckless Acts
(1) Ex. Shop Keeper that lock someone in store by accident
3. Re. “Confinement”: Held Within Vs. Prevented From Entering
a) Ex. D refuses to allow P to return to her home. This is not FI. D
can go anywhere else, so she has not been confined
4. Imprisonment—Means Used: 1. Direct Physical Means Vs. 2. Threats
Vs. 3. Assertion of Legal Authority
1. Threats: This id D threatens to use force if P trys to escape, the requisite CONFINEMENT
exists.
2. Assertion of Legal Authority: Also, confinement may be caused by D’s assertion that he
has legal authority to confine P—this is true even if D does not in fact have the legal
authority, SO LONG AS P REASONABLY BELIEVES THAT D DOES.
a. Shop keeper “I’m making a citizens arrest!”
5. Confinement: Awareness or Harm
a) P must be aware of the confinement
Or
b) P must suffer harm (Rstmnt)
Applies to IIED
6.
