Johnson_Torts_Spring 17

Torts Outline
Module 2: The Place of Torts and a Model Tort
 Cause of action: also, called a “claim” is a basis upon which a plaintiff can sue
o Each cause of action can be broken into a # of elements
o The plaintiff has the burden of proof to establish each of these elements
 If a plaintiff has met the burden of each of these elements it is said that the plaintiff has made a prima facie case
 A defendant wins when
 P fails to make a prima facie case
 Or they prove an affirmative defense
 Standard of proof: preponderance of the evidence
 More likely than not
Module 3: Overview of Negligence, Health Care Liability, and Intentional Torts
 Torts is broken down into Lineal Torts and Oblique Torts
 Oblique Torts: Economic or Dignitary Harm
 Lineal Torts: direct harm to persons or physical property
o Intentional Torts
 Battery
 Assault
 False imprisonment
 Intentional Inflection of Emotional Distress (Outrage)
 Trespass to Land
 Trespass to Chattels
 Conversion

o Accident Torts
 Negligence
 Strict liability
 Non-tort legal regimes dealing w/ accidents

Part II: Prima Facie Case for Negligence

Module 3: Overview of Negligence, Health Care Liability, and Intentional Torts
Negligence: the doctrine of negligence holds that if you are to blame, through your carelessness, for an injury to the person or
property of another, you will be liable for the damage
 Cause of action is about compensation it is not about punishment
 Formalized system for assigning blame
 Core notion is one of responsibility

Elements (5)
(1) Duty of care
(2) Breach of that duty
(3) Actual cause
(4) Proximate Cause
(5) Injury

Defenses to Negligence
(1) Comparative Negligence
(2) Contributory Negligence
(3) Assumption of the Risk
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Module 6: Foreseeability
Chapter 5: When are to whom a Duty of Care is Owed
1. Element: Duty
 Question: Is there a duty?
 To whom do you owe a duty of care- how much care must you take
 Duty is a question of law for the judge to decide but foreseeability is a question of fact for the jury to decide
 General duty of reasonable care: Each person owes a duty to act as a reasonable person would under the same or similar circumstances
Essential concept in defining a duty of care: Foreseeability
 Defined: an obligation for people to exercise reasonable care to avoid foreseeable harm to others
 Texting and driving: we hold that the sender of a text message can be potentially liable if an accident is caused by texting, but only if the sender knew or
had special reason to know that the recipient would view the text while driving and thus be distracted.
 The foreseeable plaintiff requirement: to establish a duty, the plaintiff must show that the defendants negligence
created foreseeable risks of harm to persons in their position
 3 things that help us with duty (1) foreseeability (2) precedent (3) Spidey sense (experience)
Module 7: The Duty of Care and Criminal Acts
 Question: is there a duty to accede to criminal demands
 Person has no duty to anticipate the criminal acts of third parties
o Exception: when criminal acts should reasonably have been foreseen
 Are there facts that should have alerted the defendant to a risk of harm
Module 8: Affirmative Duties
 THERE IS NO AFFIRMATIVE DUTY- law does not require us to be Good Samaritans- UNLESS-Exceptions:
o 1. Defendant started to help them
o 2. Defendant put them in peril
o 3. Defendant has a special relationship
 General duty of care requires would-be defendants to refrain from actions that unreasonably subject foreseeable plaintiffs
to a risk of harm-No general duty to affirmative engage in actions to prevent harm to plaintiffs
 if decedent voluntarily placed their self in the position of danger and the death was the result of his own act- no one else is
blame
 Defendant-created peril
o A person who knows or has reason to know that his conduct, whether tortious or innocent, has caused harm to
another has an affirmative duty prevent further harm.
o Defendants own negligent conduct created the plaintiffs peril (even if innocent conduct)
 Good Samaritan laws
o Provide a liability shield for the “clumsy rescuer” who munificently decides to come to a person’s aid but then end
up doing more harm than good
o Typically, the laws provide immunity from ordinary negligence, but not from gross negligence or recklessness
 Exception for Special Relationships
o There is an affirmative duty to render aid or take affirmative actions in situations involving certain pre-existing
relationships
 Common carriers to passengers
 Inn keepers to guests
 Landlord to tenants
 Stores to customers
 Possessor of land open to the public, to members of the public lawfully present
 Schools to students
 Employers to employees
 Jailers to prisoners
 Day-care providers to the children or adults be cared for
 The Exception for Assumption of Duty
o If someone attempts to render aid- is liable for any additional harm caused by his failure to take whatever
affirmative steps are reasonable under the circumstances
 The Tarasoff Exception
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o Comes from Tarasoff v. UC Regents
o A psychotherapist has a duty to warn third persons of potential dangers that have been revealed during
psychotherapy

Module 9: Determining Breach, in General

2. Breach of Duty
 Negligence is synonym for carelessness- therefore the term negligence is sometimes used to refer to the breach of duty
 Question: was the risk unreasonable?
o The law requires people to be reasonable careful, not triple-extra-super-duper careful
o Banana Peels and Lasers: woman slips and falls on a banana peel in a grocery store assuming it had only been there a few minutes the women
cannot say the grocery store breached its duty. The grocery store might have been able to prevent it but it is not reasonable for a store to put in
lasers to detect a peel the second it is on the floor
Rogers v. Rectum
 Not every foreseeable risk is an unreasonable risk
 To decide if a risk was unreasonable requires an evaluative judgement ordinarily left to the jury
Intentional Conduct as a Breach of Duty
 To act with the intent to harm or with the substantial certainty of causing harm is one way of failing to act with due care for
persons around you
 Several courts have held that intentional conduct cannot count as a breach of the duty of due care. Because carelessness
can’t be intentional
Module 10: The Reasonable Person Standard of Care
The Reasonable Person Standard of Care
 If a defendant owes a P a duty of care, then the default standard of care is what the reasonable person would do under the
same circumstance
o If the defendant is less careful than a reasonable person would be then a duty of care has been breached
 The reasonable person is always careful- 24 hours a day every day of her or his hypothetical life
 Objective standard
Module 11: Accounting for Difference Among People
 There are some circumstances where the reasonable person standard is adjusted to the characteristics of the defendant
 The courts will take the physical characteristics of the D into account in applying the reasonable person standard
o But mental or cognitive limitations or disabilities are not considered
 Experience and skill level
o If a person has superior knowledge or skills, then those ratchet up the standard of care
 Children
o Standard of care excepted is measured by that degree of care which would ordinarily be exercised by a child of like
age, knowledge, judgement and experience under like conditions and circumstances
o Exception: If the child is involved in an adult activity
Module 12: Negligence Per Se
 A specific standard of care that is borrowed from a statute or regulation
 The analysis for whether a statute or regulation can be used as a per se standard can be summed up as:
o Class-of-risk: does the injury or accident being sued on represent the kind of risk that the statute or regulation was
designed to address?
o Class-of-persons: is the plaintiff within the class of persons that the statute or regulation was designed to protect?
o If answer to both is yes then the statute or regulation can be used
 Contributory/Comparative Negligence
o When the plaintiff’s own negligence contributes the injury that the plaintiff is suing over, the defendant can use
that fact to establish an affiliative defense
 Excuse for complying with a statue or regulation
o The courts will sometimes excuse failure to comply w/ a statute or regulation when:
 1. Complying with the statute or regulation would be more dangerous than violating it
 2. Inability to comply with the statute or regulation despite an honest attempt to do so
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 3. Emergency circumstances
o For defendant’s compliance w/ a statute or regulation forms an incomplete argument
o For plaintiffs- violation of statute or regulation if it passes the negligence-per-se requirements functions to end all
argument and tally up a win for P on the breach element

Module 13: The Role of Custom or Standard Practice

 Showing that a practice is customary tends to show that it is a practicable and well-known means of reducing risk
o Exception: professional-malpractice negligence: custom sets the standard of care replacing the reasonable-person
analysis
Module 14: The Negligence Calculus
 Duty of care is defined economically
 See PowerPoint
Module 15: Res Ipsa Loquitor
 Provides a special way for a plaintiff to prevail on the element of breach of the duty of care
 Recurrent situations of Res Ipsa Loquitor
o Gravity-driven injuries: like the failing barrel of Byrne
o Airplane Crashes
o Packaged Food: glass coke bottles
o Nursey schools and nursing homes: inability to speak for themselves, leaving them unable to explain how they
were injured
Similarity to Strict Liability
 Strict liability is the same as negligence with one very large difference:
 The elements of duty of care and breach of the duty of care are replaced with “absolute duty of safety”
o must fall into: ultra-hazardous activities, defective products, wild animals, trespassing livestock, and domestic
animals with known vicious propensities
 Similar because: P is relieved of having to show that it was D carelessness that led to the injury
Module 16: Special Rules for Land Owners and Occupiers
 Special rules apply when the injury arises from a condition of real property
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3. Actual Causation
Module 17: Basics (of Actual Causation)
 There must be a cause-and-effect relationship b/t the defendants conduct and the plaintiff’s injury
 Usually a factual question and not a legal one
 “multiplicity issues”: multiple parties could be said to be responsible
 The But-For Test
o But for the defendant’s breach of the duty of care, would the injury have occurred?
 Proximate vs. Actual
o Actual is a matter of strict, logical cause-and-effect relationship
o Proximate where proximate means “close” is a judgement call about how direct or attenuated the cause and effect relationship is and whether
it is close enough for liability
 Other labels:
o Causation-in-fact; Factual Causation, direct causation
o Think “A” not “The”
 Could be more than one actual cause
Module 18: Proof and Preponderance
 Must be proved by a preponderance of the evidence
 Loss of a chance Situation
o if the injury is the loss of a chance to survive difficult question of whether losing “a chance” counts as a personal
injury
o If however, the injury being sued upon is death, then we have the difficult causation question of whether one can
say that causing a decreased probability of survival is the same as causing death
 Substantial Factor Test
o Surrounded by ambiguity and uncertainty
o The plaintiff is required to produce evidence that the conduct by the defendant has been a substantial factor in
bringing about the harm he has suffered
Module 19: Multiplicity
 But for test is most of actual causation doctrine
 There are certain situations where doctrine moves beyond the but-for test all have to do with concurrent negligent conduct
by multiple actors
 The multiplicity exceptions to the but-for test all apply when the but-for test is NOT satisfied
Multiple Necessary Causes
 Situation where there is more than one but-for cause is sometimes called multiple necessary causes
 Where multiple causes are necessary to produce the harm, then each such cause is an actual cause
Multiple Sufficient Causes
 Occasion where there are multiple sufficient causes, that is where there are more than one negligent act- i.e. breach of the
duty of care- that would have cause the harm
 “twin-fires doctrine”
 Where each of the multiple discrete events, not committed by the same actor, would have been sufficient each in itself
to cause the harm then each act is deemed an actual cause, despite not being a but-for cause
o If that defendants actions were sufficient to cause the plaintiffs injury, then actual causation can be deemed
satisfied despite the fact that the defendants actions are not but-for cause
 Courts often use the substantial factor “test” in this scenario
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The Summers v. Tice Doctrine
 Multiple actors do something negligent and while only one of them logically could be responsible for the plaintiffs injury,
because of the circumstances it is impossible to tell which one.
o Thus the burden is shifted leaving it to the defendants to disprove-if they can- on an individual basis
 Doctrine has been called: double fault and alternative liability or “Summers v. Tice Doctrine”
Market-Share-Liability
 Situations similar to Summers v. Tice, where it is unknown who among multiple negligent actors caused the harm
 BUT market-share liability can be used in situations where the courts have been reluctant to extent Summers. Particularly
when there are large # of defendants and where those defendants are not quantitatively equal participants in the harm
 Each defendant can be made liable for a portion of the plaintiffs damages corresponding to defendants share
4. Proximate Causation
Module 20: Basics (of Proximate Causation)
 Judgement call about how long or attenuated the cause-and-effect relationship is
 The breach and injury must somehow be close along the chain of causation that links one to the other
The label for Proximate Cause
 Sometimes called: legal cause or scope of liability
The Relationship Between Proximate Causation and Duty of Care
 Both elements revolve largely around the idea of foreseeability
 Asks question: “Assuming you weren’t careful, just how much are you going to be on the hook for”
Module 21: Various Tests for Proximate Causation
Tests for Proximate Cause
 Direct Test (old test)
o Ask: Did the accused act led directly to the injury without there being an intervening cause b/t the two?
 Intervening cause: some additional force or conduct that is necessary to complete the chain of causation
b/t the breaching conduct and the injury
 Intervening cause= no proximate cause
o In re Polemis v. Furness Withy & Company Ltd.
 Foreseeability test
o Ask: (travel back in time to right before the breach of duty) What might go wrong here?
 Was the injury foreseeable at the time of negligent action
 Reasonable man should have foreseen
o Wagon Mound No. 1
 D did not know and could not reasonably be expected to have known
o Objects of Foreseeability
 Unforeseeable plaintiff
 Always fails proximate cause
 Unforeseeable type of harm
 Plaintiff was foreseeable but the type of harm suffered was a surprise
 Courts look at is case-by-case
 Unforeseeable manner of harm
 Unforeseeable plaintiff, injured by a foreseeable harm but the manner of the harm is somehow
surprising and unforeseeable
 Unforeseeable manner of harm does not preclude recovery on the basis of proximate cause
unless the manner of harm is truly extraordinary then the proximate causation limitation might
be engaged
 Unforeseeable extent of harm
 General rule is that an unforeseen extent of harm will not cause a failure of proximate causation
 Doctrine of the eggshell-plaintiff: The extent of the harm, no matter how great is foreseeable
o Medical malpractice is always foreseeable
 Harm-within-the-risk Test
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o Related to foreseeability test- usually yield the same results
o Here question: is the kind of harm suffered by the plaintiff the kind that made the defendants actions negligent
in the first place?
 Superseding Cause
o Superseding clause: an intervening cause that breaks the proximate-cause relationship
o A court decides whether or not an intervening cause breaks the proximate-cause relationship and if it does then it
is dubbed a superseding cause- failing to meet proximate causation
 Negligence is not normally superseded by someone else’s negligence
 Medical malpractice is always considered foreseeable never superseding
 Criminal interveners are usually superseding (unless criminal act was foreseeable or Defendant had duty
to protect the plaintiff from a criminal act)

5. Damages
Module 22: Existence of an Injury
 Nominal Damages: meaning damage in name only commonly a single dollar
 Negligence needs damages of a certain kind:
o Generally must be compensatory damages occasioned by physical damage to person or property
o Punitive damages will not suffice to meet element
Loss-of-a-chance Situations
Pure Economic Loss
 Pure economic loss- that is not accompanied by any physical damage to the plaintiff or property will not suffice as an injury
in a claim for negligence
 Unless: courts have allowed for occasional situations
o Particular Foreseeability
 The financial loss suffered on account of the cancelled flights because the airline as a plaintiff was a
particular foreseeability
 People Express Airlines, Inc. v. Consolidates Rail Corp.
 Accountants
 Attorneys
Mental Anguish and Emotional Distress
 General: emotional or mental distress will not suffice as an injury for purposes of pleading a prima facie case for negligence
unless it is accompanied w/ physical injury which is generally recoverable
 Negligently Inflicted emotional distress (NIED)
o Thought of as an independent tort
o Most of this doctrine comes from the death of a child
 Dillon v. Legg
 1. Was plaintiff near the accident,
 2. Was the shock resulted from direct emotional impact upon plaintiff from the sensory and contemporaneous
observance of the accident, as contrasted with learning of the accident from others after its occurrence.
 3. How closely related they are
 Thing v. La Chusa
 Narrowed scope from Dillon v. Legg
 3 hard rules
o “(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance
away from it.
o (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and
contemporaneous observance of the accident, as contrasted with learning of the accident from others after
its occurrence.
o (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship
or the presence of only a distant relationship.”
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Affirmative Defenses to Negligence

Module 23: Plaintiff’s Negligence (Contributory and Comparative)
 How can defendant win
1. Let plaintiff fail to prove the prima facie case
2. Rebuttal defense: Rebut at least one element
3. Prove an affirmative defense
 Burden is on the defendant
 Standard of proof is preponderance of the evidence
 3 Main types of affirmative defenses for negligence claim
1. Contributory Negligence
 The first (older) affirmative defense- More defendant friendly
 Plaintiffs negligence contributed AT ALL to their injuries defendants get of completely; no recovery
 Still the law in Maryland, D.C. Virginia, North Carolina and Alabama
 Proving that the plaintiffs conduct fell below the standard of care a reasonable person is expected to adhere to for one’s own good,
and that such conduct was an actual and proximate cause of the injury that plaintiff is suing on
 3 elements: (1 ) breach of the duty of care (2) actual causation (3) proximate causation
 Last Clear Chance Doctrine: applies when there is a particular temporal sequence to the P and D
negligence. This chronological order is essential w/o it this doctrine doesn’t apply.
 Defendant had last change to avoid the accident but failed- then P can succeed
2. Comparative Negligence (Comparative Fault)
 New doctrine- More plaintiff friendly
 46 states have adopted some form of comparative fault
 Allows the defendant to escape some portion of the damages under certain circumstances on account
of the plaintiff’s negligence
 In the form of percentages
 First and most important variable is whether there is a threshold quantum of the P negligence beyond
which a D has a complete, rather than partial defense.
 Pure comparative negligence
o No threshold
o Whatever % the plaintiff is negligent, that is the % by which the P recovery is reduced
 Modified Comparative Negligence (partial comparative negligence)
o If the P negligence meets or exceeds some threshold, then P is entirely barred from any
recovery
o Some jurisdictions: so long a P fault is not more than the D fault
 50% threshold
 If there is a tie then the plaintiff can still recover
 22 states
o Other jurisdictions: so long as P fault is less than the D fault
 49% threshold
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 If there is a tie the plaintiff is denied all
 11 states
3. Assumption of the Risk
 Defendants can avoid liability where plaintiffs have voluntarily taken the chance that they might get hurt
 When P assume the risk, they relieve defendants of their duty of due care
 There are two broad categories
 Implied: when P, by their conduct or actions show that they have assumed the risk
 Express: an explicit agreement in words-written or oral- assuming the risk
 Elements (2)
 (1) The plaintiff must know and appreciate the risk, including its nature and severity
o Standard is subjective- look at what the person understood
o Limits: in the sports context there is less tolerance for claims of ignorance
 (2) the plaintiff must take on the risk in an entirely voluntary way
o Must be a genuine choice if a P is to be held to have assumed the risk
 If the P was compelled by circumstances and had no reasonable choice other than to confront the
risk, then it does not count as voluntary
 If P only choice to avoid the risk is to forego a legal right- then there is no voluntariness
Module 25: Medical Mal Practice/ Professional Negligence
Common Law Liability in the Healthcare context
 Standard of care is different
o The standard practice of an entire industry can be found unreasonable and thus held to fall below the standard of
care which D are held in negligence actions
o NOT the case with medical malpractice
 Standard practice or standard of care- is the benchmark for determining breach of duty in the context of
medical malpractice neg. claims
 Intentional tort of battery- has unique role in medical setting
o Medical battery: provides a way for patients to sue physicians who treat them beyond the scope of the patients
consent
 Informed Consent
o Generally available where a patient was not apprised of an important risk necessary to make an informed decision
about treatment, and the patient suffers the negative consequence associated w/ the undisclosed risk
The Standard of Care for Healthcare Professionals in Negligence Actions
 Physicians are considered professionals and for professionals the standard of care is not that of a reasonable person but
instead the knowledge and skill of the minimally competent member of that professional community
 Objective- same standard for all members of the professional community
 The Role of Expert Testimony
o This is needed to establish the standard of care
How the Professional Community is defined
 Involves both specialty and geography
o What skills and knowledge a physician is expected to have depends on whether the physician:
 Has a specialty- and if so what it is
 If general practitioner are held to a different and lower standard than specialist
 Geography
 Historically professional community was local
o Greatly benefited the defendants in small cities
o Professionals in small locals are often unwilling to testify against one another
 National standard- or used a non-particularized local standard
o Define the standard with reference to a similar city or town
o Similar communities’ standard means the experts for small towns and cities can be
found across the country if necessary
Module 26: Medical Battery
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 An intentional tort cause of action that can be alleged against a physician or other healthcare provider who performs a
course of treatment without the patient’s consent
 Elements (5)
1. An act
2. Intent
3. Actual and proximate causation
4. A physical touching of the plaintiff’s body
5. Harmfulness or offensiveness
 Key issue for medical battery is generally whether there was consent
 To be valid consent does not have to be in writing
 It does not even need to be expressed orally
 Can be implied
 Physicians can touch patient’s w/o consent whatsoever: when in the emergency room

Module 27: Informed Consent

 Alleges that a patient was harmed by a physician’s failure to disclose risks associated w/ medical treatment
 Battery-negligence hybrid because it has some aspects of both
 The following have to be proved
o 1. A risk should have been disclosed
 Two schools of thought on what should be disclosed
 Physician Rule
o Would the reasonable physician disclosed it
 Patient Rule
o Was it a material to the reasonable patient?
o A material risk is one that would matter to the patient’s decision
o 2. The risk was not disclosed
o 3. The patient would have made a different decision about treatment if the risk and had been disclosed
 If despite the risk the patient would have gone ahead w/ the course of treatment- no claim
 Two different approaches
 “subjective” standard- asking whether the plaintiff would have made a different choice
 “objective” standard- asking whether the hypothetical reasonable person would
o 4. The patient was injured as a result
 Patient must have suffered a bad outcome that counts as an injury
Module 28: ERISA Pre-Emption
 SEE SLIDE SHOW
 The Employee Retirement Income Security Act of 1974: federal statute regulating employee benefits
 Preemption: federal laws can trump state laws
o If an employee is entitled to medical care under the employer’s health plan, and that medical care is wrongfully
denied, a common-law contract or tort lawsuit will not be allowed
o ERISA provides itself a cause of action:
 Employees wrongfully denied benefits can sue to recover the value of the benefits

Module 29: Introduction to Intentional Torts

 There are seven traditional intentional torts
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1. Battery: intentional touching of the P in a harmful or offensive way
2. Assault: the intentional creation of an immediate apprehension of a harmful or offensive touching
3. False imprisonment: intention. confinement of P to a bounded area by force (or threat of) or improper assertion of legal authority
4. Intentional infliction of emotional distress (outrage): D engages in outrageous behavior causing P emotional distress
5. Trespass to land: intentional tort that applies to invasion of interests in real property
6. Trespass to chattels: intentional tort for action that substantially interferes with a P chattel
7. Conversion: intentional interference with the P chattel that is so severe that it warrants a forced sale of the chattel to the D
 The intent/damages trade-off
o The intentional torts do not require proof of physical injury or damage
o The defendants intent is an alternative to the existence of damages
 Difference in doctrinal structure
o For accidents- just one big cause of action: negligence – broad
o Intentional torts: there is no general tort- they are more narrow and rigid
 Intentional tort defenses
o Consent: complete defense to the intention tort
o Self-Defense: someone tries to hurt you, you’re entitled to use force
o Defense of others:
o Necessity: allows you to avoid tort liability when you are acting to prevent a greater harm
 Place of Damages in Intentional Torts
o Nominal damages: name only usually one dollar or a similar amount
 Intent and its various iterations
o Intent: means that the defendant either acts with the purpose or goal of bringing about a certain consequence, or
at least does so with substantial certainty that the consequence will occur
 Intentional infliction of emotional distress- only requires a D to act with recklessness
o Plaintiff-friendly doctrine of transferred intent:
 Allows the intent required by one intentional tort claim to be satisfied by showing the D’s intent to
commit a different intentional tort
 Many courts today apply intent more narrowly- restricting tort-to-tort transfer to assault and
battery only
Module 30: Battery and Assault
Battery
 Battery is intentionally touching someone in a harmful or offensive way
The elements of battery:
1. The defendant undertook an act
 Typically, easy to meet
 All it requires is the D engage in volitional action
o Excludes claim where the touching of P is caused by some motor reflex or unconscious movement
2. With intent, effecting a
 Acting with purpose or with substantial certainty
 Jury issue- determination ultimately up to them
 The Defendant must have intended to inflict a harmful or offensive touching
o Merely intending to move one’s limb is not enough
 Transferred intent expands the scope of intent
3. Harmful or offensive
 A touching that causes actual harm is harmful- and there is no need to take the analysis any further
 A touching that is “offensive” in the battery sense if it intrudes upon a person’s reasonable sense of dignity
o Societal convention plays a large role here
o May differ geographically
 Once a person has put another on warning, social convention yields to the individual’s right to be let alone
4. Touching of the plaintiff
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 Think about touching broadly
o Can be indirect: such as pulling out a chair, putting something in someone’s drink, laying a trap
 Battery Damages: not required for a prima facie case. But compensatory damages with be more financially enticing if it
supports a significant compensatory damages claim
Assault
o Assault happens when the defendant intentionally creates for the plaintiff an immediate apprehension of a battery
The elements of Assault
1. The defendant undertook an act
2. With intent, effecting
 Must intent to create the apprehension in the plaintiff that is the essence of the tort
 Or the plaintiff can use the transferred-intent doctrine (transferring intent from person-to person or tort to tort)
3. The immediate apprehension of
 P experience an immediate apprehension of a battery
 Apprehension is distinguished from fear
o Fear is not required for an assault case
 The Apprehension must be immediate
o Can’t anticipate it the next day or even in the next min or two- must be in the moment
4. A harmful or offensive
 Same as for battery
5. Touching of the plaintiff

Module 31: False Imprisonment

False Imprisonment
 A claim for when a Plaintiff is held against their will
 Imprisonment is a misnomer because no requirement that the P be put in prison all that is necessary for confinement which might be accomplished w/o
any walls or physical restraints of any kind
 False is a misnomer because true confinement is required
Elements of False Imprisonment
1. Intentionally
 The intent required is the intent to confine
 False imprisonment observes party-to-party transferred intent
o Some courts allow tort-to-tort transfer
2. Confined the plaintiff and the plaintiff was
 Plaintiff must be restricted to some closed, bounded area for some appreciable amount of time
o The area need not be strictly delineated (could be confined to a city) can be large or small area
o Must be complete confinement- freedom of movement must be bounded in all directions
o Can sue from being kept out of something
o When achieved by means of physical barriers: Must be no reasonable means of escape
o No minimum amount of time for a valid confinement
 Courts typically say an appreciable time
 Method of Confinement
o Physical Barriers
o Force or imminent threat of force
 Threatening a P at gunpoint is an obvious example
 threat need not be against P could be direct at third party
 the threat must be imminent (that moment)
o Improper assertion of legal authority
 Fake police badge informing P they are under arrest
 Does not need to be accomplished by an overt act
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o Omission: might do the trick under certain circumstances
 D is under an existing obligation to act, then the omission to release the P can be false
imprisonment.
 Example: lawfully confined inmates must be released when sentence is up
3. Was aware of the confinement
 Plaintiff must be aware they are confined
o Unless: that if the prisoner is harmed by the confinement then awareness is not required
Scope of Privilege or Consent
 Privilege or consent is an affirmative defense to false imprisonment

Module 32: Intentional Infliction of Emotional Distress (Outrage)

Intentional Infliction of Emotional Distress
 Often abbreviated to IIED or called outrage

Elements of IIED: “A plaintiff can establish a prima facie case for intentional infliction of emotional distress by showing that the D”
1. Intentionally or recklessly
o Satisfied when the D either intended the P severe emotional distress or acted in a deliberate disregard of a high
probability of causing the P to suffer emotional distress
o Recklessness will suffice
o Intent does not generally transfer to the outrage tort
 Some courts have held that P can successfully sue a D for IIED where the D inflicts intentional bodily harm
on the P’s immediate family member in P’s presence
 Better thought of recklessness fulfilling the intent requirement instead of transfer of intent
2. By extreme and outrageous conduct
o Extreme and outrageous conduct is usually a high bar
o A typical statement that the conduct “must transcend all bounds of decency and be regarded as atrocious and
utterly intolerable in a civilized community”
o Do not have to involve grim spectacle- can involve isolated suffering as well
o Mere insults and incivility are generally not outrageous enough for IEED unless
 There is a continued pattern of insults or demeaning behavior
 Given enough time can accumulate to tortious proportions
 Single instances of gross insult to be actionable where the defendant is an innkeeper or common carrier
o 4 markers that tend to support a finding of outrageousness
 1. Abusing one’s positon over or power with respect to the plaintiff
 2. Taking advantage of a plaintiff whom the defendant knows to be particularly vulnerable
 3. Repeating offensive conduct in a situation where the P is not, as a practical matter, free to leave
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 4. Perpetrating or threatening violence against a person or property in which the P is known to have a
particular interest
3. Inflicted severe emotional distress on the plaintiff
o Word “severe” is key
o In an earlier era, P had to prove some physical symptom of the distress
o Majority of courts today leave it up to jury to determine whether the distress is truly severe

First Amendment Defense to IIED

 IIED can be trumped by the 1st amendment-at least where the cause of the emotional distress is speech about a matter of
public concern

Module 33: Trespass to Land

Trespass to Land
 Consent is of course a defense
Elements
1. Intentionally
o The intent to act w/ the purpose or w/ the substantial certainty of bringing about some consequence-
Consequence is different than other torts
 There does not need to be an intent to trespass just an intent to affect the action that constitute the
trespass
o The defendant intended to place the object where it was actually placed
 D does not have to intent to trespass, just intend the action that constitute the trespass
o Intent required for trespass is a Low bar
o Applicability of transferred intent doctrine: traditional view is that trespass to land is eligible for the application of
transferred intent doctrine among the torts of battery, assault, false imprisonment and trespass to chattels
2. Caused an intrusion, either by entry onto or failure to leave or remove from,
o Some authorities- entry can be accomplished even my minute particles
o “entry” does not need to be a transit of the border of the P property
 However, the D could accomplish a trespass by interacting w/ the land or fixtures in a way that is beyond
the scope of that permission
o Failure to leave or remove: need not be an affirmative action. It can be an omission
3. Plaintiff’s real property
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o P needs only be the possessor of the land
o Real property is the land and everything affixed to it including improvements, buildings, and all fixtures

Damages and Scope of Recovery

 If the trespasser does no damage the P can still recover nominal damages
 If trespasser does cause damage- the P can recover compensatory damages on that basis
o Any damages caused by the trespasser- even if highly unpredictable and trespasser was exercising due care can be
recovered
 Since recovery under [trespass to land] is based on force and resultant damage regardless of the intent to injury, a child of
the most tender years is absolutely liable to the full extent of the injuries inflicted

Module 34 Trespass to Chattels and Conversion

Trespass to Chattels and Conversion
 Provide ways to sue people who “mess with your stuff”
 Trespass to chattels requires something that rises to an interference
 The more potent tort of conversion requires something more, for instance absconding w/ a chattel for a lengthy period or
so much damage that its totaled
o Special remedy: forced sale
The Elements of Trespass to Chattels
1. Intentionally
 Assuming the D has no permission to touch or use the chattel the D need only intent to act upon the chattel
 No requirement that the D intended to invade any legal right of the P or intent to harm the chattel
 D is not excused by way of honest mistake
 Assuming the D has permission: intentional when the P takes it outside the scope of the permission
 Traditional doctrine of transferred intent- trespass to chattels is eligible for the application w/ battery, assault,
false imprisonment and trespass to land
2. Interfered with the
 For liability to arise, the D must “interfere” with the P possession- can be established by
 Actual damages to the chattel
 Actual dispossession of the chattel
 Loss of use of the chattel for some appreciable amount of time, or
 Harm to the P, or to something or someone in whom the P had a legal interest because the D’s action
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3. Plaintiffs right of possession in a chattel
 No requirement that the P be the owner of the chattel- merely that the P have a current right of possession

The Elements of Conversion

1. Intentionally
 Only that the D intend the actions that constitute conversion
 No requirement of bad motive, nor is there a requirement that the D intend to affect a conversion
2. Interfered with
 The D must exercise dominion over the chattel in a way that is substantial that it warrants the remedy of the
forced sale (so seriously as to force the D to purchase the chattel)
3. The plaintiffs right of possession in a chattel
4. In so substantial a manner as to warrant the remedy of a forced sale
The Remedy of Forced Sale (or Forced Purchase)
 The D is ordered to pay full value for the converted chattel
 No P can be required to sue for conversion rather than trespass to chattels- its P choice
 The remedy of forced sale is something P seeks when they no longer want the chattels at issue

Module 35: Defenses (to Intentional Torts)