Intentional Harmful or Offensive (unreasonable) Contact for which there is no consent/privilage.  Accidental contact is analyzed with negligence or strict liability.

Essential Elements

1. Intent to affect the chattel
2. Interference with the P’s possessory interest by dispossession use or physical contact
3. Without consent
4. Damage – substantial loss of use or impairment of condition, quality or value

Elements of Battery

1.  Intentionally Cause

2.  Harmful or Offensive (reasonable sense of dignity) Contact

3.  With the Person of Another (or something closely connected with the person)

4.  Awareness not required

5.  Contact was beyond what was consented to

Defendant liable for battery IF…
Intention of harmful or offensive contact AND …
No consent AND …
No privilege
No Consent/No Privilege = No Defense

Assault is the intentional causing of an apprehension of harmful or offensive contact.

1.  Intentional Act

2.  Which places P in Apprehension

3.  Of immediate (present apparant liability)

4.  Harmful or Offensive Contact

1.  D’s actions must create in P an apprehension of an immediate contact

2.  No assault if P thinks D lacks the ability to commit a battery

3.  Not dependent on D’s actual ability or intention to carry out the threat

4.  Split view on whether the apprehension of contact must be reasonable (objective) or merely genuine (subjective)

5.  Threat of future harm not enough – imminent harm reqd

6.  Words alone usually not enough

False imprisionment is defined as the intentional infliction of a confinement.

1. Intent to confine

2. Unconsented detention within boundaries fixed by defendant, without reasonable exit/escape apparent

3. By unreasonable force, threat of force or assertion of legal authority

4. P’s knowledge of confinement or harm caused to P by confinement

1.  Must be confinement, not just inconvenience or partial interference

2.  Confinement can be mobile

3.  Means of escape must be reasonable

4.  Consent is a Defense

Confinement in False Imprisionment can be established by:

Force

Physical barriers

Threat of harm to P or others

Assertion of legal authority

Exercise control over P’s property if P stays with property

Moral pressure and economic coercion normally insufficient

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. R2T

Essential Elements of

Intentional Infliction of Emotional Distress (IIED)

1. Intentional or reckless conduct
2. That is extreme or outrageous
3. Causation
4. Severe emotional distress

1.  Must distinguish the “trifling annoyance from the serious wrong”

2.  R2T – Liability found where conduct is so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community

3.  Outrageous conduct may arise from the actor’s knowledge of the others peculiar susceptibility to severe emotional distress

4.  Defendant’s status, position, authority, power is a factor in assessing the conduct

5.  State law may require medical proof

6.  Abusive and insulting language not enough – exception may apply to common carriers, innkeepers and utilities for grossly insulting language or where speaker exploits a known sensitivity

7.  Bystanders and Third Persons – usually limited to (1) close family members (2) in close proximity (3) who witness death or injury to loved one – may sound in negligence – may depend on whether the conduct was intentional vs reckless

As generally used, "trespass" occurs when either: (1) D intentionally enters P's land, without permission; (2) D remains on P's land without the right to be there, even if she entered rightfully; or (3) D puts an object on (or refuses to remove an object from) P's land without permission.

1. Intent to be present
2. No consent

1.  Intent to be at the place in question
2.  Intrusion may be by person or object
3.  Beneficial intrusion no defense
4.  Consent may be withdrawn or its scope exceeded
5.  Mistake no defense – unless induced by the landowner
6.  Action belongs to the possessor of the land

7.  Private Nuisance

"Trespass to chattels" is defined as any intentional interference with a person's use or possesion of a chattel.  D only has to pay damages, not the full value of the property.

1.  Taking without Consent

2.  Obtaining by Fraud or Duress

3.  Barring Access

4.  Destroying

5.  Taking into Custody

1.  Absent dispossession, momentary deprivation of use will not give rise to a claim.

2.  Conversion damages
 purchase at fair market value

3.  Trespass damages
    Diminution in value

The plaintiff has presented sufficient evidence facts, witness testimony, documents, photographs etc. to satisfy each element of the tort.  Does not mean the plaintiff will win, just means the plaintiff made out a sufficient case from an evidentiary standpoint and the case will get to go to the jury.

prima facie case. (1805) 1. The establishment of a legally required rebuttable presumption. [Cases: Evidence [image]53, 85.] 2. A party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor. [Cases: Evidence [image]584(1).] (BLACK'S LAW)

What standard of evidence the Plaintiff has to present to prevail:

Greater weight of the evidence

Preponderance of the evidence

More likely than not

(All mean the same thing)

Relevant to all the torts:

Purpose

subjective desire -- not based on the reasonable person

Or

Substantial Certainty

Knowledge

(Know or should have known)

One does not have to intend harm, you do have to intend contact.  If you do not intend harmful contact, you have to intend contact that is offensive.

Mistake is not a Defense.  If A intended to make contact with B but instead contacted C, A is liable for that contact even though he did not mean to for whatever reason.  No consent/No Privilege = No defense

General rule is that it is not a defense

Applies only to intentional torts.

Intent can be transferred among five torts (battery, assault, false imprisionment, trespass to chattel and trespass to land) and different victims within these five torts. 

Is the item so connected with the body as to be customarily regarded as part of the other’s person and therefore as partaking of its inviolability.

Different from defense on lack of the element.  Even if all of the elements of a tort are still there, you can still have a defense.

1.  Intoxication, age or mental deficiency may negate capacity.

2.  Consent Given under Duress is invalid

3.  Consent is ineffective if the act consented to is Criminal

4.  Exceeding the scope of a limited consent given by P

5.  Mistake induced by D ex. lying to P, must be a material fact.

Consent is a defense to intentional tort liability.  If the asserted victim gives permission, what would otherwise be tortious is instead provelged. 

1.  Given by one with capacity to consent.

(must appreciate the nature, extent and probably consequences of the conduct consented to)

2.  To the particular conduct or to substantially the same conduct.

Apparent consent exists when a person's acts or words, silence or inaction, would be understood by a reasonable person as intended to indicate consent, and are in fact so understood by the person doing the act resulting in contact. It is the objective manifestation by P that counts, not his subjective state of mind.

Actual or Express Consent

Actual consent may be expressed in writing or verbally, if P expressly consents to an interference with his person or property, D will not be liable. Consent is a defense to an intentional tort.  

A question of reasonable cause and justification based on consideration of all the circumstances.

A person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact, and any threatened confinement or imprisonment. 

1.  Threat must be “immediate”
2.  Can’t unlawfully provoke and then defend
3.  Reasonable mistake as to need for self defense does not eliminate the defense
4.  Retaliation not a basis for the defense if the threat has ended
5.  Duty to Retreat, courts are split.

Majority rule – no retreat required

Minority/R2T Rule – Retreat required if defense requires deadly force (except from home)

Force – deadly or otherwise – must be reasonable under the circumstances

Two Views

Can defend if the person being helped had a privilege to use force.
or
Can use reasonable force to defend if the actor reasonably believes a third party is entitled to exercise self defense.

Owner may use REASONABLE FORCE to retake goods WRONGFULLY taken if the dispossession is discovered PROMPTLY and there is FRESH PURSUIT of the wrongdoer.

Fresh Pursuit: The owner must act without unreasonable delay.

Reasonable Force: The force used must be reasonable, and deadly force can never be used.

Wrongfully: If the owner willingly parts with the property at first, he is generally unable to use force to recover it.

Where a merchant reasonably believes that a person is stealing his property, many courts give the merchant a privilege to temporarily detain the person for investigation.  Generally 10-15 minutes, just long enough to figure out if they have stolen property, then the police must be called. Reasonable mistake is ok.

Under the defense of "necessity," D has a privilege to harm the property interest of P where this is necessary in order to prevent great harm to third persons or to the defendant herself.

One is privileged to enter land in possession of another if it is, or if the actor REASONABLY believes it to be, necessary for the purpose of averting an IMMINENT PUBLIC DISASTER.  Here, no compensation has to be paid by the person doing the damage.

One is privileged to interfere with the property rights of another to avoid greater harm, but must compensate the owner/possessor for any harm caused by the interference.

Applies even in an emergency of the actor’s own making

Must be exercised at a reasonable time and in a reasonable manner

When the P’s injury is a direct result of his knowing and intentional participation in a criminal act he cannot seek compensation for the loss, if the criminal act is judged to be so serious an offense as to warrant denial of recovery.

Only very serious harm to the property or other serious interference with the right of control constitutes conversion.  Damage or interference which is less serious may still constitute trespass to chattel.

Purchasing stolen property, even if the purchaser was acting in good faith and was not aware the seller did not have title, constitutes conversion by both the seller and innocent buyer.

Would offend a reasonable person’s sense of dignity.

Was the conduct unwarranted by the social usages

prevalent at the time and place.

Overly sensitive – maybe – if communicated

Altruistic Purpose Irrelevant if no consent