1.  Intentional

2.  Negligence

3.  Strict Liability

4.  Statutory

1. Scope of liability (joint and several)

2.  Damages (compensatory and/or punitive)

3.  Who may recover damages

4.  Defenses (esp. contributory/comparative)

5.  Respondeat Superior

6.  Insurance coverage

7.  Immunities

8.  Statutes of limitation

9.  Statutes of repose

Elements of Intent (2)

1. Purpose (Subjective desire, not based on the reasonable person)
2. Substantial Certainty (Knowledge)

1. Intent is a state of mind about consequences or results

2. Intent to injure is not required

3. Evidence of intent may be inferred (objective)

4. A mistake as to the surrounding facts does not preclude a finding of intent, unless the mistake is induced by the plaintiff

5. Bad motive is not necessary

6. Liable for all resulting harm-even unintended or unforseen harm

7. Capacity not an issue so long as P has intent.  Intent produced by mental deficiency is sufficient to support tort liability.

8. Intent and negligence can be mutually exclusive, but can also become mutually inclusive or turn into one another

Battery 

Rule (RT1)

Elements (3)

Restatement of Torts, 1, 29 § 13

An act which, directly or indirectly, is the legal clause of a harmful contact with another's person makes the actor liable to the other, if:

(a) the act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person, and

(b) the contact is not consented to by the other or the other's consent thereto is procured by fraud or duress, and

(c) the contact is not otherwise privileged. 

1. Intentional harmful or offensive (unreasonable) contact
2. For which there is no consent/privilege

Negligence

Definition

Essential Elements

Breach of a duty to exercise reasonable care under the circumstances.

Essential Elements:

1. Duty
2. Breach
3. Causation
4. Damages

Normally a question of fact.  Will vary based on the situation and circumstances.

1. Lack of reasonable care
2. Foreseeable likelihood that the action will cause harm
3. Foreseeable severity of the harm
4. How difficult to eliminate the risk of harm

Contributory Negligence

At Common Law:  Contributory negligence could be raised as a defense only in a negligence action and was always a 100% bar to liability (MD, DC, VA, NC, AL)

Under Comparative Negligence:  Contributory negligence is no longer always a 100% bar.

Under Comparative Fault: Contributory negligence is no longer always a 100% bar and may be raised in actions other than negligence, except, typically, suits based on international wrongdoing.

Two Varieties

Pure: Plaintiff's recovery is reduced by plaintiff's percentage of negligence or fault

Modified: 

If plaintiff is <50% negligent or at fault: REDUCED recovery

If plaintiff is >50% negligent or at fault: ZERO recovery

If equal negligence or fault between plaintiff and defendant:  Depend on phrasing of State Law

"Let the master answer"

Applies to employees and agent-employee still liable

1. Products (but not in NC)
2. Inherently dangerous activities (blasting, controlled burn, use of dangerous chemicals or materials)
3. Dangerous animals (some states)

When one person is liable for the negligent actions of another person, even though the first person was not directly responsible for the injury. For instance, a parent sometimes can be vicariously liable for the harmful acts of a child and an employer sometimes can be vicariously liable for the acts of a worker.

1. Recovery without proof of tortious conduct
2. Employer Immunity
3. Employer may be liable for intentional conduct

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.

Assault

Essential Elements

1. Defendant acts intending to cause harmful or offensive contact or to cause apprehension of such imminent contact
2. Defendant has the present apparent ability to cause contact
3. The plaintiff is put in apprehension of such contact
4. No consent

Assault 

Key Points (7)

1. Δ's actions must create in Π an apprehension of an immediate contact
2. No assault if Π thinks Δ lacks the ability to commit a battery-Δ must have the PRESENT APPARENT ABILITY to make the contact
3. Split view on whether the apprehension of contact  must be reasonable (objective) or merely genuine (subjective)
4. Threat of future harm is not enough-imminent harm required
5. Words alone usually not enough, need to be accompanied by some threatening gesture
6. Public carriers, innkeepers, and utilities may gave a higher standard (see also IIED)

7. Not dependent on Δ's ability or intention to carry out the threat

Transferred Intent

Key Points

1. Applies only to intentional torts
2. Mainly batter and assault-arguably can apply to FI, trespass to land and trespass to chattels

Child/Parent Liability 

General Rule

• Children liable for their torts
• Parents not liable for child's tort

1. Check for parental liability statutes
2. Legal presumptions regarding forming tortious intent
3. Child as agent/employee of parent
4. Parental Ratification

False Imprisonment (FI)

Essential Elements (6)

1. Intent to confine
2. Within boundaries fixed by Δ
3. Apparent lack of reasonable exit
4. Use of unreasonable force, threat of force or assertion of legal authority by Δ
5. Harm to Π or knowledge of the confinement
6. No consent

False Imprisonment (FI)

Key Points

Must be confinement, not just inconvenience or partial interference

Confinement can be mobile

Means of escape must be reasonable

Confinement can be established by:

A) Force
B) Physical barriers
C) Threat of harm to Π or others
D) Assertion of legal authority
E) Exercise of control over Π's property if Π stays with property

Moral pressure and economic coercion normally insufficient

CONSENT IS A DEFENSE

Intentional Infliction of Emotional Distress (IIED)

Essential Elements

1. Intentional or reckless conduct
2. That is extreme or outrageous
3. Causing severe emotional distress

Intentional Infliction of Emotional Distress (IIED)

Key Points

Must distinguish the "trifling annoyance from the serious wrong"

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.  R2T says transferred intent applies.

Outrageous conduct may arise from the actor's knowledge or the other's peculiar susceptibility to severe emotional distress.

Δ's status, position, authority, power is a factor in assessing the conduct

State law may require medical proof

Abusive/insulting language not sufficient unless exploiting a known weakness

Trespass to Land

Essential Elements (3)

1) Intentionally enter land in possession of another, or cause a thing or person to do so, or

2) Remain on the land, or

3) Fail to remove from the land a thing which he is under a duty to remove

Trespass to Land

Key Points (7)

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 extended

5.  Mistake no defense, unless introduced by the landowner

6.  Action belongs to the possessor of the land

7.  Private nuisance

Trespass to Chattels

Essential Elements (4)

1.  Intent to affect the chattel
2.  Interference with Π'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

Conversion

Definition

Act of dominion over wrongfully exerted over another's personal property in denial of, or inconsistent with, his rights therein.

Any unauthorized act that deprives an owner of personal property without his or her consent. 

Conversion 

Essential Elements (3)

1. Intentional exercise of dominion or control over a chattel
2. Which so seriously interferes with the right of another to control it
3. That Δ may justly be required to buy it

Trespass to Chattels and Conversion

Key Points

1. Absent dispossession, momentary deprivation of use will not give rise to a claim
2. Trespass damages: diminution in value
3. Conversion remedies: actual damages
4. Recovery of Δ gain (assumpsit)
5. Fair Market Value: At what point in time?  Sentimental value?
6. Replevin

There is no liability for:

1. Receiving without notice

2. Re-delivering without notice

3. Re-delivering to the true owner

Liability will be imposed for:

1. Receiving with notice

2. Re-delivering to bailor with notice of the true owner's claim

A bailee's remedy, when faced with adverse claims, is to deposit the goods into court

Bailment

Definition

The delivery of personal property from one person (the bailor) to another (the bailee) in trust for some special purpose, as according to an express or implied contract. Only the lawful possession of the property, and not ownership, is transferred. The rights and duties of the parties as to the property depend on the purpose of the bailment and the terms of the contract.

Bailor 

Definition

A person who leaves goods in the custody of another, usually under a "contract of bailment", in which the custodian ("bailee") is responsible for the safekeeping and return of the property. Sometimes the bailor is not the owner but a person who is a servant of the owner or a finder (say, of jewelry) who places the goods with the bailee until the owner is found.

Bailee 

Definition

A person with whom some article is left, usually pursuant to a contract (called a "contract of bailment"), who is responsible for the safe return of the article to the owner when the contract is fulfilled. These can include banks holding bonds, storage companies where furniture or files are deposited, a parking garage, or a kennel or horse ranch where an animal is boarded. Leaving goods in a sealed rented box like a safe deposit box, is not a bailment, and the holder is not a bailee since he cannot handle or control the goods.

Defenses:

1. Consent

2. Apparent 

3. Implied

Types:  

1. Self Defense

2. Defense of Others

3. Unlawful Conduct

Privileges:

1. Defense of property

2. Recapture of chattels

3. Detention for investigation

4. Necessity

Consent

Key Points

To be effective, consent must be 1) given by one with capacity to consent, and 2) to the particular conduct or to substantially the same conduct. (i.e. must appreciate the nature, extent, and probably consequences of the conduct consented to).

Intoxication, age, or mental deficiency may negate capacity.

Consent given under duress is invalid (Ex: workplace pressure)

Consent to a criminal act-split authority (R2T: such consent is effective to bar the tort action.  

Consent and Mistake

Key Points

Fraud in the Factum/Essence v. Fraud in the Inducement

Question/Analysis: Was the mistake related to something MATERIAL in Π's decision-making process?

Δ must be aware of Π's mistake.

Mutual mistake not caused by the Δ does not invalidate consent.

Self Defense

Key Points

1. Can't provoke and then defend
2. Reasonable mistake as to need for self defense does not eliminate the defense
3. Duty to Retreat: fact specific, no such duty as to non-deadly force
4. Force-deadly or otherwise-must be reasonable under the circumstances

1. Owner may use REASONABLE FORCE to retake goods if the dispossession is discovered PROMPTLY and there is FRESH PURSUIT of the wrondoer.
2. Liable for damage caused by any mistake in exercising the privilege.

Detention for Investigation 

Key Points (3)

1. Reasonable belief (i.e. reasonable mistake OK)
2. Reasonable amount of time
3. Reasonable investigation

1. 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.
2. Public "taking" and compensation

Unlawful Conduct

Key Points

When Π'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. 

GENERAL RULE:

MENTAL DEFICIENCY is not a defense to an intentional tort.

GENERAL RULE:

Intoxication is not a defense to intentional wrongdoing.