TORTS (HALPERT)

Tort: a civil wrong where damage can be obtained

Intentional Interference with Person or Property (Chapter 2)

Intentional Interference with Person

1. Intent: must be the result of a voluntary act to make contact; (battery) must act for the purpose of inflicting a harmful or offensive contact on the plaintiff or realize with substantial certainty that contact will result.

a. Transferred intent: When the actor tries to commit an intentional tort (battery, assault, trespass to land, trespass to chattels, false imprisonment only) and actually causes a harmful or offensive contact to another, she will be liable to the actual victim.

Garratt v. DaileySupreme Court of Washington (1955)Procedural History:P filed a claim of battery against D. The trial court dismissed the action and to obviate the necessity of a retrial, the court decided that if P was determined to be entitled to a judgment against D, the amount of her damage was found to be $11,000. Initially, the court ruled that D did not have any willful or unlawful purpose in moving the chair. He did not have any intent to bring about any unauthorized or offensive contact with P or any objects appurtenant thereto.

Plaintiff appeals from a judgment dismissing the action and asks for the entry of a judgment in that amount or a new trial.Issue:Did the defendant have intent? Is this in fact battery?Facts:Brian Dailey, the defendant was visiting with Naomi Garratt, an adult and sister of the plaintiff, Ruth Garratt, likewise in the back yard of the plaintiff’s home. P claims that she came out in the back yard and started to sit down in a lawn chair and D deliberately pulled it out from under her.D claims picked up a said lawn chair and moved it sideways a few feet and seated himself therein, at which time P was about to sit down at the place where the lawn chair had formerly been. He then hurriedly got up from the chair and attempted to move it toward P to aid but due to his small size and lack of dexterity he was unable to get there in time to prevent her from falling to the ground.P’s fall resulted in a fractured hip and other painful and serious injuries. A child defendant pulled out a chair from a lady who was trying to sit down.Rule:Intentional Tort: Battery“the intentional infliction of a harmful bodily contact upon another”Reasoning:No matter the age, D must have committed some wrongful act before he cold be liable for appellant’s injuries.

No consent or privilege, so an immediate consideration of intent and its place in the law of battery is necessary.

Character of Actor’s Intention The act must be done for the purpose of causing the contact or apprehension or with

knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced.

It is not enough that the act itself is intentionally done. The actor must realize that to a substantial certainty the contact or apprehension will result to be liable.

The mere absence of any intent to injure the P or play a prank would not absolve him from liability if in fact he had such knowledge of the result of his actions.

Holding:

TORTS (HALPERT)

Clarification of the findings to specifically cover the question of Brian’s knowledge is necessary, because intent could be inferred therefrom.Order:Remanded to the trial court for clarification.On remand, the trial judge concluded that it was necessary for him to consider carefully the time sequence. Finding that the arthritic woman had begun the slow process of being seated when the D quickly removed the chair, he entered judgment for the P.Notes:Why sue a minor?

Parents are not responsible for the torts of their children.o FL has the parents’ liable via signature on DL, etc.o Only responsible for negligence

A judgment lien can occur when Brian comes of age/owns property The child could potentially have assets of his own Homeowner’s Insurance is the more likely reason for this case. They can collect under

the parent’s policy.Appeals court is bound by the facts of the lower court.

Intention: a will to cause the result OR an intentional act with substantial certainty the result of the action would be a tortious actThe standard of intent is subjective (what the defendant thought). The burden of the plaintiff would be to show what the defendant was thinking.Very young children have been deemed subjectively able to understand intent

Battery: Intent to cause harmful or offensive contact The action resulted (contact was made) No require to establish motive or damages Rooted in keeping the peace

Wagner v. StateSupreme Court of Utah (2005)Procedural History:Mrs. Wagner and her husband filed negligent claims against the State. The trial court granted a 12(b)(6) motion to dismiss based on the State’s argument that the attack constituted a battery, a tort for which the State has retained immunity from suit.The appellate court affirmed that ruling and the Wagners petitioned the Utah Supreme Court for review.Issue:Can a mentally disabled person have intent to commit battery?Facts:Mrs. Wagner was standing in line at a K-Mart store when she was suddenly attacked from behind by Mr. Giese who grabbed her by the head and hair and threw her in the ground. Mr. Giese was a mentally disabled patient accompanied by state employees who had brought him to K-Mart as part of his treatment program.Rule:BatteryReasoning:The Wagners argued Guise was mentally incompetent to know that the action would be harmful or

Intention to cause injury

Intent to cause contact

Knowledge that contact would result w/ substantial certainty

Knowledge that contact is likely to result

Indifference/reckless

Negligence

TORTS (HALPERT)

offensive to Mrs. Wagner.Tort is based on bodily integrity. To achieve this protection, we cannot burden plaintiff to need to prove intent because it rarely is capable of proof.Holding:The lower court judgment is affirmed, because the action was battery. He had the intent to act, and it doesn’t depend on what the defendant thinks is harmful or offensive. It’s for the finder of fact to decide whether the contact was harmful or offensive.Order:The Utah Supreme Court affirms the court of appeals’ decision to dismiss the case for failure to state a claim.Notes:The State of Utah became the defendant because Guise was being taken care of by employees of the State.The defendant was arguing negligence not battery, because the State has retained immunity for intentional torts.Some intentional torts will reward punitive damages, while negligent torts will only reward compensatory damages.The defenses to negligence are easier while intentional torts are narrower in scope and to fault the plaintiff. Causation can also be different, and Statutes of limitations. Liability insurance many intentional torts will not be covered by insurance

Ranson v. KitnerAppellate Court of Illinois (1889)Procedural History:The action was brought by appellee against appellants to recover the value of a dog killed by appellants, and a judgment rendered for $50.Issue:Does it matter that they mistaken the dog for a wolf?Facts:The appellants were hunting for wolves and the appellee’s dog had a striking resemblance to a wolf. They in good faith believed it to be one and killed it as such.Rule:Trespass to chattels?Reasoning:The jury held them liable for the value of the dog and they did not see how they could have done otherwise under the evidence. Appellants are clearly liable for the damages caused by their mistake, notwithstanding they were acting in good faith.Holding:No reason for interfering with the conclusion reached by the juryOrder:Judgment affirmedNotesSome modern torts would take into account good faith intentions.Typically, a tort cannot be both intentional and negligent.

McGuire v. Almy Supreme Judicial Court of Massachusetts (1937)Procedural History: The plaintiff filed a claim for assault and battery. The judge directed the verdict for the plaintiff. The defendant appealed.Issue: Can a mentally disabled person be responsible for battery?Facts: The plaintiff was a registered nurse for the defendant and slept in the room next to her. The p kept the d locked in the d’s room. The d while locked in her room had a violent attack and the p told the maid and brother-in-law. The p then entered the room because she thought it best to take the broken stuff away before the d did anything to harm herself with it. As the p approached the d and

TORTS (HALPERT)

tried to take hold of the d’s hand, which held the leg of a low-boy, the d struck the p’s head with it, causing the injuries for which the action was brought.Rule: The Intentional Tort of BatteryReasoning: Courts in this country almost invariably say in the broadest terms that an insane person is liable for his torts. Sometimes it is said that an insane person is not liable for torts requiring malice of which he is incapable. If he financially able to, he ought also to pay for the damage which he does.For this case, it is enough to say that where an insane person by his act does intentional damage to the person or property of another he is liable for that damage in the same circumstances in which a normal person would be liable.There was no evidence that the defendant had previously attacked any one or made any serious threat to do so.Holding: When a mentally disabled person does intentional damage to a person or property, they are still liable for that damage.Order: Judgment for the plaintiff on the verdict.Notes

Talmage v. SmithSupreme Court of Michigan (1894)ProceduralHistory

The plaintiff is the boy’s father who filed a claim against the defendant, who owned the property his son was trespassing on. The jury rendered a verdict for the plaintiff. The defendant appealed to the Supreme Court.

Issue Is this an intentional tort of battery?Facts The defendant saw 6-8 boys on the roof of his shed. He asked the boys to get down

and took a stick and threw it in the direction of the boys. It was thrown at one of the boys, missed, and hit the plaintiff in the eye who he was unaware of being there. This resulted in an injury that led to the total loss of the sight of the plaintiff’s eye.

Rule BatteryReasoning Transferred Intent

If he intended to hit one of the boys and hit another, the intent is transferred because he intended to hit the first boy and the intent transfers.

The right of the plaintiff to recover was made to depend upon an intention on the part of the defendant to hit somebody, and to inflict an unwarranted injury upon some one.

Holding That fact that the injury resulted to another than was intended does not relieve the defendant from responsibility.

Order The judgment will be affirmed, with costs.Notes Transferred Intent: the intent element to one potential plaintiff to another; also can

be among tortstransfer the intent which is satisfactory to the elements of one tort to satisfy the elements of another tort; the transferred intent only applies to the historical torts: battery, assault, trespass to land, trespass to chattels, and false imprisonment. Does not work with emotional distress.

2. Battery: intentional infliction of a harmful or offensive contact with the person of the plaintiff.a. No need to establish damagesbattery is battery.

Cole v. Turner Nisi Prius (1704) 6 Modern Rep. 149, 90 Eng. Rep. 958

1. The least touching of another in anger is a battery.2. If two or more meet in a narrow passage, and without any violence or design of harm, the

one touches the other gently it will be no battery.3. If any of use violence against the other, to force his way in a rule inordinate manner, it is a

battery; or any struggle about the passage, to that degree as may do hurt, is a battery.

TORTS (HALPERT)

Examples of offensive touching: holding the breast of his coat and saying that he demanded satisfaction, spitting in the plaintiff’s face, forcibly removing his hat, an attempted search of his pockets, touching her private parts, touching a woman on the buttocks.

Wallace v. RosenCourt of Appeals of Indiana (2002) 765 N.E. 2d 192Procedural History: Wallace filed a claim of battery against Indianapolis Public Schools and Harriet Rosen, a teacher for IPS. The jury verdict was in favor of Rosen and IPS. Wallace appealed based on the lack of jury instruction regarding battery.Issue: Did the trial court err in refusing to give tendered jury instruction regarding battery?Facts: Rosen was a teacher at Northwest High School in Indianapolis. On April 22, 1994, the high school had a fire drill that was not previously announced to the teachers and occurred jut one week after a fire was extinguished in a bathroom near Rosen’s classroom.Wallace was recovering from foot surgery was the high school delivering homework to her daughter Lalaya. Rosen was escorting her class to the stairway which Wallace and her daughter were blocking. She approached and told everyone to move it. Wallace, with her back to Rosen, was unable to hear Rosen over the noise of the alarm. Rosen then touched her on the back to get her attention. She then told Wallace, “you’ve got to get moving because this is a fire drill.”Wallace testified that Rosen had pushed her and she slipped and fell down the stairs. Rosen denied, but admitted to touching her back.Rule: BatteryReasoning: The mere knowledge and appreciation of a risk—something short of substantial certainty—is not intent.For battery to be an appropriate instruction, the evidence had to support an inference not only that Rosen intentionally touched Wallace, but that she did so in a rude, insolent, or angry manner.Rosen had a responsibility to her students to keep them moving in an orderly fashion down the stairs and out the door.Holding: Rosen’s touching cannot be said to be a rude, insolent, or angry touching. Wallace has failed to show that the trial court abused its discretion in refusing the battery instruction.Order: AffirmedNotes: The plaintiff wishes to argue that Rosen’s contact was reckless. However, given the circumstances of the fire drill, the tap on the back is part of the friction of every day life.Starting from the premise that it was a tap, as that was the trial court’s fact finding.

Restatement (Second) of Torts (1965): Battery: Harmful Contact

“An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other of

a third person, or an imminent apprehension of such a contact, and(b) a harmful contact with the person of the other directly or indirectly results.”

Battery: Offensive Contact“(1) An actor is subject liability to another for battery if(a) he acts intending to cause a harmful or offensive contact with the person of the other of

a third person, or an imminent apprehension of such a contact, and (b) an offensive contact with the person of the other directly or indirectly results.(2) An act which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for a mere unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.”

In the historical standard of battery (Cole v. Turner) constitutes a much more narrower approach where someone who taps on a person’s shoulder in anger and begins to yell and scream could be battery. The Indiana (Restatement) standard would not constitute that action as battery.

TORTS (HALPERT)

Not disclosing that one has genital herpes could be battery. The evidence does not have to show that the defendant knew the consequences of contact, but needs to show that the contact itself was intentional.

o If she doesn’t she has genital herpes, she does not have to disclose—there’s not a tort.

If one kicks another on the shins playfully, then that kick ignites an infection that is still liable for damages and the full extent of the injury. The contact (the kick) is still harmful or offensive, thus constituting recovery.

o If it were a tap of the shoulder that ignited the infection, it would be battery because it was not intending harm or offense.

Fisher v. Carrousel Motor Hotel, Inc.Supreme Court of Texas (1967) 424 S.W.2d 627Procedural History: The jury returned a verdict for $400 actual damages for his humiliation and indignity, and $500 exemplary (punitive) damages in addition. The trial court set aside the verdict and gave judgment for the defendant notwithstanding the verdict. The Court of Civil Appeals affirmed this. Plaintiff appealed to the Supreme Court.Issue: Was the defendant’s employee’s action one of battery?Facts: Plaintiff (NASA mathematician) was attending a professional conference at defendant’s hotel. As plaintiff was standing in line at the buffet luncheon, one of defendant’s employees snatched the plate from his hand and shouted that a “Negro could not be served in the club.”Plaintiff was not actually touched, and was in no apprehension of physical injury; but he was highly embarrassed and hurt by the conduct.Rule: BatteryReasoning:No difficulty in holding that the intentional grabbing of plaintiff’s plate constituted a battery. Clearly an offensive invasion of his person as would be an actual contact with the body.

It is not necessary to touch the plaintiff’s body or even his clothing; knocking or snatching anything from plaintiff’s hand when done in an offensive manner is sufficient (Morgan v. Loyacomo).

Unpermitted and intentional contacts are actionable. Some things so intimately connected are universally regarded as part of the person [1 Restatement (Second) of Torts § 18]

Holding: The forcible dispossession of plaintiff Fisher’s plate in an offensive manner was sufficient to constitute a battery, and the trial court erred in granting judgment notwithstanding the verdict on the issue of actual damages. Damages for mental suffering are recoverable without the necessity for showing actual physical injury.Order: Judgment of the courts below are reversed, and judgment here rendered for the plaintiff for $900 with interest from the date of the trial court’s judgment and for costs of this suit.NotesWithout racial epithet, it would still be considered battery if it was offensive. Blatantly offensive with racial epithet.

In analyzing battery cases, always distinguish the intent to act from the intent to cause a harmful or offensive contact.

Battery requires MORE than a deliberate actmust be done for the purpose of causing a harmful or offensive contact

3. Assault: an actor is subject to liability to another for assault if

TORTS (HALPERT)

a. he acts intending to cause a harmful or offensive contact with the person of the other of a third person, or an imminent apprehension of such a contact, and

b. the other is thereby put in such imminent apprehensionIf you don’t see it, it’s not assault!

I de S et ux. v. W de SAt the Assizes (1348) Procedural History: I de S and M, his wife, complain of W de S concerning this, that the said W, with force and arms did make an assault upon the said M de S and beat her. W pleaded not guilty. The verdict of the inquest said that it seemed to them that there was no trespass since no harm was done.Issue: Was there harm done by the defendant when he struck the door with the hatchet after the plaintiff’s wife put her head out of the window and asked him to stop?Facts: W came at night to the house of the plaintiff and sought to buy wine but the door of the tavern was shut. He beat upon the door with a hatchet, which he had in his hand and the wife of the plaintiff put her head out of the window and commanded him to stop. He saw and struck with the hatchet but did not hit the woman.Rule: AssaultReasoning: There is harm done as he made an assault upon the woman, although he did no other harm.Holding: There is harm done when an action is an assault.Order: Plaintiff should recover their damages and so note than for an assault a man shall recover damages.Notes: The plaintiff had to show and prove that the defendant intended the apprehension of a battery for it to be assault.

Transferred intent from trespass to chattels to assault if the hacker was hacking the door and the wife was in the back swing.

Western Union Telegraph Co. v. HillCourt of Appeals of Alabama (1933) 25 Ala.App. 540, 150 So. 709Procedural History:Action for damages for assault by J.B. Hill against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.Issue: Was there such an assault as will justify an action for damages?Facts: The assault complained of consisted of an attempt on the part of Sapp to put his hand on the person of plaintiff’s wife (while intoxicated and feeling the effects of whiskey) coupled with a request that she come behind the counter in defendant’s office, and that, if she would come and allow Sapp to love and pet her, he “would fix her clock.”Rule: AssaultReasoning: While every battery includes an assault, an assault does not necessarily require a battery to complete it. An actionable assault must be an intentional, unlawful, offer to touch the person of another in a rude or angry manner under such circumstances as to create a well-founded fear of an imminent battery.Aside from the positive denial by Sapp of any effort to touch Mrs. Hill, the physical surroundings as evidenced by the photographs of the locus tend to rebut any evidence going to prove that Sapp could have touched plaintiff’s wife across that counter even if he had reached his hand in her direction unless she was leaning against the counter or Sapp should have stood upon something so as to elevate him.Holding: The evidence as a whole presents a question for the jury. This was the view taken by the trial judge and in several rulings bearing on this question there is no error.Order: Reversed on the ground that Sapp had not acted within the scope of his employment.Notes

True for criminal law that every battery includes an assault, but not in the civil context—

TORTS (HALPERT)

what if you don’t see them? It’s the reach that makes it a question for assault, not just the words. The plaintiff doesn’t have to show that the defendant could have committed the battery, just

that she apprehended he might. Voluntary intoxication is not a defense.

Threats of future action (You’re finished; cut you in your sleep”) not imminent enough to state cause of action for assault.

Words in themselves, no matter how threatening, do not constitute an assault. If plaintiff is unaware of the approaching action, there is no assault. (plaintiff doesn’t see

someone who is shooting from behind). A major distinction between a criminal assault and an assault in tort is that for criminal

assault, a victim need not have an apprehension of contact. o A criminal assault occurs if the defendant intends to injure the victim and has the

ability to do so.o A tort of assault occurs only when the victim has an apprehension of contact and it

is not necessary that the defendant have the actual ability to carry out the threatened contact. Depending on the jurisdiction, a defendant could be subject to either criminal prosecution or civil damages, or both.

4. False Imprisonment: an actor is subject to liability to another for false imprisonment if a. he acts intending to confine the other or a third person within boundaries fixed by the

actor, andb. his act directly or indirectly results in such a confinement of the other, andc. the other is conscious of the confinement or is harmed by it.

Big Town Nursing Home, Inc. v. NewmanCourt of Civil Appeals of Texas (1970) 461 S.W. 2d 195Procedural History: Plaintiff Newman filed for actual and exemplary damages in a false imprisonment case against Big Town Nursing Home, Inc. Trial court provided judgment for the plaintiff. Defendant appealed.Issue: Did the Big Town Nursing Home falsely imprison Newman?Facts: Plaintiff is a retired printer 67 years of age, who has never been in a mental hospital or treated by a psychiatrist. Plaintiff was taken to defendant nursing home on September 19, 1968 by his nephew who paid one month’s care in advance. Plaintiff had been arrested for drunkenness and drunk driving in times past and had been treated twice for alcoholism. Plaintiff was not intoxicated and had nothing to drink during the week prior to admission. The admission papers provided that patient “will not be forced to remain in the nursing home against his will for any length of time.”On September 22, 1968, plaintiff decided he wanted to leave and tried to telephone a taxi. Defendant’s employees advised plaintiff he could not used the phone. Plaintiff walked out, but was caught by employees and brought back and locked up. Plaintiff tried to escape 5 or 6 times but was caught and brought back each time. Plaintiff made every effort leave and repeatedly asked to be permitted to leave. Finally on November 11, 1968 plaintiff escaped and caught a ride into Dallas.Rule: False imprisonmentReasoning: False imprisonment is the direct restraint of one person of the physical liberty of another without adequate legal justification. Defendant placed plaintiff with insane persons, alcoholics, and drug addicts knowing he was not in such category. They detained him for 51 days during which he was demanding to be released and attempting to escape.Defendant may be compelled to respond in exemplary damages if the act causing actual damages is a wrongful act done intentionally in violation of the rights of plaintiff.Holding: Defendant acted in the utter disregard of plaintiff’s legal rights, knowing there was no court order for commitment and that the admission agreement provided he was not to be kept against his will.Order: The court of appeals found that the amount of damages was excessive and offered plaintiff a

TORTS (HALPERT)

remittitur. (A remittitur is a ruling by a judge (usually upon motion to reduce or throw out a jury verdict) lowering the amount of damages granted by a jury in a civil case. Usually, this is because the amount awarded exceeded the amount demanded.)

1. Plaintiff subsequently agreed to the remittitur and the judgment below, so reformed, was affirmed.Notes: Defendant has to be shown that he intended to restrain the plaintiff within strict bounds, the plaintiff must be aware of the restraint and not consent, and there’s no legal justification for that restraint.

There can be false imprisonment in a moving automobile, in a city, possibly in a state, but not the country of Taiwan.

If one exit of a room or a building is locked with plaintiff inside, but another reasonable means of exit is left open, there is no imprisonment.

The Restatement (Second) of Torts § 36, comment a, treats the means of escape as unreasonable if it involves exposure of the person (plaintiff in the water and defendant steals his clothes), material harm to the clothing, or danger of substantial harm to another. Plaintiff would not be required to make his escape by crawling through a sewer.

Along with battery and assault, false imprisonment has now become exclusively an intentional tort and nominal damages may be awarded.

Parvi v. City of KingstonCourt of Appeals of New York (1977)41 N.Y.2d 553, 362 N.E.2d 960, 394 N.Y.S. 2d 161Procedural History: Action for false imprisonment. The trial court dismissed the case because he failed to make a prima facie case and the Appellate Division affirmed this decision.Issue: Was Parvi falsely imprisoned outside the city of Kingston even though he doesn’t have a recollection of the incident?Facts: Police responded to a complaint, found two brothers engaged in a noisy quarrel in an alley behind a commercial building. Plaintiff was with them, apparently trying to calm them. All three were showing “the effects of alcohol.” Plaintiff told the police he had no place to go, so rather than arrest him, they him outside the city limits to an abandoned golf course to “dry out.”There was conflicting testimony as to whether he went willingly. Within an hour, plaintiff had wandered 350 ft. and onto the New York State Thruway, where he was struck by a car and severely injured. On cross, he admitted he had no recollection of what happened that night.Rule: False ImprisonmentReasoning:The element of consciousness of confinement is a subtler and more interesting subissue in this case. False imprisonment, as a dignitary tort, is not suffered unless its victim knows of the dignitary invasion. Restatement (Second) of Torts § 42 too has taken the position that there is no liability for intentionally confining another unless the person physically restrained knows of the confinement or is harmed by it.However, he no longer had any recollection. The lower court failed to distinguish between a later recollection of consciousness and the existence of that consciousness at the time when the imprisonment itself took place.Holding: At the very least, it was for the jury in the first instance to weigh credibility to evaluate inconsistencies and determine whether the burden of proof had been met.Order: ReversedDissenting: Plaintiff has failed even to make out a prima facie case that he was conscious of his purported confinement and that he failed to consent to it.

1. A prima facie case is the establishment of a legally required rebuttable presumption. It is generally understood as a flexible evidentiary standard that measures the effect of evidence as meeting, or tending to meet, the proponent's burden of proof on a given issue.Notes:

The police vehicle is restrained within police bounds. It’s like he’s put on an island when he’s place at the golf course—difficult to get anywhere.

TORTS (HALPERT)

The plaintiff’s negligence is not an affirmative defense to an intentional tort. The standard in New York differs from the Restatement in that plaintiff intended to restrain

defendant within fix bounds doesn’t include injuries resulted from that restrain. New York does not have the injury clause, thus the reason for this case’s peculiarity in this element.

Hardy v. LaBelle’s Distributing Co. Supreme Court of Montana (1983) 203 Mont. 263, 661 P.2d 35Procedural History: Hardy filed a claim for false imprisonment against the defendants, LaBelle’s Distributing Co. The jury found that she was not detained against her will. Hardy appealed.Issue: Did the District Court err in the issuance of its instructions for false imprisonment? Does the evidence support the verdict and judgment?Facts:Defendant, LaBelle’s Distributing Company hired Hardy as a temporary employee on December 1, 1978. She was assigned duty as a sales clerk in the jewelry department.On December 9, 1978, another employee for LaBelle’s, Jackie Renner, thought she saw Hardy steal one of the watches that LaBelle’s had in stock. Jackie Renner reported her belief to LaBelle’s showroom manager that evening.The next morning, the assistant manager, who told her he was giving a tour, approached Hardy. He showed her into the showroom’s manager’s office, closing the door behind him. Hardy was told that she had been accused of stealing a watch. She denied and agreed to take a lie detector test.The lie detector test supported her statement and she was still welcome to work. The employee who accused her also apologized. The meeting lasted approx. 20-45 minutes.Rule: False ImprisonmentReasoning:The two key elements of false imprisonment are the restraint of an individual against his will and the unlawfulness of such restraint. The individual may be restrained by acts or merely by words.Hardy admitted that she wanted to stay and clarify the situation. She did not ask to leave. She was not told she could not leave. No threat of force was made to compel her to stay.She testified she would have followed the assistant manager voluntarily if she had known the true purpose of the meeting.Holding: The jury could easily find that Hardy was not detained against her will.Order: District Court did not err in issuance of jury instructions on the law of false imprisonment and affirmed the District Court’s judgment in favor of defendants.Notes: She stayed because she was afraid of losing her job and her integrity was being questioned.

Persuading someone it is in her best interest to stay is not enough for false imprisonment. Retention of plaintiff’s property sometimes may provide the “restraint” necessary to

constitute false imprisonment. Fear of losing one’s job is a powerful incentive, but it does not render behavior involuntary. False imprisonment resembles assault in that threats of future action are not enough.

Enright v. GrovesColorado Court of Appeals (1977) Procedural History:Defendants Groves and City of Ft. Collins appeal from judgments entered against them upon jury verdicts awarding plaintiff $500 actual damages and $1000 exemplary damages on her claim of false imprisonment.Issue: When Enright was taken into custody, was Officer Groves liable for false imprisonment?Facts:On August 25, 1974, Officer Groves observed a dog running loose in violation of the city’s “dog leash” ordinance. He approached the house of the dog, found Ms. Enright’s son who pointed to his mom sitting in the car parked at the curb by the house. Groves ordered the boy to put the dog inside the house and approached Ms. Enright. He demanded her driver’s license. She replied by giving him her name and address. He again demanded her license. She declined to produce. He

TORTS (HALPERT)

advised her to produce her license or go to jail. Enright responded by asking, “Isn’t this ridiculous?” Groves thereupon grabbed one of her arms stating, “Let’s go!” and took her into custody.Enright was released only after a friend posted bail. She was later convicted of the ordinance violation.Rule: False ImprisonmentReasoning:False arrest arises when a person who claims but does not have proper legal authority takes one into custody. W. Prosser, Torts § 11 (4th ed.). A claim for false arrest will not lie if an officer has a valid warrant or probable cause to believe that an offense has been committed by that person arrested.However, the evidence is clear that Groves arrested Enright not for violation of the ordinance but rather for refusing to produce her driver’s license. This basis for the arrest is exemplified by the fact that he specifically advised her that she would either produce the license or go to jail. No statute or case law in this jurisdiction requires a citizen to show her license upon demand, unless she is a driver of an automobile.Holding: Groves’ demand for Enright’s license was not a lawful order and that refusal to comply was not an offense. Groves was not entitled to use force in arresting Enright.Order: Judgment affirmedNotes:False arrest is the close sibling of false imprisonment.

Whittaker v. SandfordSupreme Judical Court of Maine (1912) 110 Me. 77, 85 A. 399Procedural History:Plaintiff, upon her release, brought this action for false imprisonment. The jury returned a verdict in her favor for $1100. Defendant appealed from an order denying his motion for a new trial.Issue: Is the defendant liable for false imprisonment if he did not supply the plaintiff with a boat to leave?Facts: Plaintiff was a member and her husband a minister of religious sect of which defendant was the leader. Plaintiff decided to abandon the sect and return to America. Defendant offered her passage on his yacht and assured her repeatedly that she would not be detained on board.On arrival, defendant refused to furnish her with a boat to leave the yacht, saying it was up to her husband whether she could leave. Her husband said it was up to the defendant. She remained on board for nearly a month and was not allowed to leave the yacht unaccompanied.Rule: False ImprisonmentReasoning:The court instructed the jury that the plaintiff to recover must show that the restraint was physical and not merely a moral influence. The instructions were apt and sufficient.

If one should, without right, turn the key in a door and thereby prevent a person in the room from leaving, it would be the simplest form of false imprisonment.

If one agreed that guest should be free to leave but refuses the guest the use of a boat is similar. The boat is the key. The impassable sea is the physical barrier.Holding: The jury was warranted in finding that the defendant was guilty of unlawful imprisonment.Order: AffirmedNotes: There’s a duty to act by the defendant, who promised to let the plaintiff and her children off once they reached America. The defendant failed to uphold that promise.

5. Intentional Infliction of Emotional Distress

Malice Knowledge Recklessness Negligence

TORTS (HALPERT)

Recklessness replaces negligence (goes for the motivation of the act)Must prove damages for IIED and must be extreme and outrageous conduct.Recklessness=indifference

State Rubbish Collectors Ass’n v. SiliznoffSupreme Court of California (1952) Procedural History:The State Rubbish Collectors Association sued Siliznoff to collect on certain notes. Siliznoff sought cancellation of the notes because of duress and want of consideration. He also sought general and punitive damages because of alleged “assaults” made on him.The jury returned a verdict for Siliznoff on the original complaint and on the counterclaim. Siliznoff obtained a judgment against the Assoc. for $1,250 general special damages and $4,000 punitive damages. The Assoc. appealed the judgment.Issue: Although the Assoc did not intend to cause bodily harm, are they still liable for Siliznoff’s damages? Is Siliznoff required to pay the notes that he signed or are the notes void due to the emotional distress?Facts: Siliznoff had collected the trash from the Acme Brewing Company, which the Assoc. regarded as within the territory of another member of the Assoc. named Abramoff. The defendant was called before the Assoc. and ordered to pay over the collected money to Abramoff, as a result of which he signed the notes in question. The Assoc. threatened to beat up Siliznoff and the only reason they let him go after the meeting was because he promised to sign the notes the very next morning.Because of the fright he suffered during his dispute with the Assoc., he became ill and vomited several times.Rule: Emotional DistressReasoning:A cause of action is established when one intentionally subjects another to the mental suffering incident to serious threats to his physical well-being.In the past it has been frequently stated that the interest in emotional and mental tranquility is not one that the law will protect from invasion in its own right. The Restatement recognized, however, that in many cases mental distress could be so intense that it could reasonably be foreseen that illness or other bodily harm might result.Under this theory, the cause of action was not founded on a right to be free from intentional interference with mental tranquility, but on the right to be free from negligent interference with physical well-being. A defendant who intentionally subjected another to mental distress without intending to cause bodily harm would still be liable for resulting bodily harm if he should have foreseen that mental distress might cause such harm.Holding: Plaintiff caused defendant to suffer extreme fright. It had no right or privilege to adopt such coercive methods in competing for business. Liability is clear.Order: AffirmedNotes: This cannot be constituted as assault because their actions were merely threats for future actions. Assault cannot be just words, but must be followed with gestures/actions.The threat for false imprisonment doesn’t have to be next day, but they let him go.

Kentucky has referred to this tort as a gap filler—must be extreme, or outrageous and intolerable. Must violate generally accepted standards of decency and morality.

The common law really only dealt with physical injuries, because emotional injuries are harder to persuade and legitimize.

Exceptions in some jurisdictions: Before the recognition of a separate tort for intentional infliction of emotional distress, a

number of courts had allowed recovery for mental distress at the intentional mutilation or disinterment of a dead body or for interference with proper burial.

Compensation for emotional injury when a close relative observes a victim being succumbed to an extreme harm.

TORTS (HALPERT)

Common carriers and innkeepers have been held to a higher standard of conduct and sometimes held liable for using insulting language to their passengers and patrons.

The common law has duties imposed on innkeepers and common carriers—they couldn’t turn away patrons nor not allow ticket holders to not board.

o Higher duty to their patrons, which allows recovery where other economical actors would not be reliable—like emotional injury.

Slocum v. Food Fair Stores of FloridaSupreme Court of Florida (1958)Procedural History:The plaintiff sought money damages for mental suffering or emotion distress, and an ensuing heart attack and aggravation of pre-existing heart disease allegedly caused by insulting language of the defendant’s employee directed toward her while she was a customer in its store.The lower court dismissed the complaint for failure to state a cause of action. Plaintiff appealed.Issue: Did the conduct here claimed to have caused an injury constitute an action in tort?Facts: In reply to her inquiry as to the price of an item he was marking, the employee replied: “If you want to know the price, you’ll have to find out the best way you can *** you stink to me.”Rule: Intentional Infliction of Emotional DistressReasoning:A line of demarcation should be drawn between conduct likely to cause “mere emotional distress” and that causing “severe emotional distress.” Severe = extreme and outrageousHolding: The facts of this present case cannot be brought within their reasonable intendment.Order: AffirmedNotes: The defendant can’t take advantage of that principal when they know the plaintiff was especially sensitive.

Against a large part of the frictions and irritations and clashing of temperaments incident to participation in a community life, a certain toughening of the mental hide is a better protection than the law could ever be.

In rare circumstances, the First Amendment’s free speech clause may provide a defense to state tort actions.

Harris v. JonesCourt of Appeals of Maryland (1977) Procedural History:The plaintiff, Harris, was an employee for GM for 8 years. He is now suing GM and one of its supervisory employees, Jones, in the Superior Court of Baltimore City for emotional distress.The jury awarded Harris $3,500 compensator damages and $15,000 punitive damages against both Jones and GM.The Court of Special Appeals reversed the decision.Issue: Is the humiliation suffered by Harris as a matter of law so intense as to constitute the severe emotional distress required to recover for the tort of IIED?Facts:Jones, aware that Harris suffered from a speech impediment which caused him to stutter, and also aware of Harris’ sensitivity to his disability and his insecurity because of it, nevertheless “maliciously and cruelly ridiculed” causing tremendous nervousness, increasing the defect further injuring his mental attitude towards his problem.Jones approached Harris over 30 times at work and verbally and physically mimicked his stuttering disability.On June 2, 1975, Harris asked Jones for a transfer to another department. Jones refused. He then mimicked his pronunciation.Harris had been under the care of a physician for six years prior and many things made him nervous. Other employees mimicked him.Rule: Intentional Infliction of Emotional Distress

TORTS (HALPERT)

Reasoning:§ 46. Outrageous Conduct Causing Severe Emotional Distress

(1) 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.

Four elements (from the Restatement) must coalesce to impose liability for intentional infliction of emotional distress:

(1) The conduct must be intentional or reckless;(2) The conduct must be extreme and outrageous;(3) There must be a causal connection between the wrongful conduct and the emotional

distress;(4) The emotional distress must be severe

The third element was also found to have no evidence—the evidence that Jones’ reprehensible conduct humiliated Harris and caused him emotional distress, which was manifested by an aggravation of Harris’ pre-existing nervous condition and a worsening of his speech impediment was vague and weak at best.The fourth element of the tort was not established by legally sufficient evidence – the distress was not severe.Holding: The humiliation suffered was not, as a matter of law, so intense as to constitute the “severe” emotional distress required to recover for the tort of intentional infliction of emotional distress.Order: Affirmed; cost to be paid by appellantNotes: The jury’s role is to be a fact finder. The judge is to make sure that the law is adequately applied. In this case, the facts do not match the damages the jury rewarded the plaintiff, thus the Appellate court overturned, with the Supreme Court affirming because no “reasonable jury” would find these facts an element of the tort.

There is no harm in asking for sexual intercourse—not a tort. The mere fear of contracting a disease, without actual exposure to it, cannot be sufficient

to cause the level of distress necessary for tort of outrage.

Restatement (Third) of Torts: Liability for Physical and Emotional Harm“Whether an actor’s conduct is extreme and outrageous depends on the facts of each case, including the relationship of the parties, whether the actor abused a position of authority over the other person, whether the other person was especially vulnerable and the actor knew of the vulnerability, the motivation of the act, and whether the conduct was repeated or prolonged.”

Severe Emotion Distress: All jurisdictions require that the plaintiff prove severe not just mere emotional distress.

Proof of Severe Emotional Distress: Testimony that the plaintiff was upset and cried will not be enough. Some jurisdictions require that the severe emotional distress be proved by expert witness testimony

Taylor v. VallelungaDistrict Court of Appeal of California (1959) California: One of the great common law courts of all time—they massaged the existing documents/leading court in ways to compensate wronged plaintiffs outside of the scope of the original interpretationsProcedural History:In the first count, plaintiff alleges that on December 25, 1956, defendants truck and beat him causing him bodily injury for which he seeks damages. In the second count, plaintiff’s daughter says she was present at and witnessed the beating inflicted upon her father by defendants and suffered severe fright and emotional distress.

TORTS (HALPERT)

Defendants interposed a general demurrer to the second count of the complaint. The demurrer was sustained and appellant granted 10 days to amend. Appellant failed to amend and judgment of dismissal of the second count was entered. The appeal is from the judgment of dismissalIssue: Are the defendants liable for emotional distress on the plaintiff’s daughter because she watched them beat her father up?Facts: Defendants beat up the plaintiff, while his daughter was watching.Rule: Intentional Infliction of Emotional DistressReasoning:An intention to cause severe emotional distress exists when the act is done for the purpose of causing the distress or with knowledge on the part of the actor that severe emotional distress is substantially certain to be produced by the conduct.

There is no allegation that defendants knew that appellant was present and witnessed the beating. Nor is there any allegation that the beating was administered for the purpose of causing her to suffer emotional distress or that defendants knew that severe emotional distress was substantially certain to be produced by their conduct.

Holding:The second count does not meet the requirements of emotional distress (section 46 of Restatement of Torts)Order: Affirmed

Intentional Interference with Property

5. Trespass to Land (QCF): one is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally

a. Enters land in the possession of the other, or causes a thing or a third person to do so, orb. Remains on the land, orc. Fails to remove from the land a thing, which he is under a duty to remove.

Doughterty v. SteppSupreme Court of North Carolina (1835) ProceduralHistory

The plaintiff filed an action against the defendant of trespass quare clausum fregit. The jury, under the judge’s instruction, found a verdict for the defendant and the plaintiff appealed.

Issue Did the defendant trespass on the plaintiff’s land and does he deserve damages?Facts The defendant entered on the unenclosed land of the plaintiff with a surveyor and

chain carriers and actually surveyed a part of it, claiming it as his own, but without marking trees or cutting bushes.

Rule Trespass to landReasoning The amount of damages may depend on the acts done on the land, and the extent of

injury to it therefrom. But it is an elementary principle that every unauthorized, and therefore unlawful entry, into the close of another is a trespass.

Holding From every such entry against the will of the possessor, the law infers some damage; if nothing more, the treading down the grass or herbage, or as here, the shrubbery.

Order Reversed and a new trial grantedNotes The intent to act--- not the intent to trespass. (Just like in battery, the intent to

contact—not the intent to harm). The knowledge or motive of the defendant is irrelevant.

If there is a tenant, it would be the tenant who could bring the trespass action. Owner would have to show some permanent injury to the property that would affect him after it reverted to him.

The trespass is intentional even when the defendant enters the land in the honest and reasonable belief that it is his own.

TORTS (HALPERT)

In a trespass action, plaintiff will be awarded nominal damages if there are no actual damages.

o The action of trespass is a suit to try title or the vindication of legal righto If repeated, might ripen into a prescriptive right—the entitlement to use the land in

a particular way granted to a longtime user even though the user did not have explicit permission

The plaintiff might have a cause of action for ejectment. Ejectment would lie if the defendant was in possession of the land, rather than just having been on it temporarily.

Intangible intrusions like smoke, odor, light and noise are not typically actionable under a trespass theory.

o Trespass has often been contrasted with the tort of nuisance. Courts usually require actual damage for that.

Herrin v. SutherlandSupreme Court of Montana (1925) 74 Mont. 587, 241 P. 328ProceduralHistory

Plaintiff filed an action for damages in the sum of $10. Defendant’s general demurrer was overruled, he declined to answer, and his default was entered. Plaintiff only demanded nominal damages. The court rendered judgment in favor of plaintiff for damages of $1. Defendant appealed.

Issue Does shooting a waterfowl over a person’s land count as trespass to land?Facts The defendant, while engaged in hunting ducks and other migratory game birds,

and while standing on the lands of another, repeatedly discharged a Winchester shotgun at waterfowl in flight over plaintiff’s said premises.

Rule Trespass to LandReasoning He interfered with the “quiet, undisturbed, peaceful enjoyment of the plaintiff,” thus

committed a technical trespass at least.It is a matter of common knowledge that the shotgun is a firearm of short range. To be subjected to the danger incident to and reasonably to be anticipated from the firing of this weapon would seem to be far from inconsequential.

Holding A cause of action for nominal damages is stated.Order Affirmed

The mere fact that plaintiff did not step across the boundary line does not make her any less a trespasser if she reached her arm across the line

Cujus est solum, ejus est usque ad coelom et ad inferos (Whose is the soil, his it is also unto the sky and the depths).

Air travel was a trespass but may be privileged according to The Restatement of Torts §§ 159, 194

Some courts have been more explicit in doing so and have held that flight by aircraft is never trespassory and plaintiff’s remedy lies in negligence or nuisance.

When government overflights have substantially affected habitability of the land below, a court may find a “taking” within the meaning of the 5th Amendment to the U.S. Constitution and the government will be required to compensate the owner.

In case involving industrial waste that has been injected far below the surface of defendant’s land and then migrated to far below the surface of plaintiff’s land, court noted that property rights are no longer as clear-cut as they were before airplanes and injection wells.

Most jurisdictions hold that it is a trespass to mine under the land of another, but some of the western states provide that the miner is permitted to follow the vein wherever it may lead, so long as it is unbroken.

If you shoot a gun off your land but it goes to your neighbor’s land and hits your neighbor, it would be battery through transferred intent (originally trespass to landbattery).

Rogers v. Board of Road Com’rs for Kent CountySupreme Court of Michigan (1947)

TORTS (HALPERT)

ProceduralHistory

Plaintiff instituted this suit to recover damages because of the death of her husband, which plaintiff claims was caused by the trespass and negligence of the defendant.Defendant filed a motion to dismiss on the ground of governmental immunity. The lower court granted defendant’s motion and dismissed the cause.Plaintiff appeals from the judgment of dismissal of her cause.

Issue Does a failure to remove an item constitute as trespass to land?Facts Two winter seasons previous to the date of the fatal injury to her husband, the

defendant obtained a license to place a snow fence in her husband’s field with the distinct understand and agreement that all of the fence together with the anchor posts should be removed by defendant at the end of each winter season.On July 23, 1945, plaintiff’s husband was mowing his field when the mowing bar struck the steel stake and as a result of the impact he was forcibly thrown from the seat of the mowing machine to and upon the wheels of the mowing machine and upon the ground. The injuries from this incident lead to his death.

Rule Wrongful death/trespass to landReasoning Failure to remove the anchor was a continuing trespass.

§ 160. Failure to remove a thing place on the land pursuant to a license or other privilege“A trespass, actionable under the rule stated in § 158, may be committed by the continued presence on the land of a structure, chattel, or other thing which the actor or his predecessor in legal interest therein has place thereon.”

Holding The judgment is reversed and the cause remanded for such further proceedings as shall be found necessary.

Order ReversedNotes Defendant has exceeded the time frame of consent, thus trespassing.

Even if there had been no injury, this is an intentional tort that does not require damages (trespass qcf).

A trespasser can arise today when a visitor who entered land with the consent of the possessor “overstays” his welcome. Of course, the visitor must be aware that he no longer has the possessor’s consent to remain.

A privileged entry onto the land of another may be limited not only by time and space, but also by purpose.

If you had a pool party and only allowed the guests in the backyard and bathroom and one guest goes into your bedroom to look at your tie collection, that guest is trespassing.

Consequences of Trespass: defendant is held liable to the plaintiff.o Court held that damages caused by a trespasser need not be foreseeable to be

compensable. Restrictions on Right to Exclude Persons from Premises: Public utilities, innkeepers, and

common carriers cannot exclude members of the public. Restatement (Second) of Tort § 191. Federal and state statutes require certain landowners and possessors of land to make their premises open to the public without discrimination.

6. Trespass to Chattels (DBA): a trespass to a chattel may be committed by intentionallya. Dispossessing another of the chattel, orb. Using or intermeddling with a chattel in the possession of another.One who commits a trespass to a chattel is subject to liability to the possessor of the chattel, if, but only if,

a. he dispossesses the other of the chattel, orb. the chattel is impaired as to its condition, quality or value, orc. the possessor is deprived of the use of the chattel for a substantial time, or

TORTS (HALPERT)

d. bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.

Glidden v. Szybiak (1949)Supreme Court of New Hampshire Procedural History: The plaintiff (Glidden) brought action of a statute called “Liability of owner—the defendant is liable for the property damage caused by her dog, unless the plaintiff was engaged in a trespass or other tort” against the defendant (Szybiak) to recover for a dog bite caused by Toby, the dog of the defendant. The trial court found for the plaintiff. The defendant appealed.Issue: Can a four year old be found guilty of contributory negligence and thus a trespass to chattels?Facts: P, Elaine Glidden, who was four years old at the time of the occurrence, left her home to go to a candy store. On the porch of the store, p encountered a dog, named Toby, and engaged in play with him. She climbed on his back and pulled his ears, and the dog snapped at her and bit her nose. She had wounds from the injury which she now seeks damages for in this suit.Rule: Trespass to Chattels (Restatement s. 218) basically says sufficient legal protection of the possessor’s interest in the mere inviolability of his chattel is afforded by his privilege to use reasonable force to protect his possession against even harmless interference.Reasoning:Plaintiff’s agePlaintiff is found to have been of such tender years as to be incapable of being guilty of contributory negligence, thus cannot be guilty of a trespass or a tort.

Plaintiff was engaged in the commission of a trespass at the time of her injury and is thus barred from recovery under statuteNo claim that Toby was in any way injured by the conduct of the plaintiff thus she could not be held liable for a trespass to the dog if the chattel is not impaired or diminished in value.Holding: Her conduct did not constitute a trespass, which will prevent her recovery under the statute here invoked.Order: Judgment affirmed.Notes: The common rule of negligence is that children younger than 7 were incapable of negligence and ages from 7-14 the capability was contested case by case.The common law says that there’s no liability for the dog or cat’s first bite, but after that the animal requires close inspection on its behavior.

Trespass to chattels is now quite universally limited to intentional interferences with them. As in the case of trespass to land, the conduct is treated as intentional even though the

defendant acts under an innocent mistake, as where he drives off the plaintiff’s sheep, believing they are his own.

Unlike trespass to land, trespass to chattels will not lie unless there is actual dispossession or actual damage to the chattel itself or to its owner or his property.

o Different purpose than trespass to land trespass to chattels is to protect her economic interest or use interest. Requires not merely touching or possessing the chattel, but must result in a damaged or dispossession.

o Trespass to landmain purpose is to affirm title of property The development of the action of trover, which evolved into the tort of conversion, provided

a convenient substitute for trespass to chattels in most situations. Trespass to chattels survives as a possibly remedy for interferences when the plaintiff wants

to keep the chattel and sue for the harm rather than allow defendant to keep the chattel in exchange for its full market value.

The intent for dba has to have motive—to interfere somehow with the plaintiff’s property rights.

In a trespass dba, a plaintiff doesn’t necessarily have to be the owner.

CompuServe Inc v. Cyber Promotions, Inc. (1997)

TORTS (HALPERT)

United States District Court, Southern District of Ohio Procedural History: CompuServe filed a preliminary injunction, which would extend the TRO against defendants, Cyber Promotions, Inc. citing trespass to chattels.Issue: Does an online computer service have the right to prevent a commercial enterprise from sending unsolicited electronic mail advertising to its subscribers?Facts: CompuServe Inc. is a major national commercial online computer service that operations through a nationwide network. Defendants are in the business of sending unsolicited email ads to thousands of Internet users, including CompuServe subscribers. CompuServe has asked Cyber Promotions Inc to stop, but they instead retaliated by sending more emails.Rule: Trespass to ChattelsReasoning: Trespass to chattels has evolved from its original common law application and now handles recovery for inferences with the possession of chattels, which are not sufficiently important to be classed as conversion.The defendants argued that there was not dispossession to constitute a trespass to chattels.The Restatement 217 states that intentionally using or intermeddling with the chattel in possession of another may commit a trespass to chattel. The spam has slowed down their computers/equipment. Any value on that equipment is wholly derived from the extent to which that equipment can serve its subscriber base. Many subscribers have terminated their accounts specifically because of the unwanted email messages.Injury impedes our service and tying up our equipmentHolding: The defendant is enjoined from sending any unsolicited advertisements to any electronic mail address maintained by CompuServe during the pendency of this action.Order: Plaintiff’s motion for a preliminary injunction is granted. The TRO is extended in duration until final judgment.

Conversion v. Trespass DBAConversion dispossession is so substantial that it’s appropriate to give damages not by the dollar amount of the damages but by the full value of the property. You also do not have to take the property back (if you’re the plaintiff).

“Trespass DBA on steroids”Trespass DBA significant dispossession resulting in real damages

7. Conversion: A. Nature of the Tort

1. an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel

2. in determining the seriousness of the interference and the justice of requiring the actor to pay the full value the following factors are important:

a. the extent and duration of the actor’s exercise of dominion or control;b. the actor’s intent to assert a right in fact inconsistent with the other’s right of control;c. the actor’s good faith;d. the extent and duration of the resulting interference with the other’s right of control;e. the harm done to the chattel;f. the inconvenience and expense cause to the other.

High level of intent is needed. Hypo: If a neighbor borrows your lawnmower, tries to give it back but you are on vacation, then leaves for vacation herself. You then cannot retrieve the lawnmower, because it’s locked up conversion? Not really, because there’s no intentional exercise of dominion or control over a chattel.

Hypo: my neighbor borrows my lawnmower. The daughter decides to have a lawn mowing business and uses it repeatedly over the summer. She’s liable for trespass DBA because she exceeded the bounds of the consent. Also possibly conversion, depending on the damages to the lawnmower.

TORTS (HALPERT)

Hypo: Can someone convert an intangible property? In common law, no. But then if the property is represented in writing, it can be subject to an action of conversion. NOW, if it’s possible that it could have been writing, it’s sufficient.

Hypo: If you buy a bicycle from someone who stole it, it’s still conversion even if you did not know it was a stolen item. If the bicycle was taken by fraud and not theft, then there’s no conversion. The seller had the intention to sell the item and conceded in the change of title, so the innocent buyer is not liable for conversion.

Taken by force is clearly wrongful but taken by fraud has nuances involved. The purchaser who buys in a business that’s regularly conducted has good title, i.e. a used clothing store who sells to the buyer did not know that the items were stolen. Thus, the buyer is not liable for conversion.

Pearson v. DoddUnited States Court of Appeals, District of Columbia (1969)Procedural History: The District Court has granted partial summary judgment to Senator Dodd, finding liability on a theory of conversion. At the same time, the Court denied partial summary judgment on the theory of invasion of privacy. Both branches were appealed.Issue: Did the information taken from those files fall under the protection of the law of property, enforceable by a suit for conversion?Facts: Former employees of Dodd entered his office without authority and removed numerous documents from his files, made copies, replaced the originals, and turned over the copies to the defendant, Anderson, who was aware of the manner in which the copies had been obtained. Anderson then published articles containing information gleaned from these documents.Rule: ConversionReasoning: In the Restatement, conversion is an intentional exercise of dominion or control over a chattel, which so seriously interferes with the right of another to control it that the actor may justly be required to pay the full value of the chattel.The documents were removed from the files, but returned undamaged. Dodds was not clearly deprived of its usefulness.Holding: Because no conversion of the physical contents of the appellee’s files took place, and because the information copied from the documents in those files has not been shown to be property subject to protection by suit for conversion, the guilty ruling must be reversed.Order: Affirm the denial of summary judgment for invasion of privacy/Reverse the grant of summary judgment for conversionNotes: Pearson acted as a whistleblower to Senator Dodd’s misdeeds: converting campaign funds to his personal use and employed as a west German businessman while on the Foreign Relations Committee.Dodd did not have economic interest in his files, so there wasn’t a lessening value for the dispossession.

Other intentional torts not discussed in this class (dignitary torts) that are not part of the writ of trespass: defamation (slander and libel), invasion of privacy, alienation of affection.

B. Effect of Good FaithAn individual may be subject to liability for conversion although he was not subjectively at fault. This can occur in at least two ways:

1. When the defendant intends to affect the chattel in a manner inconsistent with the plaintiff’s right of control, the fact that he acted in good faith and under a reasonable mistake does not prevent liability for conversion.

2. Those who buy goods not knowing they were converted. An innocent purchaser cannot obtain title from a thief because the thief does not have title. The purchaser acts at her peril and may be sued in conversion by the true owner. The good faith purchaser is protected if the good were obtained

TORTS (HALPERT)

by he converter through fraud rather than theft, because title passes in a fraudulent transaction subject to the equitable right of rescission.

C. Necessity of Demand; Return of Chattel Demand In most states, a conversion occurs as soon as the defendant takes dominion and control over the goods in a manner inconsistent with plaintiff’s ownership.

Return When a converter offers to return the converted goods and the owner accepts, the return does not bar the action for conversion, but it must be take into account to reduce the damages recovered.

D. Damages: the measure of damages for conversion is the value of the property converted. Usually this is the market value. Punitive damages may be allowed when the conversion was malicious but not when it was done innocently.

E. What May Be Converted: trover was limited to the conversion of things that were capable of being lost and found. Hence the dispossession of real property (land), timber, minerals, crops or fixtures attached to the land could not be a conversion.

F. Who May Maintain the Action: Anyone in possession of a chattel at the time of a conversion can maintain an action for it. Thus a finder can recover for conversion.

Privileges (Chapter 3)

1. ConsentO’Brien v. Cunard S.S. CoSupreme Judicial Court of Massachusetts (1891)Procedural History: Plaintiff alleged that she suffered ulceration at the site and blistering all over from the vaccine, so she filed a claim against the steamship. The trial court directed a verdict for the defendant and the plaintiff brings exceptions.Issue: Did he have consent to administer the vaccine? Was there any evidence that the physician used force upon the plaintiff against her will when he vaccinated her on the steamship?Facts: Plaintiff was on a steamship and was in a line of 200 women passengers and she understood from conversation they were to be vaccinated for smallpox. When the surgeon came to her, she showed him her arm, which had no mark. He told her she needed to be vaccinated and she told him she had already been before. He said he should vaccinate her again. She held up her arm and did not tell him she did not want to be vaccinated. She took the certification and used it at quarantine.Rule: Assault and NegligenceReasoning: They all indicated by their conduct that they desired to avail themselves of the provisions made for their benefit. There was nothing in her conduct to indicate to the physician that she did not wish to obtain a card, which would save her from detention at quarantine.Holding: Viewing his conduct in the light of surrounding circumstances, it was lawful.Order: AffirmedNotes: Why is silence enough in this case? The failure to object dooms her case.

If you kiss a girl on a first date without consent, then it is subject to cultural norms to determine if it’s battery.

Hackbart v. Cincinnati Bengals, Inc.United States Court of Appeals, Tenth Circuit (1979)Procedural History: The plaintiff Hackbart filed a claim against the Bengals for their offensive back, Charles Clark who inflicted a blow that caused injury. The trial court ruled that the game of professional football is violent in nature and the available sanctions are penalties and expulsion from the game. The plaintiff appealed.

TORTS (HALPERT)

Issue: In a regular season professional football game, can an injury, which is inflicted by one professional football player on an opposing player, give rise to liability in tort where the injury was inflicted by the intentional striking of a blow during the game?Facts: Acting out of anger and frustration but without a specific intent to injure, Clark stepped forward a struck a blow with his right forearm to the back of the kneeling plaintiff’s head and neck with sufficient force to cause both players to fall forward to the ground. Both players, without complaining to the officials or to one another, returned to their respective sidelines since the ball had changed hands.Rule: BatteryReasoning: The evidence shows that the there are rules of the game, which prohibit the intentional striking of blows. The general customs of football do not approve the intentional punching or striking of others.Holding: The trial court erred in determining that as a matter of social policy the game was so violent and unlawful that valid lines could not be drawn. The plaintiff was entitled to have the case tried on an assessment of his rights and whether they had been violated.Order: Reversed and remanded for a new trialNotes: The plaintiff consented to playing the game, but not to an injury caused outside of play.

Consent could be from local customs the burden is on the outsider to learn before they act. If the local custom permits the public to take fish from small lakes and ponds, a landowner may revoke consent by placing a “No trespassing” sign.

Mohr v. WilliamsSupreme Court of Minnesota (1905)Procedural History: Plaintiff filed suit for battery when doctor performed surgery on a different ear than plaintiff had consented. The jury found in favor of the plaintiff for $14,322.50. The trial judge denied defendant’s motion for judgment notwithstanding the verdict, but granted a new trial on the ground that the damages were excessive. Both parties appealed.Issue: If the surgeon has consent for a particular operation, may the surgeon perform a different operation without the patient’s consent?Facts: Plaintiff consulted defendant, an ear specialist, concerning trouble with her right ear. He found a diseased condition, which she consented to an operation upon it. When she was unconscious under the anesthetic, defendant concluded that the right ear was not as serious as the left ear, so he operated on the left ear without consulting her. Operation was successful.Rule: Assault and BatteryReasoning: The court is unaware of a rule or principle of law which would extend the physician free license respecting surgical operations. (However, if a person required prompt surgical attention, the physician would be justified if it was necessary for the preservation of his life or limb. But this was not the case here).

The diseased condition of plaintiff’s left ear was not discovered in the course of an operation on the right, but upon an independent examination of that organ made after the authorized operation was found unnecessary.

It would seem to follow from what has been said that at least a technical assault and battery was committed.Holding: If the operation was performed without plaintiff’s consent, and the circumstances were not such as to justify its performance without, it was wrongful; and if it was wrongful, it was unlawful. The amount of recovery must depend upon the extent of the injury inflicted.Order: Order for new trial affirmedNotes:

De May v. RobertsSupreme Court of Michigan (1881)

TORTS (HALPERT)

Procedural History: Plaintiff Roberts filed a claim against the physician, De May, for bringing an intruder, Scattergood, into her home, whom she assumed was an assistant physician. The trial court found for the plaintiff. Defendant appealed.Issue: Should judgment have been entered for the plaintiff even though she did not object to Scattergood’s presence?Facts: The physician visited the plaintiff while he was sick and the roads were difficult to travel. He brought Scattergood along to assist him even though he was not a doctor. He introduced Scattergood (not an assistant nor married) as his assistant when he arrived, so the plaintiff did not object to his presence while she gave birth. Later after discovering Scattergood’s identity, the plaintiff brought suit for deceit.Rule: DeceitReasoning: The plaintiff had a legal right to the privacy of her apt at such a time and the law secures her that right. The fact that she thought Scattergood was a physician does not preclude her from maintaining an action and recovering substantial damages upon afterwards ascertaining his true character.Holding: Consent given under false pretenses is not valid consent and will not operate as a defense to a subsequent action.Order: Judgment for the plaintiff affirmed.Notes: HypoIf you are in a duel, and you get lucky and shoot the leg who suffers a substantial injury, can your opponent claim battery? Depends on the state. Some states say you cannot consent to be the victim of a crime. The Restatement says that consent is ineffective when the law is designed to protect a class of people, such as participants, but effective when the law is designed for an alternative purpose. Around 1960, the failure to disclose the risk began to be treated as a breach of the doctor’s

professional duty, and hence as a matter of negligence. The cases now generally proceed on that basis. When the physician exceeds the boundaries of consent, the matter is still treated as battery set forth in Mohr v. Williams.

2. Self-Defensea. Existence of Privilege: anyone is privilege to use reasonable force to defend himself

against a threatened battery on the part of another. b. Retaliation: the privilege is one of defense against the threatened battery, and not one of

retaliation. When the battery is no longer threatened, the privilege terminates. The original victim then becomes liable for battery.

c. Reasonable Belief: the privilege exists when the defendant reasonably believes that the force is necessary to protect himself against battery, even though there is in fact no necessity. This is an instance in which a reasonable mistake on the part of the actor will protect him.

d. Provocation: insults, verbal threats, or opprobrious language do not justify the exercise of self-defense. In many states, the offending words can be introduced to oppose punitive damages

e. Amount of Force: the privilege is limited to the use of force that is or reasonably appears to be necessary for protection against a threatened battery. Differences in age, size, and relative strength are proper considerations.

f. Retreat Before Use of Deadly Force: Defendant may stand his ground and use any force short of that likely to cause serious injury. But the common law rule was that the defendant must first attempt to retreat.

g. Injury to Third Party: If the defendant was defending himself against A and unintentionally harms B instead, the privilege of self-defense is carried over and the defendant is held not liable to B in the absence of some negligence toward him.

3. Defense of Othersa. Nature of Privilege: a privilege similar to self-defense is recognized for the defense of

third persons.

TORTS (HALPERT)

b. Reasonable Mistake: Courts have differed in the effect of a reasonable mistake as to the necessity for taking action. Question is for the fact-finding jury. From a policy standpoint, natural law is less powerful in compelling us to come for the defense of others.

4. Defense of Property

Katko v. Briney Supreme Court of Iowa (1971)Procedural History: Plaintiff filed an action for damages. The jury returned a verdict for plaintiff and against defendants for $20,000 and $10,000 punitive damages. The trial judge overruled defendants’ motions for judgment notwithstanding the verdict and for a new trial. Defendants’ appealed.Issue: Can an owner protect personal property in an unoccupied boarded-up farm house against trespassers and thieves by a spring gun capable of inflicting death or serious injury?Facts: Defendants inherited a vacant farmhouse that had a serious of intrusions and thefts. Defendants boarded up the windows and doors, posted “no trespassing” signs, and set up a spring gun to fire when the door was opened. The gun was pointed to hit the intruder in the legs and could not be seen from the outside. Plaintiff entered the old house from the bedroom door and the gun shot much of his leg away leading him to remain in the hospital for 40 days.Reasoning: Defendants’ defense is that law permits use of a spring gun in a dwelling or warehouse for the purpose of preventing the unlawful entry of a burglar or thief.However, an owner of premises is prohibited from willfully or intentionally injuring a trespasser by means of force that either takes life of inflicts great bodily injury. Restatement of Torts §85, 180 states that the value of human life outweighs the interest of a possessor of land.Holding: A possessor of land cannot do indirectly and by a mechanical device that which, were he present, he could not do immediately and in person.Order: AffirmedNotes: Even if the spring gun was in their own house, the Brineys would still be liable because it’s still an unreasonable use of deadly force.

As in the case of self-defense, the privilege to defend property is limited to the use of force reasonably necessary to the situation as it appears to the defendant.

5. Recovery of Property

Hodgeden v. HubbardSupreme Court of Vermont (1846)Procedural History: Plaintiff filed a claim of trespass for assault and battery for taking away a stove. Verdict was found for the plaintiff, because the defendants were still not justified in forcibly taking the stove as they must resort to redress by legal process. Defendants appealed.Issue: How much force is too much when recovering property?Facts: Plaintiff purchased a stove on credit at the warehouse of defendants. Defendants discovered almost at once that plaintiff had misrepresented his assets and credit. They pursued him, took the stove away by force, and when he resisted plaintiff drew a knife. The defendants responded by one of them forcibly holding him as the other took possession of the stove.Reasoning: It is admitted that the property did not pass to the plaintiff, because he obtained it by means of falsehood and fraud. Defendants clearly had a right to retake the property, but it could only be done without unnecessary violence to the person or without breach of the peace.Because the plaintiff had neither lawful possession nor any right to resist the attempt of the defendants to regain the property, he became the aggressor when he drew the knife, thus defendants were justified.Holding: If the defendants made use of no unnecessary violence, they were justified; if they were guilty of more, they were liable.

TORTS (HALPERT)

Order: Reversed.Notes: Fresh pursuit is limited to prompt discovery of the dispossession, and prompt and persistent efforts to recover the chattel. Any undue lapse of time, then the owner is no longer privileged and must seek a redress from the law. Whether the property is procured by force, stealth, or fraud if the perception of the loss of

property is immediate, then the battery is privileged. If the victim fails to snatch the purse-snatcher at the time of the snatch and two days later sees

the purse, she cannot use force to recover her property. The victim of the purse snatching should have the privilege, so if the third party who is assisting

the victim is mistaken and she is not the victim, then he is liable. The third party has to be asked for help, be an immediate family member.

If a hat check girl swallows your ticket and won’t give you your hat, you cannot use force because there’s no pursuit.

Bonkowski v. Arlan’s Department StoreCourt of Appeals of Michigan (1968)Procedural History: Plaintiff filed a claim for false arrest and slander against the defendant store whose agent stopped and questioned the plaintiff whom he suspected of larceny. The jury returned a verdict of $43,750. The trial court denied the defendant’s motions for judgment notwithstanding the verdict, remittitur and new trial. Defendant appealed.Issue: Did the agent have privilege to detain the plaintiff to investigate whether she stole from the store?Facts: Plaintiff left the department store. Another shopped had told the agent that the plaintiff stole three items of costume jewelry from the store. Agent called to her to stop as she was walking to her car and motioned her to return toward the store. He then told her what the other shopper had said, asked her to empty the contents of her purse and produce sale slips for the items she purchased. Agent was satisfied that she had not committed larceny and returned to the store.Reasoning: To the common law tort of false arrest, privilege is a common law defense. If the agent reasonably believed the plaintiff had unlawfully taken goods, then he enjoyed a privilege to detain her for a reasonable investigation of the facts.Holding: On remand, the duty of the jury will be to determine if the agent had reasonably believed the plaintiff had unlawfully taken any goods from the store. If the jury finds the agent did so reasonably believe, then it must determine whether the investigation that followed was reasonable under all circumstances. If yes to both, then the agent had privilege to detain.Order: Reversed and remanded for new trial in accordance with the opinion.Notes:

6. NecessitySurocco v. GearySupreme Court of California (1853)Procedural History: P, Surocco filed an action against D, Geary an Alcalde of San Francisco, to recover damages for blowing up and destroying the plaintiff’s house and property during a fire. The cause was tried by the court sitting as a jury, and a verdict rendered for the plaintiffs from which the defendant prosecutes this appeal under the Practice Act of 1850.Issue: Did the defendant destroy the plaintiff’s property in good faith and under apparent necessity? Who is to judge the necessity of the destruction of said property?Facts: Geary destroyed Surocco’s building in order to stop the progress of the conflagration.Reasoning: The right to destroy property to prevent the spread of a conflagration has been traced to the highest law of necessity. Necessitas inducit privilegium quod jura privata (Necessity provides a privilege for private rights). The necessity of blowing up a house may not exist or be apparent to the owner, whose judgment is clouded by interest. If the building should be torn down without apparent necessity, the party would be liable in action of trespass.The legislature of the State possesses the power to regulate this subject. However, in the absence of any legislation on the subject, we are compelled to fall back upon the rules of the common law.

TORTS (HALPERT)

Blowing up the house was necessary, as it would have been consumed had it been left standing.Holding: Blowing up the house was necessary, as it would have been consumed had it been left standing. The plaintiffs cannot recover for the value of the goods which they might have saved.Order: ReversedNotes:

Vincent v. Lake Erie Transp. Co.Supreme Court of Minnesota (1910)Procedural History: Plaintiff filed an action against the Lake Erie Transportation Co. for damages. Verdict for the plaintiff granting damages for $500. Defendant’s motion for new trial was denied, defendant appeals.Issue: If a seaman’s conduct during a storm was rendered necessary under conditions for which he had no control, can he still be held liable for any injury resulting to the property of others?Facts: The steamship owned by the d was discharging her cargo when a storm developed. When the unloading was complete, the storm had grown violent. No master would have been justified in attempting to navigate his vessel if he could avoid doing so. The wind and waves stroke the vessel’s starboard qtr. with such force that she was constantly being lifted and thrown against the dock resulting in damages.Reasoning: The character of the storm was such that it was necessary for the defendant to stay at the dock. However, compensation must be made (analogy of starving man must take whatever he needs to survive, but he’s still obligated to pay the value when he’s able to do so).Holding: This is not a case where life or property was menaced by any object belonging to the plaintiff, the destruction of which became necessary to prevent the threatened disaster. Nor is it a case where because of the act of God, the infliction of the injury was beyond the control of the defendant. It is one where the defendant prudently and advisedly availed itself of the plaintiff’s property for the purpose of preserving its own more valuable property, and the plaintiffs are entitled to compensation for the injury done.Order: AffirmedNotes:

The cases all appear to be in agreement with the principal case concerning the defendant’s obligation to compensate plaintiff even though the intentional entry onto land was privileged and thus not tortious.If defendant has not been at fault, why should he pay? Note that the court’s statement about compensation for public necessity is not generally the case. Perhaps the court is referring to takings pursuant to public domain rather than emergency taking or destroying property pursuant to police powers.Should the necessity privilege ever extend to the taking of life? In criminal law, the answer has generally been “no.” On the other hand, 2.09 of the Model Penal Code permits duress as a defense if the force or threat of force was such that a person “of reasonable firmness in his situation would be unable to resist.”

7. Authority of LawThe defense of legal authority is a subject for a course in itself. If the defendant is duly commanded or authorized by law to do what he does, he is of course not liable for doing it.

8. DisciplineParent and Child There are a number of relationships in which the necessity of some orderly discipline gives persons who have the control of others the privilege of exercising reasonable force and restraint upon them. One of them is the privilege of the parent to discipline her child.

The scope of the privilege was rarely tested for many years because parents were held to be immune from suits by their children.

Generally, the privilege of parents to discipline their children also covers those who are temporarily responsible for them.

TORTS (HALPERT)

The amount of force that is acceptable may be less than what would be acceptable for a parent to use.

Most school systems today tightly regulate the use of corporal punishment, so most of the litigation in this area involves interpretation of specific state statutes or school board regulations rather than the common law.

9. Justification