Traditional view: Intent can transfer among any of battery, assault, false imprisonment, trespass to land, and trespass to chattels.
Today, many courts restrict transferred intent to only between battery and assault.
(Note that whether evidence of motive can be used at trial to establish intent or another element is a question for evidence law.)
Children as well as persons with mental illness, developmental disability, and dementia can commit intentional torts.
Often causation is not an issue in an intentional torts case for prima facie liability.
But causation can matter a lot for the extent of damages recoverable.
(Causation is considered in more depth under the heading of negligence, but the same concepts apply.)
The required intent is the intent to effect a battery
Remember that substantial certainty counts as intent
Transferred intent can apply. Intent to commit an assault works in all courts. Some courts allow transferred intent from false imprisonment, trespass to land, and trespass to chattels.
Can be direct or indirect (e.g., setting something in motion, laying a trap)
Touching of a person includes things intimately connected to the person. E.g., beating on the car that the plaintiff is in, grabbing an object the plaintiff is holding.
"Harmful or offensive" is really a slogan for a more nuanced concept.
Note the touching doesn't actually have to do harm or be offensive.
The core notion is that people must respect others' apparent desire to not be touched.
In dealings with strangers, what a reasonable person would glean and community standards play a role.
E.g., tapping a stranger on the shoulder is okay — but not after the strangers says not to touch their shoulders.
The undertaking of an act with intent effecting the immediate apprehension of a harmful or offensive touching of a person
The plaintiff only needs to be aware of the confinement; there's not requirement of harm
But harm without awareness will suffice as welll
Likewise, if plaintiff is unaware of the confinement, but is harmed by the confinement, this element is satisfied
This tort goes by the names of ""intentional infliction of emotional distress," "IIED," and "outrage"
The intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional distress
"Generally, the case is one in which a recitation of the facts to an average member of the community would lead him to exclaim, 'Outrageous.'" - Dean v. Ford Motor Credit (5th Cir. 1989).
A few courts have said that it must be enough that plaintiff sought medical attention or had some physical manifestation, but that is not the majority rule
It is, at least, much more than merely being upset
The only intent needed is the intent to do the act that results in the physical intrusion
Not knowing that the land belongs to another person or honestly and reasonably believing one has permission to enter does not negate the intent element
Mere entry suffices
Can be accomplished by person or object
Can be accomplished by inducing a third person to enter
Can include entry onto the real property or failure to leave or remove something from the real property
Can include acting on a particular aspect of the real property
Does not include intangibles, e.g., vibrations or odor, but could include particulates, depending on the court
An intentional interference with a person's right of possession in a chattel in so substantial a manner as to warrant a forced purchase
If the facts are appropriate for alleging conversion, then the plaintiff can choose to pursue that claim. But the plaintiff doesn't have to. If the plaintiff wants the chattel back, they always have the choice of pursing a trespass to chattels claim.
Often the core concept in conversion is referred to as a "forced sale." But "forced purchase" is more accurate. The defendant can't make the plaintiff sell the chattel.
A person is entitled to use reasonable force to prevent any reasonably believed threat of imminent battery or false imprisonment
Same as self defense, but in a majority of jurisdictions, a mistake in perceiving a threat, even if reasonable, will void the defense
In general, a person is entitled to use reasonable force to protect land and chattels
Note: This is a complex and contested area of the law. What might be privileged in one place might subject someone to tort and criminal liability in another.
+ - A person is privileged to invade the property rights of another to avoid injury to person or property, but must pay compensatory damages
Note: Private necessity is recognized as a defense that applies only to the property torts: trespass to land, trespass to chattels, and conversion
+ - Same as for private necessity, but where the community at large is threatened, no compensatory damages are owed.
Note: Public necessity is recognized as a defense that applies only to the property torts: trespass to land, trespass to chattels, and conversion
In other words, the issue of whether a duty exists becomes a vehicle for preventing a case from reaching a jury
Exception: good samaritan statutes sometimes protect people (often limited to medical professionals, but sometimes applying to any well-meaning stranger) from liability for ordinary, but not gross, negligence in voluntarily acting to help someone
Generally, there is no obligation to control third persons
There is an obligation to control a third person if one has the ability and authority to do so and knows the person is likely to do harm if uncontrolled
The reasonable person standard means the care that would be exercised by a reasonable person under the circumstances.
+ - Objective standard
I.e., it's not subjective. So it doesn't matter that the defendant thought they were being reasonably careful. What matters is whether they were being reasonably careful from an objective point of view.
Mental deficiencies not taken into account
Inexperience is not taken into account
Physical disabilities and limitations are taken into account
Bailment is one person holding on to another person's chattel. (E.g., renting a car.)
Many courts recognize special rules depending on the relationship of bailor and bailee. (For whose benefit is the bailment? Is the bailment in exchange for money?)
For conditions of the land, many courts recognize special rules that depend on the status of the plaintiff (trespasser, anticipated trespasser, child trespasser, licensee, invitee)
The standard of care is the prevailing standard of practice
Exception: The standard of care is ratcheted upward for defendant professionals with superior knowledge
When applicable, the plaintiff can have a statute's specific standard replace the general negligence standard
+ - Test: class-of-persons/class-of-risk
If the injury would not have happened but for the defendant's breach of the duty of due care, then the but-for test is satisfied, and the plaintiff prevails on the issue of actual causation.
+ - Here's an alternative way of stating the test (potentially less confusing).
+ - If we took an imaginary trip back in time, and if we removed the defendant's breach, would the injury have happened anyway?
If the injury would have happened anyway, then the but-for test is not met, and the plaintiff has not proven actual causation that way.
E.g., a plaintiff could sue a driver for being drunk, a bartender for serving the driver, and a bar patron for lending the driver the car. All of them may be said to have breached their duty of care, and each one's breach could be said to be a but-for cause of the plaintiff's injuries.
Rule: When each of multiple discrete careless acts committed by different multiple actors would, by itself, have caused the injury that resulted from the confluence of those acts, each act is deemed an actual cause, even though neither satisfies the but-for test.
It's easier with an example: Ayesha starts a fire. Bill starts a fire. The fires merge and the merged fire burns down your house. Ayesha says she isn't a but-for cause, because your house would have burned down ANYWAY from Bill's ignition. Bill says the same. The twin-fires doctrine allows you to win on actual causation against both even though neither is a but-for cause.
Multiple defendants acted, breaching their duty of care, yet only one caused injury—and it's unclear that either's conduct was more likely than not a but-for cause.
Rule: In such a case, actual causation is rebuttably established against all defendants. The burden of proof shifts to defendants, each to negate his or her own negligence.
Similar to Summers v. Tice, but liability is capped at a percentage of total damages corresponding to each defendant's market share.
+ - We ask, at the time of the breach,was it foreseeable that the plaintiff would suffer the injuries complained of?
If so, then proximate causation is satisifed.
Note: There are some complications and nuances about exactly what has to be foreseeable. But the extent or severity of harm is always considered foreseeable—even if it's really not (the "eggshell plaintiff rule").
+ - Negligence of medical professionals is always considered foreseeable
In other words, if I drive through a red light and injure you, and then at the hospital you are made worse by negligent doctors (e.g., needless amputation), I'm on the hook for the additional damages. Which is to say, I can't get out of liability for the additional damages by saying it was not foreseeable that you'd receive negligent medical care.
Severe emotional distress—in very particular circumstances—can qualify as an injury via a doctrine called "negligent infliction of emotional distress."
In some cases, courts allow negligence cases for mere economic damages -- when they do so is complicated
+ - Requires
Potential defendants are always trying to get their customers to sign things saying that the customer assumes all risk of injury. Sometimes these are valid, but often they are paper tigers.
These are different legal theories for the idea that the defendant should be off the hook because of the plaintiff's agreement/intent ahead of time not to pursue a claim
These are conceptually and doctrinally distinct from assumption of the risk, but courts often jumble all these things together.
As with assumption of risk, these can be paper tigers.
Under special circumstances, liability may be imposed without a showing of negligence or other form of culpability
it's a policy determination that the party undertaking the activity ought to bear the full cost of any harm that comes of it
"small triggers ... can release far larger forces" (Epstein)
Consumer-expectations test: Would a reasonable consumer expect the danger in the product that caused the injury?
Risk-utility test: Would making the product safer provide a benefit that would offset the increased price or loss of usefulness, taking into account the likelihood of injury?
Under many circumstances the First Amendment adds requirements and defenses to common-law defamation in a way that makes the law as a whole more protective of free speech.
These are complicated ...
These torts tend to come up in the same fact patterns as defamation and IIED/outrage, so where you see one, you might look for the others as well.
And just so you know, many more torts exist ... There's malicious prosecution, breach of fiduciary duty, tortious breach of the covenant of good faith and fair dealing -- just to name a few.
Conduct must be wanton, willful, reckless or malicious
E.g., “flagrant misconduct,” “malice,” “in conscious disregard,” “willful, wanton, or reckless,” and “wantonly reckless or malicious.”
Most common application: Companies are liable for the torts of their employees acting in the scope of their employment.
This doesn't remove the employee tortfeasor from liability—it just adds the employer.
Persons acting in concert are liable for each other's torts.
Aiding and encouraging another person to commit a tort makes the aider/encourager liable (in addition to the primary tortfeasor).
Default rule and traditional approach: Entirely plaintiff's choice whom to sue and from whom to collect judgment, in any combination or distribution
This has been modified by statute in defendant-friendly ways in many jurisictions (tort reform)
Variously called "legal indemnification" and "equitable indemnification"
This is part of background law and is generally available when it is fair for one party, who was realtively blameless but had to pay damages, to get reimbursed by person or company who was more blameworthy but wasn't made to pay
Arises by contractual agreement
This isn't about fairness, it's about one party negotiating for it, often because of superior bargaining power
KEY POINT: One person's right to sue and recover damages cannot be extinguished by an indemnification agreement between two others!
+ - Federal Tort Claims Act
States have statutory schemes partially waiving sovereign immunity and providing for suit similar to the FTCA
See also constitutional torts
42 U.S.C. § 1983
Against state or local officials (those acting under color of state law) for violations of constitutional rights
A close family member of a living primary tort victim can bring this action based on the loss experienced by the family member. (Example: Spouse in persistent vegetative state -- although it need not be that extreme.)
Don't rely on this for real-world legal problems. Jurisdictions are different, and things are complicated. And for studying, think of it as a framework or staring point, not a thorough statement of the relevant doctrine.
Whether you are my student or studying torts elsewhere, if you would like to modify this document for your own use in studying, go ahead. If you'd like to share your modified mindmap with others (such as giving it to friends or putting it in a student-group's outline bank), that's fine, but send me a copy after finals so that I can post it for others to build upon and modify provided they share it forward likewise.
If you'd like to redistribute this document or modify it for teaching/training purposes, please contact me through ericejohnson.com. I like hearing from fellow teachers and lawyers and I'm almost always happy to give permission to re-use my materials on a gratis basis.
For permissions, please contact me through ericejohnson.com. (Frequently I'm up for giving gratis permission. But in the case of for-profit publishers and large educational services corporations, however, I would likely ask for a licensing fee.)