Torts
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 defendant undertook an act with the intent to and effecting a harmful or offensive touching of the plaintiff.
The required intent is the intent to effect a battery.
Remember that substantial certainty counts as intent.
Transferred intent can apply. From person-to-person works everywhere. For tort-to-tort transferred intent, courts differ. Intent to commit an assault works in all courts for battery. Some courts also allow transferred intent from false imprisonment, trespass to land, and trespass to chattels.
"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.
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.
The defendant undertook an act with intent effecting the immediate apprehension of a harmful or offensive touching of a person
So even if the defendant lacks the means to carry through the apprehended touching, it is enough that the plaintiff would think the capacity for the touch is there (e.g., pointing an unloaded or inert gun at someone).
There has to be some movement, some act.
Note, however, that there is authority for the idea that words can negate the implications of movement/action (e.g., "This gun isn't loaded, but if it were ... ").
The defendant intentionally confined the plaintiff and the plaintiff had awareness of the confinement.
The required intent is the intent to confine.
There is no requirement that there is an intent that the confinement is of a type that is illegal or improper. It just has to be intent to confine.
Confinement means being restricted to a closed, bounded area of an appreciable amount of time.
+ - Bounded area
Duration of confinement is irrelevant. There is no minimum time that the plaintiff must be confined.
+ - Method of confinement
The plaintiff only needs to be aware of the confinement; there's no requirement of harm.
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 defendant intentionally or recklessly inflicted, by extreme and outrageous conduct, severe emotional distress on the plaintiff.
+ - The standard here is high -- must be truly outrageous
"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).
+ - Mere insults and demeaning conduct toward the plaintiff are generally not enough, but insulting conduct at the plaintiff can be enough for a claim ...
where there's a pattern of the conduct over a substantial period of time, particularly in some place where the plaintiff is compelled to keep coming back to, such as school or the place where they work.
where the plaintiff is a traveller and the defendant is a common carrier (airline, e.g.) or innkeeper (hotel operator, e.g.).
Historically, courts used to say that the harm suffered had to be enough that plaintiff sought medical attention or had some physical manifestation, but that is not the majority rule today.
It is, at least, much more than merely being upset, or even really upset.
The defendant intentionally effected a physical intrusion (entry or failure to leave) of real property.
The only intent needed is the intent to do the act that constitutes 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
Does not include intangibles, e.g., vibrations or odor, but could include particulates, depending on the court
Can be accomplished by inducing a third person to enter
+ - Can include acting on a particular aspect of the real property
e.g., a party guest going into an off-limits area or acting on a fixture in an unauthorized way such as swinging from the chandelier
Can include failure to leave or failure to remove something from the real property
The defendant has effected an intentional interference with plaintiff's right of possession in a chattel.
The defendant has effected an intentional interference with a person's right of possession in a chattel in so substantial a manner as to warrant a forced purchase.
You can say that conversion is best explained and understood teleologically. (If that helps you; if it doesn't, don't worry about it.)
For conversion, what it really comes down to is whether the interference is so substantial it justifies conversion's special remedy of the forced purchase.
If the interference has the requisite substantiality for conversion, that doesn't mean that a claim for trespass to chattels does not work! (The plaintiff could sue on either claim, or sue on both and elect a remedy later.)
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 almost 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)
In general, a defect is something that makes the product unreasonably dangerous. So, like negligence, it is built around notions of reasonability. But strict products liability has more or -- at least different -- specificity in the doctrine concerning how this determination is made.
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?
The product is defective as designed. E.g., it might lack safety features for which the added safety outweighs the added cost or decreased usefulness of the product.. The consumer-expectations test or risk-utility test can be used to show the existence of a design defect.
Something went wrong in the manufacturing process that caused the particular unit of the product at issue to be defective. E.g., a bad weld on a tank, bacterial contamination in packaged food. The consumer-expectation test can be used to show the existence of a manufacturing defect.
There was a danger with the product that was known or reasonably knowable, and the defendant didn't adequately warn of it. A test that can be used is whether a warning was reasonable uder the circumstances to avoid danger.
for instannce, when a large group of people is identified in the defamatory statement, it may not be deemed of and concerning an individual member of the group
"publication" is a term of art; it just means being heard or read by at least one other person, not including the plaintiff and defendant
The media is privileged to provide a fair and accurate report of defamatory statements made in the course of legislative, judicial, administrative and other official proceedings/records, if the proceedings or records are open to the public, and they relate to a matter of public concern
The media is privileged to provide a fair and accurate reporting of charges made by one public figure against another - for example things spouses say against one another in a celebrity divorce
There are, for example, absolute privileges for anything said in court pleadings or said aloud in court, and anything said by legislators on the floor of the legislature.
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.)