FUNCTIONS OF TORT LAW Compensation for injuries Deterrence of risky behavior Redress/vindication of rights violation caused by wrongful conduct

nduct Naming of private wrongs Informing the public & providing the opportunity for democratic governance Voicing of societal disapproval of wrongful conduct Naming of public wrongs

INTENTIONAL TORTS
These torts cannot be committed entirely by accident. Liability for each requires the actor being sued to have acted w/ an intent to accomplish a certain kind of consequence, or w/ actual knowledge that such a consequence would come about. Intent Used throughout the Restatement to denote that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it. Act An external manifestation of the actors will and does not include any of its results. The knowledge requirement establishes a subjective rather than an objective standard. Pg. 621 Knowledge = subjective, actual knowledge NOT an objective, should have known standard BATTERY Rest. 2d 13 & 18 [1] An actor is subject to liability to another for battery if [2] he acts intending [3] to cause harmful OR offensive contact [4] w/ the person of the other or a third person, [5] OR an imminent apprehension of such a contact, [6] AND a harmful OR offensive contact w/ the person of the other [7]directly OR indirectly results. Elements Prima Facie pg. 594 1. A acts w/ the intent to cause a contact w/ P or a third person, or an imminent apprehension of such contact AND the contact that A intends is of a harmful or offensive type: 2. As act (directly OR indirectly) causes 3. P to suffer a contact that is harmful OR offensive Does not say anything about apprehension although the above does! has to know that his actions would cause such contact Intentionally causing another to suffer a harmful or offensive contact

Bodily contactdirect or indirectly **An accidental touching of another person cannot be battery b/c of the lack of intentionality on the part of the person doing the touching. Doctrine of extended personality pg. 595 Battery can be established by contact w/ anything so connected w/ the body as to be customarily regarded as part of the others person and therefore as partaking of its inviolability. Protected zone around your body Ex. plate in hand, pulling a chair from under someone, blowing smoke Test What would be offensive to an ordinary person not unduly sensitive to personal dignity Offensiveness is a question for the jury It is objective not subjective o Is not whether the person touched actually takes offense, BUT rather that the contact must violate prevailing social standards of acceptable touchings. o Offends a reasonable sense of personal dignity Certain contacts that might otherwise be deemed inoffensive as a matter of law can be rendered offensive if the knows that the is unusually averse to being touched in a particular way. Is the contact customary? What proves the intent to cause a touching? NO contact = NO battery intent to take up an action that ends up causing contact Somewhere b/t intent to produce the acts exact consequences The intentional nature of the contact w/ the controls the definition, NOT the intent to cause harm or injury. Does not require that desire to injure nor a realization that the contact is injurious or offensive. **Mental incapacity may negate the mens rea for the intent requirement For minors, the jury must determine whether the particular minor being sued was capable of forming the requisite intent and acted w/ such intent. Under the doctrine of transferred intent one who intends a battery is liable for that battery when he unexpectedly hits a stranger instead of the intended victim. Pg. 634-638; 10-4-12 notes Public Policy The interest underlying the tort of battery is the interest in protecting bodily integrity from invasion. ASSAULT

Intentionally causing another reasonably to apprehend imminent harmful or offensive contact Apprehension key coupled w/ apparent ability The intention to do harm is the essence A threat only promises a future injury and usually gives ample opportunity to protect against it, while an assault must be resisted on the instant. Preventive remedies are available for threats, whereas for assault, the only has his own physical power of resistance available **Threats over the phone are not assault, If I were there, I would Ex. if knows the gun is not loaded that is pointed at them, then there is no assault Bodily contact not necessary. Fear is not necessaryONLY needs to be aware that contact might occur NOT necessary for the victim to be placed in apprehension of instantaneous harm; it is sufficient if it appears there will be no significant delay **If no apprehension ahead of time, then no assault can exist once the battery is in progress. Elements Prima Facie 1. A acts, 2. Intending to cause in P the apprehension of an imminent harmful OR offensive contact w/ P, AND 3. As act causes P reasonably to apprehend such a contact. Test must show either that the intention was unlawful OR that the is in fault. If the intended act is unlawful, the intention to commit it must necessarily be unlawful Public Policy The interest underlying the tort of assault is the interest in protecting bodily integrity from invasion. DEFENSES TO BATTERY & ASSAULT Privileges/Justifications as opposed to excuses 1. Consent Expressedwritten or spoken statements Implicitconduct okays it (ex. sports) Actually AND reasonably believe that consented to the contact pg. 646-647 (ex. immigrant w/ shots) Test o Consider the scope of consent. Was the contact that the suffered the contact that was consented to? Was capable of consenting? 2. Self-defense and defense of others One who is involved in an altercation w/ another has the right to use such force as is necessary to protect himself from bodily injury, and the question

of the amount of force justifiable under the circumstances of a particular case is also one for the trier of fact. Actually AND reasonably believes it is necessary to injure another to avoid imminent injuries o Must also use reasonable force **Aggressor doctrine from criminal law applies 3. Defense & recapture of property Defenses: Defense & Recapture of Property R2d 77 o An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to prevent or terminate anothers intrusion upon the actors land or chattels, if a. the intrusion is not privileged, and b. the actor reasonably believes that the intrusion can be prevented or terminated only by the force used, and c. the actor has first requested the other to desist and the other has disregarded the request, or the actor reasonably believes that a request will be useless or that substantial harm will be done before it can be made. FALSE IMPRISONMENT Intentionally confining someone against his or her will does not have to be a small or stationary space Ex. someone forcing you to walk around w/ them while they have a gun **Certain boundaries may be so broad & permissive of free movement as to not count as confinement as a matter of law. must be aware of your confinement OR be harmed by it

o Ex. Person is asleep on the train when it is diverted and the person is harmed. They werent aware that they were being taken past their stop in NY to Boston because they were asleep, but the person was harmed by a fire caused on the train. Rest. 2d 35 Actor A is subject to liability to another person P for false imprisonment if: 1. A acts intending to confine P or a third person, 2. As act causes P to be confined; AND 3. P is conscious of the confinement OR harmed by it. **The confinement must be total i.e. no reasonable means of escape by is aware of means of escape is determined by the capability of the person o ex. a small window, but the person is overweight If an exit is available to the victim, BUT can only be used by the victim in a manner that poses a risk of physical harm to himself or others, the victim is deemed confined. If the victim reasonably perceives that the will seek to prevent from leaving, is also confined. Other forms of pressure can constitute confinement even if the is literally free to move. o Ex. threat to harm the s children, risk of reputation or embarrassment Fact-Specific Inquiry/Test Relative size, age, experience, sex, & physical demeanor play a factor in overcoming free will Whether someone was detained is a question for the jury Defenses Consent Shopkeepers privilege 1. has reasonable grounds for believing that has stolen OR is attempting to steal goods, 2. The detention is reasonable in manner, AND 3. The detention is reasonable in duration. Whether reasonable belief was established is a question for the jury Arrests under the scope of a warrant Private citizen privilege A serious criminal offense has been committed is in the process of attempting a serious criminal offense OR a breach of peace Public Policy The interest underlying the tort of assault is the interest in protecting bodily integrity associated w/ freedom of movement. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Intentionally OR recklessly causing another to suffer sever emotional distress through outrageous conduct

Rest. 2d 46(1) pg. 697 1. Extreme AND outrageous conduct Beyond all bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community **a question for both the court and/or the jury 2. Intentionally OR recklessly causing 3. Severe emotional distress Adversely affects physical health Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his [or her] resentment against the actor, and lead him to exclaim, Outrageous![!!!] Rest. 2d 46(2) Where[outrageous] conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress A. to a member of such persons immediate family who is present at that time, or B. to any person who is present at the time if such distress results in bodily harm. Extends the principles to permit certain family members to sue for loss of consortium or for wrongful death when another family member is injured OR killed. R2d 46, cmt. JPg. 703 Severe distress must be proved; but in many cases the extreme and outrageous character of the s conduct is in itself important evidence that the distress existed. Rest. 3d 1Liability for Physical & Emotional Harm A person acts recklesslyif: [he or she] knows of (a very significant) risk of harm or knows facts that make the risk obvious, and the precaution that would eliminate or reduce the risk involves burdens that are so slightas to render thefailure to adopt the precaution a demonstration of [his or her] indifference to the risk. Pages 701-702 Rationale Some degree of transient and trivial emotional distress is a part of the price of living among people. The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. Test Proof that the acted for the purpose of causing the severe emotional distress, OR knowledge that such distress was substantially certain to result will suffice. NOT available for mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Did the act w/ the requisite mental state? As a matter of constitutional law, descriptions OR depictions of public figures can never be deemed outrageous. Pg. 715

NEGLIGENCE
NEGLIGENCE Defined A breach of duty to exercise reasonable care to avoid causing injury to another Failure to heed a duty of reasonable care that causes an injury to a person to whom the duty is owed. Does not require proof that the intended some form of contact w/ the Carelessness here not intentionality Foreseeability is key and does NOT = knowing to a substantial certainty Ex. knowing to a near certainty = suffices to establish intent Ex. Aware that there was a risk = DOES NOT suffice to establish intent Defenses Comparative fault Statute of limitations Immunities Elements Injury suffered by the Duty of reasonable care owed by the to the Breach of that duty; AND Negligent, careless, and reckless manner Causation (injury caused by breach) As a result of s actionsthe did incurinjuries actual and proximate Injuries Physical Harms = general/unqualified duties to take reasonable care when taking action Bodily Property damages Non-physical harms = limited qualified duties Pure economic loss Emotional distress The Duty Element: Overview 1. Duty (2) forms general/unqualified duty o to take reasonable care to avoid causing physical harm to foreseeable victims foreseeability is keyif you cannot foresee it, how can you tailor your conduct?

 It is a duty to take care in acting, but it is not a duty to act. Limited qualified duties o To make reasonable efforts to protect OR rescue o To provide reasonably safe premises o To take reasonable care to avoid causing non-physical harm a. Emotional distress b. Pure economic loss Ex. your accountant does something negligently w/ your money, but nothing to your person or your property NO duty to take care to avoid causing pure economic loss (even foreseeable loss) UNLESS there is a contractualor some other special relationship b/t the and the . **If can prove no duty, then there is no case. **Duty AND the scope of duty is a question of law for the court. 2. Breach of duty 3. Causation 4. [Injury] Rest. 2d 314: The General (Default) Rule of No Duty to Assist or Protect Others The fact that the actor realizes or should realize that action on his part is necessary for anothers aid or protection does not of itself impose upon him a duty to take such action. Limited Qualified Duties of Care (4) Types: 1. Affirmative duties to rescue OR protect 2. Premises liability 3. Pure economic loss 4. Emotional distress Nonfeasance vs. misfeasance Feasance is the duty OR performing of an act Nonfeasance is not doing anything Default no-duty rule Misfeasance is doing something legally wrongful/tortious to take reasonable care to avoid causing physical harm to foreseeable victims

Affirmative Duties to Rescue or Protect Exceptions to the no-affirmative-duty rule(not exclusive list):

Duty-to-rescue statues Rare in the U.S. and it makes inaction criminal, not a tort Voluntary undertakings A promises OR chooses to aid B o You start rescuing them, then you have to finish and make reasonable efforts to do so. Doesnt mean you have to be successful Good Samaritan law o When people make good faith attempts to assist & something happens while they are doing so. Imperilment A, with or w/o fault, puts B in peril o You have a reasonable duty to render assistance Special relationships Ex. b/t proprietors & their customers, common carrier-passengers, innkeeper-guest, custodian-ward, employer-employee, etc. Premises Liability Tied the s status Inviteeenters at invitation of possessor in furtherance of possessors business OR mission Duty owed to provide premises that are reasonably safe for ordinary use Ex. Social guests Licenseeenters w/ permission of possessor but not in furtherance of possessors business OR mission Duty owed to warn of hidden/non-obvious dangers about which the possessor knows OR should know Ex. invited to someones home for Bible study Trespasserenters w/o permission (could be unlawfully or by mistake) No duty of care owed to adults o If aware of continual trespassing, then you only have to warn Duty owed to maintain foreseeably dangerous conditions owed to children **Only a duty here to refrain from willfully OR wantonly injuring the trespasser o Needs something more than mere inadvertence AND lack of attention is not enough. You would need an extreme departure from ordinary care. Ex. wax on the floor, a spill, etc **To determine which status a holds is a jury question, BUT where the facts are not in dispute the classification becomes a question of law for the court. Test To determine whether a duty exists, there are (3) factors: 1. The relationship b/t the parties 2. The reasonable foreseeability of harm to the person injured, AND Public Policy

 Social policy dictates that the storeowner, who is deriving this economic benefit from the presence of the customer, should assume the affirmative duty to help customers who become ill as a cost of doing business. Placing a general duty on businesses is unreasonable b/c they would have to hire employees trained to diagnose and provide medical services. To encourage businesses to be careful. Rationale: We value harm to someones person more than we value economic losses of a business. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS pg. 737 negligent as to s emotional well-being seriously distressed w/o concrete physical harm (3) major exceptions: 1. Zone of danger rule; allows recovery if: a. s carelessness places w/in the immediate area of physical harm o objective test o must establish placement in immediate risk of physical harm o Impact rule is necessary to control liabilityfilters out fake claims or claims in which the s reaction is excessive b. s contemporaneous awareness of the peril causes fear for safety (fright) c. s fright produces physical consequences that would be elements of damage if bodily injury had been suffered 1 and 2 have a bearing on whether there is a duty or not 2. Bystander liability 3. Special relationships 4. Physical Impact Test emotional distress accompanied by either physical injury OR physical impact Rationale: impact corroborates the emotional distress claim o Problem is that it can be over-inclusive & under-inclusive **You cannot take on emotional damages to property damages UNLESS there is some type of sentimental value to the property.

Rest. 3d 46Recognition of True NIED An actor whose negligent conduct causes serious emotional disturbance to another is subject to liability to the other if the conduct: a. places the other in immediate danger of bodily harm and the emotional disturbance results from the danger; or o you cannot be oblivious to the for ex. train coming o red part is for the ZOD b. occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional disturbance. o Courts are reluctant to recognize this one Rest. 3d 47Recognition of True NIED under Bystander Liability An actor who negligently causes serious bodily injury to a third person is subject to liability for serious emotional disturbance thereby caused to a person who: a. perceives the event contemporaneously, AND b. is a close family member of the person suffering the bodily injury must be near the scene of the accident Note: if conduct goes beyond carelessness, you do not have to rely solely on NIED (ex. IIED, assault, etc.)