Intentional Torts

7 Intentional Torts (Must prove intent not damages)

1. Assault
2. Battery PERSON
3. False Imprisonment
4. Intentional infliction of emotional distress
5. Trespass to land
6. Trespass to chattels PROPERTY
7. Conversion

Intent
1. Desire
2. Knew with substantial certainty that harmful contact will occur.

Assault:
1. Intent to use force
2. Ability in P’s mind that D can carry it out
3. Opportunity to act immediately

Battery:
1. Intent
2. Harmful or offensive touching
3. Knowledge by P not necessary

False Imprisonment
1. Intent
2. Confinement
3. Force
4. Awareness
Escape is ONLY useable if the plaintiffs use would not be
1. physically dangerous
2. harmful to clothing
3. offensive to a reasonable sense of dignity
4. harmful to a third party

False Arrest
1. D asserts authority to arrest
2. D arrests P it must be for the reason stated

Intentional infliction of emotional distress

1. Intent
2. Extreme & Outrageous conduct
3. Causation
4. P’s distress is Severe

Trespass To Land

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 1. Intent
2. Entry

Trespass to Chattels
1. Intent
2. Interference
3. Causation
4. Damages (Diminution in Value)

Conversion
1. Volitional & Wrongful
2. Dominion & Control
3. Property of Another
4. So substantial, pay full value

Sexual content cases

1. One invitation of sexual relations is not enough.
2. When it becomes hounding…yes!!

Defenses to Intentional Torts

 Self Defense; Defendant may act reasonably to defend himself from harm
 Defense of Others; May use as much force as party being defendant
 Defense of Property; Reasonable force, never deadly force
 Necessity; Public, for the good of the community, no liability...Private, for the
individual, no liability for trespass, pay for damages
 Recapture of Chattels; Wrongfully taken, shopkeepers privilege
 Recapture of Land; NO force at all…minority reasonable force NOT deadly
force
 Authority of Law; Conduct which is permitted through legal action that would
otherwise be a tort. Included arrest with or without a warrant
 Discipline; A privilege invoked by parents teachers military other persons in
authority…they are privileged to act in certain ways
 Justification; Conduct of Defendant justified
 Consent; P consented to conduct

Self Defense; cannot retaliate

Deadly Force; Serious bodily injury or death
Duty to retreat; Limited jurisdictions

Negligence
Negligence is that conduct which falls below the standard of due care prescribed by law
for the protection of others against an unreasonable risk of harm.

4 elements, must prove them all

1. Duty From D to P

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 2. Breach of Duty
3. Causation; Conduct of D was the cause of the harm to P
a. Cause in fact (Necessary Antecedent)
b. Proximate cause (Legal Cause, Cause in Fact)
4. Damages

Doctrine of Res Ipsa Loquitor, the thing speaks for itself.

1. Event ordinarily does not occur w/o negligence being present.
2. Instrumentality or thing that caused the damage is under the exclusive control of
the defendant.
3. No contributory negligence on the part of the plaintiff.
4. No direct evidence

5 Exceptions to Forseeability Recovery Doctrine

1. Extensive physical injuries to the plaintiff
2. Rescuers are injured
3. Foreseeable but unlikely
4. Same general harm, resulting in an unusual manner
5. Plaintiff is part of a foreseeable class, but not foreseeable individually.

6 Defenses to Negligence (Common Law)

1. Contributory Negligence; Fault, Departure from the standard of care..
2. Last Clear Chance
3. Comparative Negligence
4. Assumption of Risk; Knowledge; Appreciation; Voluntary Acquiescence..
5. SOL
6. Immunity

Negligence Per Se (Violation of Statute)

1. What was the risk of harm that the legislature intended to protect the plaintiff
from?
2. Did the plaintiff belong to the class of person the statute was enacted to protect?
3. Was the violation excused?
4. Is the statute constitutional?

Procedural; Once established, unexcused violations of statute.

1. Negligence Per Se; Jury must find for P.
2. Evidence of Negligence; The jury is not bound, can consider what the plaintiffs
actions were.

3 Types of Comparative Negligence

1. Pure; P can recover an inverse amount of damage even if P’s fault exceeds that
of the D. (Minority Rule)
2. Modified; If P’s fault exceeds D’s, P recovers nothing. If P’s fault is < or = to
finding for P. Some jurisdictions are “less than” while some are “equal to.”
(Majority Rule)

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 3. Slight/Gross; Can only recover if P’s negligence is slight and D’s negligence is
gross.

Immunities
1. Family
2. Charitable
3. Governmental
4. Infant

Relationship of the parties has nothing to do with the merits…

Family; At common law…

 Inter-spousal Immunity; between husband and wife (abolished everywhere).
 Parent/Child; un-emancipated minor living with parents, parent has immunity.
 Exception; Emancipated child and intentional torts

Charitable; Educational, charitable and religious organizations (in MA if hospital is sued

only liable for $20,000, does to apply to individually named defendant).

Governmental; Government must give permission to be sued. (Federal Torts Claim Act,
negligence only).
MGL 258, MA Tort claims act, notice requirement 2 years.

Public Officer; Legislator Judges are immune from suit from official acts performed.

Infants; Person who have not met the age of majority. Can they form intent? (5 years 9
months) Negligence; child of like age, intelligence and maturity.

1. Trespasser; Someone on property w/o consent.

2. Licensee; Someone on property w/consent, social guest.
3. Invitee; Someone on property w/consent, with business purpose, enter for the
purpose which the land is held open.

Duty to Trespasser; At Common Law, no duty (warn, make safe, inspect).

Exceptions
1. Frequent trespasser; Trespass in a limited area, may be a duty. Discovered
Trespassers; Once known, a duty to exercise reasonable care for safety based on
known or should have known.
2. Children; At Common Law, Artificial Conditions … Age is a factor(under 12).
Modern view, so young cannot appreciate the risk.

Licensee; Social Guest, duty to warn (public employees).

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Invitee; Owed the highest duty, consent and a business purpose. Modern Rule, Plaintiff
must not actually engage in business.
1. Duty to warn
2. Duty to inspect (hidden defects)
3. Duty to remedy

Strict Liability Defenses; Acts of God

Strict Liability
1. Wild Animals
2. Fire
3. Ultra-hazardous Activities
4. Product Liability

Products Liability
1. Negligence
2. Breach of Warranty
3. Strict Liability

Unsafe Products
1. Defective Design;
a) Manufacturing Defect; Limited, specification under which the product
was made are good, but were not made to specification. Defective when it
left the manufacturer.
b) Design Defect; every product produced under those specification is
defective.
c) In the business of selling product

2. Failure to warn; defendant maybe required to give adequate warning in order to

prevent the product from being dangerous.

Defenses
Negligence
1. Assumption of risk
2. Abnormal use / misuse…
3. Contributory
4. Comparative

Strict liability
1. Assumption of risk
2. Abnormal use / misuse…

Defamation Common Law

An injury to a persons reputation…
1. Statement
2. About Plaintiff

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 3. To one other person
4. Damages

To Recover
Pub ¶ - M∆ - Public = Malice
Priv. ¶ - M∆ - Public = Negligence (NO Presumed Damages)
Priv. ¶ - Non M∆ - Not Public = Negligence (Presumed Damages)
Priv. ¶ - Non M∆ - Malice

Defamation Con Law (media D)

Common law plus
1. Malice Public Figure (False / Reckless Disregard)
2. Negligence Private Figure
3. Untruthful
4. Actual Damages

Publication; Communication of defamatory material to one 3rd person who understands

the statement…
 Slander; Spoken ACL show actual harm
 Libel; Printed Almost always more serious, ACL damages always presumed…
Broadcasts are almost always libel…

Slander Per Se (damages unnecessary)

1. Allegation plaintiff convicted of crime (moral turpitude).
2. Plaintiff has loathsome disease.
3. Allegation the plaintiff is unfit to perform his business.
4. Sexual unchaste (females only).

Defenses
1. Truth ( burden on D)
2. Justification
3. Privilege

Libel Per Se; is defamatory on its face, including a publication that is susceptible of
several meanings, one of which is defamatory; it is actionable without proof of special
harm.

Libel Per Quad; if statement not libelous on its face (other info needed).

Fault; ACL Strict liability, Now must prove fault (malice, for public figures).

Damages; absent malice, no punitive damages, Private person must prove damages.

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Privileges

Absolute
1. Judicial proceedings
2. Legislative Activities
3. Executives of Government / Official Capacity

Conditional (If D reasonably believes statement to be true)

1. protection of publishers interest
2. protection of recipients interest
3. report to public authority
4. protect well being of a family member
5. fair comment on matters of public concern

Misrepresentation
1. False Representation by defendant…
2. Scienter; Knowledge, defendant must know that the statement was false or act
into reckless disregard to whether it is true…
3. Intention to induce
4. Justifiable reliance
5. Damages

Invasion of Privacy
(4 Basic Actions)
1. If the plaintiff’s name or picture appropriated by the defendant, for the
defendant’s financial gain.
2. Where the plaintiff has their solitude intruded upon in a private place.
3. Defendant publicizes details of plaintiff’s private life.
4. Plaintiff is placed in a false light.

Nuisance
Public
1. Carries on a public Nuisance
2. Different than Public Harm

Private
1. Private D Maintains or carries on
2. Interferes with P’s use or enjoyment
3. Substantial Harm
4. Unreasonable

Defenses
1. Merits is it substantial & unreasonable
2. Time P came to the nuisance
3. D’s Conduct has social utility
4. D’s injury is too idiosyncratic