Intentional torts require that
D act with intent (not recklessness
or negligence).
Intent = D desires the result
or knows to a substantial certainty
that it will occur.
Intent is subjective (D
must, in his own mind,
exhibit desire or
substantial certainty) -
whether a reasonable person
would have been
substantially certain is
evidentiary but not
dispositive.
Intent as "Desire"
Intent is satisfied if D
desires the consequences of his
acts.
Intent as "Substantial Certainty"
Intent is also satisfied when D
is substantially certain (in his
own mind) that his acts will cause
the elements of the tort to
occur.
Garratt v. Dailey: The
court remanded to the trial court
the issue of whether a
five-year-old boy was substantially
certain the victim would fall while
attempting to sit on a chair the
boy had moved.
Transferred Intent
Applies to five traditional
trespass torts:
Assault
Battery
False Imprisonment
Trespass to
Chattel
Trespass to Land
If D intends any of these five
torts, but his acts instead or in
addition result in any of the other
five intentional torts, D is
liable, even though he did not
intend the other tort.
Intent transfers from
one tort to another (with
the five).
Intent transfers from
one intended victim to
another.
Restatement only allows
transferred intent between assault
and battery.
The Mistake Doctrine (reasonable
mistake of fact is no defense)
If D intends to do acts which
would constitute a tort, it is no
defense that D mistakes, even
reasonably, the identity of the
property or person he acts upon or
believes incorrectly that there is
a privilege.
Insanity and Infancy (not defenses)
Neither insanity nor infancy is
a defense to intentional
torts.
D may be so young or mentally
ill that he may not actually
possess the requisite intent
because it is a subjective
test.
However, the child or insane
person need not appreciate the
significance or wrongfulness of his
act.
D, a child, may be
substantially certain that
V will hit the floor if he
pulls the chair away even
though he does not know
that she will incur
injuries as a result of his
conduct.
Accidental contact must be
analyzed under negligence or
strict liability.
Intent Requirement
Battery requires intent to cause
the harmful or offensive contact but
not necessarily intent to do harm.
Leichtman v. WLW Jacor
Communications Inc.: Cigar
smoke purposefully directed at
P can constitute a
battery.
Once the defendant intends
and accomplishes the offensive
or harmful touching, he is
responsible for harm caused by
the battery even if minimal or
no physical harm was actually
intended.
Harmful or Offensive Contact
Battery encompasses either harmful
or offensive contact.
The tort compensates for
psychological affronts where
even trivial physical contact
has occurred.
The offensive contact need
not even physically touch the
body.
Aggressive and
demeaning grabbing of a
plate from P's hands
can constitute a
battery.
There is no requirement that the
victim be conscious of either the
contact or its harmful or offensive
nature at the time of the
intrusion.
The offensiveness of the contact is
based on what an ordinary person would
consider offensive.
If D knows that P is
hypersensitive to touching that
an ordinary person would not
find offensive yet continues to
touch anyway, courts are split
whether D should be liable.
Courts should
consider whether the
touching would cause
physical injury or
whether D could easy
acquiesce to P's
request.
Causation
D's voluntary action must be the
direct or indirect legal cause of the
harmful or offensive contact.
D, himself, need not touch
P - he could throw a rock at
him.
Assault
Overview
Assault recognizes that pure
psychological injury should be
compensable.
I de S et ux v. W de
S: Husband was entitled to
recover on behalf of his wife
from D who wielded an axe at
her. Even though the wife was
not physically touched, the
attack had caused her harm, the
fear of imminent physical
injury.
Definition
Assault occurs when D's acts
intentionally cause V's reasonable
apprehension of immediate harmful or
offensive conduct.
Restatement (unlike many
courts) eliminates the
"reasonable" requirement.
Criminal Assault =
attempted battery.
D could be guilty
of a criminal assault
by swinging a bat at
V's head, but if V were
looking the other way
and was not in
apprehension of
immediate harmful
contact, no tortious
assault occurred.
Accidental creation of such apprehension
may be negligent infliction of emotional
distress but not assault.
Transferred intent between the other four
trespass torts applies.
Alteiri v. Colasso:
Apprehension
V must perceive that harmful or offensive
contact is about to happen to him.
If V is attacked from behind or while
asleep, there is no assault.
Apprehension can be created even if D does
not have the ability to actually cause the
harmful or offensive contact.
If D tells V that a gun is loaded
when it is not and fires the gun at V,
he may be guilty of assault even though
there was no possibility of causing the
battery.
Apprehension can only be created if D has
the apparent ability to cause the harmful or
offensive contact.
Imminent Harmful or Offensive Contact
V's apprehension must be of imminent
harmful or offensive contact.
SPLIT
Traditional rule = Words alone are
insufficient to establish assault; an
overt act must establish the imminent
threat.
Restatement = Verbal statements can
on occasion imply sufficient immanency.
Restatement agrees that the
threat must be imminent,
though.
Castro v. Local 1199: Threatening
an employee while slamming a table was "forward
looking" and was therefore insufficiently
immediate to constitute assault.
The threatened harm may be harmful or
simply offensive.
Reasonable Apprehension
SPLIT
Many Jxs require the victim to
suffer "reasonable" apprehension.
Restatement rejects the
"reasonable" requirement.
Under Restatement, D's
exploitation of V's
unreasonable fears or
gullibility is
compensable.
However, Restatement
probably did not intend to
include a privileged act in the
definition of assault.
Fear versus Apprehension
The requisite apprehension of imminent
contact need not produce fear in V.
Apprehension acknowledges V's awareness
that imminent harmful or offensive contact will
occur unless V takes effective evasive
action.
V's confidence that he can effectively
evade D (and hence, lack of fear) does not
minimize D's liability for assault.
Apprehension of an offensive, but not
harmful, contact can constitute assault, even
though the mere offensiveness of the imminent
contact would not induce fear.
Assault made conditional on V's
noncompliance with an unlawful
demand still constitutes assault,
even if V is confident no assault
will actually occur if V complies
with the unlawful request.
If D brandishes a club
and threatens to beat V
over the head unless V
gives D his wallet, D is
guilty of assault.
Source of the Contact
It is not necessary that D be
the perceived source of the
threatened harmful or offensive
contact.
False Imprisonment
Overview and Definition
In false imprisonment, D unlawfully
acts to intentionally cause confinement
or restraint of V within a bounded
area.
Accidental confinement must be
addressed under negligence or strict
liability.
Generally, V must be aware of the
confinement at the time of
restraint.
Bounded Area
V must be confined within an area
bounded in all directions.
It is not false
imprisonment if V is free to
proceed in any direction, even
though he is prevented from
going in the direction he
wants.
The bounded area could be large,
even an entire city.
A vehicle, although moving, can
still constitute a bounded area.
Reasonable means of escape
precludes liability for false
imprisonment.
The escape is not
reasonable if:
It requires V to be
heroic;
It requires V to
endure excessive
embarrassment or
discomfort; or
V is unaware of the
means of escape.
Means of Confinement or Restraint
For false imprisonment to exist, V
must be confined or restrained.
Confinement may be accomplished by:
Physical Barrier
The barriers to
constitute false
imprisonment must
surround the victim in
all directions so that
no reasonable means of
escape exists.
Force or Threat of
Immediate Force
Force or threat of
immediate force can be
used to restrain
V.
The force may be
directed at:
V;
V's
family;
V's
companions;
or
V's
property.
D
grabs
V's
coat
and
tells
her
that
she
cannot
leave
with
it. If
V stays
and
refuses
to give
up her
chattel,
D is
guilty
of
false
imprisonment.
Use of threats of
economic retaliation or
termination of
employment to coerce a
victim to remain do not
constitute false
imprisonment.
Dupler v.
Seubert: Physical
threats were used to
restrain an
employee.
D invites V on his boat
and promises to bring V
ashore when requested, D's
failure to do so
constitutes false
imprisonment.
There is no general duty to
act, so P must establish that D, in
the specific circumstance, has a
duty to act.
Improper Assertion of Legal Authority
(False Arrest)
False arrest is false
imprisonment by means of improperly
asserting legal authority.
V must submit to the arrest for
it to constitute imprisonment.
The arrest is improper if the
actor imposing confinement is not
privileged under the circumstances.
Privileges for police
officers
Arrests
pursuant to an
apparently valid
warrant are
privileged.
A police
officer is
privileged to
arrest for a felony
without a warrant
when he reasonably
suspects that the
other is
guilty.
Police officers
are privileged to
arrest for
misdemeanors
constituting
breaches of the
peace occurring in
their
presence.
Privileges for private
citizens
A private
citizen is only
privileged when she
reasonably suspects
the individual
arrested committed
a felony and a
felony in fact has
taken place.
D can
make a
reasonable
mistake in
arresting
the wrong
person but
only if the
felony has
actually
taken
place.
Private
citizens are
privileged to
arrest for
misdemeanors
constituting
breaches of the
peace occurring in
their
presence.
If D
fraudulently
induces V into
wrongfully
believing that D is
a police officer,
and V submits to
detention under
circumstances where
only a police
officer is
privileged to
detain, D has
committed false
imprisonment by
false arrest.
Contrast False Arrest with Malicious Prosecution
and Abuse of Process
Where an arrest is privileged and therefore
conforms to all requisite legal requirements to
justify arrest, the possibility of liability
for false arrest is precluded
A lawful arrest if motivated by bad faith
and satisfying other elements, may constitute
malicious prosecution.
The improper use of certain compulsory
processes such as subpoenas, despite conforming
to legal requirements, and therefore not false
imprisonment, may be tortious as abuse of
process.
Consciousness of Confinement
False imprisonment requires that V be
conscious of the confinement at the time of the
imprisonment.
Restatement modifies this
requirement and would find liability
where V is not aware of the confinement
but is harmed by the confinement.
No Minimum Time
False imprisonment covers even minimal
lengths of detention.
False imprisonment is one of the
five trespass torts in which intent
transfers from victim to victim and
tort to tort.
Malicious Prosecution (MP) / Malicious Institution
of Civil Proceedings (MICP)
Definition: MP addresses wrongful criminal
prosecutions and MICP addresses wrongful civil
proceedings. They both require (all five):
Institution or Continuation of
Criminal or Civil Proceedings Against
P;
D must be responsible for
initiating or in some way
supporting the continuation of
the legal proceedings against
P.
D may ask another to bring
or maintain the suit.
False testimony by D
generally is not sufficient, by
itself, to maintain an action
for MP or MICP, although it may
be used as evidence of D's
instigating activities with an
improper purpose.
False statements to
a prosecutor that
stimulate him to
initiate a proceeding
are generally not
immune from the overall
bar on civil liability
related to a witness's
testimony.
Termination of the Proceeding in
Favor of P;
Suits for MP and MICP
cannot be filed until after the
initial criminal or civil
proceedings have been
terminated in favor of P.
Except for ex parte
proceedings (such as a
proceeding to attach
property), neither MP
nor MICP actions can be
brought until the
alleged wrongful
litigation is fully
completed.
The alleged
wrongful litigation
must result in
exoneration of P.
Dismissal
of the
proceeding
because of the
statute of
limitations,
settlement of
the case,
misconduct by
the accused
that prevents a
proper trial,
request for or
acceptance of
mercy by the
accused, or new
proceeding that
has been
instituted for
the same
offense and
that has not
been terminated
in P's favor do
not constitute
exoneration.
If the
proceeding is
dropped right
before
exoneration or
if the
proceeding is
abandoned
because the
accuser
believes the
accused is
innocent or
that a
conviction has
become
impossible or
improbable,
some courts
will accept
this as meeting
the exoneration
test.
Absence of Probable Cause for
Prosecution or Civil Proceeding;
There must be no probable
cause for the criminal
prosecution or civil
proceedings.
P must prove that
there was no reasonable
basis for D to believe
that he was guilty of
the criminal charge or
potentially liable in
the civil
proceedings.
Restatement defines
probable cause as the
accuser's subjective
belief in the accused's
guilt or liability and
a reasonable basis for
such belief (therefore,
if one element is
missing, probable cause
is lacking).
Improper Purpose or Malice of the
Accuser; and
D must have acted with
malice or (using Restatement
terminology) an improper
purpose.
In order to
harass P or gain
some extraneous
advantage unrelated
to the merits of
the litigation
(even if D believes
that P is guilty or
liable for the
charge).
If D simply dislikes P,
this alone does not prove
malice or improper
purpose.
Damages suffered by P.
Damages include economic
consequences of the wrongful
litigation, emotional distress,
reputational injury, and (where
malice is established) punitive
damages.
MIN (English Rule): Only
allows MICP where P incurred
some special damage such as
seizure of the person,
attachment of property, or an
injunction (does not apply to
MP).
Immunity of Public Officials
Prosecutors, judges (acting a
judicial capacity), other public
officials (except public defenders),
and the government that employs them
are generally immune from discretionary
decisions to prosecute.
Interaction Between False Imprisonment and
MP/MICP
Imprisonment under criminal process
or civil commitment does not constitute
false imprisonment as long as proper
legal procedures are followed.
Abuse of Process
Definition: Intentional misuse of either a
civil or criminal legal process for an ulterior
purpose (than for which it was designed)
resulting in damage to the plaintiff.
P must prove the ulterior
purpose.
Unlike MP/MICP:
There is no need to await the
outcome of the proceedings (can address
the abuse of legal processes within
such litigation).
Abuse of process can apply
regardless of who ultimately wins the
litigation.
Mancini v. Marquette Univ.: The
court reversed liability on a claim of false
imprisonment, but held that the plaintiff
alleged a proper case for abuse of process. P,
a student at Marquette University, was
restrained from leaving campus by the
university dean and others through wrongful use
of temporary civil commitment procedures
designed to determine whether P's mental
condition required imposing detention.
University officials knew P's mental condition
did not justify civil commitment, but used the
procedure to temporarily detain the student
until her father could be notified of her
intent to withdraw from the university. The
court held that the university's compliance
with legal procedures precluded P's claim of
false imprisonment, but that D's misuse of
procedure allowed liability for abuse of
process.
Intentional Infliction of Emotional Distress (IIED)
Definition: IIED exists when D, by extreme
and outrageous conduct, intentionally or
recklessly causes V severe mental distress (MAJ
= no physical manifestation needed).
No objective standard, but mere
rudeness or callousness is
insufficient.
The vulnerability or known
sensitivity of V (e.g., whether a child
or very ill) and the relationship
between D and V (e.g., whether
superior-subordinate) are
important.
Sexual Harassment and Racial Epithets
Courts have hesitated in extending
IIED to sexual and racial harassment,
especially in isolated incidents.
Courts have been more likely to
recognize liability where a pattern of
harassment is constant and ongoing, and
where speech is combined with conduct.
Courts have held
corporations liable for failing
to respond to harassment
perpetrated by its employees,
especially those in supervisory
roles.
Jones v. Clinton: Paula
Jones, a state employee, alleged that
Bill Clinton, while Governor of
Arkansas, exposed himself while
propositioning her. The alleged conduct
was sufficiently brief and without
coercion so as not to be extreme and
outrageous for purpose of IIED. Also,
Jones failed to prove tat she suffered
any severe mental distress required by
the tort.
Constitutional Limits
Public Figures
Public officials must prove
New York Times malice
(same as in defamation) in
order to recover under IIED:
knowledge or reckless disregard
toward the truth or falsity of
the assertion.
Verbal disparagement to
public figures, which are not
asserted as factual, are
generally protected under the
1st Amend. no matter how
extreme and outrageous.
Hustler v.
Falwell: The Supreme Court
held unconstitutional the
determination that a parody
advertisement in Hustler
magazine could result in
liability under IIED. The mock
advertisement, while clearly
satirical, suggested that Jerry
Falwell, a nationally known
religious and political leader
of the Moral Majority, had his
first sexual encounter with his
mother in an outhouse. The
Court held that a public figure
could not recover without
proving New York Times
malice; because the parody was
never asserted to be truthful
and because an ordinary reader
would not reasonably interpret
it as truthful, the Court found
there could be no
liability.
Private Individuals
Proof of negligence toward
the truth is applied in
defamation cases involving
private plaintiffs in public
controversies - by analogy,
this lesser standard could
apply to IIED.
Intent or Recklessness to Cause Severe Emotional
Distress
MAJ: physical
manifestations (heart
attack, stomach trouble
attributable to stress
or shock) of severe
mental distress are
not
necessary.
Third-Party Recovery
IIED is not one of the five torts
that allows transferred intent.
However, if D is substantially
certain or deliberately disregards a
high degree of risk that V will incur
severe emotional distress by observing
D's conduct (e.g., by attacking a young
child's parent in front of the child),
D may be liable for IIED.
Courts have usually limited
recovery to indirect third-party
victims when (all three):
The third party is a close
relative of the direct
(intended) victim;
The third party is Present
at the scene of the outrageous
conduct against the direct
victim; and
D knows that the close
relative is present.
Restatement does
not require D's
knowledge of the close
relative's
presence.
Restatement also allows
non-relatives that can satisfy all
other elements of the tort to recover
if they are present and suffer physical
manifestations of severe distress.
If D intends to cause emotional
distress to the third party by his
actions toward another, the third party
becomes a direct victim and need not be
present, a close relative, or suffer
physical symptoms.
Exception for Innkeepers, Common Carriers,
and Other Public Utilities
Innkeepers, common carriers, and
other public utilities (e.g., telegraph
company) are liable for intentional
gross insults (rather than extreme and
outrageous conduct) that cause patrons
to suffer mental distress (rather than
severe distress).
P must be a patron of D -
but need not have already
purchased a ticket, etc.
MAJ: acknowledge these exceptions
but do not extend them.
Slocum v. Food Fair
Stores: The court held,
without deciding whether to
generally adopt the tort of
IIED, that special liability
for public utilities did not
apply to a grocery store. A
grocery clerk told a customer,
"You stink to me," allegedly
causing V a heart attack
aggravated from pre-existing
heart condition. There was no
allegation that D knew about
the pre-existing
condition.
Intentional Interference with Contract (IIK) /
Intentional Interference with Prospective Economic
Relations (IIPER)
Definitions: IIK and IIPER are parallel;
IIK requires a valid K while IIPER requires a
legitimate economic expectancy. The torts are
only available against third-party meddlers,
not against a party who breaches his own K or
terminates his own economic relationship. The
elements of the torts are (all five):
Valid K or Economic Expectancy
between P and a Third Party;
IIK requires proof of a
valid K.
Texaco v.
Pennzoil: An
unsigned oral agreement was
held to be a valid K under
applicable state law.
IIPER requires proof of a valid
economic expectation.
Mere hope for customers or economic
profit is insufficient.
Competitors in sporting
events generally do not have a
sufficient expectancy to
establish the tort since the
outcome in most events is too
speculative (one court said
that IIPER should not apply to
interference with competitors
in sporting competitions as a
matter of public policy).
CA has allowed an IIPER
claim where a candidate for
office was the victim of false
campaign ads, even where he
lost by a four-to-one
margin.
Knowledge of Valid K or Economic Expectancy
by D;
For IIK, D must know of a valid K.
This is generally understood to mean
that D must know facts from which he
should have concluded that a valid K
existed.
Texaco v.
Pennzoil: It was
irrelevant whether Texaco
actually concluded Pennzoil had
a K to buy Getty Oil stock
based in part on an unsigned
agreement. The relevant
analysis was whether Texaco
should have known, by the facts
available to it, that the
unsigned written agreement was
nevertheless a valid oral
K.
For IIPER, D must know of a valid
economic expectancy.
Intent by D to Interfere with the K or
Economic Expectancy;
Interference must be intentional.
Restatement interprets
intent to mean either
purposeful interference or a
substantial certainty that
interference will occur.
Some courts have required
that intent be purposeful.
Interference Caused by D; and
D must actually cause
interference.
Merely hiring an employee who has
already breached a K with a different
employer does not establish that D
caused the employee to breach the
K.
Damages to P;
P must suffer damages.
Economic damages, compensation for
mental distress, and punitive damages
(where malice is established) may be
awarded.
Justifications for Interference
SPLIT: Whether P or D bears the burden of
proving whether D's conduct in interfering with
a K or economic relations is justified or
improper.
Restatement takes no position
An increasing number of courts are
requiring P to show that D's conduct
was improper.
Justifications for either IIK and IIPER:
Statements of truthful
information;
Honest advice within the scope of a
request;
Interference by a person
responsible for the welfare of another
while acting to protect that person's
welfare (e.g., parent-child,
attorney-client);
Interference with a K that is
illegal or violates public policy;
Inducing breach of a K that
unlawfully interferes with a
legally protected interest or
right.
Justifications only for IIPER or
at-will K:
Fair and ethical competition;
or
Ethical action to protect one's
financial interest.
Restatement factors to help determine
other instances when interference with
prospective economic relations or contract
is not improper:
Nature of the actor's
conduct;
Actor's motive;
Interests of the other with
which the actor's conduct
interferes;
Interests sought to be advanced
by the actor;
Social interests in protecting
the actor's freedom of action and
the other's contractual
interest;
Proximity or remoteness of the
actor's conduct to the
interference; and
Relations between the
parties.
Wrongful Termination of Employment Contract
Definition: An employer may be liable for
wrongful discharge, or wrongful termination,
where its termination of an employee
contravenes public policy.
This tort is irrespective of
whether the employee's termination
violated an employment K.
Termination Must Be for a Reason that
Contradicts Public Policy (all four):
Delineated in either constitutional
or statutory provisions;
"Public" in the sense that in
inures to the benefit of the public
rather than serving merely the
interests of the individual;
Well established at the time of the
discharge; and
Substantial and fundamental.
Terminations Found to Violate Public Policy
Age discrimination;
Questioning and objecting to
employer's making deductions from
pay;
Retaliation for alerting
authorities to potential criminal
conduct by employer;
Retaliation for disclosing illegal,
unethical, or unsafe practices like
hazardous working conditions;
Refusal to join employer in
violating the law.
Terminations Found Not to Violate Public
Policy
Informing a superior that one's
current supervisor is being
investigated by the FBI for
embezzlement charges at the
supervisor's former employer (serves
employer's private interest rather than
a public interest).
Corporate officer's informing the
board of directors that the employer
may have been abusing its tax-exempt
status (D did not link his duty to any
explicit policy or clear mandate that
was violated by his discharge).
Retaliation for making critical
remarks on an internal survey (tort
would have converted an at-will
employment relationship to one
requiring good cause for
termination).
Tortious Breach of the Covenant of Good Faith and
Fair Dealing
Occasionally, courts have held that breach
of the implied covenant of good faith and fair
dealing constitutes a tort as well as a breach
of K.
Damages for breach of K, economic
loss, mental distress, and punitive
damages (when malice is proven) are
possible.
Generally limited to insurance companies
that in bad faith intentionally deny or
wrongfully reduce indemnification for a
legitimate claim.
Egan v. Mutual of Omaha: P
received his first payment from D on
the claim in issue only after a long
delay and a personal visit to the
claims office. Testimony was introduced
that D's agent, although aware of P's
good faith efforts to work, called P a
fraud and told him that he sought
benefits only because he did not want
to return to work. When P expressed his
concern regarding the need for money
during the approaching Christmas season
and offered to submit to examination by
a physician of D's choice, the agent
only laughed, reducing P to tears in
the presence of his wife and
child.
Foley v. Interactive Data
Corp.: CA Supreme Court refused to
extend the tortious breach of the
covenant of good faith and fair dealing
to employment Ks by concluding that
employers have economic incentives to
treat employees fairly. Therefore, any
bargaining disparity is not comparable
to the insurance context.
Mini-Tort: Bad Faith Denial of the
Existence of a Commercial K
Distinction between disputing the
existence of a K in good faith and
denying it in bad faith is
difficult.
Allowed in very few Jxs (started in
CA, but now reversed there).
Montana extends tort to Ks where
parties have special relationship.
Intentional Misrepresentation
Definition: intentional or reckless
misrepresentation which induces V's reliance
and causes economic damages (six elements):
Material Misrepresentation by D;
Generally, the
misrepresentation by D must be
of a past or present material
fact.
Misrepresentation
of a present intention
is generally accepted
as a misrepresentation
of a present fact
(e.g., a fraudulent
promise when the
promisor has no
intention of keeping
the promise is a
misrepresentation; a
broken promise made in
good faith is not a
misrepresentation).
Misrepresentations
of opinions are
generally not
actionable.
Except for
opinions by an
expert to a
non-expert, by
a fiduciary, by
D who misleads
V as to the
objectivity of
his opinion or
implies
underlying
factual
misrepresentations
by his
opinion.
Even a statement
that is technically
accurate can constitute
a misrepresentation if
it is intended to
convey a factual
misimpression.
Physically
disguising a defect may
suffice.
Misrepresentations
of law (e.g., the
existence of a statute
or court decision) or
opinions of the law by
purported experts to
non-experts can be
actionable.
Traditionally, failure to disclose was not
a basis for liability.
Except where there is a duty to
disclose:
Fiduciaries must disclose
material facts.
An actor who initially
misleads V (even innocently) or
conceals information has a duty
to disclose and correct the
misimpression.
Several courts have held
that sellers in a transaction
must disclose fundamental
defects that the potential
purchaser would not be likely
to discover.
Restatement concludes that
there is an obligation to
disclose facts basic to the
transaction if D knows that V
is about to enter it under a
mistake as to them, and that V,
because of the relationship
between them, the customs of
the trade or other objective
circumstances, would reasonably
expect a disclosure of those
facts.
Requisite Scienter (Intent or Recklessness);
D must know the misrepresentation is false
or act with reckless disregard as to its truth
of falsity.
Recklessness = D made the
representation consciously aware of his
lack of knowledge about the
representation's truth or falsity.
Intent to Induce Reliance;
D must intend the misrepresentation to be
relied up as truthful by V.
A joke not intended to be taken
seriously is not actionable.
V who relies on a misrepresentation must be
the intended recipient or one to whom D had
reason to expect the misrepresentation would be
communicated and would be relied on in the same
type of transaction.
Causation;
The misrepresentation must cause reliance.
If V is not deceived, the tort is
not actionable.
Nader v. Allegheny
Airlines: Nader was denied
recovery for his claim based upon the
failure of the airline to disclose its
overbooking policy for confirmed
airline reservations. The federal
appeals court ultimately rejected
Nader's recovery, as he had been
"bumped" previously and was aware of
the airline's practice.
D's misrepresentation need not be the sole
cause of V's deception, but it must be a
substantial factor in misleading V.
D is only liable for foreseeable
damages.
Justifiable Reliance;
V's reliance must be justifiable.
Reliance is not justifiable if the
misrepresentation is immaterial to the
transaction or a mere opinion (subject
to exceptions above).
Courts and Restatement look to the
qualities and characteristics of the
particular P and the circumstances of
the particular case in determining
A knowledgeable V who relies on an obvious falsity,
despite his ability to easily recognize the falsity, is
unjustified in his reliance.
However, contributory or comparative negligence is not
a defense to an intentional tort; therefore, a fool may be
protected from intentional fraud.
Damages
MAJ: Courts award pecuniary damages based on the
"benefit of the bargain" if the misrepresentation had been
true (like a breach of K).
Misrepresented Value - Actual Value
MIN: Only award for P's "out-of-pocket" losses (tries
to restore P to his position before the tort.
Price Paid - Actual Value
Restatement allows P to choose between benefit of the
bargain or out-of-pocket losses if he is the direct V;
third-party Vs are limited to out-of-pocket losses.
Most courts under either approach generally allow
consequential damages, such as physical injuries and
punitive damages (when malice is proven); damages for
mental distress are ordinarily not awarded.
Defenses to Intentional Torts (D has burden of proving
defense)
Consent
Definition: If the asserted V gives permission,
what would otherwise be tortious is instead
privileged.
Express and Implied Manifestations of Consent
Generally, consent is a valid defense
when it is objectively manifested.
If D's actual knowledge of P's
lack of consent contradicts P's
otherwise objective manifestation
of consent, such knowledge
controls.
P can express consent in words or
through gestures.
P can imply consent when his actions
reasonably convey consent (e.g., lack of
objection to known trespasser) or by
adhering to community custom (e.g.,
allowing a stranger to walk on private
property to ring a door bell - unless a "no
trespassing" sign is posted).
Consent by Law
Consent can be implied by law (e.g.,
consent to emergency medical procedures
when unconscious - unless notice is given
by wearing a bracelet or having medical
orders near hospital bed).
Invalidating Manifestations of Consent
Incapacity
A child, based on age, can
consent to some things, but a legal
guardian must consent for elective
surgery. A controversial issue is
whether an adolescent may consent
without parental permission for an
abortion.
An insane or mentally retarded
individual may not legally consent.
The degree of incapacity required
to invalidate consent varies with
the activity in question.
Incapacity may be the result of
drug (including alcohol)
ingestion.
Consent is invalidated if the
action goes beyond the consent
manifested.
A medical procedure
without consent, even if
performed competently, may
constitute battery.
Fraud
Consent is invalid if it is
induced by fraudulent
misrepresentations of an essential
aspect of the interaction.
Failure of a physician
to inform the patient about
the risks of medical
treatment before procuring
the patient's consent is
most often treated as an
issue of negligence.
Duress
Consent procured under physical
threat is invalid.
Economic pressure,
while coercive, does not
negate consent.
In very extreme
instances, situational
duress can negate
consent.
Illegality
MAJ: A person cannot consent to
a criminal act.
MIN/Restatement: A person can
consent to a criminal act for tort
purposes except where the criminal
law is specifically designed to
protect members of V's class.
Self-Defense
Definition: Reasonable force can be used
where one reasonably (objectively) and
sincerely (subjectively) believes that such
force is necessary to protect oneself from
immediate harm.
Threat Must Be Immediate
Self-defense must be in response to
an immediate threat of harm.
Traditional C/L: Preemptive
strikes are not permitted.
MIN: Relaxes the immediacy
requirement (e.g., in spousal
abuse cases).
Retaliation is not a basis for
justification under self-defense.
If the initial aggressor
retreats, the victim may not
pursue and attack.
However, the
retreat must be
effectively conveyed to
the victim or else he
may continue to
reasonably believe that
self-defense is still
justified.
If the initial
aggressor effectively
conveys his retreat and
is attacked, he may
justifiably respond
with self-defense.
V's Response Must Be Reasonable
Self-defense is only justified if V
reasonably and sincerely believes that
force is necessary to avoid an unlawful
attack.
