rel="nofollow" href="#ulink_cf3c2c4b-6dcf-556e-b77f-e02063b62bfe">46Dimick v. Schiedt, 293 U.S. 474 (1935).
47Weisgram v. Marley Co., 528 U.S. 440 (2000).
48Fed. R. App. P. 3.
49Fed. R. App. P. 28.
50Mitchell v. Forsyth, 472 U.S. 511 (1985).
Chapter Three
Torts
Tort law encompasses what non-lawyers often call personal injury law. In each tort, there is an act causing harm. Harm is a trespass onto an interest that is specific to the victim. The act can be either affirmative, an omission, or through the principle of vicarious liability. With that framework, intentional torts follow.
Intentional Torts
With regard to intentional torts, an act is an external manifestation of an actor’s will.1 Intent means to desire consequences or to believe with substantial certainty that consequences will result from the act.2 The modern approach is that one who intentionally causes another harm is liable for that harm.3 The classical approach had a more elaborate framework as indicated below.
Battery is an intentional act that causes a harmful or offensive touching.4 Assault is an intentional act that causes apprehension of a harmful or offensive touching.5 Touching or its apprehension is neither harmful nor unwanted when the person being touched consents to the touching. Consent is either not assault or battery or a defense to assault and battery depending on the jurisdiction.6
False imprisonment is an intentional act that confines another into boundaries fixed by the actor where the other is conscious of the confinement or harmed by it.7 Where the plaintiff is accused of stealing the defendant’s property, the defendant has a privilege to make a brief detention short of arrest of the plaintiff on the defendant’s premises while a reasonable investigation of the facts occurs.8
Self-defense is a commonly asserted defense against assault, battery, and false imprisonment. Committing assault or false imprisonment to protect oneself or another from battery is justifiable self-defense.9 However, battery, when used to combat battery, must be proportional to the unwanted touching the defender is repelling.10
An intentional infliction of emotional distress (IIED) is extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress.11 Interestingly, no cases have raised IIED as a privilege for self-defense against battery. Restatement of the Law (2d) Torts § 46 comment g theorizes that the defense is possible, mentioning that statutes in Mississippi, Virginia, and West Virginia specifically provide for it.
Trespass to land is an intentional act that results in 1) entering onto the land of another, 2) remaining on the land of another, or 3) failing to remove something from the land of another where the actor has a duty to remove it.12 Recklessly or negligently entering onto the land of another is actionable but only if there are damages for the plaintiff to recover.13 There is no liability for an unintentional and non-negligent entry on land in the possession of another.14
Trespass to chattels is an intentional act that interferes with the possession of the good of another.15 Conversion is civil theft that dispossesses the owner of one’s chattel.16 Consent of the person seeking recovery is a common privilege to these torts.17
Case Problems
Marion Bonkowski left Arlan’s Department Store (Arlan’s) after making some purchases that she carried in bags. While on her way out, a security guard called her back into the building and loudly accused her of theft. She returned and, five minutes later, after the security guard discerned there was no theft, she went on her way. Bonkowski sued for false imprisonment. Arlan’s defended stating it had a privilege to briefly check to see if anything was stolen. Was Arlan’s permitted to stop and check Bonkowski’s bags?18
William Wyant owned a blacksmith shop. George Crouse sometimes worked in the shop for Wyant’s son. One night, Crouse broke into the shop to sharpen some of his tools. He built a fire in the forge. The wind started blowing causing some embers from the chimney to catch the roof on fire. Wyant sued Crouse for trespass to land. Crouse defended by stating that he did not intend to set fire to the building; he merely intended to break into the shop. Does Crouse’s intent to break into the shop transfer to all the damages that result?19
Lauren McLean hired Guy V. Colf to construct a house for her. The parties had a written contract. When Colf arrived at the job site, McLean stated she wanted to make some changes to the scope of work. Colf sat down at a table, pulled out the original contract, and began writing down the changes on a new piece of paper. At that point, McLean took the original paper and stuffed it under her clothing. Colf responded by trying to forcibly recover the paper. McLean sued for assault and battery. Colf defended stating that he was trying to recover his property and his conduct was privileged. Was Colf’s conduct privileged under these circumstances?20
Hamilton Cartwright and Cecil Geysel engaged in a boxing match for money. However, neither had a boxing license making the endeavor illegal. Geysel landed a rather well placed punch on Cartwright and killed him. Cartwright’s executor, Dean Hart, sued Geysel for battery. Geysel stated that Cartwright had consented to the match and moved to dismiss the case. Hart responded that since the boxing match was illegal the consent was invalid. Does the legality of the underlying consent affect the status of the battery claim?21
Long Live Ronald Coase
Ronald Coase’s The Problem of Social Cost, 3 J. L. & Econ. 1 (1960) won the Nobel Prize in Economics for several contributions that relate to legal practice in general and intentional torts in particular. First, Coase argued that forcing others to bear costs is beneficial to society when the benefits from the cost shifting outweigh the cost. Coase argued that by making a tort actionable, a court was simultaneously removing a potential economic engine from the economy—the plaintiff—and that this was not always wise. He posed the following hypothetical involving trespass to land:
Let’s say that a rancher lives next door to a farmer, and the farmer grows something that the rancher’s steers would like to eat. The rancher’s fence is broken, and it will cost $9 to fix. The rancher’s herd will provide the following damage on the farmer:
| Size of herd (steers) | Crop Loss ($) |
Marginal Crop loss
|
