Liability and compensation




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Knowledge of Confinement

  1. Restatement 2d - ∏ must either be aware fo the confinement or have suffered more than nominal harm to recover for false imprisonment

  2. rejected by CA - "A victim may be entirely unaware of confinement and still suffer harm… the relevant factor is whether the unlawful restraint or confinement resulted in harm."

8. 08 TRESPASS TO CHATTELS AND CONVERSION (p.832)



  1. Basics

    1. trespass to chattels - when a person is deprived of his property for a period of time, or the property is damaged - damages include temporary loss of use and repair costs

    2. conversion of property occurs when the deprivation of the property is for a lengthy period of time, or the property is lost or destroyed - court will consider that there has been a forced sale to the defendant, damages are measured by fair market value of the good

    3. there can be some overlap between the two torts

United States v. Arora (DMD 1994) - ∆ interfered with cell-line at NIH, killing the cells. The court considered factors: 1) extent and duration of exercise of dominion or control; (2) actor's intent to assert a right in fact inconsistent with the other's right of control; (3) the actor's good faith; (4) the extent and duration fo the resulting interference with the other's right of control; (5) the harm done to the chattel; (6) the inconvenience and expense caused to the other. Court held that ∆'s dominion was total, he intended to act inconsistently with other's right to control, he did not act in good faith, and he destroyed the celles. Court held that cell-lines could be converted and this was a conversion.

    1. Restatement 2d Torts - trespass constitutes lesser interference with another's chattel, conversion is a more serious exercise of dominion or control over it

    2. Restatement 2d Torts - trespass = intentional use or intermeddling with the chattel in possession of another, such intermeddling occurring, inter alia, when "the chattel is impaired as to its condition, quality, or value.”

    3. Restatement 2d Torts - conversion = "An intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value fo the chattel

    4. Restatement 2d - impairing the condition, quality, or value fo a chattel upon brief interference can constitute a trespass, intentional destruction or material alteration of a chattel will subject the actor to liability for conversion.

    5. Duty to mitigate. (?)

8. 09 DEFENSES & PRIVILEGES (p.839)



  1. Basics

    1. G - one defense is to say "you didn't make out a prima facie case"

    2. G - other defenses say "even if you made a prima facie case, there's a limitation here"

      1. as with negligence, you get statute of limitations and immunities

      2. also defenses based on merits - see below

  2. Consent

    1. cross between element and privilege, offensive only when not consented to, different from being hit over the head with a hammer - more often treated as a privilege, more likely ∆ will have to show that there was consent

Hogan v. Tavzel (FLAP 1995) - ∏ suing ex-husband for battery for infecting her with STD. Court held that there is no reason that a tortfeasor could not be held liable for battery for infecting another with a sexually transmissible disease.

    1. Kathleen K. v. Robert - one party's consent to sexual intercourse is vitiated byt eh partner's fraudulent concealment of the risk of infection with venereal disease

    2. Restatement 2d Torts - consent to sexual intercourse is not the equivalent of consent to be infected with a venereal disease

    3. G - otherwise valid consent can be vitiated by fraudulent concealment of something that they wouldn't consent if they knew

    4. G - if he knew and didn't tell her, not a valid consent - if he didn't know and didn't tell her, there's no intent, the consent doesn't get any stronger, but on his part, the elements of battery aren't there - (can this make a different at all)

    5. G - she gets to decide what kind of contact she's going to engage in

Hellriegel v. Tholl (WASU 1966) - ∏ son was engaged in horseplay with friends when one friend fell on his head, breaking his neck and paralyzing him. Court held that the boy had consented to the rough and tumble play and took on the risks therein. The contact that actually broke his neck was accidental not offensive.

    1. Restatement Torts - "to constitute a consent, the assent must be to the invasion itself and not merely to the act which causes it"

    2. McAdams v. Windham - boxer accepts the risk of serious injuries from the blows received

    3. G - if you consent to harmful or offensive contact, you accept the risks that might result

    4. the invasion in horseplay is different - you can't tell the kid that he's going to break his neck

Reavis v. Slominski (NESU 1996) - ∏ was an assistant at a dentist's office, she had sex with him many times, claimed that he was "forcing her" to have sex with him. Court held that if ∆ knew that he could engage in sexual contact with ∏ against her will, then ∏ could not have given effective consent.

    1. NE - any person who subjects another person to sexual intercourse or sexual contact who knew or should have known that the victim was physically or mentally incapable of resisting or appraising the nature of his or her conduct is guilty of sexual assault

    2. NE - an otherwise competent person can be sexually assaulted if the person is physically or mentally incapable of resisting

    3. Restatement 2d Torts - Duress is constraint of another's will by which he is compelled to give consent when he is not in reality willing to do so. Persuasion amounting to a form of constraint can take various forms and many of them commonly encountered in daily life, are without legal effect and are not normally characterized as duress.

    4. G - consent is not legally effective if the actor knows that the person giving consent lacks the capability to refuse

    5. G - consent is the most challenging of the defenses to intentional torts - there are a few situations where it's not hard

      1. No consent to criminal conduct - on the whole, jurisdictions won't let you go to court and say "but he asked me to run over him"

      2. Yes consent in emergency situations - when you get wheeled into the emergency room unconscious, there's implied consent

      3. most situations where consent is an issue - there's no hard and fast rules, it can help a lot with the analysis to kinda know that there are categories or clusters of issues that tend to come up over and over again, use a set of questions to help

  1. Self Defense and Defense of Others

    1. the ∆ must actually believe the force is necessary, and it must be found to be reasonably necessary from the reasonable person's perspective.

    2. defense of others is also a defense where the ∆ goes to the aid of another

      1. some courts deny the application of this defense where the initial person in jeopardy was not privileged to invoke self-defense.

      2. these courts require that the intervenor's conduct actually be necessary and that only reasonable force be exercised

      3. other courts allow the defense of others where the intervention would appear necessary to a reasonable person, even if it turns out to be mistaken.

    3. G - there has to be a reasonable belief of danger, the force that's used in return has to be reasonable, there has to be innocence with regard to the situation

    4. G - in some jurisdictions you have to be right, in some jurisdictions it's okay to be wrong as long as you're reasonable

Bradley v. Hunter (LAAP 1982) - ∏'s husband had harassed ∆ in her shop several times, threatened her, finally one day ∆ shot him outside the shop when he rushed at her yelling and threatening, he was known to have a violent past. Court held that ∆ could have believed in good faith that it was necessary for her to shoot ∏ to prevent harm to her and her mother.

    1. Brasseaux v. Girouard - ∏ and ∆ involved in boundary dispute, ∆ shot ∏, ∆ was behind a truck near relatives and armed with shotgun - court held that this was protection from ∏ who was 35 feet away - a reasonable person would not believe it was necessary to shoot

Juarez-Martinez v. Deans (NCAP 1993) - ∏ was a migrant worker, living in house on ∆'s land - ∏ didn't show up for work, ∆ came into ∏'s house with a metal pipe-thing, poured beer on ∏'s head, ∏ reacted by attacking ∆. Court held that ∆ had not really withdrawn from the conflict, ∏ was acting in self-defense, ∆ was not.

    1. Griffin v. Starlite Disco, Inc - "However, the right of self-defense is only available to a person who is without fault, and if a person voluntarily, that is aggressively and willingly, enters into a fight, he cannot invoke the doctrine of self-defense unless he first abandons the fight, withdraws from it and gives notice to his adversary that he has done so."

    2. State v. Winford - An act of withdrawal must be so clear that the other combatant will know danger has passed an any further action by this other combatant will take the form of vengeance.

    3. Requirement of Retreat - retreat is not required in the face of force that doesn't threaten death or serious bodily harm. The majority of states hold that there is no duty to retreat in the face of any force, including serious bodily injury or deadly force can be used as a defense, if the retreat can be done safely. One is always entitled to stand her ground in her own home.

  1. Defense of Property

Katko v. Briney (IASU 1971) - ∏ was trespassing in "abandoned" farmhouse, was seriously injured when spring loaded gun set by ∆ went off and shot ∏ in the leg. Court held that the only time when setting a 'spring gun' or a like dangerous device is justified would be when the trespasser was committing a felony of violence or a felony punishable by death, or where the trespasser was endangering human life by his act. Value of life and limb can overcome protection of property.

    1. Restatement Torts - "The value of human life and limb, not only to the individual concerned but also to society, so outweighs the interest of a possessor of land in excluding from it those whom he is not wiling to admit thereto that a possessor of land has, as is stated in §79, no privilege to use force intended or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises… he cannot gain a privilege to install… a mechanical device whose only purpose is to inflict death or serious harm upon such as may intrude...

  1. Necessity

Eilers v. Coy (DMN 1984) - ∏ and wife were captured by ∆ family members and deprogrammers who held ∏ for five days in an attempt to deprogram him from "cult" he had belonged to. ∏ escaped. Court held that it wasn't clear that the confinement was necessary to prevent ∏ from committing suicide or from otherwise harming himself or others, ∆ did not meet elements of necessity defense, the right to "capture" would only last long enough to get to authorities.

    1. elements to defense of necessity (false imprisonment)

      1. the ∆ must have acted under reasonable belief that there was a danger of imminent physical injury to the ∏ or others

      2. right to confine a person in order to prevent harm to that person lasts only as long as is necessary to get the person to the proper lawful authorities

      3. actor must use least restrictive means of preventing apprehended harm

    2. MN Stat - ∆ could have turned the ∏ over to police or sought to initiate commitment proceedings or sought professional psychiatric or psychological help for the ∏ with possibility of emergency hospitalization

    3. G - property is destroyed toward the end of a public need - stopping fire from spreading, mad cow disease - can be done by a public official or a private person - it doesn't matter who does it, it matters what ends are being served

Rossie v. Delduca (MASU 1962) - ∏, 8-yr-old girl, was running away from a dog that was chasing her when she ran through ∆'s backyard and ∆'s dog attacked her. The court held that the jury could find that ∏ was not a trespasser.

    1. GL - "If any dog shall do any damage to either the body or property of any person, the owner or keeper, or if the owner or keeper be a minor, the parent or guardian of such minor, shall be liable for such damage, unless such damage shall have been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog."

    2. Restatement 2d Torts - one is privileged to enter land in the possession of another if it is, or reasonably appears to be, necessary to prevent serious harm to the actor or his property.

    3. Restatement 2d Torts - "The important difference between the status of one who is a trespasser on land and one who is on the land pursuant to an incomplete privilege is that the latter is entitled to be on the land and therefore the possessor of the land is under a duty to permit him to come and remain there and hence is not privileged to resist."

Vincent v. Lake Erie Transp. Co. (MNSU 1910) - ∆'s ship was moored to ∏'s dock, a storm came in and b/c the ship was securely tied and retied to the dock it battered and damaged the dock. The court held that the ∆ availed itself of the ∏'s property for the purpose of preserving its own more valuable property, and the ∏'s are entitled to compensation for the injury done. Dissent - ∏ signed up for this when he let ∆ moor at his dock.

    1. Ploof v. Putnam (VT) - where, under stress of weather, a vessel was without permission moored to a private dock at an island in Lake Champlain owned by the ∆, the ∏ was not guilty of trespass, and that the ∆ was responsible in damages because his representative upon the island unmoored the vessel, permitting it to drift upon the shore, with resultant injuries to it.

    2. G - limits of privilege - you don't pay damages, but you do get to pay for your harm

9. 01 TRESPASS TO LAND (p.879)



  1. Basics

    1. involves interference with the exclusive right of possession of another

    2. harm was not required at common law and that concept has substantially survived today

Creel v. Crim (ALAP 2001) - ∆ cut down trees on ∏'s property after being told by L that the trees were hers. The court held that ∆ was liable to ∏ but could recover entire burden of loss from L.

    1. Granade v. United States Lumber & Cotton Co. - damages in cases involving trespass to land wherein trees are removed are 'not measured by the value of the timber or property severed, but by the injury to the land by reason of its severance - the difference between the value of the land immediately before [the trespass] and [the value fo the land immediately] after the trespass.

    2. Vandiver v. Pollack - every man… who employs another to do an act which the employer appears to have a right to authorize him to do, undertakes to indemnify him for all such acts as would be lawful if the employer had the authority he pretends to have

    3. indemnity shifts the entire burden of loss from one party to another; thus, the measure of recovery is all or nothing

    4. G - it seems that the woman who hired him did trespass - this court can't say that she did trespass because she isn't involved in this appeal, so they fixed it as much as they could


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