1. Title Slide INTENTIONAL TORTS AND DEFENSES TO INTENTIONAL TORTS T ORT L AW UNIVERSITY OF CALIFORNIA, DAVIS PARALEGAL PROGRAM

2. The Johnson family recently purchased a “fixer upper” home in Sacramento. Unbeknownst to them, the previous owner, a die- hard survivalist, now off to parts of the world unknown, had hidden dynamite underneath the floor boards. The Johnson’s knew of his survivalist practices as they had found two false walls that had emergency-medical equipment and water purifiers hidden in them. During the Johnson’s renovation efforts, they invited over their neighbor to help them tear up the old living-room floor. During the removal of the boards, Mr. Johnson’s hammer caused two sticks of hidden dynamite to explode. The explosion injured Mr. Johnson and his son, along with his neighbor, Mr. Isosue. Two years later Mr. Isosue serves his personal injury lawsuit on the Johnsons. They come to you for advice. Please advise as to the following only: 1. Was Mr. Isosue’s injuries caused by the Johnson’s negligence? 2. Any potential defenses the Johnson’s may have.

3. Negligence is the failure to exercise reasonable care. Negligence requires duty, breach, causation, and damages. Here, under common law, the Johnson’s owed Isosue a duty to warn of all known dangers, as he was a licensee. Under California law, the Johnson’s owed Isosue a duty of reasonable care. In either case, Isosue will likely claim that the Johnson’s breach of that duty, namely, the Johnson’s failure to warn him of survivalist issues led to his injuries. The key question here is causation, or whether or not the Johnsons caused his injuries. Causation requires two elements be met: Actual Cause – But for the Johnson’s inviting him over to assist in remodeling their home, Isosue would not have been injured by the explosion. Or, but for Mr. Johnson’s hammer igniting the dynamite, Isosue would not have been injured. Proximate Cause – The focus on whether the Johnson’s proximately caused Isosue’s injuries rests on how foreseeable Isosue’s injuries were. Here, the facts show that the Johnsons knew of the former owner’s survivalist mentality as they had discovered emergency-medical equipment and water systems behind false walls. Isosue will likely argue that the type of injuries he sustained were foreseeable as the Johnsons had prior notice and should have expected other dangerous survivalist objects to be hidden in the house. However, the facts do not show that anything dangerous was found by the Johnsons, in fact, whatever objects were found, were found in false walls - not under any floor boards. It is very unlikely that finding medical and water supplies, objects intended to preserve life, would cause anyone to suspect that dangerous dynamite would be hidden elsewhere. Therefore, the Johnsons can successfully argue that they did not legally cause Mr. Isosue’s injuries and are not liable for negligence.

4. INTENTIONAL TORTS AND DEFENSES TO INTENTIONAL TORTS

5. INTENTIONAL TORTS The deliberate commission of an injurious act to another person or that person’s property The deliberate commission of an injurious act to another person or that person’s property The “act” required = volitional movement The “act” required = volitional movement Intent may be a) specific (intend to bring about consequence, or b) general (substantial certainty) Intent may be a) specific (intend to bring about consequence, or b) general (substantial certainty)

6. Injuries to Persons Battery: an intentional, unconsented touching of another person in an offensive or injurious manner. Also includes touching of intimately connected objects. I.e. - A purse or a cane. Assault: a threatened or attempted battery.

7. BATTERY 1. Harmful or offensive contact 2. To plaintiff’s person 3. Intent 4. Causation NOTE: Harmfulness and offensiveness are judged by the reasonable person standard.

8. ASSAULT 1. Act by defendant creating a reasonable apprehension in plaintiff. 2. Of immediate harmful or offensive contact 3. Intent 4. Causation NOTE: If defendant has the apparent ability to commit a battery – good enough. Apprehension is not fear/intimidation.

9. FALSE IMPRISONMENT 1. Act or omission by defendant that confines or restrains, 2. To a bounded area Intent 3. Causation

10. False Imprisonment cont’d. Bounded area – Freedom of movement limited in all directions. Must have no reasonable means of escape known to plaintiff. Bounded area – Freedom of movement limited in all directions. Must have no reasonable means of escape known to plaintiff. –Physical barriers –Physical force –Threats of force –Failure to release –Invalid use of legal authority Length of time is irrelevant. Length of time is irrelevant. Future threats and moral pressure are insufficient. Future threats and moral pressure are insufficient. Plaintiff must KNOW of or be harmed by the confinement. Plaintiff must KNOW of or be harmed by the confinement.

11. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Act by defendant amounting to EXTREME and OUTGRAGEOUS conduct Act by defendant amounting to EXTREME and OUTGRAGEOUS conduct Intent or recklessness Intent or recklessness Causation Causation Damages – severe emotional distress Damages – severe emotional distress Note: Recklessness = indifference to the consequences.

12. FRAUD AND MISREPRESENTATION FRAUDMISREPRESENTATION False statement intended to deceive Knowledge of falsity of statements Statements designed to entice surrendering something of value Innocent party suffers damages Innocent party is injured

13. ABUSE OF PROCESS (& malicious prosecution) Misuse of a legal proceeding, or threat of such misuse Misuse of a legal proceeding, or threat of such misuse Misuse to achieve unlawful objectives Misuse to achieve unlawful objectives Injury to the victim as a result of the misuse Injury to the victim as a result of the misuse NOTE: Filing mechanic’s liens, abusing a child custody hearing…

14. Invasion of privacy Public exploitation of another’s private affairs in an unreasonably intrusive manner. 1. Appropriation – wrongful taking 2. Unreasonable intrusion 3. Public disclosure of private facts – unauthorized public revelation - truth is not a defense 4. False light in the public eye – spurious opinions or statements. NOTE: Objectionable to the reasonable person.

15. DEFAMATION LIBEL and SLANDER Defamation = Verbal communication of a false and disparaging statement to a third party. Defamation = Verbal communication of a false and disparaging statement to a third party. Libel = Written defamation. Libel = Written defamation. 1.Written or verbal statement 2.False and defamatory (hint – defenses…) 3.Communication to third party 4.Harm to victim’s reputation in the community

16. Reputation in the community? 1. Can be comprised of “one” other person. 2. Can be comprised of a handful of close associates. 3. Or can be the nation.

17. What about public figures? Movie stars, high-level government employees, television celebrities. These individuals must prove actual malice – high standard of proof required. Actual malice = Knowledge that the statement was false, or a reckless disregard as to the falsity of statement.

18. SLANDER PER SE Per se = automatic or presumed. Some words or statements are by themselves defamatory and no injury or damage are required. 1.Imply criminal conduct 2.Harmful to a business 3.Loathsome and communicable diseases.

19. DEFENSES TO INTENTIONAL TORTS Truth Truth Privilege Privilege Consent Consent More later on… More later on…

20. Intentional torts Injuries to property Trespass to land Trespass to land Trespass to chattel Trespass to chattel Conversion Conversion Others in the book - –Toxic torts –Slander of title –Commercial disparagement –Defamation by computer

21. Trespass to land Required elements: 1. Physical invasion of plaintiff’s real property. 2. Intent 3. Causation

22. Trespass to land cont’d. Real property includes the surface, airspace, or subterranean space for a reasonable distance. Real property includes the surface, airspace, or subterranean space for a reasonable distance. Defendant only needs to have intended to enter on that piece of land – doesn’t need to know who owned it. Defendant only needs to have intended to enter on that piece of land – doesn’t need to know who owned it. Invasion may be made by a person or object (such as a baseball.) Intangible invasion may lead to a nuisance action – later class. Invasion may be made by a person or object (such as a baseball.) Intangible invasion may lead to a nuisance action – later class.

23. Trespass to chattel Required elements: 1. An act that interferes with plaintiff’s right of possession in the chattel 2. Intent 3. Causation 4. Damages

24. Trespass to chattel cont’d. Two types of interference: Two types of interference: –Intermeddling (direct damage) –Dispossession Damages Damages –Actual damages – not necessarily to the chattel, but at least to the possessory right – are required.

25. CONVERSION Required elements: Required elements: –Act that interferes with plaintiff’s right of possession –The interference is so serious that it warrants requiring defendant to pay the chattel’s full value –Intent, and –Causation

26. Conversion continued Acts of conversion – include wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, damaging, or misusing a chattel. Acts of conversion – include wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, damaging, or misusing a chattel. Seriousness of Interference – The longer the withholding period and extensive use, the more likely it is a conversion. Lesser interference = trespass to chattels. Seriousness of Interference – The longer the withholding period and extensive use, the more likely it is a conversion. Lesser interference = trespass to chattels. Only tangible personal property qualifies. Only tangible personal property qualifies. Plaintiff can ask for $$$ or recovery of chattel. Plaintiff can ask for $$$ or recovery of chattel.