1. Seminar Instructor Jamie Scripps Intro to Torts

2. This Unit introduces you to the intentional torts involving injuries to persons:  Assault  Battery  False Imprisonment  Intentional and Reckless Infliction of Emotional Distress  Fraud  Misrepresentation  Malicious Prosecution  Abuse of Process  Invasion of Privacy  Defamation (Libel and Slander)

3. All intentional torts contain two elements  1. Intent: Desire to accomplish harmful consequences of tortfeasor’s actions. Not malice or ill-will; simply intent to produce harmful results.  2. Injurious Behavior: Conduct that causes the intended harm. Special Case of Reckless Infliction of Emotional Distress: Tortfeasor need only know (or reasonably should know) that behavior will cause severe mental anguish. ◦ For this tort, knowledge element = intent.  Intent and Injurious Behavior: Must occur simultaneously (or very close together) in sequence of events, i.e., “I thought it, then I did it.”

4.  A single act can be the basis for both a tort and a crime. It must meet the elements of both.  That means that a single act can be the basis of a criminal prosecution (by a city, state, county, or federal prosecutor) where the defendant may be found guilty or not guilty AND a civil trial where the defendant may be found liable or not liable.

5.  Remember when reading case law to keep in mind these factors to understand the case: ◦ Cause of Action ◦ Procedural History ◦ Facts ◦ Issue ◦ Rule ◦ Reasoning  Remember when writing assignments to apply the elements of the torts (the “law”) to the facts of the hypothetical. The facts must meet all elements of the torts in your analysis, or there is no tort.  Be sure to also consider any exceptions and defenses.

6.  Battery: When tortfeasor touches another person without consent. The touching is harmful or offensive.  Assault: Attempted battery. Scenario: Bob sees Frank on the street. A few seconds after he sees Frank, he picks up a rock and throws it at Frank’s head. The rock hits Frank’s head. Is this Battery?

7.  Yes! Look at the elements: Tortfeasor touches another person --Bob used the rock to “touch” Frank (by hitting his head with the rock), another person Without Consent --Unless Frank said go ahead, this is without consent (generally, people don’t request to have rocks thrown at their head) Harmful or Offensive --A rock hitting the head is painful or at least annoying Intent: Bob is not asleep—he saw Frank and picked up the rock. He did not trip and accidently throw the rock. The circumstances indicate this was a deliberate action. This means Bob intended the result, or had a reasonable belief the result would occur (hitting the head). Even if it seems simple, obvious, or common sense, include it in your analysis to prove the elements are met

8.  Bob is in the subway, hanging on to a bar in the middle of the subway train car. The train suddenly lurches to a stop, and Bob falls. He throws out his hands to stop the fall and hits Frank, who is sitting on a bench, in the face.  This is not Battery. First, there is no intent. Bob was falling and trying to stop his fall. He did make harmful or offensive contact, but that result was not intended.

9.  Bob sees Frank on the street. A few seconds after he sees Frank, he picks up a rock and throws it at Frank’s head. Bob’s aim is bad, and instead he hits Betty, walking just behind Frank. Is this Battery? After all, Bob did not intend to hit Betty.  Yes! The law does not want Bob to get away with his wrongful acts. Therefore, a legal fiction would be created for Betty—”transfer of intent” –Bob’s intent for Frank is transferred to Betty, so it is considered he intended to hit Betty.

10.  Attempted Battery. Things to keep in mind: ◦ There has to be a reasonable threat of harmful or offensive conduct—the victim has to be apprehensive of such conduct. ◦ The threat has to be imminent. The alleged tortfeasor come up to you in a rage, fists clenched, red-faced and scowling, and say, “I’m going to beat you up – next week.” The threat has to be immediate.

11.  When person is intentionally confined against his or her will. ◦ Victim is confined without consent ◦ Victim is aware of confinement (not asleep) ◦ Tortfeasor has intention to confine ◦ Confinement is for an appreciable length of time (this depends on the circumstances) ◦ No reasonable means of escape (if the victim would have to hurt herself to escape) ◦ Confinement can be by threats, barriers, or even by abandonment ◦ All of these elements are dependent upon the facts and circumstances of the case. Every case is different. Remember: For Shoplifting cases, most states have a statute that allows detention of suspected shoplifters.

12.  When you are searching case law, you look for the general subject (i.e., false imprisonment) in your jurisdiction (state law or federal law) of the highest court possible.  Then you look for a case which has the facts closest to yours to analogize or distinguish.

13.  Infliction of Emotional Distress: When tortfeasor’s outrageous conduct, which is designed to cause another to suffer mental anguish, actually causes such emotional distress (anxiety, fright, etc.). For outrageous conduct, the court usually considers whether the tortfeasor’s conduct “shocks the conscience” of reasonable persons. This is an objective standard (what would shock a reasonable person, not the particular victim). Usually the victim has to prove mental injury

14.  Fraud: When tortfeasor intentionally makes false statements to entice someone to give up something of value to the tortfeasor.  Misrepresentation: When a person makes false statements or behaves so as to deceive another individual. The individual reasonably relies on the misrepresentation to his detriment. The difference is that fraud includes element of underhanded gain. However, most often the two are seen as the same tort.

15.  Malicious Prosecution: When a prosecutor maliciously files groundless criminal charges against an innocent person. ◦ Malice means the complainant knows the accused did not commit the crime.  Abuse of Process: When a plaintiff maliciously uses the court system against a defendant to achieve some unlawful objective. ◦ This includes frivolous litigation. There are federal and state laws and procedures to stop and punish frivolous litigation.

16.  When tortfeasor publicly exploits another’s private affairs in an unreasonably intrusive manner. ◦ Appropriation  Using name or likeness without permission to gain benefit (most often advertising). ◦ Unreasonable Intrusion  Invading seclusion or solitude (imagine someone taking photos through your window). ◦ Public Disclosure of Private Facts  A reasonable person would find this disclosure objectionable. Truth is not defense. Public figures find this one hard to win. ◦ False Light  Attributing to another person spurious opinions, statements or actions.

17.  When tortfeasor communicates false information that hurts another’s reputation in the community. ◦ a. Libel: Written defamation ◦ b. Slander: Oral defamation  Elements: ◦ A statement (written or oral) ◦ The statement is false and defamatory ◦ The tortfeasor communicates the statement to a third person – this is called publication ◦ The statement harms the victim’s representation For public figures, there must be actual malice (knowing or reckless disregard for truth) Slander per se: Certain statements are so defamatory, the damages to the reputation don’t need to be proved: i.e., one’s ability in his or her profession; having a loathsome disease, unchaste behavior, crime of moral turpitude Defenses: Truth is an absolute defense—substantially true. Privilege is also a defense.

18. 18 Questions?