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Torts - Outline Part 2
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- Damages
- P must show substantial harm or dispossession
- Remedy for Conversion:
- Treat it like a forced sale; P entitled to full value of item in question
- If successful, the P would get the value of the property and the D would get to keep the object
- Treat it like a forced sale; P entitled to full value of item in question
- Different ways to commit conversion:
- Acquiring possession
- Stealing
- Receiving
- Bona fide purchaser of stolen goods = conversion, even if unaware goods were stolen
- Transfer to 3rd person
- D transferring chattel to one who is not entitled to it
- Withholding good
- Refusing to return goods to owner; refusal lasts for substantial time
- Destruction
- Destroying or fundamentally altering good
- Damaging or altering it
- Killing animal, for example
- Disposing of good
- Acquiring possession
Privileges
- Process of analysis:
- First, has there been a tort?
- Second, are there privileges?
- You admit committing the tort, but the reason is defensible
- Consent
- Two types:
- Express
- Straightforwardly spoken or in writing
- Implied
- doesn’t have to be said outright or signed in writing
- Types:
- Course of conduct
- Social conventions
- Circumstances
- Relationship of parties
- You can withdraw implied consent
- Express
- Consent obtained by fraud = not valid consent
- Intoxication does not negate intent
- Consent can apply to any intentional tort
- Athlete’s consent
- In unusually violent sports (ex: football)
- Generally not considered consent to all injuries inflicted
- Scope of implied consent
- Liable for all contacts beyond ones impliedly consented
- Common sense review of what is involved in implied consent
- Significance of sport’s rules and customs
- Categories:
- Conduct allowed by rules
- Conduct punishable but not “beyond bounds” of sport
- Reckless or intentionally-harmful conduct beyond usual bounds
- Liability here
- Categories:
- Scope of implied consent
- Consent to criminal acts = not a privilege
- Consent, but withdrawn = actionable
- Emergency situations (with physicians):
- Consent not possible
- Risk of death or extreme bodily harm
- Reasonable person would agree
- No reason for patient to refuse
- Nominal damages can be given
- Two types:
- Self-Defense
- Affirmative defense = D must specifically plead + burden of proof on D
- One may use reasonable force in self defense if one reasonably believes it to be necessary
- Was decision to use force reasonable?
- Was the amount of force reasonable?
- Degree of force must be amount necessary to prevent the threatened harm
- Deadly force
- Can only be used if P is in danger of death or serious bodily harm
- Retaliation does NOT qualify as SD
- As soon as the attack has stopped = over
- SD can be employed as result of retaliation
- Mistake does NOT negate intent
- Mistake not defense, but mistake that is reasonable may be SD
- Can apply to mistake of identity, choice to use force, or amount of force used
- Here = unique bc mistake is allowed sometimes in SD compared to the handling of mistake in other defenses
- Mistake not defense, but mistake that is reasonable may be SD
- Verbal Provocation = not SD
- Physical provocation w offer of force = SD applies
- Question of reasonableness must be applied here
- Retreat:
- Do not have to retreat if less than deadly force
- Majority rule = do not have to retreat before use of deadly force, if justified
- Transfer of Privilege:
- Rules of transfer of intent apply here
- As long as you are privileged to shoot X, you are privileged to shoot P
- You can only transfer privilege bc intent transferred
- Otherwise P can sue for negligence
- SD = can be used for any intentional tort
- Must look at person causing intentional tort and then the conduct of SD
- Not the conduct of the P to be focused on; focus instead on the D
- Must look at person causing intentional tort and then the conduct of SD
- Defense of Others
- Can use reasonable force in defense of others
- Rules identical to SD, except over issue of mistake
- Mistakenly defending someone else = liable?
- No clear majority rule:
- Half of jurisdictions = look at person defended
- Since A liable, D is liable
- Other half = D liable
- Question of whether D acted reasonably
- Half of jurisdictions = look at person defended
- No clear majority rule:
- Mistakenly defending someone else = liable?
- Defense of Property
- When invasion is peaceful + occurs in the presence of the possessor = use of any force is unreasonable
- Law of opinion that once something is stolen, it’s over; must take to court then
- Rule of fresh pursuit in recovery of property addresses this
- Reasonable mistake
- If D’s mistake about whether force necessary = protected
- Ex: non-deadly force to stop burglar believed to be armed
- If mistaken about whether intruder has right to be there = not privileged
- If D’s mistake about whether force necessary = protected
- Deadly force
- Where non-deadly force will not suffice
- Owner reasonably believes that w/o deadly force, death or serious harm will occur
- Mechanical devices:
- Katko v. Briney = no go; the home alone approach (or SAW, depending on how fucked up as a person you are) doesn’t apply
- A question of intent will be reviewed
- Intent proven through review of how Briney set up the shotgun trap
- Katko v. Briney = no go; the home alone approach (or SAW, depending on how fucked up as a person you are) doesn’t apply
- Recovery of Property
- Fresh pursuit
- If D notices property is taken as it is happening, pursuit begins promptly, is continuous, and demand made = reasonable force can be used in the recovery of property
- Right to regain property without unreasonable violence
- If owner of property voluntarily relinquishes the property, recovery must be made peacefully; otherwise must seek legal help
- Rules can always escalate into SD role = escalation of reasonable force (even to deadly) then allowed
- If D notices property is taken as it is happening, pursuit begins promptly, is continuous, and demand made = reasonable force can be used in the recovery of property
- Shopkeeper’s privilege
- If they reasonably believe that someone has committed theft (or is about to), they are allowed a reasonable detention and investigation for a reasonable amount of time
- Time frame = long enough to call the police
- If they reasonably believe that someone has committed theft (or is about to), they are allowed a reasonable detention and investigation for a reasonable amount of time
- Must have reasonable force; can’t be deadly
- Fresh pursuit
- Necessity
- Private
- Not liable to trespass to chattel, conversion, trespass to property under private necessity
- Necessity = key element
- Protecting self from serious damage or life
- D still has to compensate P for damage to property
- Privilege = D cannot be ejected from property
- Public
- Not liable for trespass to chattel, trespass to land, or conversion if not acting in the public good (protecting the public at large or public property)
- To community or to many people
- No right of compensation under CL
- You do not have to be a gov employee to exercise it and don’t have to be successful in endeavor
- Not liable for trespass to chattel, trespass to land, or conversion if not acting in the public good (protecting the public at large or public property)
- Authority of Law
- Privileged
- Police officers, military, prison officials, regulatory inspectors, + mental health facility officials
- Liable only if acting improperly
- Ex: excessive force
- Mistakes in good faith also not protected
- Discipline
- Mostly privileged
- Relationships it applies to
- Parent and child
- Military + naval officers and subordinates
- Master of ship over crew and passengers
- Private
