Michael Ehline (Attorney at Law) gives expert video advice on: What is an 'intentional tort'?; What are common law intentional torts?; What is 'battery' under English common law? and more...
What is an 'intentional tort'?
An intentional tort is similar to negligence, with the added element that instead of caused by neglect or failure to abide by a duty, the person acted with intent in causing the damages, such as in battery, or an assault. Or sometimes even a defamation, where someone intentionally slandered the name of another.
What are common law intentional torts?
Common law torts are torts that come from ancient England. You're only allowed to sue for certain torts under common law; for example, there was no statute for wrongful death. So if someone was killed in your family due to the wrongs of another, that person could be punished criminally, but there was no way to sue that person because the victim's tort was deemed to have died with the victim. But later on in the United States, the states in this country decided that it was unfair and there were also situations where we had Hatfields and McCoys going around shooting each other because you may have killed someone's uncle and now the uncle's family members were going to come after you and try to kill one of your family members. We had a lot of that going on in the early days in this country with people wearing guns and carrying shotguns everywhere with them, so a lot of the states decided to come up with a statute that would allow people to recover for wrongful death. Now under English common law we have several different types of torts that you could recover from. Conversion: if you were to convert someone's property to your own use, you could sue that person who converted that property. If someone trespassed on your land, you could go after that person for money damages, for trespass. There was also false imprisonment, where if you falsely imprisoned someone, not allowing them a reasonable means of escape, you could recover under English common law. But modernly, statutes and legislation have expanded the common law notions of negligence to include many other things, like I said, such as wrongful deaths, survival statutes, etc.
What is 'battery' under English common law?
Battery' under the English common law, is an intentional tort, where you intentionally cause another person, in this case the victim, harmful or offensive touching, which would not be something that was socially acceptable. For example, if you brushed against someone in a subway in New York, that's something that would be acceptable, and normal in the community of New York. But, brushing up against somebody in a subway, and touching them in a part of their body that would not normally be touched, would be deemed something that could be harmful or offensive. And therefore, you would have a cause of action for intentional tort of battery.
What is 'assault' under English common law?
An assault under intentional English common law is a situation where someone comes very close to actually committing a battery, but they don't. In other words, they don't harmfully or offensively touch you, but they put you in a reasonable apprehension of a harmful or offensive conduct. And because you were placed in that reasonable apprehension of an intentional offensive touching, that is enough to sue.
What is 'false imprisonment' under tort law?
A false imprisonment is defined as direct restraint on someone's free movement. It can be done with words, it could be done with threats, but basically false imprisonment is a situation where the person confined has no reasonable means of escape.
What is 'intentional infliction of emotional distress' under tort law?
Intentional infliction of emotional distress is a situation where somebody does something to the person harmed, such as attacking their child in front of them, for example with an axe and kills their child in front of them. The person who had his child attacked would be able to sue for intentional infliction of emotional distress because it's extreme and outrageous conduct that is absolutely below any known standard of care and clearly designed to cause someone outrage and miscontent.
What is 'necessity' under tort law?
Necessity under tort law is a situation where the law allows you to somewhat breach your duty because something outside the control of society occured. For example, you might be excused of a trespass, or at least have your damages reduced in a trespass, if there was a fire and you needed to break into someone's water barn in order to get a hose and attach water in order to put out the fire. Even though it wasn't your property, because there was a fire, you needed to access someone else's property in order to put it out. You would still be liable for the damages that occured assuming that it was private necessity. But if it was a public necessity, where for the general good of the public it was required for you to violate that privilage such as a trespass or breaching someone's property rights. Under the law public necessity you would not be liable for damage that you caused.
What is 'self-defense' under tort law?
Self-defense under intention of Tort Law is, "that amount of force which is reasonable to defend yourself in any given situation”. For example, if someone attacked you with a baseball bat; it may or may not be proper for you to shoot them with a gun, but certainly if you had a baseball bat that may be deemed adequate force to protect yourself from another bat. Some states allow you to defend yourself right away, that is "majority rule" and that is California. Other states have "a retreat to the wall rule", those states say that before you can defend yourself, you must first try and run and retreat to the wall, but once you are cornered then you have the right to defend yourself.
What are 'intentional torts to property'?
Intentional torts to property include torts such as trespass, negligence, nuisance and conversion. Intentional torts involve torts which the law implies the damages remedy if someone has unreasonably interfered with your rights to use or have access to your own property. For example, in a trespass, merely stepping on someone's property is a trespass. The fact that you did it. But there may not be any damages because you may have not damaged their property. So in that situation, you can still sue for damages because it was a trespass to your property, but it may be nominal damages, such as a dollar. And in those situations, the person harmed can also seek injunctive relief to force the person who came on their property to not come on their property again. Other intentional torts such as nuisance allow a person harmed to simply sue for a foul odour that shouldn't be occuring in their neighborhood due to having a manure factory in their backyard when they shouldn't. So these are the many different types of torts that are available to someone harmed, and the law implies some sort of a remedy to stop those wrongs from occuring.
What is 'injunctive relief' under tort law?
Injunctive relief is a situation where a person has been harmed by a wrong doer; such as someone continually trespassing on their land, it may have crops on it and these people trespassing on their land maybe stealing the corn, maybe trampling crops, maybe stealing cows etcetera, etcetera, it could be anything. And in those types of fact situations the law is going to allow you to go into court and ask the judge to force those people to stay off your land. Sometimes just getting money from them isn't enough. Sometimes you need to get an affirmative order from a judge demanding that people stay off your land. And then once that injunction is on your land, your property or it could even be an injunction against someone attacking you that you could get, called a temporary restraining order. It could be any of those fact situations. If that is now breached and the person violates the judge's order it allows the person to then go back to court who was being wronged and have the court issue an order to show cause or a contempt. Hold the person in contempt and then have that person criminally prosecuted in addition to having the injunction in place.
What is 'trespass to land' under tort law?
Trespass to land is a substantial interference with a person's possessery interest in their land. Which causes substantial harm in the person being wronged. Trespass to land could be something as simple as someone walking across someone's yard, it could be as simple as someone trying to dump toxic waste on someone's property out in the boondocks. The bottom line is if someone goes on to your land, they're <a href="http://www.videojug.com/interview/trespassing">trespassing</a> and you're entitled to sue them. Sometimes it may just be a dollar that you could get as nominal damages because there was no real harm done. Sometimes it can be billions of dollars depending on whether it was radioactive waste being dumped on your land.
What is 'trespass to chattels' under tort law?
Trespass to chattels unlike trespass to land if you think about it, chattel and cattle kind of sound the same, and that's for a reason. Under the English common law, it usually had to do with someone interfering with someone cattle. So trespass to chattel has now been interpreted to meaning trespass to anything of personal property. Could be someone stealing your Montblac pen. Could be someone stealing your cell phone. Those are some examples of chattel. If some ones unreasonable interference with that property, usually resulting in your inability to use it, in which the law applies a remedy of them giving it back and also damages for the time you were dispossessed. It could be the reasonable value, of you having to rent a new pen. It could be that it was such a great interference that it would have to be the replacement value.
What is a 'nuisance' under tort law?
A nuisance unlike a trespass usually involves things that could be intangible such as a substantial interference with the use of your property caused by an activity such as an explosives factory next to your house which causes a significant diminishment in enjoyment from the use of your property for which the law implies a remedy. However, there is an exception called coming to the nuisance, where if you intentionally built your house next to an explosives factory you probably couldn't get them to tear down the explosives factory as part of the relief implied for the nuisance. More than likely you couldn't get anything because you came to the nuisance.
What is an 'attractive nuisance' under tort law?
An attractive nuisance is a situation where you have, for example, a railroad with a turnstile that looks maybe like a merry-go-round, and kids may want to go play on that turnstile. That might be deemed an attractive nuisance to those kids. And, if there's a big gaping hole in the fence at the train yard, then the kids are going to go through that little hole and go play on that turnstile. Well if a little kid goes and plays on that, even thought it says “No Trespass” everywhere since that nuisance was obviously attractive to a little kid and he cuts his foot off in that turnstile, the law will allow the parents of that child to sue the railroad yard under "attractive nuisance" under many states' laws.
What is a 'conversion' under tort law?
The tort of conversion is where someone actually converts your property to their own use. It's similar to a trespass to a chattel, except that in the tort of conversion, the property is completely dominated and maintained and it's never going to be returned and therefore it has been converted. And because of that, you are allowed to sue for the full value of that property. Oftentimes if the property is not transferred to a bonafide purchaser for value, you can still go ahead and get a court order to get the property back.