Intentional Torts Against Persons
During a heated argument at the Winston Salem Christmas parade, Trent angrily swings a large plastic candy cane at Stevo's head while yelling something about the candy cane's center of gravity, intending only to scare him. Stevo ducks in fear, and the candy cane instead strikes Samir Parikh, who was standing behind him, causing an open wound on his forehead. What actions can be brought against Trenter?
What are: assault and battery
Assault: Stevo (and possibly Parikh) can establish prima facie cases of assault against Trent. Trent's intent to batter Stevo can be transferred to all other claims.
Battery: Parikh can claim battery against Trent because prima facie case is met.
On Christmas Eve, a costumed Santa climbs down the wrong chimney by mistake and lands inside a private bedroom. The homeowner screams and calls the police. Santa insists it was an accident and that he meant to enter the house next door. Did Santa commit a trespass to land?
What is: yes
Mistake is no excuse, and Santa met all of the elements of trespass to land.
Chief was meeting her Manhattan attorney mom at Kirkland & Ellis on the 20th floor of an office building. As usual, she showed up to the meeting 14 minutes late, with wet hair, carrying an iced latte. After the meeting, she got on the elevator going down and pressed the button for the lobby. When the elevator got to the second floor it lost its momentum to stop and instead went into a freefall to the basement. Chief sustained a broken back and is permanently disabled (sorry Chief). Assume that she was unable to uncover any evidence proving what caused the collapse of the elevator. She withdraws her job application and sues Kirkland & Ellis on a negligence theory. In order to survive a motion for summary judgment, what legal principle can she turn to for assistance?
What is res ipsa loquitur?
Bobby Boy Bake Shop erects a large outdoor gingerbread house for its holiday display but fails to anchor it properly despite high-wind warnings. That night, Daniel, Drew, and Jack sneak by and push the structure as a prank. The weakened supports give way, and the house collapses onto a pedestrian. Bobby Boy tries to establish that they cannot be the proximate cause because of the hooligans. Assess this argument.
What is: depends on jurisdiction, but Bobby Boy CAN still be the proximate cause.
Superseding causes are unforeseeable acts that occur between the defendant's negligence and the resulting harm. Many jurisdictions treat intentional acts or crimes as foreseeable, which would mean that the boys' tomfoolery would not be superseding. However, in a jurisdiction where criminal acts are not foreseeable, this would break the chain of causation and relieve Bobby Boy from liability.
At a holiday party, Mrs. Claus stands directly under the mistletoe, puckers her lips dramatically, and points above her head while smiling at the group around her. Chris Kringle, interpreting this as an invitation, walks over and gives her a quick kiss on the cheek. Mrs. Claus later sues Chris for battery. What will Chris argue?
What is: implied consent
Mrs. Claus's actions formed implied consent to be kissed, and there is nothing in the facts to indicate that this consent was invalid or revoked.
On Black Friday, Kelsey and Haley are fighting over the last pet Christmas sweater (shoutout Dug and Morris), when a brawl ensues! Kelsey REALLY wants that sweater, and she swings at Haley, but instead makes contact with Kate, who is just there for some protein to put on her carrot and spinach wraps. Kate gets a black eye as a result. Discuss whether Kelsey can be liable for battery.
What is: yes because of transferred intent!
Act: Kelsey acts willfully and volitionally when she swings her arm.
Intent: although Kelsey intended to contact Haley, that intent can be transferred to Kate.
Causes Contact: Kelsey's fist made contact with Kate's face
Harmful/Offensive: Black eye
Santa's sleigh flies over the Grinch's house on Christmas Eve. The Grinch sees the sleigh flying in the sky, and he decides to sue Santa for trespass to land. Will he succeed?
What is: likely not
Although Santa's sleigh does make entry with the Grinch's land, it is likely at a height that the Grinch cannot make reasonable use. Further, there is an exception for aircraft overflight that might be extended to Santa if the court is feeling the Christmas spirit!
A hungover mall Santa late for his shift rides an electric scooter through the parking lot at high speed. He collides with a shopper. Discuss whether Santa had a duty, and assess whether he breached that duty using the HRUT.
What is YES Santa had a duty! (you owe a duty to every person in the world who you can foresee would suffer personal injury or property damage as a result of the acts you take)
HRUT: what is yes, likely breach
If B < LP, then breach
Probability of harm: depends on how busy the mall is, whether it's dark outside, etc.
Magnitude of harm: it is very likely that colliding with a patron on an electric scooter would cause some physical injury.
Burden of precautions: fairly low; use reflectors, look both ways, operate the scooter more slowly/with more care
Walt and Nate, who are neighbors, each negligently leave candles burning near their Christmas trees. At the same time, both houses ignite, and their fires merge before destroying a third home. Either fire alone would have consumed the third house. Discuss how you would establish factual causation and include reference to jurisdictional approaches.
What is: multiple sufficient causes
Here, we have 2 tortious acts, causing injury at the same time, and each would have been sufficient alone to engulf the third house. Elements of MSC are met.
Majority (2d Restatement): apply substantial factor test (both are likely substantial factors)
Minority (3d Restatement): factual causation met from MSC
During a crowded holiday shopping rush, a shopper suddenly charges toward a child yelling angrily. Believing the child is about to be attacked, another shopper tackles the charging adult, breaking his arm. It later turns out the adult was running to stop the child from wandering into traffic. Can the tackler assert the defense of others?
What is: yes
Although the tackler was mistaken about whether the child was facing an imminent threat, the defense of others allows good-faith mistakes because we want to promote good Samaritans. He will not be liable for breaking the other adult's arm, because the extent of force used was reasonable in the circumstances.
At a crowded office Christmas party, Michael Scott pulls Kevin on stage, and announces (intending to be funny) that Kevin has been fired for “stealing company money,” and tells everyone to boo while laughing. Kevin later suffers severe panic attacks and is unable to leave his house. Are the elements of IIED met?
What is: probably
Intent: although Michael was "intending to be funny," it is likely that a court would find his behavior reckless.
Extreme/Outrageous: it is extremely humiliating to bring an employee in front of the entire company and publicly fire them. It is likely that this would meet the high bar for outrageousness as it goes beyond what is tolerable in our civilized community (although this one is close and could be argued either way).
Severe Distress: severe panic attacks and being unable to leave the house would probably meet this element.
During a WFU Law office party, Dean Marsh briefly takes Professor Lee's phone from the table without permission to snap two photos of the dessert spread. She unfortunately sees some videos of him singing in front of the mirror in his camera roll. The phone is returned to the exact spot less than five minutes later, undamaged. Lee suffers no missed calls, no data loss, and no interruption in use. Can an angry Lee bring suit against Dean Marsh?
What is: likely not
We are in a trespass to chattels realm here, but it is likely that there was no substantial interference. Although Dean Marsh intended to possess the phone when she took the photos and used the phone, the two photos in the phone's camera roll and five minutes of deprivation do not amount to a substantial interference.
During a neighborhood caroling event, medium-rare child slips on a frozen pond and falls through thin ice near the crowd. Most people panic and back away. Kate Irwin, a bystander, is a skilled swimmer and renowned Girl Scout Leader but chooses not to help. The child’s parent later sues Irwin for negligence, arguing she should have rescued him because she was closest and best able to assist. Is the parent correct?
No, the parent is not correct. The general rule is that there is no duty to act in cases of non-feasance, and this is clearly a case of non-feasance for Kate Irwin. None of the exceptions appear to be met, so although Irwin may have been best-suited to save medium-rare child, she was under no legal duty to do so.
Clark Griswold strings lights across his icy sidewalk, leaving them loosely coiled. A passerby trips on the lights, falls into the street, and is struck by a slowly passing sleigh in a holiday parade.
Analyze whether being struck by the sleigh is within the scope of risks created by negligently placing lights on the sidewalk.
What is: likely yes
Dealing with a proximate cause issue, so we must classify the harm and determine whether it was a foreseeable consequence of the negligent act. The precise sequence of events need not be foreseeable if the general-type harm is, and injuries resulting from tripping over loosely strung lights are foreseeable (even if the injuries are exacerbated by being run over by a passing sleigh).
During a severe Christmas blizzard, Juan becomes stranded in subzero temperatures miles from town. Fearing he will freeze to death, he breaks into a locked vacation cabin, breaks a window, and stays overnight. The cabin owner later sues for trespass to land and property damage. Will she be successful?
What is: she will be able to recover for the broken window but Juan will not be liable for trespass to land.
His actions were privileged under the private necessity defense (private interests, reasonably necessary, reasonable response), but he still has to pay for the damage that he caused to the broken window.
At Santa’s workshop, the Head Elf becomes angry at a trainee elf for working too slowly. To “teach him a lesson,” the Head Elf locks the trainee inside the toy-painting room and says, “You’re not leaving until these toys are finished.” The room does not have a door handle on the inside, but there is a small ceiling hatch that could technically be climbed through using stacked boxes. The trainee does not realize the hatch leads outside and remains inside for three hours until Santa unlocks the door. Can trainee elf claim false imprisonment?
What is: yes (poor lad)
Here, the sticking points are intent to confine and reasonable means of escape. The Head Elf had intent to confine, because he was locking him up to "teach him a lesson." Further, although there was a means of escape through the ceiling hatch, this was not reasonable because the trainee did not know it was a means of escape and it would be dangerous to stack boxes to get out. The other elements are met because the lack of door handle indicates that the trainee is aware of his confinement.
On Christmas Eve, Joe Vick sneaks onto Parikh's fenced backyard and cuts down his fully decorated Christmas tree without permission. He takes it home and uses it for his own Christmas extravaganza. What torts did Joe Vick commit?
What are: trespass to land and likely conversion
All elements of TL are met without issue.
Conversion: using the factors (extent/duration, good faith, intent to assert right inconsistent with owner's, harm done, inconvenience/expense to owner), it seems Joe's interference is serious enough to pay the full value of the decorated Christmas tree. But at least he gets to keep the tree!
A family visits a Christmas tree farm during open business hours to browse trees, but tell the owner they’re “just looking and not sure if they’ll buy.” While wandering the property, they walk near an unmarked ditch partially concealed by snow and one family member falls in and is injured. Discuss the family's legal status (invitee or licensee) and explain the corresponding duty the landowner owes.
What is: invitees and the corresponding duty
The family, although they are "not sure if they'll buy," are still business invitees because they are visiting the Christmas tree farm during business hours for a purpose connected with business dealings. Therefore, the landowner owes the family a duty of reasonable care to protect the family against any natural or artificial dangers that the farm owner knows or should know of through reasonable inspection. It is likely that reasonable inspection would reveal this condition.
During a WFU Law holiday party, two professors negligently throw snowballs toward Dean Klein as a prank. One snowball contains a chunk of ice; that is the one that injures Dean Klein — but it is impossible to tell which employee threw it. Both employees admit throwing snowballs, and both were negligent. How would you establish factual cause?
What is: alternative liability theory
Limited to cases involving a small number of defendants (2-3), all defendants breached their duty to plaintiff, only one defendant could have caused the harm, plaintiff cannot prove who caused the harm, each defendant created “substantially similar risk of harm” (risk uniformity), all potential defendants are being sued
Burden shifts to defendants to prove that their negligence was not a cause, if impossible, both/all are liable for harm.
Winston Salem hosts a Christmas festival featuring a large outdoor ice-climbing wall. Warning signs at the entrance state: “Climbing involves the risk of slipping, falling, and equipment failure.” During the event, Parker, an experienced climber, voluntarily joins the climb. While ascending, he slips on naturally forming ice and falls, suffering minor injuries. Evidence shows the wall was properly maintained. Later that night, the same Parker walks through the festival’s exit corridor, where the organizers negligently failed to clean up a known spill of melted snow and hot cocoa. He sees the puddle, says “I’ll just hurry through,” slips, and breaks his wrist. Parker sues the festival organizers for negligence for both injuries.
Assess Parker's claims using both SIAR and QSIAR. Assume for this question that we are in a jurisdiction where SIAR and comparative negligence are assessed separately.
What is: Parker would be barred from recovering for the first injury using SIAR because he knew of, appreciated, and voluntarily assumed the risk, which was objectively reasonable (so no QSIAR). For the second injury, QSIAR would apply because Parker's assumption of the risk was objectively unreasonable. Therefore, the jury would be tasked with weighing his negligence against Winston's failure to clean the spill.
During a holiday charity event at Santa’s workshop, Morris becomes enraged at an elf named Dug after accusing him of sabotaging a toy display. In front of a large crowd, Morris violently grabs Dug by the collar, shoves him into a table, and screams, “You’re worthless and I’m going to ruin your life!” Dug suffers minor physical injuries from the shove.
Watching from behind a large stack of toy crates is Dug's sister, Piper, who had arrived secretly to surprise him after months apart. Piper witnesses the entire confrontation, collapses in tears, and later develops severe PTSD requiring hospitalization.
Piper sues Morris for intentional infliction of emotional distress as a bystander. Will she succeed?
What is: no
Although the other elements of IIED may be met (may deal with a problem with outrageousness), there are issues with Piper's recovery as a bystander. Although she was present at the scene and a close relative of Dug, Morris did not know of her presence, and therefore, she cannot recover.
A graphic designer leaves her external hard drive containing all of her original Christmas marketing designs in an office closet labeled "NO TRESPASSING." Chupacabra, without permission, enters the closet and takes the hard drive home for three days to finish a rush holiday project. During that time, Chupacabra copies all of the files for personal future use and then returns the drive undamaged and fully functional. What torts did she commit?
What are: trespass to land and conversion
TL: although Chupacabra had permission to access the office space, entering the "no trespassing" closet constituted a trespass to land. It was an entry without consent.
Conversion: the hard drive contained IP, and copying them for personal use amounts to stealing, which is always conversion
Burke St. Pub hosts its annual Santa-Con celebration, which historically attracts rowdy crowds. The bar knows from past years that fights frequently break out near closing time. This year, Burke hires only one security guard despite expecting over 300 costumed patrons. A fight breaks out, and Zach Fenster is injured after saying "excuse me" one too many times. Did Burke Street owe a duty to protect against third-party acts?
What is: Yes
As a business owner, Burke has a special relationship with its patrons and therefore must exercise reasonable care to protect them from foreseeable third-party acts. Burke's knowledge of both past fights and the expected crowd give rise to a duty to protect patrons from third-party acts.
Camelot hosts a popular Christmas Eve caroling festival in a narrow town square. The city negligently fails to install crowd-control barriers despite knowing the space becomes overcrowded. At the same time, Lancelot du Lac negligently sets up a large decorative nutcracker display that blocks one of the square’s only exits, creating a bottleneck. When the crowd surges during the event’s finale, several attendees are pushed into the blocked exit area and suffer a combination of bruising, broken ribs, and breathing injuries. Experts determine:
The city’s failure to control the crowd contributed to the pressure and forward movement, but would not have caused serious injury on its own because people could have dispersed safely if exits were open.
The shop owner’s blocked exit contributed to the physical crushing, but would not have caused serious injury on its own because the crowd normally disperses without excessive pressure.
The injuries resulted from the combined effect of both negligent acts, and medical experts cannot separate the harm caused by each.
Discuss how to establish factual causation.
What is: indivisible causes
Here, there are two acts which come together to produce a single, indistinguishable harm. Because neither act alone would be sufficient to cause the crowd-crushing, these are indivisible causes and you would need to use the but-for test for each.
A city ordinance provides: “Contributory negligence shall not bar recovery so long as the plaintiff’s negligence is not greater than the negligence of the defendant.”
After a freezing rain, a shopping plaza fails to salt its main, well-lit sidewalk leading to the Christmas market. Instead of using the longer paved walkway, Helen Grant's son chooses to take a visibly icy shortcut across a roped-off grassy median marked with a small sign reading “Use Main Walkway.” He slips, falls, and fractures her ankle.
Assume a jury finds the plaza 50% at fault for failing to salt the main walkway and Grant's son 50% at fault for taking the icy shortcut. What approach does this jurisdiction use, and can he recover?
What is: modified 50% comparative fault and yes.
Under this approach, the plaintiff can recover as long as his negligence is NOT GREATER than the defendant's. Even if they are equally liable, Grant's son can recover the defendant's share (half of the overall damage award).