Torts: Nuances and Tricky Tricks

Trespass to Land

• There are two types: intentional and reckless/negligent.
  
• Intentional trespass requires intent to enter and entry. Mistake re ownership/privilege is no defense, even if reasonable mistake. Nominal damages are available.
• Negligent/reckless trespass is actionable only if there is damage.
• Non-negligent accidental entries are not actionable.
  
• To be actionable, trespass by aircraft must be in the immediate reaches above the property and substantially interfere with use of land.
• Standing: actual possession or right to possession is needed. Lessee or adverse possessor can sue.
• Apparently, you should assume intentional trespass is intended on the MBE, unless it's not.

Privilege (Private Necessity)

• A defender of property acts at his own peril in using force against someone who is actually privileged to intrude.
• Similarly, those who intrude upon property without a privilege must suffer the consequences of their mistake.

Nuisance

• Courts can grant monetary damages and an injunction to prevent the continuation of the nuisance.

Tortious Battery

• Contact is only offensive if it offends a reasonable sense of personal dignity. The contact must be unwarranted by the social usages prevalent at the time and place where the touching occurs.
• If a bunch of guys who don't know each other start beating up on one guy, they may be found to be acting in concert, subjecting each to vicarious liability for the torts of the others.
  

Negligence

• If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of physical harm to another, he is under a duty of reasonable care to prevent the risk from taking effect.
• One confronted with an emergency must act reasonably under the circumstances.
• A rescuer must act reasonably under the circumstances and may be liable for negligence during the rescue. (Sometimes this liability is relieved by Good Samaritan statutes.)
  

Strict Liability

• misuse of the product is no defense if such misuse is reasonably foreseeable.
• assumption of the risk IS a defense.

IIED/NIED

• IIED requires: 1) extreme/outrageous conduct; 2) resulting severe emotional distress; 3) intent OR RECKLESSNESS.
  
• Third person liability if: 1) immediate family member present at the time; OR 2) any person present at the time when the distress results in bodily harm to the 3rd party.
  
• Lessened requirement of "outrageous" conduct for common carriers and innkeepers -- insulting or highly offensive behavior enough. Merely insulting conduct is not enough for others.
  
• NIED requires bodily harm resulting from the distress, except for negligent news of death of family member or treatment of a corpse.
• Third-party recovery for NIED requires: personally within the zone of danger AND bodily harm results from the distress.

False Imprisonment/Arrest

• An arrest under a warrant is privileged if the person arrested is the one named in the warrant, or reasonably believed to be the one named, or has knowingly caused the officer to believe him to be the one named.
• An arrest without a warrant is privileged for a police officer if 1) felony being committed or about to be committed in his presence; 2) misdemeanor constituting breach of the peace in his presence; 3) officer reasonably believes arrestee to be a felon even if no felony has been committed.
• An arrest without a warrant is privileged for a private citizen if 1) felony being committed or about to be committed in his presence; 2) misdemeanor constituting breach of the peace in his presence; 3) felony has in fact been committed and reasonably believes the person arrested committed it.
• Private citizen takes the risk that no felony was committed. His reasonable mistake as to whether there was a felony will destroy the privilege. Private citizen does not take a risk re misapprehension. His reasonable mistake re identity of the felon will not destroy his privilege.