TORTS:

Tort law

Part of the common law series

Intentional torts

Assault · Battery
False imprisonment

Intentional infliction of
emotional distress (IIED)

Transferred intent

Property torts

Trespass (land · chattels)

Conversion · Detinue
Replevin · Trover

Defenses

Assumption of risk
Comparative negligence
Contributory negligence
Consent · Necessity
Statute of limitations
Self-defense
Defense of others
Defense of property
Shopkeeper's privilege

Negligence

Duty of care · Standard of care

Proximate cause · Res ipsa loquitur
 Calculus of negligence
Rescue doctrine · Duty to rescue

Specific types

Negligent infliction of
emotional distress (NIED)

Employment-related · Entrustment
Malpractice (legal · medical)

Liability torts

Product liability
Ultrahazardous activity

Nuisance

Public nuisance
Rylands v. Fletcher

Dignitary torts

Defamation · Invasion of privacy

False light · Breach of confidence
Abuse of process
Malicious prosecution
Alienation of affections · Seduction

Economic torts

Fraud · Tortious interference

Conspiracy · Restraint of trade

Liability, remedies

Last clear chance · Eggshell skull

 Vicarious liability · Volenti non fit injuria
Ex turpi causa non oritur actio
Neutral reportage · Damages
Injunction · Torts and conflict of laws
Joint and several liability
Comparative responsibility
Market share liability

At common law, battery is the tort of intentionally (or, in Australia, negligently) and voluntarily
bringing about an unconsented harmful or offensive contact with a person or to something
closely associated with them (e.g. a hat, a purse). Unlike assault, battery involves an actual
contact. The contact can be by one person (the tortfeasor) of another (the victim), or the contact
may be by an object brought about by the tortfeasor. For example, the intentional contact by a
car is a battery.

Unlike criminal law, which recognizes degrees of various crimes involving physical contact,
there is but a single tort of battery. Lightly flicking a person's ear is battery, as is severely beating
someone with a tire iron. Neither is there a separate tort for a battery of a sexual nature.
However, a jury hearing a battery case is free to assess higher damages for a battery in which the
contact was particularly offensive or harmful.

Contents
[hide]

 1 Contact required
 2 Awareness not required
 3 Degree of intent
 4 Defenses
 5 References
 6 See also

[edit] Contact required

Battery is a form of trespass to the person and as such no actual damage (eg. injury) needs to be
proved. Only proof of contact (with the appropriate level of intention or negligence) needs to be
made. If there is an attempted battery, but no actual contact, that may constitute a tort of assault.
In the United States, the common law requires the contact for battery be "harmful or offensive".
The offensiveness is measured against a reasonable person standard. Looking at a contact
objectively, as a reasonable person would see it, would this contact be offensive? Thus, a
hypersensitive person would fail on a battery action if jostled by fellow passengers on a subway,
as this contact is expected in normal society and a reasonable person would not find it offensive.
Harmful is defined by any physical damage to the body.

Battery need not require body-to-body contact. Touching an object "intimately connected" to a
person (such as an object he or she is holding) can also be battery.[1] Furthermore, a contact may
constitute a battery even if there is a delay between the defendant's act and the contact to the
plaintiff's injury. For example, where a person who digs a pit with the intent that another will fall
into it later, or where a person who mixes something offensive in food that he knows another will
eat, has committed a battery against that other when the other does in fact fall into the pit or eats
the offensive matter.

Because courts have recognized a cause of action for battery in the absence of body-to-body
contact, the outer limits of the tort can often be hard to define. The Pennsylvania Superior Court
attempted to provide some guidance in this regard in Herr v. Booten[2] by stressing the
importance of the concept of one's personal dignity. In that case, college students purchased and
provided their friend with alcohol on the eve of his twenty-first birthday. After drinking nearly
an entire bottle of Jack Daniels whiskey, the underage man died of acute ethanol poisoning.
Reversing the decision of the trial court, the Pennsylvania Superior Court held that supplying a
minor with alcoholic beverages, while certainly constituting a negligent act, did not rise to the
level of a battery. In the words of Judge Montemuro, supplying a person with alcohol "is not an
act which impinges upon that individual's sense of physical dignity or inviolability."[3]

[edit] Awareness not required

The victim of a battery need not be aware of the act at the time for the tort to have occurred. For
example, if a surgeon performing an appendectomy on an unconscious patient decides to take out
the patient's spleen for his personal collection, the surgeon has committed a battery against the
patient. Similarly, a battery occurs if the surgeon allows a cousin who is a plumber with no
medical training to help fish out the appendix during the surgery. Although the patient has
consented to being touched by the surgeon, this consent does not extend to people who the
patient would not reasonably anticipate would be participating in the procedure.

The battery may occur even if the victim is unaware of the contact at the time and the defendant
is nowhere near the scene at the time of the contact. If a tortfeasor puts an offensive substance in
another person's food, and the other person consumes the offensive substance, the battery has
been committed even if the victim is not made aware that they have eaten something offensive
until much later.

[edit] Degree of intent

The degree and quality of intent in civil (tortious) battery is different to that for criminal battery.
The degree and quality of intent sufficient for battery also varies between common law countries,
and often within differing jurisdictions of those countries. In Australia, negligence in an action is
sufficient to establish intent. In the United States, intention to do an act that ultimately results in
contact is sufficient for the tort of battery, while intention to inflict an injury on another is
required for criminal battery.

Intent can be transferred with battery, i.e. a person swings to hit one person and misses and hits
another. He or she is still liable for a battery.[4] Intent to commit a different tort can transfer in the
same way. If a person throws a rock towards one person intending only to scare them (but not to
hit them), they will be liable for battery to a different person who is hit by that rock. However, if
a person throws a rock over a wall, oblivious to the fact that there are people on the other side,
this will not constitute a battery in the United States, as there was no intent to commit any tort
towards another person.

[edit] Defenses
The standard defenses to trespass to the person, namely necessity, consent, self defense, and
defense of others, apply to battery. As practical examples, under the first, a physician may touch
a person without that person's consent in order to render medical aid to him or her in an
emergency. Under the second, a person who has, either expressly or impliedly, consented to
participation in a contact sport cannot claim in battery against other participants for a contact
permitted by the rules of that sport, or expected to occur within the course of play. For example,
a basketball player who commits a hard foul against an opposing player does not thereby commit
a battery, because fouls are a regular part of the course of the game, even though they result in a
penalty. However, a player who struck another player during a time-out would be liable for
battery, because there is no game-related reason for such a contact to occur.

Self defense as to battery can consist only of engaging in physical contact with another person in
order to prevent the other person from themselves engaging in a physical attack.

ASSAULT:

In common law, assault is the tort of acting intentionally and voluntarily causing the reasonable
apprehension of an immediate harmful or offensive contact. Because assault requires intent, it is
considered an intentional tort, as opposed to a tort of negligence. Actual ability to carry out the
apprehended contact is not necessary

As distinguished from battery, assault need not to involve actual contact—it only needs intent
and the resulting apprehension. For example, wielding a knife; or yelling the word snake to a
person whom you know is in fear of snakes can be construed as assault if a fearful situation was
created.

While the law varies by jurisdiction, contact is often defined as "harmful" if it objectively intends
to injure, disfigure, impair, or cause pain. The act is deemed "offensive" if it would offend a
reasonable person’s sense of personal dignity. While "imminence" is judged objectively and
varies widely on the facts, it generally suggests there is little to no opportunity for intervening
acts. Lastly, the state of "apprehension" should be differentiated from the general state of fear, as
apprehension requires only that the person be aware of the imminence of the harmful or
offensive act.

Assault can be justified in situations of self-defence or defence of a third party where the act was
deemed reasonable. It can also be justified in the context of a sport where consent can often be
implied.

In Criminal Law an assault is defined as an attempt to commit battery, requiring the specific
intent to cause physical injury.

Good faith, or in Latin bona fides (bona fide means "in good faith"), is good, honest intention
(even if producing unfortunate results) or belief. In law, it is the mental and moral state of
honesty, conviction as to the truth or falsehood of a proposition or body of opinion, or as to the
rectitude or depravity of a line of conduct. This concept is important in law, especially equitable
matters.[1][2]

In contemporary English, "bona fides" is sometimes used as a synonym for credentials,

background, or documentation of a person's identity. "Show me your bona fides" can mean: Why
should I trust you (your good faith in this matter)? Tell me who you are. In this sense, the phrase
is sometimes used in job advertisements, and should not be confused with the bona fide
occupational qualifications or the employer's good faith effort, as described below.[3]

[edit] Good faith effort

U.S.A. federal and state governments are required to look for disabled, minority, and veteran
business enterprises when bidding public jobs. An employer's good faith effort is used as an
evaluation tool by the jurisdiction during the annual program review process to determine an
employer's level of commitment to the reduction goals of the CTR Law. Good faith effort law
varies from state to state and even within states depending on the awarding department of the
government. Most good faith effort requires advertising in state certified publications, usually a
trade and a focus publication.[citation needed]

[edit] Good faith in wikis

Public wikis, of which the collaborative encyclopedia Wikipedia—currently the largest and most
popular general reference work on the Internet[4][5][6]—is the most well-known, depend on
implicitly or explicitly assuming that its users are acting in good faith. Wikipedia's principle of
"Assuming Good Faith" (often abbreviated AGF), which has been a stated guideline since 2005,
[7]
has been described as "the first principle in the Wikipedia etiquette".[8] According to one study
of users' motives for contributing to Wikipedia, "while participants have both individualistic and
collaborative motives, collaborative (altruistic) motives dominate."[9
Intent in law is the planning and desire to perform an act, to fail to do so (i.e. an omission) or to
achieve a state of affairs in psychological view it may mean a different thing.

In criminal law, for a given actus reus ("guilty act"), the required element to prove intent consists
of showing mens rea (mental state, "guilty mind").

The requirements for the proof of intent in tort law are generally simpler than criminal law.
Knowledge of the repercussions of the act is often not necessary. It is sometimes only a matter of
showing that there was desire to perform an act.

Negligence (Lat. negligentia, from neglegere, to neglect, literally "not to pick up something") is
a legal concept in the common law legal systems mostly applied in tort cases to achieve
monetary compensation (damages) for physical and mental injuries (not accidents).

Negligence is a type of tort or delict (also known as a civil wrong). "Negligence" is not the same
as "carelessness", because someone might be exercising as much care as they are capable of, yet
still fall below the level of competence expected of them. It is the opposite of "diligence". It can
be generally defined as conduct that is culpable because it falls short of what a reasonable person
would do to protect another individual from foreseeable risks of harm. In the words of Lord
Blackburn,

"those who go personally or bring property where they know that they or it may come into
collision with the persons or property of others have by law a duty cast upon them to use
reasonable care and skill to avoid such a collision."[citation needed]

Through civil litigation, if an injured person proves that another person acted negligently to
cause his injury, he can recover damages to compensate for his harm. Proving a case for
negligence can potentially entitle the injured plaintiff to compensation for harm to their body,
property, mental well-being, financial status, or intimate relationships. However, because
negligence cases are very fact-specific, this general definition does not fully explain the concept
of when the law will require one person to compensate another for losses caused by accidental
injury. Further, the law of negligence at common law is only one aspect of the law of liability.
Although resulting damages must be proven in order to recover compensation in a negligence
action, the nature and extent of those damages are not the primary focus of negligence cases.

Negligence suits have historically been analyzed in stages, called elements, similar to the
analysis of crimes. An important concept related to elements is that if a plaintiff fails to prove
any one element of his claim, he loses on the entire tort claim. For example, let's assume that a
particular tort has five elements. Each element must be proven. If the plaintiff proves only four
of the five elements, the plaintiff has not succeeded in making out his claim.

Common law jurisdictions may differ slightly in the exact classification of the elements of
negligence, but the elements that must be established in every negligence case are: duty, breach,
causation, and damages. Each is defined and explained in greater detail in the paragraphs below.
Negligence can be conceived of as having just three elements - conduct, causation and damages.
More often, it is said to have four (duty, breach, causation and pecuniary damages) or five (duty,
breach, actual cause, proximate cause, and damages). Each would be correct, depending on how
much specificity someone is seeking. "The broad agreement on the conceptual model", writes
Professor Robertson of the University of Texas, "entails recognition that the five elements are
best defined with care and kept separate. But in practice", he goes on to warn, "several varieties
of confusion or conceptual mistakes have sometimes occurred."[1]

[edit] Duty of care

False imprisonment is a restraint of a person in a bounded area without justification or consent.

False imprisonment is a common-law felony and a tort. It applies to private as well as
governmental detention.[1] When it comes to public police, the proving of false imprisonment is
sufficient to obtain a writ of habeas corpus.

The elements of the tort are[2]:

 Intention to confine the other or a third person within boundaries fixed by the actor.
Recklessness will suffice
 Total restraint: the claimant must have no reasonable way of escaping - Bird v Jones
 The person confined must be aware at the time of confinement of the state of that confinement
or be harmed by it. - Parvi v. City of Kingston - N.Y. Ct. App. 1977 (41 N.Y.2d 553, 362 N.E.2d 960,
394 N.Y.S.2d 161)

[edit] Scenarios
The following are false imprisonment scenarios.

 The taking hostage of a bank's customers and employees by bank robbers.

 The detention of a customer by a business owner (e.g., hotel operator, apartment owner, credit
card company) for the failure to pay a bill. However, there is something known as the
"merchant's exception." A store operator may detain a suspected thief for a reasonable period
of time to conduct an investigation of the facts or situation.
 Certain situations arising from controversial legislation, like California's Assembly Bill 1421,
Laura's Law.

[edit] What false imprisonment is not

Not all detainments constitute false imprisonment, as to whether or not, it is based heavily on the
context of the situation.

[edit] Police Privilege

Under United States law, a police officer has the right to detain someone if he has probable cause
to believe a crime has been committed, and that the person is so involved, or if the officer has
reasonable suspicion that the person has been, is, or is about to be, engaged in criminal activity
based on specific and articulable facts and inferences.
[edit] Shopkeeper's Privilege

Many jurisdictions of the United States recognize the common law shopkeeper's privilege, under
which he is allowed to detain a suspected shoplifter on store property for a reasonable period of
time, with cause to believe that the person detained in fact committed, or attempted to commit
theft of store property. The shopkeeper's privilege, although recognized in most jurisdictions, is
not as broad a privilege as that of a police officer's, and therefore one must pay special attention
to the temporal element – that is, the shopkeeper may only detain the suspected criminal for a
relatively short period of time. This is similar to a general right in many jurisdictions of citizen's
arrest of suspected criminals by the public in limited circumstances.

[edit] Rationale

This privilege has been justified by the very practical need for some degree of protection for
shopkeepers in their dealings with suspected shoplifters. Absent such privilege, a shopkeeper
would be faced with the dilemma of either allowing suspects to leave without challenge or acting
upon his suspicion and risking a false arrest.

[edit] Requirement

Most US states recognize a privilege, usually limited to shopkeepers to detain temporarily for
investigation anyone whom they reasonably suspect of having tortiously taken their goods or is
attempting to. In America to properly exercise this privilege all the following conditions must be
satisfied:

1. Investigation on or near premises: The detention itself must be effected either on the store
premises or in the immediate vicinity thereof. A majority of courts state that the privilege to
detain is lost once they leave the store's property. US Courts do allow shopkeepers to chase
after the person to recapture their lost merchandise when they are in "fresh pursuit." The
investigation must be to determine ownership of the property, not to force a confession.
2. Reasonable suspicion: The shopkeeper must have reasonable grounds to suspect the particular
person detained.
3. Reasonable force only: reasonable, nondeadly force may be used to effect the detention. Use of
force is justified when the suspect is in immediate flight or violently resists detention. They may
handcuff a customer, lie them on the ground, sit them on the ground but must allow them to
look for a receipt. Credibility and contradictory testimony is for a fact finder, i.e. a jury or judge
to determine. Doing so is evidence to support damages of false imprisonment, and even gross
negligence if the conduct involved exposed the customer to an extreme risk of substantial harm,
which would allow an award of exemplary damages.
4. Reasonable period and manner of detention: The detention itself may be only for the period of
time necessary for reasonable investigation (usually very short) and must be conducted in a
reasonable manner. US courts have found that it may be only for 10 and never longer than 15
minutes. A detention can be accomplished by means which restrains the party so detained from
removing from one place to another as he may see proper.

 If one of the conditions is not satisfied the shopkeeper loses the privilege and can be liable for
false imprisonment, and any other torts they commit.
Note: Reasonable mistake protected: Where these conditions are established, the shopkeeper is
immune from liability for false arrest, battery, etc. - even though it turns out that the person
detained was innocent of any wrongdoing if they satisfied all the requirements.

The shopkeeper's privilege does not give immunity for defamation claims against the stores,
they are not entitled to a qualified privilege to publicly accuse the suspect of shoplifting.
Statements may be made privately during the course of investigation or they must be able to
show such statements were made without malice (that is a statement made with knowledge of its
falsity or with reckless disregard as to its truth). To avoid liability for defamation, the person
must be acting in good faith, the communication passes only to persons having an interest or
duty in the matter to which the communications relate.

[edit] Purpose

The privilege for the most part is to be able to return the stolen goods. The shopkeeper may not
force a confession. They do have a right to conduct a contemporaneous search of the person and
the objects within that person's control.

[edit] Claim of False Imprisonment

To prevail under a false imprisonment claim, a plaintiff must prove: (1) willful detention; (2)
without consent; and (3) without authority of law.[citation needed]

The test of liability is not based on the store patron's guilt or innocence, but instead on the
reasonableness of the store's action under the circumstances; the trier of fact usually determines
whether reasonable belief is established. A guilty shoplifter can still sue for false imprisonment
then if the detention was unreasonable.

[edit] Cases
In a Louisiana case in the United States, a pharmacist and his pharmacy were found liable by a
trial court for false imprisonment. They stalled for time and instructed a patient to wait while
simultaneously and without the patient's knowledge calling the police. The pharmacist was
suspicious of the patient's prescription, which her doctor had called in previously. When the
police arrived, they arrested the patient. While the patient was in prison, the police verified with
her doctor that the prescription was authentic and that it was meant for her. After this incident,
the patient sued the pharmacy and its employees. She received $20,000 damages. An appeals
court reversed the judgment, because it believed the elements of false imprisonment were not
met.[3][4]

In Enright v. Groves (1977) Colorado Court of Appeals, a woman sued a police officer for false
imprisonment after being arrested for not leashing her dog. The plaintiff was in her car when she
was approached by the officer, and when she was asked to produce her driver's license and failed
to do so, she was arrested. She won her claim, despite having lost the case of not leashing her
dog. The court reasoned that the officer did not have proper legal authority in arresting her,
because he arrested her for not producing her driver's license as opposed to the dog leash
violation.[citation needed]

In the United Kingdom, a case was brought to the High Court concerning the alleged unlawful
detention of hundreds of members of the public during the May Day riots of 2001 in London,
England. The police, using the tactic of "kettling", held a large crowd in Oxford Circus for
several hours without allowing anyone to leave. Lois Austin, a peaceful protestor who had not
broken the law, and Geoffrey Saxby, an innocent passer-by who was not involved in the
demonstration, claimed that they were falsely imprisoned by the London Metropolitan Police and
that their detention was in breach of the European Convention of Human Rights.[5] The pair lost
their court action in 2005,[6] when the High Court ruled that the police had not acted unlawfully.
An appeal against the ruling also failed in 2007.[7] A ruling by the House of Lords declared that
even in the case of an absolute right, the High Court was entitled to take the "purpose" of the
deprivation of liberty into account before deciding if human rights law applied at all.[

Intentional infliction of emotional distress (IIED) is a tort claim of recent origin for intentional
conduct that results in extreme emotional distress. Some courts and commentators have
substituted mental for emotional, but the tort is the same. Some jurisdictions refer to IIED as the
tort of outrage.

IIED was created in tort law to address a problem that would arise when applying the common
law form of assault. The common law tort of assault did not allow for liability when the threat
was not imminent. A common case would be a future threat of harm that would not constitute
common law assault, but would nevertheless cause emotional harm to the recipient. IIED was
created to guard against this kind of emotional abuse, thereby allowing a victim of emotional
distress to receive compensation in situations where he or she would otherwise be barred from
compensation under the common law form.

Originally at common law, a plaintiff could not recover for physical injury from fright alone
absent an impact even though the defendant was shown to have operated a railroad negligently
(shock without impact).[1] Even with intentional conduct, absent material damage, claims for
emotional harm were similarly barred. "Mental pain or anxiety, the law cannot value, and does
not pretend to redress, when the unlawful act causes that alone. Though where a material damage
occurs, and is connected with it, it is impossible a jury, in estimating it, should altogether
overlook the feelings of the party interested."[2] Courts had been reluctant to accept a tort for
emotional harm for fear of opening a "wide door" to frivolous claims.[3]

A change first occurred in the Irish courts which repudiated the English railroad decision.[4] The
idea that shock without impact would be a bar to recovery was first questioned at the Queen's
Bench in Pugh v. London etc. Railroad Co.[5] In the following year, the tort was first formally
recognised in the case of Wilkinson v. Downton [1897] 2 QB 57, although it was referred to as
"intentional infliction of mental shock". Citing Pugh and the Irish courts as precedent, the
Wilkinson court noted the willful nature of the act as a direct cause of the harm. Wilkinson was
the basis for the later decision in Dulieu v. White & Sons [1901] 2 KB 669.[6] English courts
regarded Dulieu as firmly establishing the possibility of recovery for emotional harm absent
physical impact.[7]
[edit] Elements
1. Defendant acted intentionally or recklessly; and
2. Defendant’s conduct was extreme and outrageous; and
3. Defendant’s act is the cause of the distress; and
4. Plaintiff suffers severe emotional distress as a result of defendant’s conduct.

[edit] Intentional or reckless act

The intent of the act need not be to bring about emotional distress. A reckless disregard for the
likelihood of causing emotional distress is sufficient. For example, if a defendant refused to
inform a plaintiff of the whereabouts of the plaintiff's child for several years, though that
defendant knew where the child was the entire time, the defendant could be held liable for IIED
even though the defendant had no intent to cause distress to the plaintiff.

[edit] Extreme and outrageous conduct

The conduct must be heinous and beyond the standards of civilized decency or utterly intolerable
in a civilized society. Whether the conduct is illegal does not determine whether it meets this
standard. IIED is also known as the tort of "outrage," due to a classic formulation of the
standard: the conduct must be such that it would cause a reasonable person to exclaim
"Outrageous!" in response.

Some general factors that will persuade that the conduct was extreme and outrageous: (1) there
was a pattern of conduct, not just an isolated incident; (2) the plaintiff was vulnerable and the
defendant knew it; (3) the defendant was in a position of power; (4) racial epithets were used;
and (5) the defendant owed the plaintiff a fiduciary duty.[8][9]

[edit] In public

Many jurisdictions, including Arkansas and New York, require the element that the incident
complained of must have taken place in public.[citation needed]

This is consistent with other Dignitary Torts, which all require some public space, publicity, or
publication.[citation needed]

[edit] Causation

The actions of the defendant must have actually caused the plaintiff's emotional distress.[9]

[edit] Plaintiff must actually suffer emotional distress

The emotional distress suffered by the plaintiffs must be "severe." This standard is quantified by
the intensity, duration, and any physical manifestations of the distress. A lack of productivity or
depression documented by professional psychiatrists is typically required here, although
acquaintances' testimony about a change in behavior could be persuasive.

An example of an act which might form the basis for a claim of intentional infliction of
emotional distress would be sending a letter to an individual falsely informing the person that a
close family member had been killed in an accident.

[edit] Pleading practices

In civil procedure systems (such as in the United States) that allow plaintiffs to plead multiple
alternative theories that may overlap or even contradict each other, a plaintiff will usually bring
an action for both intentional infliction of emotional distress and negligent infliction of
emotional distress (NIED). This is just in case the plaintiff later discovers that it is impossible to
prove at trial the necessary mens rea of intent; even then, the jury may still be able to rule for
them on the NIED claim.

There are some reported cases in which a plaintiff will bring only a NIED claim even though a
reasonable neutral observer could conclude that the defendant's behavior was probably
intentional. This is usually because the defendant may have some kind of insurance coverage
(like homeowners' insurance or automobile liability insurance). As a matter of public policy,
insurers are barred from covering intentional torts like IIED, but may be liable for NIED
committed by their policyholders, and therefore are targeted indirectly in this fashion as deep
pockets.

[edit] Hostility towards IIED claims

Courts in most jurisdictions take a decidedly unfavorable stance towards IIED claims. It is felt
that they are generally frivolous claims for non-quantifiable harm, and often are appended to
other more substantive claims merely as an afterthought. Meeting the element of conduct that is
so outrageous as to be beyond the bounds of civilized society is extremely difficult, and
consequently most claims fail.

The New York Court of Appeals, for example, has stated that "Indeed, of the intentional
infliction of emotional distress claims considered by this Court, every one has failed because the
alleged conduct was not sufficiently outrageous." Howell v. New York Post.[10]

[edit] First Amendment considerations

The U.S. Supreme Court case Hustler v. Falwell involved an IIED claim brought by the
evangelist Jerry Falwell against the publisher of Hustler Magazine for a parody ad that described
Falwell as having lost his virginity to his mother in an outhouse. The Court ruled that the First
Amendment protected such parodies of public figures from civil liability.[11]

Transferred intent (or transferred malice in English law) is a doctrine used in both criminal
law and tort law when the intention to harm one individual inadvertently causes a second person
to be hurt instead. Under the law, the individual causing the harm will be seen as having
"intended" the act by means of the "transferred intent" doctrine.

[edit] Discussion
In the criminal law, transferred intent is sometimes explained by stating that the "intent follows
the bullet." That is, the intent to kill person A with a bullet will apply even when the bullet kills
the unintended victim, person B (see mens rea). It applies when the second "crime" is of the
same basic nature as the first. Thus, if the bullet strikes an unintended victim, both offences
represent personal violence. But, if the bullet misses and breaks a valuable Ming vase, damage to
property is of a different class and the intent does not transfer.

This doctrine is not without controversy. The House of Lords in AG's Reference (No. 3 of 1994)
(1997) 3 AER 936 reversed the Court of Appeal decision (reported at (1996) 2 WLR 412),
holding that the doctrine of transferred malice could not apply to convict an accused of murder in
English law when the defendant had stabbed a pregnant woman in the face, back and abdomen.
Some days after she was released from hospital in an apparently stable condition, she went into
labour and gave birth to a premature child, who died four months later. The child had been
wounded in the original attack but the more substantial cause of death was her prematurity. It
was argued that the fetus was part of the mother so that any intention to cause grievous bodily
harm (GBH) to the mother was also an intent aimed at the fetus. Lord Mustill criticised the
doctrine as having no sound intellectual basis, saying that it was related to the original concept of
malice, i.e. that a wrongful act displayed a malevolence which could be attached to any adverse
consequence, and this had long been out of date. Nevertheless, it would sometimes provide a
justification to convict when that was a common sense outcome and so could sensibly be
retained. The present case was not a simple "transfer" from mother to uterine child, but sought to
create an intention to cause injury to the child after birth. This would be a double transfer: first
from the mother to the fetus, and then from the fetus to the child when it was born. Then one
would have to apply the fiction which converts an intention to commit GBH into the mens rea of
murder. That was too much. But the accused could be convicted of manslaughter in English law.

It is interesting to compare the principle underlying the Unborn Victims of Violence Act 2004 in
the United States which applies only to offenses over which the U.S. government has
jurisdiction, namely crimes committed on Federal properties, against certain Federal officials and
employees, and by members of the military, but treats the fetus as a separate person for the
purposes of all levels of assault including murder and attempted murder: "Sec. 1841. Protection
of unborn children

(a)(1) Whoever engages in conduct that violates any of the provisions of law listed in
subsection (b) and thereby causes the death of, or bodily injury (as defined in section
1365) to, a child, who is in utero at the time the conduct takes place, is guilty of a
separate offense under this section.
(2)(A) Except as otherwise provided in this paragraph, the punishment for that separate
offense is the same as the punishment provided under Federal law for that conduct had
that injury or death occurred to the unborn child's mother.
2(B) An offense under this section does not require proof that--
 (i) the person engaging in the conduct had knowledge or should have had knowledge that
the victim of the underlying offense was pregnant; or
(ii) the defendant intended to cause the death of, or bodily injury to, the unborn child.
2(C) If the person engaging in the conduct thereby intentionally kills or attempts to kill
the unborn child, that person shall instead of being punished under subparagraph (A), be
punished as provided under sections 1111, 1112, and 1113 of this title for intentionally
killing or attempting to kill a human being."

In tort law, there are generally five areas in which transferred intent is applicable: battery,
assault, false imprisonment, trespass to land, and trespass to chattels. Generally, any intent to
cause any one of these five torts which results in the completion of any of the five tortious acts
will be considered an intentional act, even if the actual target of the tort is one other than the
intended target of the original tort.

See cases of Carnes v. Thompson, (1932) Supreme Court of Missouri. 48 S.W. 2d 903 and
Bunyan v. Jordan (1937), 57 C.L.R. 1, 37 S.R.N.S.W. 119 for examples.

Trespass to the person

There are three types of trespass, the first of which is trespass to the person. Whether intent is a
necessary element of trespass to the person varies by jurisdiction. Under English decision,
Letang v Cooper,[14] intent is required to sustain a trespass to the person cause of action; in the
absence of intent, negligence is the appropriate tort. In other jurisdictions, gross negligence is
sufficient to sustain a trespass to the person, such as when a defendant negligently operates an
automobile and strikes the plaintiff with great force. "Intent is to be presumed from the act
itself."[15] Generally, trespass to the person consists of three torts: assault, battery, and false
imprisonment.

[edit] Assault

Main article: Assault (tort)

Under the statutes of various common law jurisdictions, assault is both a crime and a tort.
Generally, a person commits criminal assault if he purposefully, knowingly, or recklessly inflicts
bodily injury upon another; if he negligently inflicts bodily injury upon another by means of
dangerous weapon; or if through physical menace, he places another in fear of imminent serious
bodily injury.[16] A person commits tortious assault when he engages in "any act of such a nature
as to excite an apprehension of battery [bodily injury]."[2] In some jurisdictions, there is no
requirement that actual physical violence result—simply the "threat of unwanted touching of the
victim" suffices to sustain an assault claim.[17] Consequently, in R v Constanza, [18] the court
found a stalkers threats could constitute assault. Similarly, silence, given certain conditions, may
constitute an assault as well.[19] However, in other jurisdictions, simple threats are insufficient;
they must be accompanied by an action or condition to trigger a cause of action.[20]

Incongruity of a defendant's language and action, or of a plaintiff's perception and reality may
vitiate an assault claim. In Tuberville v Savage,[21] the defendant reached for his sword and told
the plaintiff that "[i]f it were not assize-time, I would not take such language from you." In it's
American counterpart, Commonwealth v. Eyre,[22] the defendant shouted "[i]f it were not for your
gray hairs, I would tear your heart out." In both cases, the courts held that despite a threatening
gesture, the plaintiffs were not in immediate danger. The actions must give the plaintiff a
reasonable expectation that the defendant is going to use violence; a fist raised before the
plaintiff may suffice; the same fist raised behind the window of a police cruiser will not.[23]

[edit] Battery

Main article: Battery (tort)

Battery is "any intentional and unpermitted contact with the plaintiff's person or anything
attached to it and practically identified with it[.]" The elements of battery common law varies by
jurisdiction. In the United States, the American Law Institute's Restatement of Torts provides a
general rule to determine liability for battery:[24]

An act which, directly or indirectly, is the legal cause of a harmful contact with another's person makes
the actor liable to the other, if:

(a) the act is done with the intention of bringing about a harmful or offensive contact or an
apprehension thereof to the other or a third person, and

(b) contact is not consented to by the other or the other's consent thereto is procured by fraud or
duress, and

(c) the contact is not otherwise privileged.

Battery torts under Commonwealth precedent are subjected to a four point test to determine
liability:[25]

1. Directness. Is the sequence of events connecting initial conduct and the harmful contact an
unbroken series?
2. Intentional Act. Was the harmful contact the conscious object of the defendant? Did the
defendant intend to cause the resulting harm? Though the necessity of intent remains an
integral part of Commonwealth battery,[26] some Commonwealth jurisdictions have moved
toward the American jurisprudence of "substantial certainty." [27] If a reasonable person in the
defendant's position would apprehend the substantial certainty of the consequences of his
actions, whether the defendant intended to inflict the injuries is immaterial. [27]
3. Bodily Contact. Was there active (as opposed to passive) contact between the bodies of the
plaintiff and the defendant?
4. Consent. Did the plaintiff consent to the harmful contact? The onus is on the defendant to
establish sufficient and effective consent. [28][29]

[edit] False imprisonment

Main article: False imprisonment

False imprisonment is defined as "unlaw[ful] obstruct[ion] or depriv[ation] of freedom from
restraint of movement."[3] In some jurisdictions, false imprisonment is a tort of strict liability: no
intention on the behalf of the defendant is needed, but others require an intent to cause the
confinement.[30] Physical force, however, is not a necessary element,[31] and confinement needn't
be lengthy;[32][33] the restraint must be complete, [34] though the defendant needn't resist.[35]

Conveniently, the American Law Institute's Restatement (Second) of Torts distills false
imprisonment liability analysis into a four-prong test:

1. The defendant intends to confine the plaintiff. (This is not necessary in Commonwealth
jurisdictions.)
2. The plaintiff is conscious of the confinement. (Prosser rejects this requirement.) [36]
3. The plaintiff does not consent to the confinement.
4. The confinement was not otherwise privileged.

[edit] Defenses

[edit] Child correction

Depending on the jurisdiction, corporal punishment of children by parents or instructors may be

a defense to trespass to the person, so long as the punishment was "reasonably necessary under
the circumstances in order to discipline a child who has misbehaved" and the defendant
"exercise[d] prudence and restraint."[37] Unreasonable punishments, such as violently grabbing a
student's arm and hair, have no defense.[38] Many jurisdictions, however, limit corporal
punishment to parents, and a few, such as New Zealand, have criminalized the practice.[39]

[edit] Consent

Denning, LJ: "[I]n an ordinary fight with fists there is no cause of action to either of [the combatants] for
any injury suffered."

Perhaps the most common defense for the torts of trespass to the person is that of volenti non fit
injuria, literally, "to a willing person, no injury is done," but shortened to "consensual privilege"
or "consent." If a plaintiff participates in a sporting activity in which physical contact is ordinary
conduct, such as rugby, they are considered to have consented. This is not the case if the physical
contact went beyond what could be expected, such as the use of hand gun during a fistfight, as in
Andrepont v. Naquin,[40] or where the injuries were suffered not from the plaintiff's participation
in the sport but inadequate safety measures taken, as in Watson v British Boxing Board of
Control Ltd.[41] Where the plaintiff and defendant voluntarily agree to participate in a fight, some
jurisdictions will deny relief in civil action, so long as the injuries caused are proportionate: "in
an ordinary fight with fists there is no cause of action to either of [the combatants] for any injury
suffered."[42] Other jurisdictions refuse to recognize consent as a defense to mutual combat and
instead provide relief under the doctrine of comparative negligence.[43][44][45]
Medical care gives rise to many claims of trespass to the person. A physician, "treating a
mentally competent adult under non-emergency circumstances, cannot properly undertake to
perform surgery or administer other therapy without the prior consent of his patient."[46] Should
he do so, he commits a trespass to the person and is liable to damages. However, if the plaintiff is
informed by a doctor of the broad risks of a medical procedure, there will be no claim under
trespass against the person for resulting harm caused; the plaintiff's agreement constitutes
"informed consent."[47] In those cases where the patient does not possess sufficient mental
capacity to consent, doctors must exercise extreme caution. In F v West Berkshire Health
Authority,[48] the House of Lords instructed British physicians that, in order to justify operating
upon such an individual, there " (1) must...be a necessity to act when it is not practicable to
communicate with the assisted person ... [and] (2) the action taken must be such as a reasonable
person would in all the circumstances take, acting in the best interests of the assisted person."

[edit] Self-defense/Defense of Others/Defense of Property

Self-defense, or non-consensual privilege, is a valid defense to trespasses against the person,

assuming that it constituted the use of "reasonable force which they honestly and reasonably
believe is necessary to protect themselves or someone else, or property."[49] The force used must
be proportionate to the threat, as ruled in Cockroft v Smith.[50]

[edit] Trespass to Chattels

Main article: Trespass to chattels

Trespass to chattels, also known as trespass to goods or trespass to personal property, is defined
as "an intentional interference with the possession of personal property...proximately caus[ing]
injury."[51] While originally a remedy for the asportation of personal property, the tort grew to
incorporate any interference with the personal property of another.[52] In some jurisdictions, such
as the United Kingdom, trespass to chattels has been codified to clearly define the scope of the
remedy;[53][54] in most jurisdictions, trespass to chattel remains a purely common law remedy, the
scope of which varies by jurisdiction.

Generally, trespass to chattels possesses three elements:

1. Lack of consent. The interference with the property must be non-consensual. A claim does not
lie if, in acquiring the property, the purchaser consents contractually to certain access by the
seller. "[A]ny use exceeding the consent" authorized by the contract, should it cause harm, gives
rise to a cause for action.[55]
2. Actual harm. The interference with the property must result in actual harm. [7] The threshold for
actual harm varies by jurisdiction. In California, for instance, an electronic message may
constitute a trespass if the message interferes with the functioning of the computer hardware,
but the plaintiff must prove that this interference caused actual hardware damage or actual
impaired functioning.[56]
3. Intentionality. The interference must be intentional. What constitutes intention varies by
jurisdiction, however, the Restatement (Second) of Torts indicates that "intention is present
when an act is done for the purpose of using or otherwise intermeddling with a chattel or with
 knowledge that such an intermeddling will, to a substantial certainty, result from the act" and
continues, "[i]t is not necessary that the actor should know or have reason to know that such
intermeddling is a violation of the possessory rights of another." [57]

Remedies for trespass to chattel include damages, liability for conversion, and injunction,
depending on the nature of the interference.[58]

[edit] Traditional Applications

Trespass to chattels typically applies to tangible property and allows owners of such property to
seek relief when a third party intentionally interferes or intermeddles in the owner's possession of
his personal property.[59] "Interference" is often interpreted as the "taking" or "destroying" of
goods, but can be as minor as "touching" or "moving" them in the right circumstances. In Kirk v
Gregory,[60] the defendant moved jewelry from one room to another, where it was stolen. The
deceased owner's executor successfully sued her for trespass to chattel. Furthermore, personal
property, as traditionally construed, includes living objects, except where property interests are
restricted by law. Thus animals are personal property,[61] but organs are not.[62]

[edit] Modern Applications

In Intel v. Hamidi the Supreme Court of California ruled that a plaintiff in a suit for electronic trespass to
chattels must establish actual damage.

In recent years, trespass to chattels has been expanded in the United States to combat the
proliferation of unsolicited bulk email as well as virtual property interests in online worlds. In the
late 1990s, American courts enlarged trespass to chattels, first to include the unauthorized use of
long distance telephone lines,[63] and later to include unsolicited bulk email.[7] In 1998, a federal
court in Virginia held that the owner of a marketing company committed trespass to chattels
against an Internet service provider's computer network by sending 60 million unauthorized
email advertisements after being notified that the spam was unauthorized.[9] In America Online,
Inc. v. LCGM, Inc.,[64] AOL successfully sued a pornographic website for spamming AOL
customers and forging the AOL domain name to trick customers. By the new millennium,
trespass to chattel expanded beyond bulk email. In eBay v. Bidder's Edge,[65] a California court
ruled that Bidder's Edge's use of a web crawler to cull auction information from eBay's website
constituted trespass to chattel and further, that a plaintiff in such a suit need not prove that the
interference was substantial.[66] A number of similar cases followed until, in Intel v. Hamidi,[67]
the Supreme Court of California held that a plaintiff must demonstrate either actual interference
with the physical functionality of the computer system or the likelihood that such interference
would occur in the future. The Hamidi decision quickly found acceptance at both the federal and
state level.

To date, no United States court has identified property rights in items acquired in virtual worlds;
heretofore, virtual world providers have relied on end-user license agreements to govern user
behavior.[68] Nevertheless, as virtual worlds grow, incidents of property interference, a form of
"griefing", may make trespass to chattel an attractive remedy for deleted, stolen, or corrupted
virtual property.[58]
[edit] Trespass to land
Main article: Trespass to land

Trespass to land involves the "wrongful interference with one's possessory rights in [real]
property."[12] It is not necessary to prove that harm was suffered to bring a claim, and is instead
actionable per se. While most trespasses to land are intentional, British courts have held liability
holds for trespass committed negligently.[69] Similarly, some American courts will only find
liability for unintentional intrusions where such intrusions arise under circumstances evincing
negligence or involve a highly dangerous activity.[13] Exceptions exist for entering land adjoining
a road unintentionally (such as in a car accident), as in River Wear Commissioners v Adamson.[70]

[edit] Subsoil and Airspace

Aside from the surface, land includes the subsoil, airspace and anything permanently attached to
the land, such as houses.

[edit] Subsoil

William Blackstone's Commentaries on the Laws of England articulated the common law
principle cuius est solum eius est usque ad coelum et ad inferos, translating from Latin as "for
whoever owns the soil, it is theirs up to Heaven and down to Hell."[71] In modern times, courts
have limited the right of absolute dominion over the subsurface. For instance, drilling a
directional well that bottoms out beneath another's property to access oil and gas reserves is
trespass,[72] but a subsurface invasion by hydraulic fracturing is not.[73] Where mineral rights are
severed from surface ownership, it is trespass to use another's surface to assist in mining the
minerals beneath that individual's property,[74] but, where an emergency responder accesses the
subsurface following a blowout and fire, no trespass lies.[75] Even the possible subsurface
migration of toxic waste stored underground is not trespass,[76] except where the plaintiff can
demonstrate that the actions "actually interfere with the [owner's] reasonable and foreseeable use
of the subsurface[,]"[77] or, in some jurisdictions, that the subsurface trespasser knows with
"substantial certainty" that the toxic liquids will migrate to the neighboring land.[78]

[edit] Airspace

Douglas, J: "[E]very transcontinental flight would subject the operator to countless trespass suits."

The rights of landowners over airspace are quite limited; in United States v. Causby et ux.,[79]
Justice Douglas reasoned that, should it find in the plaintiff/respondent's favor and accept the
"ancient doctrine that at common law ownership of land extend[s] to the periphery of the
universe — Cujus est solum ejus est usque ad coelum[,]" "every transcontinental flight would
subject the operator to countless trespass suits." Additionally, the Air Commerce Act of 1926
gave the United States government "exclusive sovereignty of airspace of the United States."[80]
Thirty one years later, in Bernstein v Skyviews & General Ltd,[81] an English court reached a
similar conclusion, finding an action for trespass failed because the violation of airspace took
place several hundred meters above the land: "[i]f the latin [sic] maxim were applied literally it
would lead to the absurdity of trespass being committed every time a satellite passed over a
suburban garden."[82] Parliament subsequently reinforced Berstein in the Civil Aviation Act 1982,
providing that it is not trespass if the aircraft is flying at a reasonable height.[83] Objects hovering
above a person's property, though attached to the ground, may constitute trespass. An
overhanging crane can constitute trespass, as in Woolerton v Costain,[84] as can an 8 foot
advertising sign, as in Kelsen v Imperial Tobacco Co.[85] However, should the overhang fail to
generate actual harm, the court may deny a plaintiff equitable relief despite the technical
trespass.[86]

[edit] Interference

The main element of the tort is "interference". This must be both direct and physical, with
indirect interference instead being covered by negligence or nuisance.[87] "Interference" covers
any physical entry to land, as well as the abuse of a right of entry, when a person who has the
right to enter the land does something not covered by the permission. If the person has the right
to enter the land but remains after this right expires, this is also trespass. It is also a trespass to
throw anything on the land.[88] For the purposes of trespass, the person who owns the land on
which a road rests is treated as the owner; it is not, however, a trespass to use that road if the
road is constructed with a public use easement, or if, by owner acquiescence or through adverse
use, the road has undergone a common law dedication to the public.[89] In Hickman v Maisey[90]
and Adams v. Rivers,[91], the courts established that any use of a road that went beyond using it
for its normal purpose could constitute a trespass: "[a]lthough a land owner's property rights may
be [s]ubject to the right of mere passage, the owner of the soil is still absolute master."[92] British
courts have broadened the rights encompassed by public easements in recent years. In DPP v
Jones.[93] the court ruled that "the public highway is a public place which the public may enjoy
for any reasonable purpose, providing that the activity in question does not amount to a public or
private nuisance and does not obstruct the highway by reasonably impeding the primary right of
the public to pass and repass; within these qualifications there is a public right of peaceful
assembly on the highway."[94] The principles established in Adams remain valid in American law.
[92][95]

[edit] Defenses

There are several defenses to trespass to land; license, justification by law, necessity and jus
tertii. License is express or implied permission, given by the possessor of land, to be on that
land. These licenses are irrevocable unless there is a flaw in the agreement or it is given by a
contract. Once revoked, a license-holder becomes a trespasser if they remain on the land.
Justification by law refers to those situations in which there is statutory authority permitting a
person to go onto land, such as the England and Wales' Police and Criminal Evidence Act 1984,
which allows the police to enter land for the purposes of carrying out an arrest, or the California
state constitution, which permits protests on grocery stores and strip malls, despite their
presenting a general nuisance to store owners and patrons.[96] Jus tertii is where the defendant can
prove that the land is not possessed by the plaintiff, but by a third party, as in Doe d Carter v
Barnard.[97] This defense is unavailable if the plaintiff is a tenant and the defendant a landlord
who had no right to give the plaintiff his lease (e.g. an illegal apartment rental, an unauthorized
sublet, etc.).[98] Necessity is the situation in which it is vital to commit the trespass; in Esso
Petroleum Co v Southport Corporation,[99] the captain of a ship committed trespass by allowing
oil to flood a shoreline. This was necessary to protect his ship and crew, however, and the
defense of necessity was accepted.[100] Necessity does not, however, permit a defendant to enter
another's property when alternative, though less attractive, courses of action exist.[101]

Conversion is a common law tort. A conversion is a voluntary act by one person inconsistent
with the ownership rights of another.[1] It is a tort of strict liability.[2] Its criminal counterpart is
theft.

Examples are seen in cases where trees are cut down and the lumber hauled from the land by
someone not having clear ownership; or removing furniture belonging to another from a
cohabited dwelling, placing it in storage and not telling the owner of the whereabouts. In
medieval times, a conversion would occur when bolts of cloth were bailed for safe keeping, and
the bailee or a third party took them and made clothes for their own use or for sale. (See below)

Many questions concerning joint ownership in enterprises such as a partnership belong in equity,
and do not rise to the level of a conversion. Traditionally, a conversion occurs when some chattel
is lost, then found by another who appropriates it to his own use without legal authority to do so.
It has also applied in cases where chattels were bailed for safe keeping, then misused or
misappropriated by the bailee or a third party.

Conversion, as a purely civil wrong, is distinguishable from both theft and unjust enrichment.
Theft is obviously an act inconsistent with another's rights, and theft will also be conversion. But
not all conversions are thefts because conversion requires no element of dishonesty. Conversion
is also different from unjust enrichment. If one claims an unjust enrichment, the person who has
another's property may always raise a change of position defence, to say they have unwittingly
used up the assets they were transferred. For conversion, there always must be an element of
voluntarily dealing with another's property, inconsistently with their rights.

The elements of a conversion cause of action are:

 the plaintiff has clear legal ownership or right to possession of the property at the time of
the conversion;
 the defendant's conversion by a wrongful act or disposition of plaintiff's property rights;
 there are damages resulting from the conversion.[3][4][5][6]

In another formulation, it has been stated that one claiming conversion must show a tortious
conversion of the chattel, a right to property in it, and a right to immediate possession which is
absolute, unconditional, and not dependent upon the performance of some act.[6][7]

[edit] History of conversion

Main articles: Vindicatio, Trover, and Detinue
Buildings, silos and machinery attached to them can be converted if they are removed from the
land.

Conversion has been described as a fascinating tort,[8] albeit one which has largely eluded the
attention of legal writers. The literature frequently laps over into that of trover.[9][10][11][12][13][14][15][16]
Other sources define conversion as a distinct act of dominion wrongfully exerted over another's
personal property in denial of or inconsistent with his title or rights therein, or in derogation,
exclusion, or defiance of such title or rights, without the owner's consent and without lawful
justification.[17][18][19][20]

A conversion occurs when a person does such acts in reference to the personal property of
another as amount, in view of the law, to his appropriating the property for himself.[21] The action
probably developed because there was no equivalent form of action in English law to the Roman
law rei vindicatio. This was an action in protection of one's property, whereby a claimant could
simply allege in court "that's mine!".[22] Early cases of conversion are to be found in 1479, where
reference to an even earlier action on the case is made when the defendant "converted" the goods
by changing their character, making clothes out of gold cloth.[23][24]

Otherwise, conversion had its origin in the common law action in trover, as a branch of action on
the case. The earliest cases are most likely lost. These probably involved cases when the finder
of lost goods did not return them to the rightful owner, but used them himself or disposed of
them to someone else.[8] It became necessary to invent a new writ which covered the gap between
action in trespass which lay for the wrongful taking of a chattel, and detinue which lay for its
wrongful detention.[25][9][10]

The claim in conversion had become standardized by 1554 in the case of Lord Mounteagle v
Countess of Worcester (1554) 2 Dyer 121a, 73 ER 265. The plaintiff was in possession of certain
goods, he casually lost them, the defendant found the goods and did not return them, but instead
"converted them to his own use."[26]

The distinction of trover from conversion is of interest. Trover resolved the old procedural
problem of wager of law which had developed as a form of licensed perjury, which made detinue
unattractive to an honest plaintiff suing a dishonest defendant. Wager at law allowed testimony
from many witnesses, who might have nothing to do with the actual litigation. In this sense, it
was not much different from champerty and maintenance. Because trover sidestepped these old
problems, there was an effort to expand it into many different forms. The legal device to
accomplish this at first was to treat the allegation of losing the goods and then finding them as a
fiction.[26] This method was seen in several cases in the 1600s.[27][28][29][30] As a technical factor, the
defendant was not permitted to deny losing and finding, so the only issues to be litigated were
those of the plaintiff's right to possession and the conversion as an existent fact. With losing and
finding no longer essential, trover became the standard remedy for any form of interference with
a chattel. It entirely replaced detinue, which fell into compete disuse. It replaced trespass to
chattels to such an extent that the former was rarely seen.[26] In 1756, Lord Mansfield stated in
Cooper v Chitty (1756) 1 Burr 20, 31; 97 ER 166, 172:
[W]henever trespass for taking goods will lie, that is, where they are taken wrongfully, trover
will lie.

Similar results are seen in other cases from the time.[31] The two actions were regarded as
alternative remedies for the same wrong. Often, the plaintiff had a choice of action, although
there were differences between the choices. Trover must involve a wrongful detention of goods
which had not been wrongfully taken, while trespass would not.[32] The theory of trespass was
that the plaintiff remained the owner of the chattel, with his possession only interrupted or
interfered with, so that when it was tendered back to the plaintiff, he must accept it. The damages
must be limited to the loss of use, which could be considerably less than its total value. Trover,
which involved lost goods or those placed in a bailment, necessitated full replacement damages.
Once the damages were paid, the ownership of the chattel passed to the defendant in trover.

The modern law of conversion crystallised after the case of Fouldes v Willoughby (1841) 8 M &
W 540, 151 ER 1153. Two horses owned by the plaintiff were placed on a river ferry. The horses
were put back on the shore by the defendant ferryman. The plaintiff/owner of the horses
remained on the ferry and subsequently lost the horses. It was held that this was a trespass, but
not a conversion, since there was no interference with the plaintiff's "general right of
domination" over the horses.

[edit] Property subject to conversion

In order for a conversion to occur, it used to need to be lost then found by some other person
than the owner. In the process, it was a possible that the property could be converted.[33] Chattels
converted have included a dog,[34] money[35] and tax receipts.[36] Land could not be the subject of
an action in trover, since it could not be lost, then found and converted. The same was true for
sand and gravel, timber, crops and fixtures, so long as they were considered as a part of the land.
No action in trover could be had. Once there was severance from the land, these became personal
property, and trover could be entertained because of removal from the land.[37][38][39][40][41][42]

Assumption of risk is a defense in the law of torts, which bars a plaintiff from recovery against
a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and
knowingly assumed the risks at issue inherent to the dangerous activity in which he was
participating at the time of his injury.

What is usually meant by assumption of risk is more precisely termed primary assumption of
risk. It occurs when the plaintiff has either expressly or impliedly relieved the defendant of the
duty to mitigate or relieve the risk causing the injury from which the cause of action arises. It
operates as a complete bar to liability on the theory that upon assumption of the risk, there is no
longer a duty of care running from the defendant to the plaintiff; without a duty owed by the
defendant, there can be no negligence on his part.[1] However, primary assumption of risk is not a
blanket exemption from liability for the operators of a dangerous activity. The specific risk
causing the injury must have been known to, and appreciated by, the plaintiff in order for
primary assumption of risk to apply. Also, assumption of risk does not absolve a defendant of
liability for reckless conduct.[2]
This defense is commonly used in cases of injuries occurring during risky recreational activities,
such as skiing, paragliding, and scuba diving.

Secondary assumption of risk is a rather different doctrine akin in some respects to comparative
negligence. The difference was explained by the Supreme Court of California as follows:

In cases involving ‘primary assumption of risk’—where, by virtue of the nature of the

“ activity and the parties' relationship to the activity, the defendant owes no legal duty to
protect the plaintiff from the particular risk of harm that caused the injury—the doctrine
continues to operate as a complete bar to the plaintiff's recovery. In cases involving
‘secondary assumption of risk’—where the defendant does owe a duty of care to the
plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant's
breach of duty—the doctrine is merged into the comparative fault scheme, and the trier of
fact, in apportioning the loss resulting from the injury, may consider the relative
responsibility of the parties.[3]

Comparative negligence, or non-absolute contributory negligence outside of the United States,

is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a
negligence-based claim based upon the degree to which the plaintiff's own negligence
contributed to cause the injury. When the defense is asserted, the fact-finder, usually a jury, must
decide the degree to which the plaintiff's negligence versus the combined negligence of all other
relevant actors contributed to cause the plaintiff's damages. It is a modification of the doctrine of
contributory negligence which disallows any recovery by a plaintiff whose negligence
contributed, even minimally, to causing the damages.

Explanation
Prior to the late 1960s, however, only a few states had adopted this system. When comparative
negligence was adopted, three main versions were used. The first was called "pure" comparative
negligence. A plaintiff who was, say, 90% to blame for an accident could recover 10% of his
losses. (Of course, if the defendant suffered injuries in such a case, he/she could counter claim
and recover 90% of his/her losses from the other party.)

The second and third versions are lumped together in what is called "modified" comparative
negligence. One variant allows plaintiffs to recover only if the plaintiff's negligence is "not
greater than" the defendant's (viz., the plaintiff's negligence must not be more than 50% of the
combined negligence of both parties).

The other variant allows plaintiffs to recover only if the plaintiff's negligence is "not as great as"
the defendant's (viz., the plaintiff's negligence must be less than 50% of the combined
negligence). The apparently minor difference between the two modified forms of comparative
negligence are thought by lawyers handling such cases to be significant in that juries who
ordinarily assign degrees of fault are much less willing to award damages to a plaintiff who is
equally at fault than to one who is less at fault than the defendant.
[edit] Contributory negligence doctrine
Some states, though, still use the contributory negligence doctrine when evaluating negligence in
a tort. Alabama, for instance, has not adopted this. In Williams v. Delta Int'l Machinery Corp.,
619 So.2d 1330, 1333 (Ala. 1993), the court said: "[after] exhaustive study and these lengthy
deliberations, the majority of this Court, for various reasons, has decided that we should not
abandon the doctrine of contributory negligence, which has been the law in Alabama for
approximately 162 years." Maryland, North Carolina, Virginia, and Washington, D.C. continue
to use contributory negligence as well.

Neither comparative negligence nor contributory negligence should be confused with joint and
several liability which generally holds each of two or more culpable defendants responsible for
all the damages sustained by a plaintiff. For practical reasons, a plaintiff who faces the defense of
comparative negligence may wish to join all potentially culpable defendants in his action
because the plaintiff's negligence will be balanced against the combined negligence of all
defendants in apportioning damages, even though the plaintiff may not be able actually to get
compensation from some of them--for example where an insolvent individual and a major
corporation were both negligent in causing plaintiff's harm.

Contributory negligence in common-law jurisdictions is defense to a claim based on negligence, an

action in tort. It applies to cases where a plaintiff has, through his own negligence, contributed to the
harm he suffered. For example, a pedestrian crosses a road negligently and is hit by a driver who was
driving negligently. Contributory negligence is often regarded as unfair because under the doctrine a
victim who is at fault to any degree, including only 1% at fault, will be denied compensation entirely

Burden of proof
In some jurisdictions, the defendant has to prove the negligence of a plaintiff or claimant. In
others, the burden is on a plaintiff to disprove his own negligence. The tortfeasor may still be
held liable if he had the last clear chance to prevent the injury (the last clear chance doctrine).

[edit] Availability
Contributory negligence is generally a defense to a tort of negligence. The defense is not
available, if the tortfeasor's conduct amounts to malicious or intentional wrongdoing, rather than
to ordinary negligence. In England and Wales, it is not a defense to the tort of conversion or
trespass to chattels. In the U.S., it is not a defense to any intentional tort.

[edit] Culture
"Contributory Negligence" was the title of a circa 1982 poem by Attila the Stockbroker, a
performance poet in the U.K. The poem criticized a court decision where a rapist escaped heavy
punishment and was ordered to pay only a fine on the ground that the women in some way
provoked or contributed to the rape.

[edit] History
The doctrine of contributory negligence was dominant in U.S. jurisprudence in the 19th and 20th
century.[1] The English case Butterfield v. Forrester is generally recognized as the first
appearance, although ironically in this case the judge found the victim to be the sole proximate
cause of the injury.[1]

Consent can be either expressed or implied. For example, participation in a contact sport usually
implies consent to contact by other participants, when contact is permitted by the rules of the
sport. Express consent exists when verbal or written contractual agreement occurs.

If a person signs a document stating that he or she is aware of the hazards of an activity, and that
individual is then injured during that activity, the express consent given in advance may excuse
another person who caused an injury to that person.

In English law, the principle of volenti non fit injuria applies not only to participants in sport, but
also to spectators and to any others who willingly engage in activities where there is a risk of
injury. Consent has also been used as a defense in cases involving accidental deaths, which occur
during sexual bondage. Time (May 23, 1988) referred to this latter example, as the "rough-sex
defense" but it is not effective in English law when serious injury or death results.

As a term of jurisprudence prior provision of consent signifies a possible defence (an excuse or
justification) against civil or criminal liability. Defendants who use this defense are arguing that
they should not be held liable for a tort or a crime, since the actions in question occurred with the
plaintiff or "victim's" prior consent and permission.[citation needed]

For rape that involves the criminal law, see consent (criminal).

[edit] Medicine
See also: Informed consent

The question of consent is important in medical law. For example, a surgeon may be liable in
trespass (battery) if they do not obtain consent for a procedure. There are exemptions, such as
when the patient is unable to give consent.

Also, a surgeon must explain the significant risks of a procedure (those that might change the
patient's mind about whether or not to have it) before the patient can give binding consent. This
was explored in Australia in Rogers v. Whitaker (1992) 175 CLR 479. If a surgeon does not
explain a material risk that subsequently eventuates, then that is considered negligent.[3] These
material risks include the loss of chance of a better result if a more experienced surgeon had
performed the procedure[4].
Necessity: In tort common law, the defense of necessity gives the State or an individual a privilege to
take or use the property of another. A defendant typically invokes the defense of necessity only against
the intentional torts of trespass to chattels, trespass to land, or conversion. The Latin phrase from
common law is necessitas inducit privilegium quod jura privata, "Necessity induces a privilege because of
a private right." A court will grant this privilege to a trespasser when the risk of harm to an individual or
society is apparently and reasonably greater than the harm to the property. Unlike the privilege of self-
defense, those who are harmed by individuals invoking the necessity privilege are usually free from any
wrongdoing. Generally, an individual invoking this privilege is obligated to pay any actual damages
caused in the use of the property but not punitive or nominal damages.

Private Necessity is the use of another's property for private reasons. Well established doctrines
in common law prevent a property owner from using force against an individual in a situation
where the privilege of necessity would apply. While an individual may have a private necessity
to use the land or property of another, that individual must compensate the owner for any
damages caused. For example:

A strong wind blows a parachuting skydiver off course from his intended landing zone.
He must land in a nearby farmer's field. The skydiver tramples on the farmer's prized
roses, and the farmer hits the skydiver on the head with a pitchfork. The skydiver can
invoke the privilege of private necessity for trespassing in the farmer's fields but will
have to pay for the damage caused to the roses. The farmer will be liable for battery
because the use of force in defense of property is not privileged against an individual who
successfully claims private necessity.

In American law, the case most often cited to explain the privilege of private necessity is Vincent
v. Lake Erie Transp. Co., 109 Minn. 456, 124 N.W. 221 (1910).

[edit] Vincent v. Lake Erie Transportation Co.

 Facts

Defendant Lake Erie was at the dock of plaintiff Vincent to unload cargo from Reynolds,
the steamship owned by the defendant. An unusually violent storm developed. Lake Erie
was unable to leave the dock safely and deckhands for the steamship instead tied the
Reynolds to the dock, continually changing ropes as they began to wear and break. A
sudden fierce wind threw the ship against the dock significantly damaging it.

 Issue

Is compensation required when there is damage to another's property due to a private

necessity?

 Decision

(Judge O'Brien) Yes. A private necessity may require one to take or damage another's
property, but compensation is required. If the Reynolds had entered the harbor at the time
 the storm began, and the wind knocked her against the dock, this force of nature would
not have allowed Vincent to recover. The defendant, Lake Erie, deliberately kept the
Reynolds tied to the dock. If they had not done so, the ship could have been lost creating
a far greater damage than what was caused to the dock. Although this was a prudent thing
to do, Lake Erie is still liable to Vincent for the damage caused.

 Dissent

(Judge Lewis) One who constructs a dock and conducts business assumes a risk of
damage that may occur from storms. For this reason, Judge Lewis did not agree with the
majority and believed that Vincent had assumed the risk of damage caused by Lake Erie.

To invoke the private necessity privilege, the defendant must have been actually threatened or
have reasonably thought that a significant harm were about to occur. The ruling in Vincent v.
Lake Erie assures private citizens from a public policy stand point that they will be compensated
for their loss. Vincent will be compensated for repairs and Lake Erie can rest assured that their
ship will not sink.

[edit] Public Necessity

Public necessity is the use of private property by a public official for a public reason. The
potential harm to society necessitates the destruction or use of private property for the greater
good. The injured, private individual does not always recover for the damage caused by the
necessity. In American law, two conflicting cases illustrate this point: Surocco v. Geary, 3 Cal.
69 (1853) and Wegner v. Milwaukee Mutual Ins. Co. 479 N.W.2d 38 (Minn 1991).

[edit] Surocco v. Geary

 Facts

San Francisco was hit by a major fire. The plaintiff, Surocco, was attempting to remove
goods from his home while the fire raged nearby. The defendant and mayor of San
Francisco, Geary, authorized that the plaintiff's home be demolished to stop the progress
of the fire and to prevent its spread to nearby buildings. Surocco sued the mayor claiming
he could have recovered more of his possessions had his house not been blown up.

 Issue

Is a person liable for the private property of another if destroying that property would
prevent an imminent public disaster?

 Decision

No. The right of necessity falls under natural law and exists independent of society and
government. Individual rights must give way to the higher law of impending necessity. A
 house on fire or about to catch on fire is a public nuisance which is lawful to abate.
Otherwise one stubborn person could destroy an entire city. If property is destroyed
without an apparent necessity, the destroying person would be liable to the property
owner for trespass. Here, blowing up Surocco's house was necessary to stop the fire. Any
delay in blowing up the house to allow him to remove more of his possessions would
have made blowing up the house too late.

The decision in Surocco v. Geary differs from the private necessity doctrine that a trespasser
must compensate a property owner for any damage she may cause. The next case coincides with
the private necessity doctrine and shows that American courts are conflicted on the issue of
compensation for damage.

[edit] Wegner v. Milwaukee Mutual Ins. Co.

 Facts

A suspected felon barricaded himself inside of plaintiff, Wegener's house. The

Minneapolis police department fired tear gas canisters and concussion grenades into the
house causing extensive damage. Wegner sued the defendant, the City of Minneapolis for
trespass. Wegner claimed that the City's actions constituted a "taking" of his property
under principles similar to those outlined in the Fifth Amendment to the US Constitution:
this was a taking of his private property for public use and so the City was required to
compensate him for it. The City claimed there was no taking because the police's actions
were a legitimate exercise of police power. Lower courts ruled that the City was justified
under the doctrine of public necessity and that the City was not required to compensate
Wegner. Wegner appealed to the State Supreme Court in its claim against the City's
insurance company.

 Issue

Must a city compensate a homeowner whose property was damaged in the apprehension
by police of a suspect?

 Decision

(Judge Tomijanovich) Yes. Under Minnesota's constitution, the government must

compensate a landowner for any damage it causes when it takes private land for public
use. Whether the police acted reasonably is not relevant. The constitutional provision is
not limited to an improvement of property for public use. The doctrine of public necessity
does not change our holding. Once a taking has been found to exist, compensation is
required. If the public necessity doctrine were to apply to a situation like this, no taking
would ever be found. Fairness and justice require this result. It would not be fair for
Wegner to suffer the burden of his loss for the public good. Therefore, the City must bear
his loss. In addition, the individual police officers are not personally liable; the public
must bear the loss.
It is an issue of public policy to determine if either private individuals or the public at large
through taxes should bear the loss for damages caused through public necessity. Wegner v.
Milwaukee allocates the loss that benefits the public to the public rather than to Wegner, the
innocent citizen. Cases with similar facts to Wegner have used the public necessity doctrine
under Surocco, and the individual must bear the cost of the greater public good. Courts
determine this issue as a matter of public policy.

A statute of limitations is an enactment in a common law legal system that sets forth the maximum
time after an event that legal proceedings based on that event may be initiated. In civil law systems,
similar provisions are usually part of the civil code or criminal code and are often known collectively as
"periods of prescription" or "prescriptive periods."

Common law legal system might have a statute, for example, limiting the time for prosecution of
crimes designated as misdemeanors to two years after the offense occurred. Under such a statute,
if a person is discovered to have committed a misdemeanor three years ago, the time has expired
for the prosecution of the misdemeanor. While on one hand it may seem unfair to forbid
prosecution of crimes that law enforcement can now prove to the standard required by law (cf.,
e.g., Beyond a reasonable doubt, Clear and convincing evidence, and Preponderance of the
evidence), the purpose of a statute of limitations or its equivalent is to ensure that the possibility
of punishment for an act committed sufficiently long ago cannot give rise to either a person's
incarceration or the criminal justice system's activation. In short, unless the crime is
exceptionally heinous in nature, social justice as enacted through law has compromised that
lesser crimes from long ago are best let be rather than distract attention from contemporary
serious crimes.

In a related concept, contracts may also have a term under which they may be the basis of a suit,
and after which a plaintiff is held to have waived any right to claim. Under Article VI of the
United States Constitution, private contracts cannot be abridged; this provision has been held by
the United States Supreme Court to mean that the federal government or a State can only vitiate
a contract if it directly opposes an important public policy. Similarly, the Charter of Fundamental
Rights, codified into law applicable to European Union countries by the passage civil lawsuit) is
said to have accrued when the event beginning its time limitation occurs. Sometimes this is the
event itself that is the subject of the suit or prosecution (such as a crime or personal injury), but it
may also be an event such as the discovery of a condition one wishes to redress, such as
discovering a defect in a manufactured good, or in the case of controversial "repressed memory"
cases where someone discovers memories of childhood sexual abuse long afterwards.

An idea closely related, but not identical, to the statute of limitations is a statute of repose. A
statute of repose limits the time within which an action may be brought and is not related to the
accrual of any cause of action; the injury need not have occurred, much less have been
discovered. Unlike an ordinary statute of limitations, which begins running upon accrual of the
claim, the period contained in a statute of repose begins when a specific event occurs, regardless
of whether a cause of action has accrued or whether any injury has resulted. This often applies to
buildings and properties, and limits the time during which an action may lie based upon defects
or hazards connected to the construction of the building or premises. An example of this would
be that if a person is electrocuted by a wiring defect incorporated into a structure in, say, 1990, a
state law may allow his heirs to sue only before 1997 in the case of an open (patent) defect, or
before 2000 in the case of a hidden defect. Statutes of repose can also apply to manufactured
goods. Manufacturers contend they are necessary to avoid unfairness and encourage consumers
to maintain their property. Consumer groups argue that statutes of repose on consumer goods
provide a disincentive for manufacturers to build durable products and to notify consumers of
product defects as the manufacturers become aware of them. Consumer groups also argue that
such statutes of repose disproportionately affect poorer people, since they are more likely to own
older goods.

[edit] Expiration
Once the time allowed for a case by a statute of limitations runs out, if a party raises it as a
defense and that defense is accepted, any further litigation is foreclosed. Most jurisdictions
provide that limitations are tolled under certain circumstances. Tolling will prevent the time for
filing suit from running while the condition exists. Examples of such circumstances are if the
aggrieved party (plaintiff) is a minor, or the plaintiff has filed a bankruptcy proceeding. In those
instances, in most jurisdictions, the running of limitations is tolled until the circumstance (i.e.,
the injured party reaches majority in the former or the bankruptcy proceeding is concluded in the
latter) no longer exists.

There may be a number of factors that will affect the tolling of a statute of limitations. In many
cases, the discovery of the harm (as in a medical malpractice claim where the fact or the impact
of the doctor's mistake is not immediately apparent) starts the statute running. In some
jurisdictions the action is said to have not accrued until the harm is discovered; in others, the
action accrues when the malpractice occurs, but an action to redress the harm is tolled until the
injured party discovers the harm. An action to redress a tort committed against a minor is
generally tolled in most cases until the child reaches the age of majority. A ten-year-old who is
injured in a car accident might therefore be able to bring suit one, two, or three years after he
turns 18.

It may also be inequitable to allow a defendant to use the defense of the running of the
limitations period, such as the case of an individual in the position of authority over someone
else who intimidates the victim into never reporting the wrongdoing, or where one is led to
believe that the other party has agreed to suspend the limitations period during good faith
settlement negotiations or due to a fraudulent misrepresentation.

Generally speaking, in the case of private, civil matters, the limitations period may be shortened
or lengthened by agreement of the parties. However, under standard agreement with the Court of
Law, you are to be let free, and limitations for you will cease to exist. Under the Uniform
Commercial Code the parties to a contract for sale of goods may reduce the limitations period to
not less than one year but may not extend it.

Although such limitations periods generally are issues of law, limitations periods known as
laches may apply in situations of equity (i.e., a judge will not issue an injunction if the party
requesting the injunction waited too long to ask for it), such periods are not clearly defined and
are subject to broad judicial discretion.
For U.S. military cases, the Uniform Code of Military Justice states that all charges except for
those facing general court martial (where a death sentence could be involved) have a five-year
statute of limitation. This statute changes once charges have been prepared against the service
member. In all supposed UCMJ violations except for those headed for general court martial,
should the charges be dropped, there is a six-month window in which the charges can be
reinstated. If those six months have passed and the charges have not been reinstated, the statutes
of limitation have run out.

[edit] Prescription
In civil law countries, almost all lawsuits must be started within a legally determined period. If
they are presented after that time, an institution called prescription applies, which prevents them
from filing the case.

For criminal cases, this means that the public prosecutor must prosecute within some time limit.
The time limit varies from country to country, and increases with seriousness of the alleged
crime (for example, in most jurisdictions, murder, the most serious crime, has an indefinite
statute of limitations). When a time limit is suspended, it does not run (like hitting "Stop" on a
stopwatch). Common triggers include the defendant being on the run. When a time limit is
interrupted, it is restarted (like hitting "Reset" on a stopwatch). This may be triggered by a new
crime committed.

If a criminal is on the run, he can be convicted in absence, in order to prevent prescription, or the
time limit does not elapse during that time.

The prescription must not be confused with the need to prosecute within "a reasonable delay", an
obligation imposed by the European Court of Human Rights. Whether the delay is reasonable or
not, will depend on the complexity of the trial and the attitude of the suspect.

[edit] Exclusions
[edit] Fraud upon the court

In the U.S., when an officer of the court is found to have fraudulently presented facts to court so
that the court is impaired in the impartial performance of its legal task, the act, known as "fraud
upon the court", is a crime deemed so severe and fundamentally opposed to the operation of
justice that it is not subject to any statute of limitation.

Officers of the court include: Lawyers, Judges, Referees, and those appointed; Guardian Ad
Litem, Parenting Time Expeditors, Mediators, Rule 114 Neutrals, Evaluators, Administrators,
special appointees, and any others whose influence are part of the judicial mechanism.

"Fraud upon the court" has been defined by the 7th Circuit Court of Appeals to "embrace that
species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by
officers of the court so that the judicial machinery can not perform in the usual manner its
impartial task of adjudging cases that are presented for adjudication." Kenner v. C.I.R., 387 F.3d
689 (1968); 7 Moore's Federal Practice, 2d ed., p. 512, ¶ 60.23

In Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court stated "Fraud upon
the court is fraud which is directed to the judicial machinery itself and is not fraud between the
parties or fraudulent documents, false statements or perjury. ... It is where the court or a member
is corrupted or influenced or influence is attempted or where the judge has not performed his
judicial function --- thus where the impartial functions of the court have been directly corrupted."

[edit] International crimes

By way of custom of international law, genocide, crimes against humanity, and war crimes are
usually not subject to statute of limitations, nor to prescription. This custom has been codified in
a number of multilateral treaties. States that ratify the Convention on the Non-Applicability of
Statutory Limitations to War Crimes and Crimes Against Humanity agree to not allow
limitations claims for these crimes. Article 29 of the Rome Statute of the International Criminal
Court states that genocide, crimes against humanity, and war crimes "shall not be subject to any
statute of limitations".

[edit] Heinous crimes

Crimes that are considered exceptionally heinous by society have no statute of limitations. As a
rule, murder (especially capital murder or first degree murder) has no statute of limitations.
Rape, especially sexual abuse of minors, will often fall under this category as well as certain
instances of arson and robbery. In many jurisdictions, crimes involving child pornography and
certain violent crimes involving drugs or drug dealing may also have no statute of limitations.

SELF DEFENCE
The right of self-defense (according to U.S. law) (also called, when it applies to the defense of another,
alter ego defense, defense of others, defense of a third person) is the right for civilians acting on their
own behalf to engage in violence for the sake of defending one's own life or the lives of others, including
the use of deadly force.

The early theories make no distinction between defense of the person and defense of property.
Whether consciously or not, this builds on the Roman Law principle of dominium where any
attack on the members of the family or the property it owned was a personal attack on the pater
familias – the male head of the household, sole owner of all property belonging to the household,
and endowed by law with dominion over all his descendants through the male line no matter
their age.[1] In Leviathan (1651), Hobbes proposed the foundation political theory that
distinguishes between a state of nature where there is no authority and a modern state. Hobbes
argues that although some may be stronger or more intelligent than others in their natural state,
none are so strong as to be beyond a fear of violent death, which justifies self-defense as the
highest necessity. In the Two Treatises of Government, John Locke asserts the reason why an
owner would give up their autonomy:
 ...the enjoyment of the property he has in this state is very unsafe, very unsecure. This
makes him willing to quit a condition, which, however free, is full of fears and continual
dangers: and it is not without reason, that he seeks out, and is willing to join in society
with others, who are already united, or have a mind to unite, for the mutual preservation
of their lives, liberties and estates, which I call by the general name, property.

In earlier times before the development of national policing, an attack on the family home was
effectively either an assault on the people actually inside or an indirect assault on their welfare
by depriving them of shelter and/or the means of production. This linkage between a personal
attack and property weakened as societies developed but the threat of violence remains a key
factor. As an aspect of sovereignty, in his 1918 speech Politik als Beruf (Politics as a Vocation),
Max Weber defined a state as an authority having the monopoly of the legitimate means of
organised violence within defined territorial boundaries (see Weber's Thesis). Recognizing that
the modern framework of nations has emerged from the use of force, Weber asserted that the
exercise of power through the institutions of government remained indispensable for effective
government at any level which necessarily implies that self-help is limited if not excluded.

For modern theorists, the question of self-defense is one of moral authority within the nation to
set the limits to obedience to the state and its laws given the pervasive dangers in a world full of
weapons. In modern societies, states are increasingly delegating or privatizing their coercive
powers to corporate providers of security services either to supplement or replace components
within the power hierarchy. The fact that states no longer claim a monopoly to police within their
borders, enhances the argument that individuals may exercise a right or privilege to use violence
in their own defense. Indeed, modern libertarianism characterizes the majority of laws as
intrusive to personal autonomy and, in particular, argues that the right of self-defense from
coercion (including violence) is a fundamental human right, and in all cases, with no exceptions,
justifies all uses of violence stemming from this right, regardless whether in defense of the
person or property. In this context, note that Article 12 Universal Declaration of Human Rights
states:

No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the right to
the protection of the law against such interference or attacks.

The inclusion of defense of one's family and home recognizes the universal benefit claimed to
stem from the family's peaceable possession of private property. This general approach implicitly
attacks Hohfeld's focus on the correlative relationship between right and duty as an aspect of
human interactiveness as opposed to rights deemed implicitly more important because they
attach to a person by virtue of his or her ownership of property. Further, it follows that, in this
moral balancing exercise, laws must simultaneously criminalize aggression resulting in loss or
injury, but decriminalize qualitatively identical violence causing loss or injury because it is used
in self-defense. As a resolution of this apparent paradox and in defiance of Hohfeld, Robert
Nozick asserted that there are no positive civil rights, only rights to property and the right of
autonomy. In this theory, the "acquisition principle" states that people are entitled to defend and
retain all holdings acquired in a just way and the "rectification principle" requires that any
violation of the first principle be repaired by returning holdings to their rightful owners as a "one
time" redistribution. Hence, in default of self-defense in the first instance, any damage to
property must be made good either in kind or by value. Similarly, theorists such as George
Fletcher and Robert Schopp have adopted European concepts of autonomy in their liberal
theories to justify the right-holder using all necessary force to defend his or her autonomy and
rights. This right inverts the felicitation principle of utilitarianism with the responsive violence
being the greatest good to the individual, but accurately mirrors Jeremy Bentham who saw
property as the driving force to enable individuals to enhance their utilities through stable
investment and trade. In liberal theory, therefore, to maximise the utility, there is no need to
retreat nor use only proportionate force. The attacker is said to sacrifice legal protection when
initiating the attack. In this respect, the criminal law is not the tool of a welfare state which offers
a safety net for all when they are injured. Nevertheless, some limits must be recognized as where
a minor initial attack simply becomes a pretext for an excessively violent response. The civil law
systems have a theory of "abuse of right" to explain denial of justification in such extreme cases.

[edit] Legal status of self-defense

This section does not cite any references or sources.
Please help improve this article by adding citations to reliable sources. Unsourced material may be
challenged and removed. (January 2010)

In most jurisdictions, defense of self or of others is an affirmative defense to criminal charges for
an act of violence. It acts to provide complete justification.

"Justification does not make a criminal use of force lawful; if the use of force is justified, it
cannot be criminal at all. ... The defense of justification (NY Penal Law art. 35) affirmatively
permits the use of force under certain circumstances. ... The defense does not operate to 'excuse'
a criminal act, nor does it negate a particular element of a crime. Rather, by recognizing the use
of force to be privileged under certain circumstances, it renders such conduct entirely lawful
(see, People v. Taylor, 177 N.Y. 237, 245, 69 N.E. 534). ... In this regard, the current statutory
defense reflects the common-law "right" of an individual to repel a threat [to his person or
property]. Defense [was] deemed a natural, inalienable right at common law." People v.
McManus, 67 N.Y.2d 541, 496 N.E.2d 202, 505 N.Y.S.2d 43 (1986).

The defense of justification would fail, for example, if a defendant deliberately killed a petty
thief who did not commit robbery and who did not appear to be a physical threat. However, the
owner or lawful possessor of property has a privilege to use any degree of non-deadly force
necessary to protect his possession or recover his property, regardless of no physical threat to his
person.

"'Property' is more than just the physical thing-the land, the bricks, the mortar-it is also the sum
of all the rights and powers incident to ownership of the physical thing. [T]he right to use the
physical thing to the exclusion of others is the most essential and beneficial. Without this right
all other elements would be of little value.'" Dickman v. Commissioner, 465 U.S. 330, 336
(1984).
"The ownership and possession of property confer a certain right to defend that possession,
[including] a defense of it which results in an assault and battery, and that which results in the
destruction of the means used to invade and interfere with that possession." People v. Kane, 131
N.Y. 111 (142 N.Y. 366, 37 N.E. 104).

In Cross v. State, 370 P.2d 371 (Wyo 1962) the Court found that the Due Process of Law clause
in the state constitution guaranteed "the inherent and inalienable right to protect property."

However, when an assailant ceases to be a threat (e.g. by being tackled and restrained,
surrendering, or fleeing), the defense of justification will fail if the defending party presses on to
attack or to punish beyond imposing physical restraint. A somewhat less obvious application of
this rule is that admitting the use of deadly force in an attempt to disable rather than kill the
assailant can be construed as evidence that the defendant wasn't yet in enough danger to justify
lethal force in the first place. Sometimes there is a duty to retreat which makes the defense
problematic when applied to abusive relationships (see battered woman syndrome and abuse
defense), and in burglary situations given the so-called castle exception (see: Edward Coke)
which argues that one cannot be expected to retreat from one's own home, namely, "a man's
house is his castle, et domus sua cuique est tutissimum refugium" i.e. Latin for "and one's home
is the safest refuge"). New York Penal Law section 35.15 effectively ordains that: "A person
may... use DEADLY physical force upon another person" "when and to the extent he reasonably
believes such to be NECESSARY to defend himself or a third person from what he reasonably
believes to be .... a kidnapping, forcible rape, forcible sodomy or ROBBERY; or (c) ... a
burglary...." There is no duty to retreat under these circumstances. However, if one is
"challenged" in a bar for a fight, accepting such challenge and using deadly force, instead of
walking away, generally will not constitute a self defense.

In some countries and U.S. states, the concept of "pre-emptive" self defense is limited by a
requirement that the threat be imminent. Thus, lawful "pre-emptive" self defense is simply the
act of landing the first-blow in a situation that has reached a point of no hope for de-escalation or
escape. Many self-defense instructors and experts believe that if the situation is so clear-cut as to
feel certain violence is unavoidable, the defender has a much better chance of surviving by
landing the first blow (sucker punch) and gaining the immediate upper hand to quickly stop the
risk to their person.

Justification for self-defense usually cannot be applied to actions committed after a criminal act
has taken place, but the laws of many states authorize the use of force, sometimes even deadly
force, to effect the citizen-arrest of a fleeing offender. A rape victim who, after the rape is
committed and the rapist leaves, subsequently finds and shoots the rapist, is not entitled to claim
self-defense. Most other victims of assaultive offenses are similarly not entitled to this defense if
they act in revenge. In many U.S. jurisdictions, using deadly force against a burglar/thief who is
attempting to escape with stolen property is likewise not justifiable. (Texas law holds the
defendant to a high burden of proof that the deadly force was the only means available to recover
the property without a serious risk of death or serious injury). However, the Common Law and
the Model Penal Code makes a distinction between mere thieves and those who are guilty of
"robbery". Many states apply the Common Law's "fleeing felon" rule as a justification for private
persons to use deadly force necessary to "arrest" violent criminals.
New York Penal Law, sec. 35.30, titled "Justification; use of physical force in making an arrest
or in preventing an escape", provides: "4. A private person acting on his own account may use
physical force, other than deadly physical force, upon another person when and to the extent that
he reasonably believes such to be necessary to effect an arrest or to prevent the escape from
custody of a person whom he reasonably believes to have committed an offense [in his presence]
and who in fact has committed such offense; and he may use deadly physical force for such
purpose when he reasonably believes such to be necessary to:(a) Defend himself or a third
person from what he reasonably believes to be the use or imminent use of deadly physical force;
or (b) Effect the arrest of a person who has committed Murder, manslaughter in the first degree,
Robbery, forcible Rape or forcible sodomy and who is in immediate flight therefrom.

Although the Law of Justification has heretofore been considered a matter of state law, the recent
Supreme Court decisions in District of Columbia v. Heller and McDonald v. Chicago may have
constitutionalized some of the Common Law rules of "self-defense" as fundamental rights. The
Supreme Court held that each of the Second and Fourteenth Amendments "protects the right to
possess a handgun in the home for the purpose of self-defense." And, "stressed that the right was
also valued because the possession of firearms was thought to be essential for self-defense. As
we put it, self-defense was 'the central component of the right itself.'”; The Constitution, they
wrote, secured "the right to keep and bear arms for self-defense." Prior to these decisions, other
Constitution provisions were recognized as securing a right of self-defense. In Frank v.
Maryland, 359 U.S. 360 (1959) the Supreme Court recited the Rights of Englishmen, including
the "Right to Resist" Unauthorized Deprivations, was incorported in the Constitution: "In 1761
the validity of the use of the Writs [of Assistance] was contested in the historic proceedings in
Boston. James Otis attacked the Writ of Assistance because its use placed 'the liberty of every
man in the hands of every petty officer.' [Otis argued: "This Writ is against the fundamental
Principles of Law." ] His powerful argument so impressed itself first on his audience and later on
the People of all the Colonies that President Adams was in retrospect moved to say that
'American Independence was then and there born.' ... [It was therefore recognized that] the broad
constitutional proscription [against Unauthorized Deprivation in the Due Process of Law clauses,
includes] the right to shut the door on officials of the state unless their entry is under proper
authority of law. [AND] self-protection: the right to resist unauthorized [deprivations of Life,
Liberty and Property]" http://www.usscplus.com/online/index.asp?case=3590360

The defence of property is a possible justification used by defendants who argue that they should not
be held liable for the loss and injury they have caused because they were acting to protect their
property. Courts have generally ruled that the use of force may be acceptable.

The idea of a right to privacy was first addressed within a legal context in the United States.
Louis Brandeis (later a Supreme Court justice) and another young lawyer, Samuel D. Warren,
published an article called 'The Right to Privacy' in the Harvard Law Review in 1890 arguing
that the constitution and the common law allowed for the deduction of a general "right to
privacy".[4] Their project was never entirely successful, and the renowned tort expert Dean
Prosser argued that "privacy" was composed of four separate torts, the only unifying element of
which was a (vague) "right to be left alone."[5] These elements were

1. appropriating the plaintiff's identity for the defendant's benefit

 2. placing the plaintiff in a false light in the public eye
3. publicly disclosing private facts about the plaintiff
4. unreasonably intruding upon the seclusion or solitude of the plaintiff

The tort of negligent infliction of emotional distress (NIED) is a controversial cause of action,
which is available in nearly all U.S. states but is severely constrained and limited in the majority
of them. The underlying concept is that one has a legal duty to use reasonable care to avoid
causing emotional distress to another individual. If one fails in this duty and unreasonably causes
emotional distress to another person, that actor will be liable for monetary damages to the injured
individual. The tort is to be contrasted with intentional infliction of emotional distress in that
there is no need to prove intent to inflict distress. That is, an accidental infliction, if negligent, is
sufficient to support a cause of action.

[edit] History
NIED began to develop in the late nineteenth century, but only in a very limited form, in the
sense that plaintiffs could recover for consequential emotional distress as a component of
damages when a defendant negligently inflicted physical harm upon them. By 1908, most
industrial U.S. states had adopted the "physical impact" form of NIED. However, NIED started
developing into its more mature and more controversial form in the mid-20th century, as the new
machines of the Second Industrial Revolution flooded the legal system with all kinds of
previously unimaginable complex factual scenarios. Courts began to allow plaintiffs to recover
for emotional distress resulting from negligent physical injuries to not only themselves, but other
persons with whom they had a special relationship, like a relative. The first step, then, was to
remove the requirement of physical injury to the actual plaintiff while keeping the requirement of
physical injury to someone. In the 1968 landmark decision of Dillon v. Legg, the Supreme Court
of California was the first court to allow recovery for emotional distress alone – even in the
absence of any physical injury to the plaintiff – in the particular situation where the plaintiff
simply witnessed the death of a close relative at a distance, and was not within the "zone of
danger" where the relative was killed.[1] A 2007 statistical study commissioned by the Court
found that Dillon was the most persuasive decision published by the Court between 1940 and
2005; Dillon has been favorably cited and followed by at least twenty reported out-of-state
appellate decisions, more than any other California appellate decision.[2]

The next step after Dillon was to make optional the element of another person (so that the injury
could be to anything where it would be reasonably foreseeable that such injury would cause
some person emotional distress). The first such case was Rodrigues v. State,[3] in which the
Supreme Court of Hawaii held that plaintiffs could recover for negligent infliction of emotional
distress as a result of negligently caused flood damage to their home. This is generally
considered to be the true birth of NIED as a separate tort.

Twelve years after Dillon, California expanded NIED again, by holding that a relative could
recover even where the underlying physical injury was de minimis (unnecessary medications and
medical tests) if the outcome was foreseeable (the breakup of the plaintiffs' marriage as a result
of the defendants' negligent and incorrect diagnosis of a sexually transmitted disease).[4]
In 1994, the U.S. Supreme Court for the first time recognized NIED as part of federal common
law, by holding that railroad workers could pursue NIED claims against their employers under
the Federal Employers Liability Act.[5] The Court recognized only the pre-Dillon form of NIED,
though, in that the plaintiff had to be within a zone of danger to recover in the absence of
physical injury.

In 1999, Hawaii took NIED even further by expressly holding that "damages may be based
solely upon serious emotional distress, even absent proof of a predicate physical injury."[6]

[edit] Criticisms of the tort

The tort is generally disfavored by most states because it appears to have no definable
parameters and the potential claims that can be made under the theory are wide open. It is
difficult to define what situations would give rise to such a claim, and what situations would not.
Because of this substantial uncertainty, most legal theorists find the theory to be unworkable in
practice.

A corollary of this critique is that the tort runs the risk (in the bystander NIED context) of
overcompensating plaintiffs for distress which would have occurred anyway regardless of the
cause of death of the decedent. In a landmark decision of the Supreme Court of California which
severely limited the availability of bystander NIED, Associate Justice David Eagleson wrote in
Thing v. La Chusa, 48 Cal. 3d 644 (1989):

No policy supports extension of the right to recover for NIED to a larger class of
“ plaintiffs. Emotional distress is an intangible condition experienced by most persons,
even absent negligence, at some time during their lives. Close relatives suffer
serious, even debilitating, emotional reactions to the injury, death, serious illness, and
evident suffering of loved ones. These reactions occur regardless of the cause of the
loved one's illness, injury, or death. That relatives will have severe emotional distress
is an unavoidable aspect of the 'human condition.' The emotional distress for which
monetary damages may be recovered, however, ought not to be that form of acute
emotional distress or the transient emotional reaction to the occasional gruesome or
horrible incident to which every person may potentially be exposed in an industrial
and sometimes violent society. . . . The overwhelming majority of 'emotional distress'
which we endure, therefore, is not compensable.[7] ”
An additional criticism of the tort is that it leads to abuse of insurance liability coverage. Most
insurance liability policies provide for coverage of negligently inflicted injuries but exclude
coverage of intentionally inflicted injuries. If a victim is intentionally injured by a person, many
theorists perceive that the victim will tend to recast the claim as being one for negligence in
order to fall within the coverage of the insurance policy.

The Texas case of Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993) is illustrative. In this case, the
defendant secretly videotaped himself engaging in sexual activities with the plaintiff. The
defendant then showed this videotape to numerous individuals and caused severe distress to the
plaintiff. The plaintiff brought suit against the defendant, asserting a claim for negligent
infliction of emotional distress.

On appeal, the Texas Supreme Court observed that the facts did not support a claim of
negligence. Rather, the Court noted, the facts clearly supported a claim of an intentional injury
by the defendant and it was evident that the claim had been cast as "negligence" solely to obtain
insurance coverage. The Court then went on to hold that Texas did not recognize a claim for
negligent infliction of emotional distress and remanded the case to the trial court for
consideration of a claim for intentional infliction of emotional distress.

Jurisdictions that have rejected the claim of negligent infliction of emotional distress do not
forbid the recovery of damages for mental injuries. Instead, these jurisdictions usually allow
recovery for emotional distress where such distress:

1. is inflicted intentionally (i.e., intentional infliction of emotional distress)

2. is directly associated with a physical injury negligently inflicted upon a victim (e.g.,
emotional distress resulting from a loss of limb or disfigurement of the face)
3. is caused by defamation and libel;
4. stems from witnessing a gruesome accident as a bystander
5. is the product of some misconduct universally recognized as causing emotional distress
such as mishandling a loved one’s corpse or failing to deliver a death notice in a timely
manner.