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Baby's First Hypo: homework from Ep. 10

Intentional Torts Hypo by Dean Armijo of Elon Law School

Megan reads Professor Armijo's model answer on episode 10! Here is Lydia's attempt.

First impressions

The first thing I thought about after reading this was the scope of the question. We’re only looking at David and Goliath’s claims? Geez. What about the claims the Filburns can bring against David and Goliath! David started it! I also note that it’s just asking about intentional torts not unintentional torts or criminal law. So that narrows it down to personal injury torts, like false imprisonment, intentional infliction of emotional distress, assault and battery, property torts like trespass to chattels, trespass to land and conversion, and dignitary torts like slander, libel and defamation. Some of these torts can transfer. Lastly, I notice that it’s asking just for claims, so it seems like we’re not expected to talk about whether damages are compensatory, punitive and/or nominal. Okay SO!


David hated Filburn’s patch. Is Filburn liable for wearing the patch in David’s presence? David could attempt to claim intentional infliction of emotional distress. IIED is proven when 1) conduct is 2) calculated to cause 3) severe emotional distress. Filburn's conduct was wearing the patch. His actions caused David severe emotional distress when it sent him into a rage. Yet his intent was most likely to express a political opinion and not to offend David. There is no evidence to show that Filburn knew or had reason to know of David’s hypersensitivity. David would be considered hypersensitive because his association of ethanol with death by grain alcohol is unreasonable. David would have to show that Filburn knew of David’s hypersensitivity and expect he might see David that day. We have no evidence for this. It seems just as likely that Filburn had never even met David before their altercation. David's claim of IIED is not colorable and Filburn does not need further defense.

David probably felt fear as he saw and then felt Filburn's pitchfork coming toward him. Is Filburn liable for the harm he caused with the pitchfork? David could claim assault and battery for Filburn’s attack.

Assault is 1) an intentional act that 2) creates apprehension of 3) a battery. David apprehended imminent bodily harm by watching Filburn’s pitchfork be drawn from the truck and swung toward him. David would be reasonable in fearing that this act would lead to a battery. Though done in the heat of the moment, Filburn’s action would still be classified as intentional. David has a colorable assault claim.

Battery is 1) an intentional act resulting in 2) an offensive, 3) unprivileged 4) contact. Filburn’s pitchfork did make contact with David when it stabbed him through the chest while under his control. A reasonable person would find the contact offensive because of the pain stabbing causes. Though David and Filburn were fighting, they were not doing so in the type of controlled environment like a boxing gym that implies consent. The act seemed to be intentional on the part of Filburn. David has a colorable battery claim.

Filburn’s defense: It would be hard for Filburn to deny the factual elements of David's claims, but he could use an affirmative defense: self-defense. When a person is 1) attacked, or has reasonable grounds to believe he is about to be attacked, they may 2) protect themselves, 3) using such force as is reasonably necessary. Filburn’s belief that he would imminently be attacked would be objectively reasonable due to David’s threats and lunge. A pitchfork can be used in several ways as a means of self-protection. However, the force he used with the pitchfork may have exceeded what is reasonably necessary. Stabbing someone in the chest is not the least amount of damage you can do to someone in order to evade danger. He could have whacked him in the arm, for example. Filburn could argue that he had very little time to think about his options and the amount of force he used was decided by instinct, not intent. In a minority of states, he would have a duty to retreat before using deadly force, since he was not in his home. If he did not have a duty to retreat and if the instinct argument could work, his self-defense argument is probably colorable.

Goliath seems emotionally distressed by Filburn’s actions. Is Filburn liable to Goliath for how his actions toward David made Goliath feel? Goliath could attempt to claim intentional infliction of emotional distress, defined above. Filburn’s conduct is the cause of the distress, and attack of an immediate family member would reasonably cause someone severe emotional distress. However, Goliath was not present at the time of the attack on David. There is no evidence to show that Filburn even knew Goliath existed. Goliath’s IIED claim is not colorable and Filburn needs no further defense. (The same reasoning would explain why David couldn’t claim IIED if he suffers severe distress upon learning that Goliath’s leg was shot.)

Goliath was injured by Mother Filburn’s spring gun trap. Is Marta (I mean let’s give her a name instead of just a relational title!) liable to Goliath for his injuries? Goliath can not claim assault, defined above, because he did not apprehend the dangerous trap before he was shot. Goliath could claim battery, defined above. By setting the trap, Marta intended to cause harmful contact to another person, and this intention became actual contact when the gun shot Goliath. I think it’s okay that she wasn’t physically there holding the gun because she directly set the action of the gun in motion. We could imagine a scenario in which Goliath was so furious that he would risk getting shot as he entered the bedroom if it meant he could exact his revenge. In that scenario, he would have consented and could not then bring a battery claim. Goliath could not have consented to it here, though, because there was no notice of the gun’s presence.

It would be hard for Marta to deny the factual elements of Goliath's claims, but she could try several affirmative defenses. She could say that she was defending their property. When defending property, a person may 1) use reasonable force to 2) defend their property 3) if they reasonably believe it is necessary 4) to prevent tortious harm to their property. She set up the gun on her property. The pattern of previous trespassers indicates that her belief that tortious harm would happen to their property was reasonable. Goliath did indeed commit a trespass since he intentionally entered the Filburns’ land without consent. When defending property, force is usually only allowed after another method of dissuasion has been attempted. Since it was nighttime and it is hard to have a proper conversation when awakened by an intruder in the dark, Marta could argue that a simple request for a trespasser to leave would be useless or that harm would happen before she’d be able to make a request. Regardless, her use of a spring gun was excessive. She fails the element of reasonable force. Though she pointed the gun downward, to an area that would not cause immediate death, the use of a mechanical device that is itself deadly is not authorized for defense of property alone. (Extra credit to Greg for citing Katko v. Briney!) Defense of property is not a colorable defense.

I do wonder if Marta could argue that the gun was for self-defense, defined above. The gun was guarding their bedroom. Though they were not in the bedroom, an intruder would have expected the Filburns to be in their bedroom. Perhaps there was nothing valuable in the bedroom that needed to be defended property-wise. Could Marta say that she was defending what would have been a self? Probably not. Even if they could make that argument, their pattern of trespassers was not so frequent as to indicate an imminent threat. Self-defense is not a colorable defense.

Marta could try to use defense of others. Defined as 1) reasonable force 2) in defense of others 3) upon a reasonable belief 4) that the defended party would be entitled to use self-defense. She could say that her husband’s recent fight created a tense situation that could escalate and that she needed to defend him from someone who would come looking for him. If someone did come looking for him, he would be entitled to self-defense. He left the scene shaken and may still be in shock, so perhaps she would defend him. The facts don't show that she believes someone in particular is coming for Filburn. Marta and Filburn had no reason to know that Goliath was coming to the house. They set the trap for any anonymous trespasser. It then fails for the reasons that self-defense does. The defense of others is not a colorable defense.

It says Marta set up the trap but then later it says “the Filburns set the trap.” So I think Goliath’s battery claim would be identical against Filburn and that Filburn’s defenses would fail for the same reasons.

Surely Goliath spent time inside the house between when he was shot by the spring gun and when he got medical attention. Are Marta and Filburn liable for the time he spent there that he could have been elsewhere? Goliath could claim false imprisonment. False imprisonment occurs when someone 1) intends to confine or restrain another 2) within boundaries fixed by the actor 3) those actions directly or indirectly result in such confinement and 4) the other is conscious of the confinement or is harmed by it. Marta and Filburn set the spring gun trap with an intent to capture intruders. Unfortunately, the fact pattern does not establish if he actually did become confined. Despite the harm to his leg, he may have been able to crawl outside. Say he stayed inside. He may not have been conscious of his confinement in the house because he was distracted by his injury. He might have thought that he could crawl out but that he was choosing to stay inside. As for harm, though he was harmed by the gun, he may not have been more harmed by the confinement. Inside may have been the safest place he could be, if he had cell reception or could use materials there to fashion a tourniquet. Marta and Filburn would not need a defense if the elements of actual confinement and knowledge of or harm by it are not established.

If false imprisonment were established, Marta and Filburn could try to use citizen’s arrest as a defense. A private citizen is privileged to use force to make an arrest 1) in the case of a felony 2) if the felony has in fact been committed and 3) the arresting party has reasonable grounds to suspect that the person being arrested committed it. By virtue of him setting off the trap, the Filburns would have reasonable grounds to suspect that Goliath had broken some rule. However, without being in the room themselves or having cameras set up, how could they be certain that a felony had been committed? They would only know that a trespass had been committed. States differ on the felony status of criminal trespass. Citizen’s arrest might be a colorable defense.

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