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'', 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." Generally, and as defined by Goff LJ in '' Collins v Wilcock'', trespass to the person consists of three torts: assault, battery, and false imprisonment.Assault
Under the statutes of various common law jurisdictions, assault is both a crime and a tort. Generally, a person commits criminal assault if he purposely, 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. A person commits tortious assault when he engages in "any act of such a nature as to excite an apprehension of battery odily injury. 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. Consequently, in '' R v Constanza'', the court found a stalker's threats could constitute assault. Similarly, silence, given certain conditions, may constitute an assault as well. However, in other jurisdictions, simple threats are insufficient; they must be accompanied by an action or condition to trigger a cause of action. 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'', the defendant reached for his sword and told the plaintiff that " it were not assize-time, I would not take such language from you". In its American counterpart, ''Commonwealth v. Eyre'', the defendant shouted " 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.Battery
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: Battery torts under Commonwealth precedent are subjected to a four point test to determine liability: # ''Directness''. Is the sequence of events connecting initial conduct and the harmful contact an unbroken series? # ''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, some Commonwealth jurisdictions have moved toward the American jurisprudence of "substantial certainty".Trinidade, p. 221 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. # ''Bodily Contact''. Was there active (as opposed to passive) contact between the bodies of the plaintiff and the defendant? # ''Consent''. Did the plaintiff consent to the harmful contact? The onus is on the defendant to establish sufficient and effective consent.False imprisonment
False imprisonment is defined as " or of freedom from restraint of movement". 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. Physical force, however, is not a necessary element, and confinement need not be lengthy; the restraint must be complete,. though the defendant needn't resist. Conveniently, the American Law Institute's Restatement (Second) of Torts distills false imprisonment liability analysis into a four-prong test: # The defendant intends to confine the plaintiff. (This is not necessary in Commonwealth jurisdictions.) # The plaintiff is conscious of the confinement. (Prosser rejects this requirement.) # The plaintiff does not consent to the confinement. # The confinement was not otherwise privileged.Defenses
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 to discipline a child who has misbehaved" and the defendant " prudence and restraint". Unreasonable punishments, such as violently grabbing a student's arm and hair, have no defense. Many jurisdictions, however, limit corporal punishment to parents, and a few, such asConsent
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'', 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''. 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 he combatantsfor any injury suffered". Other jurisdictions refuse to recognize consent as a defense to mutual combat and instead provide relief under the doctrine of comparative negligence. 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". 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". 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'', the House of Lords instructed British physicians that, 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 ... nd(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".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". The force used must be proportionate to the threat, as ruled in '' Cockcroft v Smith''.Trespass to goods
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 injury".''Thrifty-Tel, Inc., v. Bezenek'', 46 Cal. App. 4th 1559, 1566–7 While originally a remedy for the asportation of personal property, the tort grew to incorporate any interference with the personal property of another. In some jurisdictions, such as the United Kingdom, trespass to chattels has been codified to clearly define the scope of the remedy;Elliott, p. 314 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: # ''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. " use exceeding the consent" authorized by the contract, should it cause harm, gives rise to a cause for action. # ''Actual harm''. The interference with the property must result in actual harm. 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. # ''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: " 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". Remedies for trespass to chattel include damages, liability for conversion, and injunction, depending on the nature of the interference.Ledgerwood, p. 848Traditional applications
Trespass to chattels typically applies to tangible property and allows the owner of such property to seek relief when a third party intentionally interferes or intermeddles in the owner's possession of his personal property. "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'', 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, but organs are not.Modern US applications
In recent years, trespass to chattels has been expanded in the United States to coverTrespass to land
Trespass to land involves the "wrongful interference with one's possessory rights in ealproperty." 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. Similarly, some American courts will find liability for unintentional intrusions only where such intrusions arise under circumstances evincing negligence or involve a highly dangerous activity. Exceptions exist for entering land adjoining a road unintentionally (such as in a car accident), as in '' River Wear Commissioners v Adamson''. In some jurisdictions, trespass while in possession of a firearm, which may include a low-power air weapon without ammunition, constitutes a more grave crime of armed trespass.Subsoil and airspace
Aside from the surface, land includes theSubsoil
William Blackstone's ''Airspace
However, domain of landowners over airspace is limited to the lower atmosphere; in '' United States v. Causby et ux.'' landowner domain was limited to the space below , Justice Douglas reasoned that, should it find in the landowners' favor and accept the "ancient doctrine that at common law ownership of land to the periphery of the universe—''Cujus est solum ejus est usque ad ''" "every transcontinental flight would subject the operator to countless trespass suits." Citizens have a right to fly in the "navigable airspace" Thirty one years later, in '' Bernstein of Leigh v Skyviews & General Ltd'', 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: " the latin maxim were applied literally it would lead to the absurdity of trespass being committed every time a satellite passed over a suburban garden."Interference
The main element of the tort is "interference". This must be both direct and physical, with indirect interference instead being covered byDefenses
There are several defenses to trespass to land; license, justification by law, necessity and ''See also
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