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Intentional Torts
Battery: To establish a battery claim, you must prove that (1) the defendant touched you or caused you to be touched with the intent to harm or offend you, (2) you did not consent to the touching (by words or acts, or by silence or inaction, if a reasonable person would understand that silence or inaction intended to indicate consent), (3) you were harmed or offended by the defendant’s conduct, and (4) a reasonable person in your situation would have been offended by the touching. CACI 1300-1302.
Self-Defense/Defense of Others: The defendant is not responsible if he (1) reasonably believed that you were going to harm him or another person, and (2) the defendant used only the amount of force that was reasonably necessary to protect himself or the other person. CACI 1304.
Sexual Battery: To establish a claim for sexual battery, you must prove that (1) the defendant intended to cause a harmful or offensive contact with your sexual organ, anus, groin, buttocks or breast – or he/she intended to do so by use of his or her sexual organ, anus, groin, buttocks or breast – or the defendant caused an imminent fear of a harmful or offensive contact in one of these ways, (2) a sexually offensive contact with you resulted, (3) you did not consent to the touching, and (4) you were harmed or offended by the defendant’s conduct. “Offensive contact” means contact that offends a reasonable sense of personal dignity. CACI 1306.
Fraud or Deceit:
Fraud or Deceit can take different forms:
- Intentional Misrepresentation: To prevail, you must prove all 7 of these things: (1) that the defendant represented to you that an important fact was true, (2) the defendant’s representation was false, (3) the defendant knew the representation was false when he or she made it – or he/she made the representation recklessly and without regard for its truth, (4) the defendant intended that you rely on the representation, (5) you reasonably relied on the defendant’s representation, (6) you were harmed, and (7) your reliance on the defendant’s representation was a substantial factor in causing your harm. CACI 1900.
- Concealment: To prove concealment, you must prove all 6 of the following: (1) that you and the defendant were in a fiduciary relationship (e.g., business partners, spouses) and the defendant intentionally failed to disclose an important fact to you – or disclosed some facts to you, but intentionally failed to disclose another/other important fact/s, making the disclosure deceptive – or intentionally failed to disclose an important fact that was known only to him/her/it, which you could not have discovered – or the defendant actively concealed an important fact from you or prevented you from discovering that fact, (2) you d not know of the concealed fact, (3) the defendant intended to deceive you by concealing the fact, (4) you reasonably relied on defendant’s deception, (5) you were harmed, and (6) the defendant’s concealment was a substantial factor in causing your harm. CACI 1901.
- False Promise: To establish this claim, you must prove all 8 of these things: (1) that the defendant made a promise to you, (2) this promise was important to the transaction, (3) the defendant did not intend to perform this promise when he/she made it, (4) defendant intended that you rely on this promise, (5) you reasonably relied on defendant’s promise, (6) the defendant did not perform the promised act, (7) you were harmed, and (8) your reliance on the defendant’s promise was a substantial factor in causing your harm. CACI 1902.
- Negligent Misrepresentation: To establish this claim, you must prove all 7 of these things: (1) the defendant represented to you that an important fact was true, (2) defendant’s representation was not true, (3) although the defendant may have honestly believed that the representation was true, he/she had no reasonable grounds for believing the representation was true when he/she made it, (4) defendant intended that you rely on this representation, (5) you reasonably relied on the defendant’s representation, (6) you were harmed, and (7) your reliance on the defendant’s representation was a substantial factor in causing your harm. CACI 1903.
- So What’s an “Important” Fact or Promise? A fact or promise is important if it would influence a reasonable person’s judgment or conduct. A fact or promise is also important if the person who represents or makes it knows that the person to whom the representation or promise is made is likely to be influenced by it even if a reasonable person would not. CACI 1905.
Conversion: To establish a claim for conversion (unlawful control over your personal property), you must prove that: (1) you owned, possessed or had a right to possess the item of personal property (e.g., funds, securities, tangible assets), (2) the defendant intentionally and substantially interfered with your property by one or more of the following – taking possession of it, preventing you from having access to it, destroying it, or refusing to return it after you demanded its return, (3) you did not consent, (4) you were harmed, and (5) the defendant’s conduct was a substantial factor in causing your harm. CACI 2100.
Privacy Claims: A person’s right to privacy can be violated in more than one way. Below are some of the possible ways:
Intrusion Into Private Affairs: To establish this claim, you must prove that (1) you had a reasonable expectation of privacy in a particular place or other circumstance, (2) the defendant intentionally intruded in that place or circumstance, (3) the defendant’s intrusion would be highly offensive to a reasonable person, (4) you were harmed, and (5) the defendant’s conduct was a substantial factor in causing your harm. CACI 1800.
- “Reasonable expectation of privacy”: In deciding whether you had a reasonable expectation of privacy in the place or circumstance involved, a jury will consider, among other things: (a) the identify of the defendant; (b) the extent to which other persons had access to that place or circumstance and could see or hear you; and (c) the means by which the intrusion occurred. CACI 1800.
- “Highly offensive”: In deciding whether an intrusion is highly offensive to a reasonable person, a jury will consider, among other things, (a) the extent of the intrusion, (b) the defendant’s motives and goals, and (c) the setting in which the intrusion occurred. CACI 1800.
- “Public disclosure”: In deciding whether defendant publicized the information, a jury will determine whether it was made public either by communicating it to the public at large or to so many people that the information was substantially certain to become public knowledge. CACI 1801.
- “Legitimate public concern: A jury will consider, among other things, (a) the social value of the information, (b) the extent of the intrusion into your privacy, and (c) whether you consented to the publicity explicitly or by voluntarily seeking public attention or a public office. CACI 1801.
(Commercial) Appropriation of Name or Likeness: To establish this claim, you must prove that (1) the defendant used your name, likeness or identity without your permission, (2) defendant gained a commercial benefit or some other advantage by using your name, likeness or identify, (3) you were harmed, (4) the defendant’s conduct was a substantial factor in causing your harm, and (5) your privacy interests outweigh the public interest served by defendant’s use of your name, likeness or identity (considering where the information was used, the extent of the use, the public interest served, and the seriousness of the interference with your privacy). CACI 1803. A 1st Amendment defense exists if (1) the work adds something new to your likeness, giving it a new expression, meaning or message, or (2) the value of the work does not result primarily from your fame. CACI 1805.
(Commercial) Use of Name, Likeness, etc. in Advertisement: To establish this claim, you must prove that (1) the defendant knowingly used your name, voice, signature, photograph or likeness on merchandise or to advertise or sell something, (2) the use did not occur in connection with a news, public affairs or sports broadcast or account, or with a political campaign, (3) the defendant did not have your consent, (4) the defendant’s use of your name, voice, signature, photograph or likeness was directly connected to defendant’s commercial purpose, (5) you were harmed, and (6) defendant’s conduct was a substantial factor in causing your harm. CACI 1804A. The same 1st Amendment defense noted above can apply.
Justification for Privacy Violation: A defendant’s conduct will be justified if he/she/it proves that the circumstances justified the invasion of privacy because doing so substantially furthered some legitimate or compelling competing interest. If the defendant proves that his/her/its conduct was justified, then you must prove that there was a practical, effective and less invasive method of achieving the defendant’s purpose. CACI 1807.
Stalking: Another privacy claim can be brought, based on stalking, if you can prove that (1) the defendant engaged in a pattern of conduct with the intent to follow, alarm or harass you, supported by evidence in addition to your testimony, (2) as a result of this conduct, you reasonably feared for your own safety or the safety of an immediate family member, (3) (a) as part of the pattern of conduct, the defendant made a believable threat with the intent to place you in reasonable fear for your safety or the safety of an immediate family member, (b) you clearly demanded at least once that the defendant stop, and (c) the defendant persisted in his or her pattern of conduct – or the defendant violated a restraining order prohibiting the pattern of conduct, (4) you were harmed, and (5) the defendant’s conduct was a substantial factor in causing your harm. CACI 1808.
- A “pattern of conduct” means a series of words or actions over a period of time, however short, that reflects an ongoing purpose. CACI 1808.
- “Harass” means a knowing and willful course of conduct directed at you that seriously alarms, annoys, torments or terrorizes you, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to you. CACI 1808.
