13. Intentional Torts Flashcards
What is required for a prima facie case for intentional tort liability?
(Burden of proof => Plaintiff)
1) D’s act
- Volitional movement on D’s part (D’s will)
2) D’s intent
- Specific (D’s purpose is to bring about these consequences)
- General (D knows with substantial certainty that the consequences will result)
- NO need to intend for injury to occur (as long as D’s intent caused harmful result)
3) Causation
- D’s conduct is ‘substantial factor’ in resulting injury (almost always is)
What is the rule for transferred intent?
1) D’s intent to commit tort A vs X => Transferred to;
- D’s committing tort A vs Y
- D’s committing tort B vs X
- D’s committing tort B vs Y
2) BOTH torts are;
- Assault
- Battery
- False imprisonment
- Trespass to land
- Trespass to chattel
- NOT conversion
- NOT IIED
What is required for battery?
1) Contact
- Harmful (actual injury/disfigurement)
- Offensive (NO consent implied from reasonable person based on P’s conduct/circumstances, e.g. saving pedestrian from car accident, whether safe to do so)
- Offensive (embarassment)
- NO P’s awareness required
2) With P’s person
- P’s body
- Anything connected to P’s body
- Create situation likely to harm P
- NOT animals
3) Intent
4) Causation
- Direct
- Indirect (D’s act sets in motion a force that brings about harmful/offensive contact)
What is the difference between battery and assault?
Battery
- NO apprehension required
Assault
- Apprehension required
What is the difference between intentional torts to person and negligence in terms of damages?
Intentional torts to person
- NO damages required (UNLESS IIED)
- Nominal damages recoverable (UNLESS IIED)
- Punitive damages recoverable (D’s malice)
Negligence
- Damages required
- NO nominal damages recoverable
- NO punitive damages recoverable
What is the difference between intentional torts to the person and IIED?
Battery/Assault/False imprisonment
- Intent required
- Nominal damages
- Punitive damages
IIED
- Intent/Recklessness required
- Actual damages (for severe emotional distress)
What is required for assault?
1) D’s act created ‘reasonable’ apprehension in P
- NOT exaggerated fears of contact
- Knowledge of assault required (unlike battery)
- NO knowledge of D’s identity required
- D’s apparent ability to commit battery
- Words + Overt act (otherwise words alone can negate assault)
2) ‘Immediate’ harmful/offensive contact
- NOT unloaded gun + awareness of unloaded gun
3) Intent
4) Causation
- Direct/Indirect
What is required for false imprisonment?
1) D’s act/omission confines/restrains P to ‘bounded’ area
- D’s physical barriers
- D’s physical force vs P/P’s family/P’s property
- D’s direct/indirect (reasonable) threat of force vs P/P’s family/P’s property
- D’s failure to release P when under legal affirmative duty to do so
- D’s invalid use of legal authority (false arrest)
- NOT moral pressure
2) Bounded area
- P’s freedom of movement is limited in ALL directions
- NO reasonable means of escape + Known to P
- OTHERWISE shoplifer’s privilege allowed
3) Intent
4) Causation
- Direct
- Indirect
Does the length of time of false imprisonment matter?
No
Must Plaintiff resist physical force used in false imprisonment?
No
What is required for intentional infliction of emotional distress?
1) Extreme + Outrageous conduct
- Transcends all bounds of decency tolerated by society
- NO physical injury
2) Either;
- Intent
- Recklessness
3) Actual damages (unlike other intent torts to persons)
- ‘Severe’ emotional distress (More outrageous; Less damages required)
- NO physical injury required
4) Causation
- Actual: Plaintiff
- Proximate: Bystander case
What are examples of extreme and outrageous conduct?
Extreme business conduct
- Continuous methods of bill collection
Misuse of authority
- School threats/bullying
Offensive/Insulting language
- P has special relationship with D
- D knows of P’s sensitivity
Common carrier/inkeeper’s conduct vs P (patron)
Known sensitivites
- Children
- Pregnant women
- Elderly people
What is required for TP bystander to suffer emotional distress?
D’s purpose to cause distress
D had NO purpose to cause distress
1) TP was present at scene of injury
2) TP is close relative of P
3) D’s knowledge of (1) + (2)
What is the difference between negligent and intentional infliction of emotional distress?
NIED
- P’s personal observation
- Emotional distress
IIED
- D’s knowledge of P’s presence + close relation
- Severe emotional distress
- Extreme + Outrageous conduct
What is required for trespass to land?
1) D’s physical invasion
- By D’s person/object
- NOT intangible objects (Nuisance)
2) P’s real property
- Below/Surface/Above
3) Intent
- Knowledge with substantial certainty of objects entering the land (NOT intent to trespass)
- D’s mental state NOT relevant
4) Causation
- NO damage required
5) Plaintiff (with possession)
- Actual owner
- Constructive owner (hold-over tenant)
- Lessee (recover to extent of damage to lease)
What is the difference between the intentional torts to property?
Trespass to land
- NO damage required
Trespass to chattel/Conversion
- Damage required
What is the difference between intentional and negligent trespass over property in terms of damage?
Intentional trespass
- NO damage required
Negligent trespass
- Damage required
What is required for trespass to chattel?
1) D’s interference (less serious than conversion)
- Intermeddling (direct damage)
- Dispossession (deprive P’s right)
2) P’s right of possession in chattel
3) Intent
- Cause interference (NOT trespass)
- D’s mistake of chattel NOT relevant
4) Causation
5) Damages
- Unlike trespass to property
- Cost of repair < 50% of fair market value
What remedies are available for trespass to chattel?
Direct damage/Loss of use
- Actual damages
Dispossession
- Damages (rental value)
What is required for conversion?
1) D’s interference (more serious than chattel trespass; longer period of interference)
- Wrongful acquisition (theft/embezzlement)
- Wrongful transfer (sale/misdelivery)
- Wrongful detention (refuse to return)
- Substantial change
- Severe damage/destruction
- Misuse of chattel
2) P’s right of possession in chattel
- Tangibles
- Intangibles reduced to physical form (promissory notes)
3) Intent
- Cause interference (NOT trespass)
- Includes BFP
- D’s mistake of chattel NOT relevant
4) Causation
5) Damages
- Unlike trespass to property
- Cost of repair > 50% of fair market value
6) Plaintiff
- Actual owner (title)
- Immediate right to possession
- NOT constructive owner (theft) => Otherwise must reimburse Actual owner of damages recovered
What remedies are available for conversion?
Damages
- Fair market value (at time of conversion)
Replevin
- Return of chattel
What is the difference between trespass to chattel and conversion?
Trespass to chattel
- Less serious interference (damages < 50% of fair market value)
- Remedies: Actual damages/Rental value for dispossession
Conversion
- More serious interference (damages > 50% of fair market value)
- Remedies: Replevin/Fair market value at time of conversion
What is required for consent?
1) Valid consent (capacity)
- Express (NO known mistake by D/NO fraudulent inducement NOT re collateral matter/NO immediate duress)
- Implied (Apparent consent that reasonable person would infer from P’s conduct or custom/Consent implied by law like emergencies)
2) Not exceed scope of consent
- Not to do something substantially different
3) NOT criminal act
- Consent NOT applicable to crimes (majority view)
What is required for self-defence?
1) D reasonably believes/mistaken that he will be attacked
- UNLESS duty to retreat ‘safely’ (NOT from D’s own dwelling)
- UNLESS D is initial aggressor (NOT D using non-deadly force then P using deadly force)
- UNLESS injures TP bystander ‘intentionally’ (liable to TP)
2) D may use force as ‘reasonably necessary’ as it appears to prevent harm
- If serious injury likely => Can commit death/serious bodily injury
3) To prevent commission of tort
- NOT already committed tort (NO retaliation allowed)
What is required for defence of others?
1) D reasonably believes/mistaken that aided person had right to self-defence
- Even if aided person was initial aggressor
2) D may use ‘as much force’ as he could have in self-defence
What is required for defence of property?
Request P to desist/leave first
- NOT clearly futile/dangerous to D
Use force vs P
1) Clearly futile/dangerous to D
2) Either;
- Reasonable force
- Deadly force (if invasion of property involves serious threat of bodily harm)
3) To prevent tort commission (NOT already committed)
4) D’s real/personal property
5) ) Reasonable mistake as to;
- Intrusion
- Request to desist/leave
- Privilege (right of re-entry/necessity) > Supersedes defence of property
What is required for re-entry onto land?
Ejectment (modern view) => Recover possession of land
- NOT self-help (common law) => Rejected
What is required for recapture of chattels?
1) ‘Timely’ deemed
- UNLESS clearly futile/dangerous
2) Recovery from wrongdoer
- Tortfeasor
- TP with knowledge of tort
- NOT innocent party
3) Entry on land to remove chattel
- Wrongdoer’s land
- Innocent party’s land ((1) Refuses to return; (2) Reasonable time; and (3) Peaceful manner)
4) Reasonable force to recapture chattels
- NOT cause death/serious bodily harm
What is required for shoplifting detention/privilege to detain shoplifters?
1) Reasonable belief as to theft
2) Reasonable manner
- Non-deadly force
3) Reasonable period of time
4) Investigative purposes
- OTHERWISE false imprisonment
What is required for privilege of arrest?
Felony arrest (by police)
1) Felony committed (reasonable belief)
2) Arrestee committed felony (reasonable belief)
3) Reasonably necessary force/Deadly force (potential serious harm)
Felony arrest (by citizen)
1) Felony committed (NO reasonable belief)
2) Arrestee committed felony (reasonable belief)
3) Reasonably necessary force/Deadly force (potential serious harm)
Misdemeanor arrest (by police/citizen)
1) Breach of the peace
2) Misdemeanor takes place in presence of D
3) Reasonable necessary force (NO deadly force)
What is required for necessity?
1) Trespass/Conversion
2) Reasonably + apparently necessary to avoid threatened injury from ‘natural’ force
3) Threatened injury is substantially more serious than necessity
4) Either;
- Public necessity (Protect public good)
- Private necessity (Protect limited number of people)
What is required for discipline?
1) Reasonable force
2) By Parent/Teacher
3) On Children
- Age + sex
- Seriousness of their behaviour
What is the difference between private nuisance and trespass to land?
Private nuisance
- Possession (Tenant)
Trespass to land
- Ownership (Landlord)
Can landowner use force if trespasser enters land by necessity?
NO
- Trespasser’s privilege (Necessity) > Landowner’s defence of property
When may defendant be liable for damages caused by necessity?
Qualified privilege (liability) - Protecting D (himself)
NOT absolute privilege (NO liability)
- Protecting P (landowner)
Are children/mentally incompetent persons liable for intentional torts?
Yes
- Knowledge of harmful result required
