Elements of Torts and Crimes

Question 1

Larceny

Answer 1

A taking (obtaining control)
And carrying away (asportation) (the slightest movement)
Of tangible personal property (excluding realty, services, and intangibles, but including written instruments em­bodying intangible rights such as stock certificates)
Of another with possession
If the defendant had possession of the property at the time of the taking, the crime is not larceny, but may be embezzlement
Generally, a bailee has possession and thus may be guilty of embezzlement if they take the property
By trespass (without consent or by consent induced by fraud)
With intent to permanently deprive that person of their interest in the property
Generally, larceny requires that at the time of the taking the defendant intended to permanently deprive a person of their property.

The trespassory taking and carrying away the personal property of another with the specific intent to steal

Question 2

Larceny by trick

Answer 2

If the victim is tricked—by a misrepresentation of fact—into giving up mere custody or possession of property, the crime is larceny by trick
If the victim intended to give the defendant possession or custody of the property (for example, the defendant tricked the victim into letting them borrow the victim’s car), the crime is larceny by trick

Question 3

False pretenses

Answer 3

If the victim is tricked into giving up title to property, the crime is false pretenses.
If the victim intended to give the defendant ownership of the property, the crime is false pretenses.

Question 4

Embezzlement

Answer 4

The fraudulent
D must intend to defraud
Conversion (that is, dealing with the property in a manner inconsistent with the arrangement by which defendant has possession)
Of personal property
Of another
By a person in lawful possession of that property

Distinguish from larceny: in embezzlement the defendant misappropriates property while it is in their rightful possession, while in larceny the defendant misappro­priates property not in their possession.
Embezzler doesn’t have to get the benefit

Question 5

Robbery

Answer 5

A taking
Of personal property of another
From the other’s person or presence (including any­where in their vicinity)
By force or threats of immediate death or physical inju­ry to the victim, a family member, or some person in the victim’s presence
With the intent to permanently deprive them of it
For a defendant to be guilty of robbery, the victim must give up their property because they feel threatened. If the victim gives up their property for another reason (for example, they feel sorry for the defen­dant, or they want the defendant to go away), the defendant will not be guilty of robbery. The defendant may, however, be guilty of attempted robbery.

Question 6

Burglary at common law

Answer 6

A breaking (creating or enlarging an opening by at least minimal force, fraud, or intimidation; if defendant had the resident’s consent to enter, the entry is not a breaking)
And entry (placing any portion of the body or any instru­ment used to commit the crime into the structure)
Of a dwelling (a structure used with regularity for sleep­ing purposes, even if used for other purposes such as conducting a business)
Of another (ownership is irrelevant; occupancy by some­one other than the defendant is all that is required)
At nighttime
With the intent to commit a felony in the structure (felo­ny need not be carried out to constitute burglary)

Question 7

Burglary - modern law

Answer 7

A breaking (creating or enlarging an opening by at least minimal force, fraud, or intimidation; if defendant had the resident’s consent to enter, the entry is not a breaking)
And entry (placing any portion of the body or any instru­ment used to commit the crime into the structure)
Of a dwelling (a structure used with regularity for sleep­ing purposes, even if used for other purposes such as conducting a business)
Of another (ownership is irrelevant; occupancy by some­one other than the defendant is all that is required)
At nighttime
With the intent to commit a felony in the structure (felo­ny need not be carried out to constitute burglary)

Question 8

False imprisonment

Answer 8

The unlawful confinement of a person without the person’s valid consent.
The M.P.C. requires that the confinement must “interfere substantially” with the victim’s liberty.

Question 9

Kidnapping

Answer 9

Modern statutes often define kidnapping as unlawful confine­ment of a person that involves either (1) some movement of the victim, or (2) concealment of the victim in a “secret” place
Aggravated kidnapping: Aggravated kidnapping includes kidnapping for ransom, kidnapping for the purpose of committing other crimes, kidnap­ping for offensive purposes, and child stealing (the consent of a child to their detention or movement is not of importance because a child is incapable of giving valid consent).

Question 10

Arson

Answer 10

Malicious burning of the dwelling house of another

Malicious: intent to burn or reckless disregard as to whether it would result

Question 11

Rape

Answer 11

Intercourse without effective consent:
Intercourse is accomplished by actual force
Intercourse is accomplished by threats of great and im­mediate bodily harm
The victim is incapable of consenting due to uncon­sciousness, intoxication, or mental condition; or
The victim is fraudulently caused to believe that the act is not intercourse
Statutory Rape: Statutory rape is carnal knowledge of a person under the age of consent. Statutory rape is a strict liability crime, and, there­fore, it is not necessary to show lack of consent. Mistake as to age is likely not a defense.

Question 12

Assault

Answer 12

(1) An attempt to commit a battery or
(2) The intentional creation—other than by mere words— of a reasonable apprehension in the mind of the victim of imminent bodily harm.
If there has been an actual touching of the victim, the crime can only be battery, not assault.
Aggravated assault: an assault plus one of the following: (1) the use of a deadly or dangerous weapon, or (2) with the intent to rape, maim, or murder

Question 13

Battery

Answer 13

An unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. A battery can be, but need not be, intentional, and the force need not be applied directly (for example, causing a dog to attack the victim is a battery). Battery is a general intent crime. Some jurisdictions recognize consent as a defense to simple battery and/or certain specified batteries
Aggravated battery: Most jurisdictions treat the following as aggravated batteries and punish them as felonies: (1) battery with a deadly weapon; (2) battery resulting in serious bodily harm; and (3) battery of a child, woman, or police officer

Harmful or offensive contact with the person of another

Question 14

Murder (CL)

Answer 14

The unlawful killing of a human with malice aforethought, which exists when there are no facts reducing the crime to manslaughter and one of the following states exists:

Intent to kill
Intent to inflict great bodily injury
Reckless indifference to an unjustifiably high risk to human life (“abandoned and malignant heart” or “depraved heart”); or
Intent to commit a felony (felony murder)

Question 15

First Degree Murder

Answer 15

Deliberate and Premeditated First Degree Murder: If the defendant made the decision to kill in a cool and dispassionate manner and actually reflected on the idea of killing, even if only for a very brief period
First Degree Felony Murder: killing committed during the commission of an enumerated felony (usually burglary, arson, rape, robbery, and kidnapping, but other felonies that are inherently dangerous to human life)
Others: Some statutes make killings performed in certain ways (for example, by torture) or with certain victims first degree murder. Many states make the homicide of a police officer first degree murder. The defendant must know the victim is a law enforcement officer, and the victim must be acting in the line of duty

Question 16

Second degree murder

Answer 16

usually classified as a depraved heart killing (a killing done with a reckless indifference to an unjus­tifiably high risk to human life) or any murder that is not classi­fied as a first degree murder.

Question 17

Felony murder

Answer 17

Felony murder: Any death—even an accidental death—caused in the commission of, or in an attempt to commit, a felony is murder. Malice is implied from the intent to commit the under­lying felony.
The d must have intended to commit the underlying felony
The felony must be distinct from the killing itself
Death must have been a foreseeable result
The death must have been caused before the D’s immediate flight from the felony ended
In most jurisdictions, the defendant is not liable for felony murder when a co-felon is killed as a result of resistance from the felony victim or the police
Minority view: the “proximate cause” theory, felons are liable for the deaths of innocent victims caused by someone other than a co-felon.
Majority view: “agency” theory of felony murder, the killing must be committed by a felon or their “agent” (that is, an accomplice) with limited exceptions in cases in which the victim was used as a shield or otherwise forced by the felon to occupy a dangerous place.
CL: BARRK Burglary, Arson, Robbery, Rape, Kidnapping (many others by statute)
These are the inherently dangerous felonies for CL Felony Murder

Question 18

Voluntary manslaughter

Answer 18

An intentional killing in the heat of passion where there was adequate provocation
a killing that would be murder but for the existence of adequate provocation.
Provocation is adequate only if:
It was a provocation that would arouse sudden and intense passion in the mind of an ordinary person, caus­ing them to lose self-control (for example, exposure to a threat of deadly force, finding your spouse in bed with another, or being a victim of a serious battery)
The passion must be reasonable under the circumstances
The defendant was in fact provoked
Even if reasonable person would have been provoked, what’s important is that d was in fact provoked
There was not sufficient time between provocation (or provocations) and the killing for passions of a reasonable person to cool; and
the more time that has passed, the more likely it is that a reasonable person would have cooled off.
The defendant in fact did not cool off between the prov­ocation and the killing

Question 19

Involuntary manslaughter

Answer 19

An unintentional killing that results from D’s criminally negligent conduct

Committed with criminal negligence (or by “recklessness” under the M.P.C.) or in some states, during the commission of an unlawful act (misdemeanor or felony not included within felony murder rule). Foreseeability of death also may be a re­quirement

Question 20

Conspiracy

Answer 20

(1) an agreement between two or more persons;
(2) an intent to enter into the agreement; and
(3) an intent by at least two persons to achieve the objective of the agreement
Most states require an overt act, more than mere preparation (not in CL)
The objective must be criminal
A conspirator may be convicted of a crime committed by another conspirator if:
The crimes were committed in furtherance of the objective and the crimes were foreseeable.

Question 21

Solicitation

Answer 21

asking, inciting, counseling, advising, urging, or commanding another to commit a crime, with the intent that the person solicited commit the crime
Not necessary that the person agrees. If the person agrees, it becomes conspiracy.

Question 22

Attempt

Answer 22

an act, done with intent to commit a crime, that falls short of completing the crime. Attempt requires (1) specific intent plus (2) an overt act in furtherance of the crime.
Intent: To be guilty of attempt, the defendant must intend to perform an act and obtain a result that, if achieved, would constitute a crime (even if the crime itself doesn’t require specific intent)
Act: overt act, more than mere preparation
Most states: require that the act or omission constitute a “substantial step in a course of conduct planned to culminate in the commission of the crime” that strongly corroborates the actor’s criminal purpose

Question 23

Specific Intent crimes

Answer 23

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Solicitation: Intent to have the person solicited commit the crime
Conspiracy: Intent to have the crime completed
Attempt: Intent to complete the crime
First degree premeditated murder: Premeditated intent to kill
Assault: Intent to commit a battery
Larceny: Intent to permanently deprive the other of their interest in the property taken
Embezzlement: Intent to defraud
False pretenses: Intent to defraud
Robbery: Intent to permanently deprive the other of their interest in the property taken
Burglary: Intent to commit a felony in the dwelling
Forgery: Intent to defraud

Or FIAT (first degree murder, inchoate crimes, assault, theft crimes)

Question 24

General intent crimes

Answer 24

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Battery
Arson
Kidnapping
False imprisonment

Question 25

Elements of crimes generally

Answer 25

(1) Actus Reus: VOLUNTARY act
Or failure to act where there was legal duty
(2) Mens Rea: mental state
(3) Causation between the act and mental state
(4) Concurrence of mental state and physical act

Question 26

Elements of torts generally

Answer 26

An act by D (volitional movement)
Intent by D (to bring about the forbidden consequences at the basis of the tort)
Causation of the result to P from D (legal causation)

Question 27

Battery, tort

Answer 27

(1) Harmful or offensive contact
Offensive: if it would be considered offensive to reasonable person (unpermitted or unconsensual)
Harmful: causes actual pain, injury, or disfigurement
(2) Contact must be with the plaintiff’s person
Contact can be direct (for example, striking the plaintiff) or indirect (for example, setting a trap for the plaintiff to fall into).

Damages not required (P can recover nominal damages if actual not shown; punitive damages if malicious conduct)

Question 28

Assault, tort

Answer 28

(1) Act by the defendant creating a reasonable apprehension in the plaintiff
The apprehension must be reasonable – fear not required
P must have been aware of the threat
It’s enough if D has “apparent ability” to commit a battery
Words alone not enough
(2) Of an immediate battery (harmful or offensive contact to the plaintiff’s person)

damages not required

Question 29

False imprisonment, tort

Answer 29

An act or omission on the part of the defendant that confines or restrains the plaintiff
The plaintiff must be confined to a bounded area
Irrelevant for how long
P must know of the confinement or be harmed by it

Damages not required
There must be no reasonable means of escape known to the plaintiff

Question 30

IIED Intentional Infliction of Emotional Distress

Answer 30

An act by the defendant amounting to extreme and outrageous conduct
The conduct transcends all bounds of decency
Normally decent conduct may become indecent if continuous, targets certain people, or committed by certain type of D
The plaintiff must suffer severe emotional distress

Actual damages required

Question 31

Trespass to land

Answer 31

Physical invasion (by person or object)
Of the plaintiff’s real property (includes airspace and subterranean space within reasonable distance) (p has right to possess, doesn’t necessarily own)

Damages not required

Intent: must intend to go there, not required that they knew they were trespassing

Question 32

Trespass to chattels

Answer 32

Act by the defendant that interferes with the plaintiff’s right of possession in a chattel
Either by dispossession or damage

Small harm (the big one is conversion)

Question 33

Conversion

Answer 33

Act by the defendant that interferes with the plaintiff’s right of possession in a chattel
Interference is serious enough in nature or consequences to warrant that the defendant pay the chattel’s full value

Big harm (the small one is trespass to chattels)
Examples: Wrongful acquisition (theft),
Wrongful transfer,
Wrongful detention, and
Substantially changing, severely damaging, or misusing a chattel.

Question 34

NIED Negligent infliction of emotional distress

Answer 34

Emotional distress but no physical harm.
(1) Did D inflict physical harm? (2) If no, was there threat of physical impact or severe emotional distress likely to cause physical symptoms? (3) If yes, must fall under one of three categories
3 types
Near miss cases
Bystander cases
Special relationship between p and d

Question 35

NIED: near miss cases

Answer 35

The duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. The plaintiff usually must satisfy two requirements to prevail:
The plaintiff must be within the “zone of danger”
The plaintiff must suffer physical symptoms from the distress

Question 36

NIED: bystander cases

Answer 36

A bystander outside the “zone of danger” of physical injury who sees the defendant negligently killing or seriously injuring another can recover damages for their own distress as long as:
The plaintiff and the person injured by the defendant are closely related (spouse, parent, minor child)
The plaintiff was present at the scene of the injury and personally observed or perceived the event

Most states drop the requirement of physical symptoms in this situation.

Question 37

NIED: special relationship

Answer 37

Highly foreseeable that careless performance by D will result in emotional distress
Relationship between P and D, usually commercial relationship
Examples:
doctor’s misdiagnosis that patient has terminal illness
mortuary’s negligent cremation of deceased contrary to family’s instructions

Question 38

Res ipsa loquitor

Answer 38

In some cases, the very occurrence of an event may tend to establish a breach of duty
P must show:

The accident causing the injury is a type that would not normally occur unless someone was negligent
The negligence is probably attributable to the defendant (the instrumentality was within exclusive control of D)

Question 39

Strict liability: animals

Answer 39

Domesticated animals: An owner is not strictly liable for injuries caused by domestic animals (including farm animals) unless they have knowledge of that particular animal’s dangerous propensities that are not common to the species. Owner not strictly liable for pet’s first bite, but are for second.
Trespassing animals: An owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals.
Wild animals: An owner is strictly liable to licensees and invitees for injuries caused by wild animals (even those kept as pets).
BUT Strict liability will generally not be imposed in favor of trespassers

Question 40

Strict liability: abnormally dangerous activities

Answer 40

Abnormally dangerous activities:
The activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors
The activity is not a matter of common usage in the community
Examples: anything involving explosives/blasting, transporting dangerous chemicals/biological materials. Anything involving radiation or nuclear energy.
As with negligence, the defendant’s liability extends only to foreseeable plaintiffs.
Strict liability does not apply when the injury is caused by something other than the dangerous aspect of the activity (for example, a dynamite truck suddenly blows a tire and hits a pedestrian but does not explode)

Question 41

Strict liability: products

Answer 41

To find liability under a strict liability theory, the plaintiff must show:

The defendant is a merchant (in other words, a commercial supplier of the product) (NOT casual seller)
The product is defective (3 types)
The product was not substantially altered since leaving the defendant’s control
P must show it was not altered in distribution or in P’s care
The plaintiff was making a foreseeable use of the product at the time of the injury
NOT intended or appropriate use

Privity of k not required: users, consumers, bystanders can bring SL products claim
Includes commercial lessors
Includes entire distribution chain

Question 42

Public nuisance

Answer 42

Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community, for example, using a building for criminal activities such as prostitution. Recovery by a private party is available for a public nuisance only if the private party suffered unique damage not suffered by the public at large.

Question 43

Private nuisance

Answer 43

Interference with the peaceful use of one’s property. Intentional or negligent.

Private nuisance is a substantial, unreasonable interference with another private individual’s use or enjoyment of property that the other individual actually possesses or has a right of immediate possession.

Substantial interference: offensive, inconvenient or annoying to average person in the community.
Unreasonable interference: the severity of inflicted injury must outweigh the utility of the D’s conduct
Look for: spite cases, grossly inconsiderate neighbor, intolerance
Distinguish from trespass, where the interference is with landowner’s exclusive possession

Question 44

Informed consent

Answer 44

A doctor has a duty to disclose the risks of treatment to enable a patient to give an informed consent.
A doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent on learning of the risk.

Question 45

Malicious prosecution

Answer 45

Dcommences proceedings;
For animproper purpose;
Without probable cause;
Proceeding terminatedin favor of P; and
P suffered damages(job loss, reputational damage, etc)

Question 46

Abuse of process

Answer 46

Duses the legal process;
For anulterior purpose; and
Willfully acts or threatensP to accomplish the ulterior purpose; and
P sustainsdamages

Question 47

Disclosure

Answer 47

Widespread dissemination of confidential info about p not of legitimate concern to public and highly offensive to reasonable person

News exception (public concern)
Must be truly confidential

If false, additional tort claim

Question 48

False light

Answer 48

Dissemination of material falsehood about p that would be highly offensive to reasonable person
Distinguish from defamation (trying to recover for emotional harm, not economic)
May also be defamatory
Broader scope than defamation

Question 49

Intrusion

Answer 49

Invasion of p’s seclusion in a way that reasonable person would find highly offensive

Have to be in a place with reasonable expectation of privacy

Question 50

Appropriation

Answer 50

D uses P’s name, image, or likeness for commercial purpose

News exception

Not limited to celebrities

Emotional damage (compare to right of publicity, where trying to recover economically)

Question 51

Slander per se

Answer 51

Damages presumed!

Words so clearly defamatory that ordinary person would understand injury. 4 categories:
Any statement about P’s business or profession
That P has committed serious crime (some states, felony)
That P has committed serious sexual misconduct
That P has loathsome disease (leprosy or venereal disease; may expand to contagious disease)

Question 52

Libel

Answer 52

Damages presumed! P doesn’t have to show (but should)

Any defamation embodied in public form (written, recorded, etc)

Question 53

Defamation

Answer 53

Statement that injures P’s reputation in the community
Elements:
A false statement purporting to be fact (not an opinion)
Must specifically ID the P
P must be alive at the time
Publication required (must share the statement with at least 1 other person)
Damages or some harm to P (economic harm)
Fault depends on the P (see next slide)

Question 54

Fault in defamation cases

Answer 54

Private p: at least negligence required. More care required for more damaging statements.

For public figures: knowledge or reckless disregard for falsity required. Anyone regularly in public eye.