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Torts: Smith > Intentional Torts > Flashcards

Intentional Torts Flashcards

1
Q

What is the definition of an intentional tort?

A

Harmful act occurred because someone intended it to occur

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2
Q

For the purposes of intentional torts, how is intent defined?

A

Intent Definition: (Rst §8) – Two definitions:

1) P acts with purpose of producing consequences, or
2) P’s consequences are substantially certain to result from his acts → can infer intent from knowledge

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3
Q

What are the the three elements necessary for intent?

A

Three Elements for Intent:

1) State of mind exists at time act occurs
2) Look to the consequences of the act, and not the act itself
3) Extends to not only purpose or desire for consequences, but a belief that results will occur.

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4
Q

In what scenarios does transferred intent apply in torts?

A

Transferred intent applies to:

1) Assault
2) Battery
3) False imprisonment
4) Trespass to chattel
5) Trespass on land

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5
Q

True or false: the proximate cause doctrine for negligence extends further than for intentional torts

A

False: Garrat v. Dailey
Proximate Cause extends further in intentional torts than minority jurisdictions for negligence → direct consequences
Flows with level of culpability (more than negligence) because we want to avoid intentional acts

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6
Q

True or false: Contributory negligence doesn’t usually come into play as a defense for intentional torts.

A

True

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7
Q

What is the definition of battery?

A

Voluntarily intentional infliction of a harmful or offensive bodily contact upon another → offensive to a reasonable person

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8
Q

Does contact with a person or something on their person “count” as a battery?

A

Contact with something the person is touching/holding or wearing can be battery (ie: clothing, eating poisonous food)

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9
Q

What are the elements of battery?

A

1) Must be voluntary act by the D
2) Intent (must intend the circumstances, or be substantially certain they will result)
3) Causation
4) Harmful or offensive contact
+ Does not need to have physical harm, you can just have emotional / personal dignity

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10
Q

Is everyday, ordinary contact within which people come into contact a battery?

A

No! Huey
CONTEXT MATTERS: Circumstances / time and place / relationship between the parties
This was an everyday interaction that did not result in battery or assault

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11
Q

What is the legal definition of assault?

A

Interference with mental tranquility

Physical act of a threatening nature or an offer of corporal injury which puts an individual in reasonable awareness of imminent bodily harm

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12
Q

What are the elements to assault?

A

1) Act by a D
2) With sufficient intent, desire, or substantial certainty
3) Cause apprehension (not necessarily fear) of imminent, harmful or offensive contact about mental invasion
4 ) Must be in person usually to be imminent

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13
Q

How does a court analyze assault without battery?

A

Assault damages without physical contact

+ Based on RP standard
+ Rewarding those who don’t engage in self-help measures that amount to battery
+ Embarrassment: Nominal damages unless incredibly offensive behavior
+ Emotional Harm: future physical impairment can seek punitive damages

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14
Q

Are assault and battery two different torts? Can you have one without the other?

A
    • Assault and Battery are 2 separate torts w/ 2 separate recoveries **
    • assault w/NO battery → aiming to shoot someone, but they miss
    • Battery w/No assault → unconscious when kicked
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15
Q

What is the definition of IIED in an intentional torts context?

A

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

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16
Q

True or false: IIED is one of the few torts with a reckless element

A

True!

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17
Q

Define recklessness in an intentional torts context

A

Recklessness = disregard of a high probability that emotional distress will result

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18
Q

What are the elements of IIED?

A

1) The wrongdoer’s conduct was intentional or reckless.
2) The conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality.
3) There was a causal connection between the wrongdoer’s conduct and the emotional distress.
4) The emotional distress was severe

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19
Q

What is the difference between subjective and objective recklessness?

A

+ Subjective reckless - knowledge and disregard of a high degree of risk
+ Objective reckless - Should have been aware

20
Q

How does a court determine what is outrageous and intolerable behavior for IIED?

A

Reasonable Person Standard + Totality of the Circumstances

21
Q

Can a third party sue for IIED in most jurisdictions, even if the victim doesn’t sue?

A

Most states allow a 3d party to collect for IIED (even if the victim doesn’t sue) if they can prove

1) Elements of IIED PLUS
+ Close relative; and
+ Present at the scene of the conduct against the victim; and
+ D knows that the relative is present (and also that the person is a relative) –> similar to the bystander rule in negligence

22
Q

What is the history/policy behind IIED?

A

+ Harder to prove than intentional torts
+ Historically, the first IIED was recognized as insults yelled at by common carriers against passengers
+ At CL – this is very difficult to prove and barely recognized until the 1930’s – and then you had to prove another physical intentional tort until you can get recovery for mental distress
+ Sometimes called a “tort of outrage

23
Q

What is criminal conversation? Is it still good law?

A

(adultery) → Fornication w/one’s husband or wife.
+ This is not alienation of affections alone, but is often coupled with it
+ Historically only available to husbands, but expanded to wives in modern era
+ Many states have abandoned this tort all together as outdated

24
Q

What is alienation of affection? Is it still good law?

A

Def: behavior aimed at driving a wedge between family members.
+ Mostly between marriages
+ Not used often and seen as outdated as used as a tool to get more money in divorces
+ Most states have abolished both “heart balm statutes”

+ Co-mingling of property rights – can’t sue yourself
+ What is reasonable is changing
+ Courts not wanting to get involved in such common, messy, personal drama/increase of litigation

25
Q

What did Hustler v. Farwell teach us about IIED and First Amendment rights?

A

Constitutional Rights > Intentional Torts
+ First Amendment reserves the right to make statements, even if rude, against a public official
+ Public has the right to criticize “public men and measures”
+ As long as they aren’t made knowing that the statements are not true and intending to mislead the public

26
Q

When looking at a IIED fact pattern and a potentially public figure, what are important considerations?

A

Look to the issue not the person to determine what’s public and protected

Learn how to craft your arguments, depending on what side you’re on → QOF, RP

Beyond the First Amendment, what other Constitutional Protections can you argue beyond state protection?

27
Q

What are the elements for an employee to file a hostile work environment claim?

A

Hostile Work Environment

1) Subject to sexual advances request for sexual favors or other verbal/physical conduct of sexual nature; and
2) That the conduct was unwelcome
3) Conduct was sufficiently severe or pervasive to alter the conditions of the P’s employment and create an abusive work environment

28
Q

True or false: Title VII covers all federal and state provisions

A

False. Only federal. States may have additional coverage.

29
Q

What helps a fact finder determine if behavior in the workplace is unwelcome?

A

1) What standard should we use to prove unwelcome-ness/severe or pervasive?
+ Reasonable man/Reasonable woman?

2) What constitutes “outrageous” conduct?
+ Abuse of power
+ repeated incidents/pattern of harassment
+ Unwelcome touching/non-negligible physical contact
+ Retaliation for refusing or reporting sexual advances

30
Q

True or false: For harassing conduct to be pervasive and severe, courts only look at RP standard

A

False. RP standard AND P’s ability to effectively perform his/her job functions in the current environment

31
Q

What is an affirmative defense for hostile work environment?

A

employer could affirmatively defend (completely) by showing

1) It exercised reasonable care to prevent and promptly correct any sexual harassing behavior and
2) P employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise

32
Q

Why does the employer’s defense require the employee claiming hostile work environment to to reasonably take advantage of preventative/reporting measures?

A

Puts the employer on notice that there’s icky stuff going on, allows them an opportunity to remedy

33
Q

Does an employer’s affirmative defense for hostile work environment also apply to quid pro quo?

A

NO. This would be more of a vicarious liability situation.

34
Q

Is same sex harassment protected under Title VII?

A

Yes. Oncale v. Sundowner Offshore
+ Sexual harassment must have a claim against harassment because of gender (must have been targeted because they are a man, or woman)
+ Lesbian harassing a lesbian is harassment under Title VII is actionable because they wouldn’t be harassing men, therefore its harassment because of gender

35
Q

What are the elements of racial harassment in the workplace?

A

1) Employee was subjected to unwelcome harassment at work or in a work-related setting
2) Harassment based on membership in protected class
3) Harassment so severe or pervasive it affected P’s condition of employment and created an abusive work environment
4) Employer knew or should have known and took no effective action to remedy

36
Q

Are racial harassment claims actionable under §1981?

A

§ 1981. Equal rights under the law
+ Equal rights act after the Reconstruction era that gave all persons equal rights to make and enforce contracts.
+ Currently racial harassment claims are actionable under this statute

37
Q

If an employer is found to have violated Title VII re: racial harassment, are the injured employee’s remedies capped? What about §1981?

A

Racial Harassment Monetary Awards:
+ Under Title VII they are capped according to the size of the employer up to a max of $300,000.
+ BUT, under §1981 – law permits unlimited punitive damages

38
Q

Have courts allowed IIED claims re: racial insults?

A

General: courts have permitted IIED claims in cases of Racial Insults and Harassment

+ A single racial slur in employment context is sufficient Taylor v. Metzger
+ Opposing View: Bradshaw v. Swagerty refused recovery for racial slur from lawyer because some mere insults must be tolerated

39
Q

True or false: To meet the causation element of intentional tort, defendants must be the direct and indirect cause of harm.

A

False.

Causation → D act must be the direct or indirect cause of the offensive contact.

40
Q

How does foreseeability come into play with intentional torts?

A

Proximate Cause w/ Intentional Torts → D is liable for expected and unexpected/unforeseeable consequences in intentional torts

41
Q

Does the eggshell rule apply to intentional torts?

A

YES! We look to the foreseeable and unforeseeable consequences of D’s acts

42
Q

How do we know when an injured plaintiff is entitled to nominal damages in an intentional torts claim?

A

Damages for Intentional Torts: (assault, battery, false imprisonment, etc)
+ Once contact or apprehension occurs – P is entitled to some nominal damages (symbolic)
+ No requirement for physical/mental damages.

43
Q

Are victims of an intentional tort entitled to pecuniary and punitive damages?

A

Yes!

44
Q

What are nominal damages and how do they differ from unintentional torts?

A

Nominal Damages
+ Damages that are symbolic even if no real damages occurred after an intentional tort
+ Different from unintentional torts (can be as low as 1$)

45
Q

What are some insurance considerations when figuring damages for intentional torts?

A

+ Parents generally not liable for the torts of their kids, unless they know or have reason to know
+ Insurance companies usually exclude intentional torts from liability – when K’s are unclear – court usually award in favor of the P

46
Q

Do all of the U.S. States have victim compensation statutes for intentional torts?

A

+ Some states created funds to compensate victims of intentional torts from insolvency of the perpetrators.
+ Today, there are 35 states in total
+ Usually require some type of criminal conviction

47
Q

Do federal courts have jurisdiction over a non-US citizen (alien) who commits an intentional tort while in the country?

A

Fed courts have jurisdiction over any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the US

Usually used for gross international human rights violations

Torts: Smith (8 decks)

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