Intentional Torts Flashcards
What are the elements of Battery?
An act
Intent to touch (purpose or substantial certainty)
Causes harm or offense
What is intent in intentional torts?
Purpose OR substantial certainty
What are the elements of Assault?
- An act
- Intent to create
- An imminent
- Apprehension
- Of harm or offense
What is apprehension in assault?
No fear required– just have to anticipate harm or offense that would result in battery if completed
How do you measure apprehension in assault?
Objective - if a reasonable person would’ve apprehended harm or offense, ∆ can assume π would
Subjective - if ∆ knows that π is especially sensitive about something
How do you measure imminent in assault?
Consider time, geography, conditions.
Conditional language ≠ assault
Are words alone enough for assault?
No - need to think they are going to be acted on imminently
Is choice of torts an assault?
Yes
What are the elements of False Imprisonment?
- Intent
- Confinement
- Without lawful privilege
- Against consent
- Within a limited area
- Any amount of time
What has to happen for the victim to be able to claim False Imprisonment?
They need to have been aware of it or suffered actual harm
Does duress count for False Imprisonment?
Yes, if reasonable, then threat counts. Don’t need physical force
Is motive relevant in False Imprisonment?
No
What are the elements of Intentional Infliction of Emotional Distress?
- ∆’s intentional or reckless behavior
- ∆’s conduct is extreme and outrageous
- ∆’s conduct is the cause of π’s emotional distress
- π actually has severe emotional distress
What kind of intent is there for IIED?
Dual
How do we measure intentionally/ recklessly in IIED?
Objective standard - a reasonable person would know there’s a high chance of causing ED so ∆ should know too
Subjective standard - ∆ knows that ED is highly probable and does it anyway
What counts as extreme and outrageous behavior in IIED?
Must be atrocious. Beyond all decency. Consider - repetition - duration - power balance - emotional vulnerable π - special relationship
How do you prove π has emotional distress for IIED?
High bar - need evidence of medical treatment, diagnosis, duration, intensity. Must show it’s beyond what any reasonable person would be expected to endure
What is the meaning of ‘thin skull plaintiff’?
Extended liability – ∆ is responsible for all consequences that came out of his action, even if he didn’t expect π to be such a weakling
What does the second restatement say is the test for Bystander Liability for IIED?
Plaintiff must be IMMEDIATE FAMILY or PRESENT
or
Plaintiff doesn’t have to be family but must be PRESENT and suffer BODILY HARM
What does the third restatement say about Bystander Liability for IIED?
Plaintiff must be a CLOSE FAMILY member and PERCEIVE the event contemporaneously
What are the elements for Trespass to Land?
- π has ownership in land
- Intentional and tangible entry by ∆
- Harms π’s interest in exclusive possession of the land
Do you need actual harm for Trespass to Land?
No, don’t need actual damage – just need to have interfered with owner’s right to exclusive possession
What counts as entry for Trespass to Land?
If ∆ intentionally enters or intentionally causes something else to enter (throws a shoe).
But if he is in a car crash and is thrown onto the land, that doesn’t count because he didn’t mean to.
What kind of intent is needed for Trespass to Land?
Single intent: only need intent to enter, not intent to offend.
(Transferred intent also works – throwing a shoe at someone to batter them, but it lands on owner’s property)
What is a trespasser liable for in Trespass to Land?
Damages directly caused by his trespass (extended liability can apply)
What are the damages for Trespass to Land?
Nominal
Compensatory
- cost of repair or diminished value of land
- consequential damages –> loss of use, discomfort, annoyance
What are the elements of Conversion of Chattels?
- Exercising substantial control over chattels
- With the intent to do so
- In a way that is inconsistent with the owner’s rights
What are the remedies (damages) for Conversion of Chattels?
- Value of chattel at time of conversion or market value
- Consequential damages (loss of use, annoyance)
- Pain and suffering (rarely allowed)
- Punitive
- Replevin!
Someone who steals a watch and sells it. Who is guilty of Conversion of Chattels?
Both buyer and seller are converters
Someone steals a watch and sells it to Cabo Jewelry, who then sells it to Oley. Who is guilty of conversion?
Just the thief. When there is a Merchant/ Bona Fide Purchaser, breaks the chain of conversion
If someone gets a watch by fraud and then sells it to someone else, who is guilty of conversion?
Just the fraudster. Subsequent purchasers aren’t guilty
If it’s serious enough that a court would make you pay for the cost of the entire item, is it conversion or trespass to chattels?
Conversion
If the court would make you pay to ‘rent’ something rather than buy it, is it conversion or trespass to chattels?
Trespass
What are the elements of Trespass to Chattels?
- Intentionally
- Physically interfering with the use and enjoyment of personal property
- Harm to the chattel (damage or dispossession)
What is the remedy (damages) for Trespass to Chattel?
Amount of reduced value of chattel/ damage to item
What kind of intent is there in Battery?
Dual intent - majority
Single intent - minority and Third Restatement favors
What’s the majority rule for intent in Battery?
Dual intent - intent to make contact
AND
intent to cause harm or offense
What is the minority rule for intent in Battery?
Single intent - and third restatement favors
What kind of intent does the Third Restatement favor for Battery?
Single (which is minority rule)
How do we measure harm or offense in Battery?
Objective - if reasonable person would find it offensive
Subjective - if π is especially sensitive and ∆ knows it
When can parents be liable for kids’ intentional torts?
- Parent is at fault (leaving matches around arson kid)
- Parent eggs kid on
- Parent is the kid’s employer
- There’s a relevant statute
What kind of damages can someone get from parents for intentional tort their kid committed?
Damages are very limited - in Oregon, can’t get more than $7,500
What is the Rule of 7s?
Minority rule that kids under 7 can’t be liable for intentional torts
What is the extended personality rule?
Having contact with something that the π is touching might constitute a battery
Does the π need to be aware of what’s happening for a Battery? Assault? False Imprisonment? IIED?
Battery - No
Assault - Yes
False Imprisonment - Yes, or suffer physical harm
IIED - if a bystander, need to be family and perceive contemporaneously (third restatement)
Would kids and mentally handicapped be liable for intentional torts under Dual Intent? Single?
Under dual – probably not. Under single – yes.
What does Purposeful Infliction of Bodily Harm require and not require?
Requires harm
Does not require contact or knowledge/ substantial certainty
Ex: moving ergonomic chair so coworker will hurt back or moving phone out of reach of dying guy
What are damages for battery?
Compensatory (pecuniary and pain and suffering)
Punitive (if ∆ acted with malice)
Nominal
What are damages for Assault?
Compensatory
Nominal
Punitive
What are exceptions for Bystander IIED?
Terrorism, sex abuse (so parents can collect even though they obviously weren’t there)
Name the defenses to Intentional Torts
- Self Defense
- Defense of a third person
- Defense of property
- Shopkeeper’s privilege
- Discipline
- Consent
- Public or private necessity
When can Self Defense be used?
∆ can use reasonable force if ∆ reasonably believes the use of physical force is necessary to prevent or repel an imminent attack or confinement
When can deadly force be used?
Deadly force can only be used as self defense if deadly force is threatened
Are reasonable mistakes allowed in Self Defense?
Majority - Yes
Minority - No
Is retreat necessary for Self Defense?
Majority - no retreat necessary
Minority - Must try to retreat before using deadly force
Exception - if in own home or in stand your ground state
When can defense of a third person be used?
You can always defend a third person if that person would have had the privilege of self defense
Are reasonable mistakes okay for defense of a third person?
Majority Rule and Second Restatement - Yes, reasonable mistakes okay
What are the elements for using Shopkeeper’s Privilege?
- Reasonable belief that someone was shoplifting
- Detain for purposes of investigation (calling the cops)
- Detain person for reasonable time and in reasonable manner
Is reasonable mistake okay for Shopkeeper’s Privilege?
Yes
When can Discipline be used as a defense for intentional torts?
If the parent reasonably believes force is necessary and uses reasonable force
What does reasonable force mean for Discipline?
Consider
- Degree of force
- Amount of pain
- How bad the kid was
- What was used
What restatement got rid of corporal punishment privilege for teachers?
Third – BOOOOOOO
When can you use Defense of Property/ Chattels?
Use is limited - pretty much must be in hot pursuit.
Never have privilege of deadly force unless they are threatening our life.
No death traps.
Is reasonable mistake okay for Defense of Property/ Chattels?
Yes
When does the defense of consent not work?
- Duress
- Power imbalance
- Lack of capacity (underaged, mentally handicapped)
- Fraud
- Crime (3rd restatement says can consent to crime except for statutory stuff)
- Mistake
What does the third restatement say about consent in sex?
No means no
What is actual consent?
Can be expressed nonverbally or verbally (nodding or saying yes)
What is apparent consent?
Depends on ∆’s reasonable belief (holding out hand means ∆ can reasonably believe you want a handshake)
What is presumed consent?
Depends on social customs and ∆’s reasonable belief (slap ass in baseball)
What does the defense of public necessity require?
- ∆ did it because they were protecting a public interest
- ∆ acted in good faith
- apparent necessity
- preventing a greater evil
What does the defense of private necessity require?
- ∆ did it because they were protecting a private interest
- ∆ acted in good faith
- apparent necessity
- preventing a greater evil
What kind of privilege is public necessity?
Absolute privilege - ∆ won’t have to pay any damages
What kind of privilege is private necessity?
Qualified privilege – ∆ can do it, but they’ll have to pay for damage they cause
Is reasonable mistake okay for public and private necessity?
Yes
