Intentional Torts Flashcards
three types of torts and key to analysis
There are three types of torts:
- intentional (including malice and deception) torts
- negligence
- strict liability torts
The key to torts is to know:
(1) the prima facie elements of each tort and how to apply them;
(2) the defenses available for each tort and how to apply them; and
(3) who may be held liable (and in what amount) for each tort.
ITs in general - 3 preliminary questions (who may commit; “offensive” contact and plaintiff sensitivity; proof of damages)
– 1. Who may commit an intentional tort?
• ANYONE, regardless of age, experience, or intelligence.
• a. As a result, is INCAPACITY (insanity or intoxication) a defense to intentional torts?
»> No
– 2. In determining whether the defendant’s actions are “offensive” for purposes of battery, assault, or intentional infliction of emotional distress, does the court consider the plaintiff’s super-sensitivity?
• No, the plaintiff is treated like an average person, unless the defendant actually knows of the plaintiff’s sensitivity.
– 3. Are plaintiffs required to prove damages for intentional torts?
• No, nominal damages are presumed (i.e. NOT a separate provable element)
»> EXCEPT FOR intentional infliction of emotional distress, trespass to chattels, and conversion
»> e.g. you can get nominal damages ($1) if someone “trespasses to your land” by throwing a baseball over it – just the principle of the thing – but you can also further recover actual damages, if say, the ball hit you/destroyed something on your land
• Will an award of nominal damages support a punitive damages award?
»> Yes. Punitive damages may be awarded for intentional torts ONLY IF the defendant acts MALICIOUSLY.
prima facie elements for all ITs
tortious act
specific/general intent
causation
damages
tortious act - rule & 5 exceptions
A tortious act by the defendant, which includes any willed muscular movement, but does not include:
- sleepwalking
- convulsions
- reflexes
- hypnosis
- being physically forced by another person
tortious act - failure to act (rule & 5 exceptions)
does this apply to negligence too?
– May a person be held liable for an intentional tort (or negligence) for failure to act (i.e., an omission)?
General Rule: No. A person has no affirmative duty to act.
Exceptions—there may be a duty to act if:
- there is a relationship between the injured person and the defendant, such as a close family member, employer-employee, principal-agent, owner/occupier-invitee, common carrier-passenger, innkeeper-guest, driver-passenger, school-student
- the defendant caused (innocently or negligently) the peril and then did not help
• the defendant undertook to rescue the person and then quit, which precluded others from attempting rescue OR left the plaintiff in worse condition
»> i.e. if you undertake to rescue, you must exercise reasonable care during the rescue!
• in addition, a defendant may have a duty to control another person (parent-child or employer-employee, but only if the parent or employer knew or should have known of the particular danger)
»> note: parents are NOT directly reliable for the torts of their children, but they can incur their own tort liability if they knew or should have known of their child’s aggressive tendency (i.e. the particular danger)
• Tarasoff Warning. In many states, if a patient of a mental-health professional (e.g., psychiatrist) makes specific threats regarding an identifiable victim, the mental-health professional has a duty to warn the victim
RULE AND EXCEPTIONS APPLY TO NEGLIGENCE TOO
intent requirement (including transferred intent)
specific or general intent by the defendant to commit the act
• a. The intent element is satisfied if the defendant acts with the “purpose of producing the consequence” or “acts knowing the consequence is substantially certain to occur”
»> essentially recklessness
»> **DOES NOT need to intend the specific injury
• b. Transferred Intent: an intent to commit one tort may be transferred to another tort AND/OR an intent to commit a tort against one person may be transferred to another person
»> i. transferred intent may be used only where the intended tort and the committed tort are among the following: battery, assault, false imprisonment, trespass to land, trespass to chattels
»> conversion and IIED are NOT included
causation & damages elements
– Causation: similar to negligence, except courts take a broader view of proximate cause
• rule: An actor who intends to cause harm is liable for such harm, EVEN IF it occurs in an unlikely fashion.
»> example: A swings a gun at B’s head hoping to injure B. Before the gun makes contact with B’s head, A loses his grip on the gun and it drops to the floor. Upon hitting the floor, the gun discharges, hitting the cable holding a chandelier to the ceiling. The chandelier falls, hitting B on the head. B sues A for battery. A will be deemed to be the proximate cause of B’s injury.
– Damages:
- required to be shown for IIED, Trespass to Chattels, and Conversion
- proximate cause PRESUMED for all others
battery - 4 elements
• 1. defendant acts intending to bring about or with substantial certainty of
• 2. harmful contact (e.g., injury, pain, or disfigurement) OR OFFENSIVE contact (unpermitted as judged by a REASONABLE PERSON)—direct or indirect—with the plaintiff
»> i.e. can be contact with something “connected to the person” or even pulling a chair from out from under them or digging a hole so they fall into it
»> BUT, remember, if defendant has reason to know that the plaintiff has a special sensitivity, we will use a subjective standard of “offensive”
- causation
- lack of consent (majority view)
assault - 3 elements & relationship to battery
• a. Elements:
– i. defendant acts intending to (or with substantial certainty that it will occur)
– ii. cause a reasonable expectation
• **defendant must have been AWARE or no “reasonable expectation”
»> i.e. plaintiff can’t be asleep/getting attacked from behind
»> usually a factual scenario where the plaintiff has to duck/move out of the way
• no fear required!
• mere words (without other action) are INSUFFICIENT unlto establish apprehension
• conditional language: you can condition your OWN action (which would negate a reasonable expectation), but not another’s – “if YOU don’t give me your wallet, I’ll hit you” – assault
– iii. of an immediate battery to plaintiff
»> i.e. can’t be “I’ll mess you up tomorrow”
• b. Merger: Assault and battery do not merge under tort law.
»> ***interplay with battery (common fact pattern): if you intend only to cause an ASSAULT, but end up coming into contact with the person, your intent can be transferred from tort to tort, satisfying the intent element for a BATTERY
false imprisonment - elements (4) & damages
• a. Elements:
– i. defendant acts intending to (or with substantial certainty that it will occur)
– ii. confine or restrain the plaintiff to
»> confinement or restraint may be by physical barriers (locked room, cage, cell), physical force, or threats of immediate force to plaintiff, plaintiff’s family (not third parties), or plaintiff’s property (e.g., purse or car)
»> if defendant owes plaintiff a duty (or they have a prior understanding) to release plaintiff, an omission may constitute false imprisonment (e.g., a jailor must release a prisoner at the end of his sentence)
»> a confinement for one minute may constitute false imprisonment
»> the plaintiff must be aware of the confinement (or, if unaware, must be injured by the confinement)
– iii. a bounded area (i.e., an area that is bounded on all sides from which there is no reasonable and known means of escape)
»> the plaintiff is under no duty to search for an exit and is not required to use a dangerous or humiliating exit – ***i.e. just know that hidden, humiliating, dangerous exits are not “reasonable means of escape”
– iv. and causation
• b. Damages: to the extent you show damages (not necessarily required) the plaintiff may recover damages for the confinement and for injuries incurred in reasonable attempts to escape.
»> can recover for mental suffering/humiliation as well!
defenses to false imprisonment - (shopkeeper’s; false arrests - police & citizen)
– 1. Shopkeeper’s Defense: this defense is available if the shopkeeper:
• reasonably believes that a theft has occurred;
• the manner of the detention and the force used are reasonable; and
• the period of confinement is reasonable (minutes, but not hours)
• note: this defense also applies to assault and/or battery claims against shopkeepers.
– 2. Defenses for False Arrests:
• a. Police Officers: a police officer has a defense to false imprisonment if:
»> the arrest is made pursuant to a valid warrant, or
»> the arrest is for a felony and the officer reasonably believes that the felony occurred and that the plaintiff committed it, or
»> the arrest is for a misdemeanor (that resulted in a breach of the peace) committed in the officer’s presence
• b. Private Citizens: a private citizen has a defense if:
»> the arrest is for a felony, the felony in fact occurred (even if not by this person), and the citizen reasonably believes that this plaintiff committed it, OR
»> the arrest is for a misdemeanor (that resulted in a breach of the peace) committed in the citizen’s presence
IIED - elements (3)
• a. Elements:
– 1. Extreme and outrageous conduct by defendant (i.e., conduct that exceeds all bounds of decency tolerated in a civilized society)
• examples of extreme and outrageous conduct: physical threats, heavy-handed collection efforts, willful mishandling of corpses, cruel practical jokes
• MERE words, insults, or offensive language are generally insufficient
• but non-outrageous conduct may become outrageous if:
»> it is frequently repeated or done in public, or
»> the plaintiff is a child, elderly person, pregnant woman, or someone the defendant knows is sensitive, or
»> the defendant is an inn-keeper or common carrier (bus, train, airplane) and the plaintiff is a guest or passenger (in such cases, EVEN GROSS INSULTS SUFFICE)
– 2. Intentionally designed to inflict distress OR EVEN RECKLESSLY (i.e., a deliberate disregard of a high probability of emotional distress)
– 3. Plaintiff suffers SEVERE emotional distress (no physical injury or physical consequences are required)
• Examples: neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition that is recognized and diagnosed by professionals
IIED - key essay point & defense
• b. Essay Point: For behavior that “nearly misses” qualifying as an assault, false imprisonment, defamation, or invasion of privacy, IIED is often used as a fall-back tort on essay questions
»> so always throw in a separate paragraph that says it “may be” IIED – unlikely but might get you points
** but remember, here you need to also prove ACTUAL damages
• c. Defense: In rare cases (Falwell - hustler magazine case), the First Amendment may be a defense to IIED.
IIED - Can a plaintiff recover for IIED as a result of defendant’s physical harm of another? (2 scenarios)
yes, under two circumstances:
– if defendant injured the other person for the purpose of causing plaintiff emotional distress (IIED ONLY), OR
»> A and B were recently divorced. A has begun dating C. In an effort to aggravate A, B intentionally runs over C, seriously injuring C. A was not present to see the battery, but A suffered severe emotional distress. Were any torts committed against A?
»> Yes, IIED
– special relationship (IIED or NIED):
(1) plaintiff and the injured person are CLOSE relatives,
»> some states allow recovery by persons who are not close relatives, but only if that person suffers PHYSICAL consequences (e.g., a heart attack) from the distress
(2) plaintiff was PRESENT at the scene of the injury, AND
»> in some cases, the plaintiff must also prove that the defendant knew the plaintiff was present or acted with reckless disregard to plaintiff’s presence.
(3) plaintiff PERSONALLY OBSERVED the event
• these actions are DERIVATIVE; thus, if the injured party was at fault, the plaintiff may not recover (or the plaintiff may not recover the full amount of her damages)
trespass to land - 3 elements
– 1. defendant acts intending to (or with substantial certainty that it will occur)
• the intent required is simply the intent to ENTER the land; there is no requirement to show intent to trespass or wrongfully enter the land
– 2. enter
• defendant enters the land or wrongfully stays (or allows an item to stay) on the land
• defendant pushes or chases another on to the land
• defendant causes an object heavier than air to enter or cross the land
»> smoke, noise, shockwaves, and sound are insufficient (but see nuisance)
– 3. plaintiff’s land (surface and usable space above or below surface out to a reasonable distance)
