Intentional Torts Flashcards
Elements of Intentional Torts
Include:
- Voluntary act
- Intent
- Causation
- Harm
- Lack of privilege or defense
Tort Elements: Voluntary Act
A D is not liable in tort for acts that are not voluntary (product of pure reflex or unconscious acts).
Tort Elements: Intent
For most intentional torts intent is established by:
- (Purpose intent)- a desire that his act will cause the harmful result described by the tort
- (Knowledge intent)- knowledge that a result is substantially certain to occur
Incompetency
The fact that a D is mentally incompetent or a minor does not preclude a finding that he possessed the intent to commit an intentional tort, but incompetency may affect whether such intent actually existed.
Transferred Intent
If the D acts with the necessary intent to inflict certain intentional torts but for some reason causes injury to a D V, the Ds intent transfers to the actual V.
What Torts Does Transferred Intent Apply To?
Include:
- Assault
- Battery
- False Imprisonment
- Trespass to land
- Trespass to chattels
Harm
Can be proved by:
- establishing elements of the tort; or
- proving specific injury
Types of Intentional Torts
Include:
- Battery
- Assault
- False Imprisonment
- IIED
- Trespass to Land
- Trespass to Chattels
- Conversion
- Replevin
Battery
An intentional act that causes a harmful or offensive contact with the plaintiff or with something closely connected thereto.
Battery: Intent Element
The D must either:
- Desire to cause an immediate harmful or offensive contact; or
- Know such contact is substantially certain to occur.
Battery: Harmful Contact
Any sort of pain or impairment of a body function.
Battery: Offensive Contact
Contact that a reasonable person would consider offensive.
Battery: Items Intimately Associated with Body
It is sufficient for battery that a D causes a contact with something close to the plaintiff, as where the D snatches a hat from the plaintiff’s hand.
Battery: Awareness of V?
Unlike assault, P need not be aware of the contact.
Assault
An intentional act that causes the plaintiff to experience a reasonable apprehension of an imminent harmful or offensive contact.
Assault: Intent
The D must act with the desire to cause an imminent harmful or offensive contact or the imminent apprehension of such contact, or know that such a result is substantially certain to occur.
Assault: Actual Ability Requirement?
As long as the plaintiff’s apprehension is reasonable, the fact that the defendant lacked the actual ability to cause the harmful or offensive contact does not defeat liability.
Assault: Imminent Harm
Harm/battery must be able to occur almost instantly (e.g. can’t be a promise to come back tomorrow to hurt somebody). Words alone rarely create an assault.
False Imprisonment
An intentional act that causes a plaintiff to be confined or restrained to a bounded area against the plaintiff’s will, and the plaintiff knows of the confinement or is injured thereby.
False Imprisonment: Intent
A D has the requisite intent for false imprisonment if he desires to confine or restrain the plaintiff to a bounded area, or knows that such confinement is virtually certain to occur.
False Imprisonment: Methods of Confinement
Can include:
- physical barriers
- failing to release P where D had a legal duty to do so
- invalid assertion of legal authority
False Imprisonment: Duration?
No duration of confinement is required (although this might affect the amount of damages).
False Imprisonment: Reasonable Means of Escape
A P is not confined if there is a reasonable means of escape of which he is actually aware. Reasonable means that there is no harm to P or property and does not expose P to risk of embarassment.
False Imprisonment: Infants or Incompetents
Although false imprisonment requires awareness of confinement or actual harm, some cases have held that infants or incompetents who are incapable of being aware of confinement can nevertheless recover.
False Imprisonment: Shopkeeper’s Privilege
A D is not liable if:
- He has reasonable suspicion that the P has stolen goods
- He uses reasonable force to detain the person
- Detains the P for a reasonable period and in a reasonable manner, either on the premises or in the immediate vicinity.
Shopkeeper’s Privilege: Mistake
The defendant shopkeeper may assert the defense, even if the detained P has not, in fact, stolen any property, so long as the Ds mistake is reasonable.
Intentional Infliction of Emotional Distress (IIED)
An intentional or reckless act amounting to extreme and outrageous conduct that causes the plaintiff severe mental distress
IIED: Intent
The D must act with intent to cause severe mental distress (purpose or knowledge intent) or be reckless in creating the risk of emotional distress (deliberate disregard of a high degree of probability that the emotional distress will follow).
IIED: Extreme and Outrageous Conduct
When the Ds conduct is beyond the bounds of decency (conduct that a civilized society will not tolerate).
IIED: Offensive or Insulting Language
Is generally not considered outrageous conduct except in cases involving:
- Ds who are common carriers/innkeepers
- D is an authority figure using racial/ethnic slurs against a subordinate
- D knows of Ps particular sensitivity (elderly, children, or pregnant women)
IIED: Severe Distress
P must prove that the distress suffered was severe (more than the level of mental distress a reasonable person could be expected to endure). Must be substantial/long lasting as opposed to trivial/transitory.
IIED: Physical Injury?
Most states no longer require the plaintiff to show that actual physical injury accompanied the severe emotional distress.
IIED: Conduct’s Relationship with Distress
The more outrageous the Ds conduct, the easier it will be for P to establish the requisite mental injury
IIED: Third Parties/Bystanders
When the Ds conduct is directed at a third party, the D is subject to liability to P, assuming all the other elements of the tort are satisfied if:
- the P is an immediate family or close relative of the third party, is present a the time of Ds conduct, and D is aware of the presence
- to any P who is present at time of conduct, incurs bodily harm, and the D is aware of the Ps presence.
Trespass to Land
An intentional act that causes a physical invasion of the Ps land and interferes with Ps possessory interest in the land.
Trespass to Land: Intent
- The D needs to desire to enter the land/cause someone or something to enter or know that land entry was substantially certain to result
- The D needs only to act with intent to physically invade a piece of land. The D does not need to specifically intend to invade the Ps land.
Trespass to Land: Ps Rights to Land
- To have a claim, the P must be in actual possession or have the right to immediate possession of the land.
- Ownership is not required. Furthermore, if a legal title holder is not in possession, they cannot bring a claim.
Trespass to Land: Physical Invasion
Is satisfied when:
- D enters or causes a third person or an object (e.g. bullet) to enter onto the Ps land
- Enters onto Ps land lawfully but remains despite a legal duty to leave
- Fails to remove an object from the plaintiff’s land when under a legal duty to do so.
Trespass to Land: Mistake?
Mistake is not a defense to a trespass action. Therefore, defendant’s awareness or good faith belief is irrelevant.
Trespass to Land: Damages
- When there is no real injury –> nominal damages
- If there is an injury –> trespasser will be liable for that harm
- Where the D acts willfully or maliciously –> punitive damages.
- If D is still on land –> ejectment
Ejectment
An action at law to recover possession of realty.
Ejectment: Additional Damages (Mesne Damages)
A successful P in an ejectment action is entitled to mesne damages, which compensate for the loss of use of the property measured by the rental value of the property or the benefit gained by the wrongful possessor, whichever is greater.
Elements of an Ejectment Action
The following elements are required for ejectment:
- Proof of legal title
- Proof of the Ps right to possession and
- Wrongful possession by the D
Trespass to Chattels
An intentional act by the D that interferes with the Ps chattel, causing harm (actual damages).
Trespass to Chattels: Intent
Is satisfied when D intentionally performs the physical act that interferes with the Ps chattel (does not need to be aware of the significance of his act).
Trespass to Chattels: Interference
Can include dispossession and intermeddling
Trespass to Chattels: Dispossession
A direct interference with a chattel that does not directly affect the plaintiff’s possession.
Trespass to Chattels: Intermeddling
An interference with a chattel that does not directly affect the plaintiff’s possession.
Trespass to Chattels: Ps Rights
To have a claim, the P must be in actual possession or have had the right to immediate possession of the chattel.
Trespass to Chattels: Damages (Harm)
Proof of actual damages is required. Actual damages includes the loss of use (e.g., rental value) of the chattel during a dispossession or the cost to remedy an intermeddling.
Trespass to Chattels: Mistake
Is not a defense.
Conversion
An intentional act by a defendant that causes the destruction of or a serious and substantial interference with the plaintiff’s chattel.
Conversion: Destruction or Serious and Substantial Interference
When the D exercises dominion and control over the chattel. Is more serious than trespass to chattels.
Conversion: Mistake
Is not a defense. Therefore, a purchaser who buys converted property from a converter can also be liable for conversion.
Distinguishing Conversion from Trespass to Chattels
The longer the period of interference and the greater the use of the chattel by the defendant, the more likely it will be considered a conversion rather than a trespass to chattels.
Conversion: Important Factors for Determining the Seriousness of the Interference
Include:
- The extent and duration of the defendant’s exercise of dominion or control
- The Ds intent to assert a right inconsistent with the other’s right to control
- The Ds good faith
- The extent and duration of the resulting interference with the Ps right to control
- The harm done to the chattel
- The inconvenience and expense caused to the P
Acts that Are Likely to Be Classified as Conversions
- Wrongful acquisition (theft, embezzlement, receiving stolen property)
- Wrongful transfer (selling, misdelivering, or pledging)
- Wrongful detention (withholding from owner)
- Loss, destruction, or severe damage
- Material alteration
- Significant misuse
Conversion: Damages
(Forced sale)- when D is forced to pay fair market value of chattel at time converted.
(Replevin)- action brought by P to get PP back.
Replevin/Claim of Delivery
An action at law for the recovery of specific chattels that have been wrongfully taken or detained. Allows the P to recover immediate possession of property. Only applies to tangible PP.
Replevin: When Is Seizure Allowed?
No seizure of chattel is allowed until a hearing has taken place to determine the plaintiff’s entitlement to the chattel.
Replevin: Additional Damages
Any damages suffered from deprivation may also be recovered.
Defenses and Privileges to Intentional Torts (POPCANS)
Include:
- Privilege
- (Others)- Defense of Others
- (Property)- Defense of Property
- Consent
- Authority
- Necessity
- Self-Defense
Privilege: Elements
Exists when:
- the person affected by the Ds conduct consents to act; or
- some important personal or public interest will be protected by the defendant’s ordinarily prohibited conduct, and this interest justifies the harm caused or threatened by the Ds conduct; or
- the D must act freely in order to perform an essential function
Privilege: BOP
The D has the burden of proving the existence of a privilege and that the privilege was exercised reasonably under the circumstances.
Consent
Can include express and implied consent.
Express Consent
Where the P affirmatively communicates permission for a D to act.
Implied Consent
When a reasonable person would interpret the Ps conduct as evidencing permission to act.
Scope of Consent
If the Ds conduct substantially exceeds, in degree or nature, the scope of the plaintiff’s otherwise effective consent, the D may still be held liable for his tortious actions.
When Consent Is Not Effective (Cannot Be Used a Defense)
Include:
- Mistake
- Fraud
- Duress
- Incapacity
- Violation of Criminal Statutes
Consent: Mistake
Consent is not effective if it is the product of a mistake of fact or law as to the nature or consequences of the Ds act, and the D is aware of the mistake.
Consent: Fraud
Consent is not effective if it is induced by the Ds intentional deceit as to the essential nature or consequence of his act. Consent can still be effective if fraud relates to a collateral matter.
Consent: Duress
Consent is not effective if it is induced by a threat of imminent harm to the plaintiff or by a false assertion of lawful authority over the plaintiff.
Consent: Incapacity
As a matter of law, young children and people whose mental capacities are impaired by mental disease, mental defect, or intoxication are incapable of consenting to tortious conduct.
Consent: Violation of Criminal Statute
Most jurisdictions treat consent as ineffective where the defendant’s tortious conduct also constitutes a crime. A minority of jurisdictions hold that consent is still effective.
Consent To Avoid Further Contact
A V of a battery is not req. to resist if a reasonable person would have thought the resistance would lead to a further touching or confinement.
Consent: Ordinary Contacts
For battery claims –> an alleged V gives no indication that she did not want to be subjected to the ordinary contacts that are part of life in a crowded society –> there is consent for such ordinary contacts.
Self-Defense
When D used reasonable force to prevent P from engaging in an imminent and unprivileged attack.
Self-Defense: Scope
A D may only use the degree of force reasonably necessary to avoid the harm threatened by the P.
Self-Defense: Ps Privileged Acts
When the Ps conduct, which purportedly threatens an imminent attack is privileged, a D may not invoke self-defense and will be liable for any tortious acts committed toward the plaintiff.
Self-Defense: Is Actual Threat Required?
A literal threat of harm is not required as long as D subjectively believed that a sufficient threat existed to justify defensive force, and this belief is objectively reasonable.
Self-Defense: Duty to Retreat
- In a majority of jurisdictions, a D has no duty to retreat, even if a safe retreat is possible.
- In a minority of states, a D outside his home must retreat before using deadly force if that is safely possible. Defensive force is permissible if one is inside home or there is no possible retreat.
Defense of Others
A D is entitled to defend another person from an attack by the P to the same extent that the third person would be lawfully entitled to defend himself from that P (force must be proportionate)
Defense of Others: Mistake
- CL/minority rule –> a D who made a mistake about whether D of a third person was justified, could not assert the defense.
- Modern/majority rule- applies the reasonable mistake doctrine.
Reasonable Mistake Doctrine
Says that even if the believed victim would not be permitted to assert self-defense against the P, the D will be relieved of liability if a reasonable person would have believed that defense of the third person was justified.
Defense of Property
A D is permitted to use reasonable force to prevent a plaintiff from committing a tort against the Ds property
Defense of Property: Recovery of Property
A D may use reasonable force to promptly recover personal property if tortiously dispossessed of that property by the plaintiff. But deadly force is never permitted.
Defense of Property: Requirements for Recovery of PP
- (Demand)- before being otherwise entitled to use force to recover PP, the D must demand that it be returned by the wrongfully dispossessing P or guilty third party in wrongful possession (unless request will be futile).
- (Hot pursuit)- D is in hot pursuit (e.g. cannot be three hours later).
Defense of Property: Mistake
A D cannot successfully assert the defense of recovery of property if he is mistaken about the fact that he was tortiously dispossessed of it by the P, even if the mistake is reasonable.
Necessity (for Property Torts)
A D is permitted to injure a Ps property if this is reasonably necessary to avoid a substantially greater harm to the public, to himself, or to his property (obj. standard).
Necessity: Mistake
As long as one’s belief is reasonable, they can assert their mistake even if they were mistaken about the actual necessity.
Necessity: Public v. Private Interests
- If the D is acting to protect private interests, the defense is permitted if the threatened harm is substantially greater than the harm of the Ds action
- If the D is acting to protect public interests, the defense is only available if the threatened harm is severe (essentially, a disaster).
Necessity: Liability for Damages in Public Necessity
If a D acts out of public necessity, he incurs no liability whatsoever for damage to the plaintiff’s property.
Necessity: Liability for Damages for Private Necessity
- Most jurisdictions hold that the D is still liable for any actual damage to the Ps property.
- In a minority of jurisdictions, necessity is a complete defense.
Authority (Arrest)
- A police officer can arrest if he reasonably believes D committed a felony
- A police officer can arrest for misdemeanor if Ds action constituted a breach of the peace
- A private person acts at his/her own peril, if wrong, they are liable for tort.
Authority (Discipline)
A parent/teacher may use reasonable force to discipline a child.
Authority: Entering Another’s Land
If a defendant is otherwise entitled to make an arrest, the defendant may also enter upon the plaintiff arrestee’s land to effectuate the arrest.
