Intentional Torts

Question 1

Tort (definition)

Answer 1

• A wrongful act, other than a breach of contract, that injures another;
• And for which the law imposes civil liability

Question 2

Strict Liability

Answer 2

Defendant automatically liable for committing an action, regardless of what his/her intent or mental state was when committing the action

Question 3

Vicarious Liability

Answer 3

Liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties.

Question 4

Respondeat Superior

Answer 4

A legal doctrine, most commonly used in tort, that holds an employer or principal legally responsible for the wrongful acts of an employee or agent, if such acts occur within the scope of the employment or agency.

Latin: “that the master must answer”

Question 5

Non-Delegable Duty

Answer 5

a legal obligation or duty which cannot legally be delegated or, if delegated, the principal is still liable for said obligation

Question 6

Scope of Employment (Birkner Test)

Answer 6

1. Examine employee conduct – “must be about the general kind the employee Is hired to perform…versus personal endeavor…”
2. Conduct must be substantially within the hours and ordinary spatial boundaries of employment

Question 7

Apparent Agency

Answer 7

1. A representation by the purported principal;
2. A reliance on that representation by a third party; and
3. A change in position by the third party in reliance on the representation

 Apparent authority exists only where the principal creates the appliance of an agency relationship

 This power arises only if a third party reasonably infers, from the principal’s conduct, that the principal granted such power to the agent.

Question 8

Prima Facie case for Intentional Torts (generally)

Answer 8

o 1. ACT by defendant
- The act refers to a volitional movement on D’s part
- Motive doesn’t matter in terms of proving elements of the claim
o 2. INTENT;
o 3. CAUSATION

Question 9

Intent

Answer 9

Intent established if either:

1. Their purpose in acting is to bring about the consequences; OR
2. They know with substantial certainty that such consequences will result

Question 10

Incompetency

Answer 10

The fact that a defendant is mentally incompetent, or is a minor, does not preclude a finding that they possessed intent to commit an intentional tort, but incompetency may affect whether such intent actually existed.

Question 11

Assault

Answer 11

An intentional act that causes plaintiff to experience reasonable apprehension of an immediate harmful or offensive contact

 Everything leading up to the touching is assault
o D must act with the desire to cause an immediate harmful or offensive contact or the immediate apprehension of such a contact, or know that such a result is substantially certain to occur

o Liability for assault will not be found unless a reasonable person in the same position as plaintiff would have experienced the same apprehension
 Not an assault if P does not feel threatened or scared
 Valid claim only if P can prove felt harm/fear about the contact
o Satisfied if the threatened contact would inflict pain or impairment of any body function or if a reasonable person would regard it as offensive

Question 12

Battery

Answer 12

An intentional act that causes a harmful or offensive contact with the plaintiff or with something closely connected thereto

o Defendant must either
 1. Desire to cause an immediate harmful or offensive contact; or
 2. Know such contact is substantially certain to occur

o The harmful or offensive contact element is satisfied if the contact would inflict pain or impairment of any body function, or if a reasonable person would regard it as offensive
 It is sufficient for a battery if D causes a contact with something close to P
 Unlike assault, plaintiff need not be aware of the contact

Question 13

False Imprisonment

Answer 13

An intentional act that causes 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

 D has the requisite intent if he:
* 1. Desires to confine or restrain plaintiff to a bounded area; or
* 2. Knows that such confinement is virtually certain to occur.

 P may be confined by use of physical barriers, by failing to release plaintiff where D has legal duty to do so, or by the invalid assertion of legal authority
o No duration of confinement is required—a very brief confinement will suffice, though the duration may affect the amount of damages

 P is under no duty to resist if the D uses or makes a credible threat to use physical force

 P is not confined if there is a reasonable means of escape of which she is actually aware

 Generally, P must be aware of the confinement or she must suffer actual harm as a result of the confinement

o Reasonable means of escaping
 Once you have a reasonable means of escape, you do not have a false imprisonment claim

o No such thing as attempted false imprisonment

Question 14

Intentional Infliction of Emotional Distress (IIED)

Answer 14

An intentional or reckless act amounting to extreme and outrageous conduct that causes plaintiff severe mental distress

 D must act with intent to cause severe mental distress or be reckless in creating the risk of emotional distress
* Reckless
o D acts in deliberate disregard of a high degree of probability that the emotional distress will follow
* Extreme and Outrageous
o D’s conduct is beyond the bounds of decency—conduct that a civilized society will not tolerate (offensive or insulting language is generally not outrageous)

 P must prove that the distress suffered was severe—more than the level of mental distress a reasonable person could be expected to endure
* Most states no longer require the plaintiff to show that actual physical injury accompanied the severe emotional distress.

o Where D’s conduct is directed at a third party, the D is subject to liability to P, assuming the other elements of IIED are satisfied, if the D intentional or recklessly causes severe emotional distress:
 To a P who is an immediate family member of the third party, where the P is present at the time and the D is aware of the P’s presence; OR
* Hawaii has expansive view of “family member” (hanai relationships)
 To any other plaintiff (regardless of relationship) who is present at the time, if such distress results in bodily harm

Question 15

Trespass to Land

Answer 15

An intentional act that causes physical invasion of P’s land

• D need only act with intent to cause a physical invasion of P’s land. Intentional entry onto land is a trespass even though D does not realize he has crossed a boundary line, or has good faith belief that his entry is lawful
• To claim trespass to land, P must be in actual possession or have the right to immediate possession of that land
• The element of physical invasion is satisfied if D enters or causes a third person or object to enter onto P’s land, enter onto P’s land lawfully but then remains when under a legal duty to leave, or fails to remove an object from P’s land when under a legal duty to do so
• P’s land includes the area both above and below the surface (areas that P can make beneficial use of).

Question 16

Trespass to Chattel

Answer 16

An intentional act by D that interferes with P’s chattel, causing harm

 Intent is satisfied when D intentionally performs the physical act that interferes with P’s chattel. D is liable even though he did not intend or recognize the legal significance of his act. Mistake is not a defense to trespass to chattels

o To bring an action, P must have been in actual possession or have right to immediate possession of chattel

o Unlike other intentional torts, proof of actual damages is an element of the cause of action for trespass to chattels. Actual damage includes the value of loss chattel during dispossession or cost to remedy an intermeddling

Question 17

Chattel

Answer 17

A tangible personal property or intangible property that has a physical representation, such as a promissory note, or documents in which title to a chattel are merged

Question 18

Merger Doctrine

Answer 18

Intangible idea merges with a physical object (stock certificates)

Question 19

Dispossession

Answer 19

Direct interference with P’s possession; i.e., takes chattel or refuses to return it

Question 20

Intermeddling

Answer 20

Interference that does not directly affect the P’s possession; i.e., dents car or kicking pet dog

Question 21

When is interference with chattel actionable?

Answer 21

Interference with chattel is actionable if it constitutes dispossession or intermeddling

Question 22

Conversion

Answer 22

An intentional act by D that causes the destruction of or a serious and substantial interference w/ P’s chattel

Question 23

What remedies are P entitled to for a conversion claim?

Answer 23

P is permitted to elect either recovery or damages (fair market value at the time of conversion plus consequential losses) or return of a converted chattel with recovery of attributable damages for wrongful detention

Question 24

What if D offers to return chattel? (conversion)

Answer 24

If D offers to return chattel, this does not alleviate conversion, and P need not accept the return of chattel (but it would be considered for mitigation of damages purposes).

Question 25

POPCANS

Answer 25

Privilege
Defense of Others
Defense of Property
Consent
Authority
Necessity
Self-Defense

Question 26

Privilege

Answer 26

Under certain circumstances, a D may not be liable for conduct that would ordinarily subject him to liability

 A privilege may exist where
1. The person affected by the D’s conduct consents;
2. Some important personal or public interest will be protected by the D’s ordinarily prohibited conduct, and this interest justifies the harm caused or threatened by the D’s conduct; and
3. The D must act freely in order to perform an essential function
o Example: Putting out fire at neighbor’s house. Entry onto the neighbor’s land will be privileged.

 D has the burden of proof to prove the existence of a privilege and that the privilege was exercised reasonably under the circumstances

Question 27

Defense of Others

Answer 27

D is entitled to defend another person from an attack by the P to the same extent that third person would be lawfully entitled to defend himself from P

 In many jdxs, a D who makes a mistake about whether defense of a third person is justified or as to the degree of force that is reasonable cannot assert the defense and will be liable to the P for an intentional tort

 Other jdxs apply a reasonable mistake doctrine, which states that D is relieved of liability where the third person would not be permitted to assert self-defense against a P if that reasonable person in D’s position would have believed that defense of the third person was justified, and that D’s action was necessary to prevent harm to the third person

Question 28

Defense of Property

Answer 28

D is permitted to use reasonable force to prevent plaintiff from committing a tort against D’s property

1. D must first demand that P desist the conduct that threatens injury to his property before he can use force in defense, unless it would be futile or dangerous to make such a demand
2. The amount of force used must be no greater than necessary to prevent the threatened harm. In addition, it is never permissible to use deadly force to protect one’s property from injury

Question 29

Consent

Answer 29

Even though D has otherwise committed an intentional tort, he is not liable if P consented to the act that constituted the tort. In order to invoke this defense, the consent must be effective, and D must not exceed the scope of the consent.

Implied – a reasonable person would interpret P’s conduct as evidencing a permission to act (i.e., football player tackling other players)

Consent exists as a matter of law when plaintiff is unable to consent and:
o 1. Emergency action is necessary to prevent death;
o 2. A reasonable person would be expected to consent under the circumstances; and
o 3. No reason to believe plaintiff would not consent

Question 30

Authority

Answer 30

Where D is a police officer acting pursuant to a duly issued warrant, valid on its face, she is not liable in tort for the fact of the arrest

A police officer or a private citizen is not liable for an arrest made without a warrant as to a breach of the peace that is committed or appears about to be committed in his presence (i.e., bar fight)

If D is otherwise entitled to make an arrest, D may also enter upon the P/arrestee’s land to effectuate the arrest

Question 31

Shopkeeper’s Privilege

Answer 31

(Authority) shopkeeper not liable for false imprisonment if he has a reasonable suspicion that P has stolen goods, uses reasonable force to detain the person, and detains the plaintiff for a reasonable period and in a reasonable manner, on the premises or in the immediate vicinity