Intentional Torts Flashcards
What are the prima facie elements of an intentional tort?
1) Voluntary act;
2) Intent to cause harm;
3) Causation; and
4) Resulting harm
What intent is needed for intentional torts?
- Intent to cause a harmful result; or
- Acting with knowledge that harm is substantially certain to result
Are children and the mentally incompetent liable for their own torts?
Yes, if they have the intent (knowledge) required for the tort.
Doctrine of transferred intent
If D intends to commit a tort but causes injury to a different victim OR commits a different tort than intended, original intent is transferred to the new victim/tort
Transferred intent applies to which torts?
- Assault;
- Battery;
- False imprisonment; and
- Trespass to chattels or land
Elements of battery
Intentional act;
That causes harmful, unwanted, or offensive contact to the plaintiff’s person
Are actual damages required for battery?
No, actual damages are not required. Without actual damages, the plaintiff can recover nominal and if defendant acted with malice, punitive damages
What qualifies as contact for battery?
Touching either:
- P’s body;
- Something that has a close physical connection to P’s body (purse, pet on a leash); or
- Creating circumstances that will harm P (e.g. putting water on stairs so P will fall)
What constitutes harmful or offensive contact for battery?
Contact that:
- Causes injury, pain, or any physical discomfort to P
- Offends a reasonable person’s sensibilities
Remember it’s based on a reasonable person standard
There is an implied consent for ordinary contacts (e.g., bumping into people on subway)
Does P need to be aware of the contact to constitute battery?
No, only that the contact would be offensive to a reasonable person & D had the intent to cause the contact
Does P need to prove harm for battery?
No, only that the contact would be offensive to a reasonable person & D had the intent to cause the contact
What are the defenses to battery?
1) Consent;
2) Self-defense;
3) Defense of property; and
4) Defense of others
Define
Eggshell plaintiff rule
D will be liable for all injuries/damages to P even if injuries are not reasonably foreseeable (i.e. you take P as you found them, even if P is more susceptible to harm)
Elements of assault
1) Intentional act by D that creates;
2) P’s reasonable apprehension;
3) Of imminent harmful or offensive physical contact; and
4) Causation
What constitutes reasonable apprehension for assault?
P is aware of D’s act; and
Reasonably apprehends imminent harmful or offensive contact
Can reasonable apprehension exist if the D lacks the ability to commit assault?
Yes, as long as P didn’t know D lacked the ability. If P knew that D lacked the ability, then no reasonable apprehension would exist.
(Ex. If D says “I’m going to kill you with this gun in my bag,” but doesn’t actually have a gun, there is still reasonable apprehension unless the plaintiff knows D doesn’t have a gun in the bag)
Are mere words sufficient for assault?
No, unless in conjunction with other threatening conduct or circumstances
Are threats of future harm considered assault?
No, the P must fear immediate bodily harm
Elements of false imprisonment
1) D intends to confine or restrain P in a bounded area (area where P has no reasonable means of escape);
2) D actually confines or restrains P in bounded area;
3) P knows or is harmed by confinement
What constitutes confinement for false imprisonment?
Freedom of movement in all directions is limited with no reasonable means of escape.
Examples:
* Use of physical barriers, duress, or threats
* Invalid use of legal authority
Do threats of future or moral harm constitute confinement?
No
Does failing to release from confinement constitute false imprisonment?
Yes
(e.g. P gets trapped in the bathroom and D won’t let her out)
Define
shopkeeper’s privilege
A shopkeeper is not liable for false imprisonment if she:
1) Has a reasonable suspicion that P has stolen goods;
2) Uses reasonable force to detain P; and
3) Only detains P for a reasonable time to confirm/deny the suspicion
⚠️ Note: Only non-deadly force allowed. Shopkeeper can be liable for P’s injuries if actions exceed scope of privilege .
How long does D need to confine P to constitute false imprisonment?
Only briefly; duration is only important to determine damages
There is no specific duration
Can you negligently falsely imprison someone?
No, false imprisonment requires the intent to confine
When is proof of actual damages required to recover for false imprisonment?
Only if P was unaware of his confinement. Proof of actual damages is not required if P was aware.
Define
false arrest
False assertion of legal authority. Form of false imprisonment.
Elements of IIED
1) D acts intentionally or recklessly;
2) With extreme and outrageous conduct; and
3) Causes P severe emotional distress
4) Actual damages are reguired
What constitutes extreme and outrageous conduct?
Conducts that exceeds all bounds tolerated by a civilized society. Must be much more than mere threats & insults; must shock the conscience.
Is non-outrageous conduct actionable under IIED?
No, unless:
* D is an innkeeper, common carrier, or in position of authority (teacher, boss, etc); or
* P is part of a particularly susceptible group (seniors, children, pregnant women, etc)
What factors are considered when determing if conduct isextreme or outrageous?
1) Pattern of Conduct- continuous and repetitive conduct
2) Defendant owed victim fiduciary duty: Employer-Employee, Doctor-Patient
3) Common Carrier or Inn Keeper = High courtesy to customers
4) Use racial epithtest & homophobia
5) Vulnerable victims- young children, elderly, pregnant women, victims with phobias
What is considered severe emotional distress?
Level of emotional distress that is expected to adversely affect mental health. Substantial & lasting.
Are insults, indignities, threats, annoyands, petty oppressions or trivialities Extreme and Outrageous Conduct
No
What is the only intentional tort that requires actual damages
IIED
What elements are needed for a bystander to recover for IIED?
1) D intentionally or recklessly harmed a third party;
P was present at the scene and witnessed the event;
P was closely related to victim (i.e. immediate family);
D knew P was present and closely related; and
P suffers extreme emotional distress as a result
⚠️ Note: P does not need to prove the above elements if D’s design or purpose was to cause severe emotional distress to P
Elements of trespass to land
1) D intentionally;
2) Physically invades P’s real property
What constitutes intent for trespass to land?
Intent to enter the land; D doesn’t need to intend to interfere with P’s property
What constitutes entry for trespass to land?
- Physical invasioon by D
-
Object thrown/controlled by D
⚠️ Note: Smells, lights, sounds do not constitute trespass (but may be nuisance)
Is mistake a defense to trespass to land?
No
Elements for trespass to chattel
1) D intentionally;
2) Intermeddles or uses;
3) P’s personal property (chattel); and
4) Causes damage or loss of use
Define
conversion
D intentionally exercises dominion and control over P’s property so as to deprive them of its use
Is mistake a defense to conversion?
No
Differentiate trespass to chattels vs. conversion
Trespass to chattels:
* Shorter in duration with less severe harm than conversion
* Can only recover cost of repair or rental value
Conversion:
* Significant interference that deprives P of use
* P can recover the full value + replevin
What are the defenses to intentional torts?
- Consent (express & implied);
- Self-defense;
- Defense of others;
- Defense of property;
- Necessity; and
- Recapture
What is express consent? When is it negated?
When P affirmatively communicates permission for D to act through words or writing.
Consent is negated when:
- D’s conduct exceeds the scope of consent;
- P lacked capacity to consent; or
- Consent was gained through duress or fraud
What is implied consent? When is it negated?
Reasonable inference that P consents through her conduct or custom (e.g. participating in boxing match)
Negated when conduct reasonably exceeds the scope of consent.
If consent is given by mistake, is it still a valid defense?
Yes, unless:
- D knows that P is mistaken and exploits it;
- or D is responsible for the mistake
Elements for self-defense
D subjectively and reasonably believes harm is imminent; and
D uses proportional force to protect herself
When can deadly force be used for self-defense?
- D subjectively and reasonably believes harm is imminent; and
- D uses proportional force to protect himself
Is there a duty to retreat?
Generally no, unless in a retreat jurisdiction (e.g. Washington, DC)
When can the initial aggressor claim self-defense?
Only if the other person responded to non-deadly force with deadly force.
Is a D allowed to act negligently while using self-defense?
No, a D will be held liable if they harm bystanders by acting negligently during self-defense (e.g. shooting a gun into a crowded sidewalk)
What is the defense of others defense?
Defendant is entitled to defend others as long as they have a reasonable belief that the person they are defendingwould be entitled to self-defense
If D mistakenly believes that she or another is in danger, can she still invoke self-defense or defense of others as a defense?
Yes, as long as the mistake was reasonable
What is defense of property?
D is permitted to use reasonable, non-deadly force to prevent P from causing harm to D’s personal or real property
What must D do before using reasonable force to defend property?
Ask the trespasser to stop
⚠️ Note: Not required if D believes request is dangerous or useless
What is recapture of chattels?
Privilege to trespass & use peaceful means to get back one’s personal property from the wrongdoer
When can force be used to recapture chattels?
Only when in hot pursuit of person who has obtained possession wrongfully (i.e. tort is in progress)
⚠️ Note: Deadly force is not allowed
Do parents have the right to discipline their children?
Yes, parents and educators may use reasonable force to discipline children (reasonableness depends on child’s age and proportionality to the misbehavior)
What is the** necessity defense**?
Allows D to reasonably interefere with P’s property to avoid a substantially greater harm (e.g. D damages P’s fence to try and save P’s burning house)
What is the public necessity defense?
D destroyed or interfered with private property to protect the public from severe, imminent disaster
Is public necessity an absolute defense?
Yes, D is not liable for any damages to the property
When does private necessity arise?
When D interferes or trespasses on P’s property to prevent personal harm or harm to a small number of people
Is private necessity an absolute privilege?
No, property owner can still recover actual damages for harm done to the property (but not nominal or punitive damages)
True or False
Intentionally wrongful actions render D liable for all consequences of those acts, even if unintended and unforeseen
True
