INTENTIONAL TORTS Flashcards
ASSAULT
(1) intent, such that
(a) the intent is to cause offensive contact,
OR
(b) the intent is to create the apprehension of offensive contact;
(2) plaintiff is placed in apprehension of imminent offensive contact;
AND
(3) plaintiff’s apprehension is reasonable, i.e., a reasonable person in the plaintiff’s shoes would experience the same apprehension.
imminence required for assault?
yes. is required and here compounds element (2). I have left out “present ability” because “present” is “imminent,” and in practice, the “ability” requirement is usually duplicative of the objective perception; that is, if the assailant is my young daughter, a reasonable person probably is not placed in apprehension.
mass req for assault?
an “overt gesture” to effect assault, i.e., something more than mere words.
battery
(1) intent, as for an assault,
i.e., intent to cause offensive contact;
OR intent to cause apprehension of offensive contact;
AND
(2) offensive contact results.
mass note 1 battery
Precedents refer to “unjustified use of force” rather than “offensive contact.” The defendant seems to bear the burden of proof to show “justification,” meaning that if the plaintiff says the contact was unjustified, then it was, until the defendant shows otherwise.
But don’t confuse this defense with the broader notion of “justification” we will encounter later as an affirmative defense in torts generally
mass note 2 battery
Commonwealth courts have held: A battering force must originate externally to Plaintiff’s own actions.
This can sound a bit confusing, so here is an example: Defendant sold a carton of milk to Plaintiff. There was a dead mouse in the milk. Plaintiff drank it. Disgusting. But not battery, because Plaintiff put the milk to her lips and drank it intentionally. She can’t “batter” herself. Don’t worry; Defendant may be sued in product liability and contract, just not for battery.
I’m not sure this Mass. rule is essential, because you can reach the same result through principles of superseding causation (later) or by saying that Defendant did not intend Plaintiff’s contact with bits of dead mouse. But the Court held that the battering force
Mass. Note 3:
Recklessness suffices as a state of mind for battery liability. Thus imagine: A person sets off in a car down an urban pedestrian walkway at night, believing that no one is around. There is no intent to cause offensive contact or apprehension thereof. But the conduct probably is reckless, because in an urban setting at night there might well be people about, and it’s hard to see them. When our driver hits someone, there is a battery based upon recklessness.
Usually this is not an issue because there also is a cause of action for general recklessness (we’ll see shortly). But the recklessness action is often ill defined in state law, so there might be extenuating circumstances that make it difficult to prove on the facts. Or another factor, such as terms of insurance, might distinguish between battery and recklessness. Or a lawyer might just plead poorly. It’s easier to amend a complaint to predicate battery on recklessness than to add a whole different cause of action after pleading the wrong theory.
Fraud
(1) def. made a false representation of fact;
(2) def. acted with intent or recklessness as to false representation, the latter meaning def. knew the statement was false or acted in reckless disregard of its truth or falsity;
(3) def. intended pl. to rely on the false representation;
(4) def. induced pl.’s reliance (subjective), which is to say that the false representation was material to pl.’s decisionmaking;
(5) pl.’s reliance was justified (objective);
&
(6) pl. was injured as a result of reliance, not merely in dignity, but economic loss or physical injury
minority variation to mulistate rule Fraud
(2) requires, as well, “common-law malice,” that is, “moral guilt” or ill will. This variation reflects the powerful roots of the fraud tort in the historic doctrine of “equity,” in contrast with the historic doctrine of “law”–an English distinction that our modern legal system has largely obliterated, but which hangs around in quirks of procedure, terminology, and occasionally substance and policy. Courts want to be sure that the liable defendant is a “bad actor,” and historically it was equity, not law, that dealt with rights and wrongs of the moral variety.
Fraud- def culpability tested
subjectively (elements (2) and (3)), meaning we must ascertain the state of mind of the defendant in the case. Remember that that test always is a lot to ask of plaintiffs, who bear the burden of proof, so multiple conjunctive and subjective elements–like in IIED–makes life all the harder for a fraud plaintiff.
Navratil v. Parker
–plaintiff’s state of mind also is tested on the elements, both subjectively and objectively. We can assume that plaintiff will testify that he or she relied on the defendant’s representation (element (4))–the defendant may present evidence to the contrary–but plaintiff’s reliance also must have been “justified” in the term of the test (element (5)), which in practice usually reduces to the familiar objective test of whether a reasonable person would have relied on defendant’s representation.
omission
omission. But the default rule is that defendant does not have a duty to disclose. There is a series of exceptions to that rule, and plaintiffs relying on omission must fit their cases through them. Those exceptions are beyond the scope of our 1L studies.
