Intentional torts Flashcards
A defendant must engage in what in order to be an intentional tortfeasor?
a volitional act (a conscious decision to move)
What is the definition of intent?
The defendant engaged in an act with the purpose of causing the outcome or knew with substantial certainty that the outcome would occur
What is substantial certainty?
98% certainty (almost complete certainty) that the outcome would result from the act
Is intent subjective or objective? Is there a reasonable person standard?
Intent is subjective (no reasonable person standard), but the evidence of intent is objective
Can children have tortious intent even if they do not know right from wrong?
Children can have tortious intent EVEN IF they don’t know right from wrong as long as they satisfy the elements of intent
What is an argument on intent to make supporting a child being sued for battery?
The child is so young that they could not possibly have intended for their conduct to cause that outcome or knew with substantial certainty that it would
Are parents liable for their children’s intent?
Not unless they were negligent in training their child or supervising them
Why do courts hold children, people with diminished mental capacity, and incompetent people liable under intent?
Courts want to compensate victims and keep batteries from happening
What is the single intent jurisdiction opinion?
This is the majority opinion, it says that for intent all you need to have is intent contact that ends up being harmful or offensive
What is the dual intent jurisdiction opinion?
This is the minority approach. The defendant must intend the contact and intend for it be harmful or offensive
What is extended liability?
Courts usually hold tortfeasors responsible for an extensive range of consequences, including consequences the wrongdoer never intended
What is transferred intent and when does it apply?
A person can be held liable for the intent to harm A and mistakenly harming B. * Transferred intent applies where the defendant would have been liable for a tort if their conduct was completed as intended and you are also liable for behvaior after that tort if it was completed.
What are the three types of intent?
- Unintended victim- A aims at B and hits C
- Unintended tort- A tries to scare B but hits him
- Intentional tort but mistaken victim- A kicks what he thinks is B but it is actually C
What are the elements of battery?
1) Intent to make a contact with another person
2) That contact occurs
3) The contact is harmful or offensive
4) The contact is unconsented to
What is a harmful contact?
a contact that causes obvious, physical harm
What is an offensive contact
A contact that offends a reasonable sense of personal dignity (meaning a reasonable person would be offended by this), OR the contact is highly offensive to the other person’s unusually sensitive sense of personal dignity, and the defendant knew that the contact would be highly offensive to that person
Are you allowed to later decide if you were harmed or offended.
Yes, you cannot know at the time that you were harmed or offended, and then find out later
What is the eggshell skull principle?
A damage concept that states that a defendant is responsible for the full extent of harm by the tort, even if the damage is caused by the plaintiff’s special sensitivity or “eggshell skull.” This applies even if they don’t know that that person has the special sensitivity because they still met all the requirements for an intentional tort
A defendant is liable for battery if he ______ and ______ touches anything ________
offensively
intentionally
connected to another individual
What is respondeat superior?
Let the employer answer for damages. An employer is liable for torts committed by employees while acting within the scope of their employment
What are the three requirements for an employer to be liable for torts committed by the employee?
1) It must actually be an employee, not an independent contractor
2) An independent contractor whose would be principle does something that would make a reasonable person assume that the independent contractor is an employee of the principle
3) The employee must be acting within the scope of employment.
What is assault? What does assault law protect?
The fear or apprehension of an imminent battery.
It protects the mind
What are the elements of assault?
The actor intended to cause a harmful or offensive contact with another person OR an imminent apprehension of such a contact
The person is thereby put in an imminent apprehension of a harmful or offensive contact
does it matter whether the defendant is actually capable of making the threatened contact?
No, it does not matter so long as the person reasonably believes that they are
Does every assault include a battery and vis versa?
Every battery includes an assault, but you don’t have to have a failed battery in order to have an assault, you can just have the intent to put someone in an apprehensive state of being battered
What is imminent apprehension?
This means that the apprehension needs to be immediate, and the defendant needs to be in or nearly in striking distance
Fear vs. apprehension
You do not have to be afraid in order to be assaulted, you just have to reasonably believe that you are about to be battered.
Are words alone sufficient to constitute an assault?
Words alone are usually not sufficient enough to constitute an assault, but with any added physical action they can be constituted as an assault.
What is the exception to words alone not being sufficient for assault?
Conditional threats, because the person is still acting with the intent to cause an imminent apprehension of a battery and a reasonable person would have this apprehension.
If you have no ______ to do what you are threatening to, it is most likely assault.
legal right
What are we trying to protect with false imprisonment law?
We are protecting a person’s free right to movement and no unlawful restriction of movement.
What are the elements for false imprisonment?
1) The actor must intend to confine the plaintiff within boundaries set by the actor
2) Confinement occurs
3) the plaintiff is either aware of the confinement or harmed by it
What three types of things are not usually considered false imprisonment and why?
Moral persuasion and reputational harm + threatening to fire someone because the plaintiff should know that they were free to leave
Confinement or not:
You will go to hell
I will fire you
I will shoot your child in the head
I will post bad things about you all over social media
- No
- No
- Yes
- No
Describe what confinement should look like
Confinement is most commonly physical blocking, there is no escape route, and it is not a legal restraint. The bigger the area, the harder it is to argue confinement.
What plays into whether a reasonable person would feel like they are being confined?
The gender and physical appearance of the defendant
What are the two exceptions to false imprisonment?
Guardianship- a law that allows a person to take care of a loved one who cannot take care of themself as in a nursing home or mental facility
Shopkeeper’s privilege- a statute that states that a shopkeeper who reasonably believes that someone has stolen or is attempting to steal property, is privileged to detain that person in a reasonable manner and for a reasonable amount of time to investigate ownership of the property
If there is no statutes protecting shopkeepers, what are the three options for shopkeepers when someone is stealing from them?
- Let the person go and avoid vicarious liability for false imprisonment
- Citizens arrest- the shopkeeper may detain the person if they saw them steal the property and they are correct
- The doctrine of hot pursuit- someone can take reasonable steps to get their property back if they are correct that somebody has stolen it.
What does IIED protect?
It protects people from distress not involved in battery, assault, or false imprisonment
When can IIED be raised?
If there is no other cause of action
What are the three elements of IIED?
1) The defendant must act with the intent to cause severe emotional distress or recklessly
2. The defendant’s conduct must be extreme and outrageous
3. The defendant’s conduct must intentionally or recklessly but for cause the plaintiff severe emotional distress
What is recklessness in IIED?
A deliberate disregard for a high probability that severe emotional distress will follow an act
What percent is “high probability?”
70%
What is the definition of extreme and outrageous conduct?
utterly intolerable beyond all bounds of civilized society
What are reoccurring factors involved in IIED?
1) The actor’s position of authority
2) The actor is aware of the victim’s particular vulnerability to emotional distress
3) repeated undesirable acts and threats of physical violence
What is severe emotional distress?
Distress that no reasonable person should be expected to endure
In order to have an IIED claim, you need to have an actual _____
physical injury
What are the limits for transferred intent of IIED?
1) The plaintiff is a member of the victim’s immediate family, 2) the plaintiff was present during the intentional tort to the victim, and 3) the plaintiff’s presence was known to the defendant
What are the elements of trespass to land?
The defendant intentionally enters land in the possession of another, remains in the land, or fails to remove a thing from the land that he is under a duty to remove
What is intent in regards to trespass to land?
It means that you mean to be where you are
anyone with a ________ right of possession is put over someone with _____
stronger
less
What is nuisance?
unreasonable use of your property that interferes with someone’s use of their property
What are the elements for trespass of chattels and conversion?
1) The defendant intentionally exercises control over or interferes with plaintiff’s personal property. 2) some injury, harm, damage, or loss results (doesn’t have to be damage to the property specifically)
When does a trespass to chattels become conversion?
when the intentional exercise of dominion or control over a chattel so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel
What are 6 factors to use when considering the seriousness of an interference?
1) The extent and duration of the actor’s exercise of dominion or control
2) the actor’s intent to assert a right in fact inconsistent with the other’s right of control
3) The actor’s good faith
4) The extent and duration of the resulting interference with the other’s right of control
5) The harm done to the chattel
6) The inconvenience and expense caused to the other
What are the damages for trespass to chattels?
Plaintiff gets the property back and damage to the chattel (repair)
What are the damages for conversion?
Plaintiff either gets a return of the chattel and damage to the chattel OR the full market value of the chattel and defendant keeps the chattel
When do defenses usually come? Except for….
They usually come after a plaintiff’s prima facie case, except for consent since that is an element of battery
What is consent?
A plaintiff is subjectively willing for the other person’s conduct to occur
How would you approach consent on an essay?1
1) Consent is willingness in fact. It may be manifested by action or inaction and need not be communicated to the actor
2) If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as expressed consent
What things invalidate consent?
Fraud, duress, substituted consent, and lack of capacity
What is consent invalidated by fraud?
the misrepresentation needs to be about something intrinsic in nature of the quality of the invasion or harm, meaning the lie needs to be a key part in why the plaintiff consented
What is consent invalidated by duress?
A threat of unlawful conduct that is intended to, and does, prevent an ordinary person from exercising free will or choice (the same requirements as false imprisonment)
What is substituted consent?
It is where a doctor can consent for a patient to receive medical treatment. The doctor must act reasonably in the way that a reasonable patient would want
What is consent invalidated by lack of capacity?
If you cannot appreciate the consequences of what you are doing, then you don’t have consent
What is the majority and minority opinion on minor consent?
most courts will say that anyone under 18 cannot consent if the activity carries a substantial risk of injury
The minority opinion uses the mature minor doctrine. these courts will measure a child (starting at around age 15)’s age, ability, experience, education, training, and degree of maturity or judgement to determine if they have the capacity to consent
What is informed consent?
A doctor must give a patient adequate information in order to make an informed consent
What are the two steps and their tests for informed consent?
1) What information needs to be provided to the patient
First is the reasonable doctor standard, measured by the medical community on what patients should know, and the second is the reasonable patient standard, measured by what a patient wants to know
2) Would the harm have occurred, or patient consented if the patient was given all the necessary information
First is the reasonable patient standard, measured by whether a reasonable patient with this omitted information would have consented, and the second is “this patient” standard
What are all the privileges to intentional torts?
1) Consent
2) Self-defense
3) Defense of others
4) Defense of property
5) Recovery of property
5) Necessity
What kind of belief do you need to have for a self-defense privilege?
You need to have a reasonable belief of impending harm, even if that harm isnt real. Genuine belief alone is not enough if that belief is not reasonable
What are you privileged to do with self-defense?
A person is privileged to use reasonable force to defend himself against unprivileged acts that he reasonably believes will cause him bodily harm, offensive bodily contact, or confinement
How much force should you use to stop/prevent harm?
The bare minimum needed
What two things are not privileged under self-defense?
1) retaliation
2) If you are the aggressor unless you have abandoned fight and given notice of that to the other person
What is non-deadly force?
Reasonable force that the actor reasonably believes is necessary to protect himself, anything more is a tort and not protected by self-defense. There is no duty to retreat or give up a right of privilege before using non-deadly force
What is a deadly force?
Force intended or likely (50%) to cause death or serious bodily harm
When can you use a deadly force?
You cannot use it at all in response to a non-deadly harm. The restatement says that unless you are in your home, you have a duty to retreat before using deadly force, but the majority opinion says you do not have that duty and certainly do not have it in your own home
What do state variations on self-defense do?
They impose limits on self-defense, including proportional force, required location of the victim, victim cannot be the initial aggressor, etc
What are state your ground laws?
no duty to retreat when using reasonable force, including deadly force, not limited to your home
What is the castle doctrine?
no duty to retreat when using reasonable force, including deadly force, limited to your home
What is the defense of defense of others?
Whatever A can do to protect himself against B, C can do the same thing to protect A
What is the majority and minority approach to mistaken defense of others
majority approach- most courts will say that as long as the person’s mistaken belief regarding the need to intervene was reasonable under the circumstances, then that is a defense of others privilege
minority approach- some courts will not allow a privilege even if the person’s mistaken belief is reasonable and sincere
You must be _______ on your property to defend it
present
When can you use deadly force to defend your property?
you cannot use deadly force to protect your property unless the intrusion threatens death or serious bodily harm to occupiers or users
Can property interests outweigh human life?
Yes, depending on the circumstances
What should you normally do if someone steals your personal property?
Call the police and sue for damages
What is the exception for not calling the police when someone takes your personal property?
The doctrine of hot pursuit is an exception to this, which allows someone to use self-help to recover property so long as it is in the immediacy of the theft or discovery of the theft, no deadly force is used, and the person is correct about the stolen property
What is the necessity defense?
-A defense against trespass to land, chattels, and conversion where the defendant interferes with the plaintiff’s property in an emergency to protect himself.
What damages does someone have to pay under a necessity defense?
The defendant must still pay actual damages, but they are not liable for nominal or punitive damages
What is a private necessity and what damages do you have to pay?
acting reasonably to protect yourself at the expense of someone else
you get qualified defense and still have to pay actual damages but not nominal or punitive damages
What is a public necessity and what damages do you have to pay?
risk that a large group will be harmed, you get absolute defense and do not have to pay for any damages
What three things make something a public necessity versus a private one?
1) Public, rather than private, interests are involved
2 He was reasonable in believing that the action was needed
3 The action he took was a reasonable response to the need
Who is normally engaged in public necessity?
A public official
