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intentional torts Flashcards

0
Q

elements of intentional torts (5)

A
  1. Voluntary Act
  2. Intent
  3. Causation
  4. Harm
  5. Lack of Privilege or Defense
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1
Q

transferred intent - 5 types of torts applicable to

A
  1. Assault
  2. Battery
  3. false imprisonment
  4. trespass to land
  5. trespass to chattels
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2
Q

intentional torts - list 7

A
  1. battery
  2. assault
  3. false imprisonment
  4. intentional infliction of emotional distress
  5. trespass to land
  6. trespass to chattels
  7. conversion
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3
Q

Intent defined for purpose of an intentional tort

A

Defendant desires his act to cause resulting harm

or is substantially certain that result will occur.

Was there a desire or purpose to bring about consequences or was there a substantial certainty they would occur

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4
Q

Incompetency, Intent and Intentional Torts

A

Mental incompetence or status as a minor DOES NOT preclude a finding of intent to commit an intentional tort.

May affect whether such intent actually existed.

At common law, parents are not vicariously liable for the intentional torts of their children.

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5
Q

Defendants Liability and the Voluntary Act Requirement in Intentional Torts

A

A defendant will not be liable in tort for acts that are not voluntary.

Reflexive acts or unconscious acts are not voluntary.

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6
Q

transferred intent - defined

A

when defendant acts with intent to commit certain intentional torts but causes injury to some other victim, the intent will be transferred to the other victim

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7
Q

causation - torts - defined

A

defendants act or

force set in motion by his act

caused injury to the plaintiff

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8
Q

battery - tort definition

A

intentionally causes a harmful or offensive contact

with plaintiff or with something closely connected thereto

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9
Q

intent - battery

A

defendant must either:

  1. desire an immediate harmful or offensive contact; or
  2. know contact is substantially certain to occur
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10
Q

harmful or offensive contact element for battery

A

Any amount of physical discomfort is enough.

RP would regard as offensive or
if D knows of particular susceptibility of P, then contact RP would not regard as offensive but P does, it is sufficient.

may be with something close to plaintiff - snatching a hat
plaintiff need not be aware - defendant spits on P while they slept

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11
Q

assault - tort definition

A

Intentionally causes a reasonable apprehension of immediate harmful or offensive contact

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12
Q

intent element of assault

A

purpose to create an apprehension
or
apprehension was substantially certain to result from his actions.

Transferred intent is available

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13
Q

reasonable apprehension for assault

A

if a reasonable person in the same position as P
would have experienced apprehension,
defendant is liable
even if the D lacked ability to cause the contact.

ie. pointing an unloaded gun when P does not know it is not loaded.

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14
Q

false imprisonment defined

A

intentionally causes confinement or restrained to a bounded area against the will
AND plaintiff knows of the confinement or
is injured thereby

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15
Q

intent element of false imprisonment

A
  1. desires to confinement

2. knows confinement is substantially certain to occur

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16
Q

plaintiffs awareness of confinement

A

P must be aware of confinement or suffer actual harm resulting from confinement.

Sometimes an infant or incompetent individual who is incapable of being aware of confinement can recover for false imprisonment.

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17
Q

Intentional infliction of emotional distress

elements

A

intentional or reckless act
extreme or outrageous conduct
causes
severe mental distress

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18
Q

intent element of infliction of emotional distress

A

intend to cause severe mental distress or
be reckless in creating the risk of emotional distress.

Recklessness is the conscious disregard of a high degree of probability that emotional distress will follow

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19
Q

extreme outrageous conduct element of IIED

A

conduct beyond all bounds tolerated by a civilized society

not merely Offensive or insulting language

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20
Q

Plaintiffs burden re injury suffered as a result of IIED

A

distress suffered was severe
more than a reasonable person could be expected to endure.
substantial, not trivial or transitory.

Most states do not require actual injury

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21
Q

IIED - conduct directed at 3rd party

A

If D intentionally or recklessly causes severe emotional distress

  1. to an immediate family member of the 3rd party where P is present and D is aware of P’s presence or
  2. to any other P, regardless of relationship, who is present at the time if such distress results in bodily harm.
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22
Q

trespass to land elements

A 
intentional act 
causing entry (self or something else)
of P's land (interfering with P's possessory interests)
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23
Q

Intent element of trespass to land

A

Need only intend to cause a physical invasion of P’s land.

Mistake is not a defense to a trespass action.

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24
Q

Possession requirement for trespass to land

A

actual possession or right to immediate possession of the land.

An adverse possessor can maintain action.

An owner who is not in possession may NOT

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25
Q

entry element of trespass to land

A

Some physical entry required
If noise or odor - probably nuisance

Either by person or causing another or an object

Failure to remove or leave when under a legal duty to do so.

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26
Q

Plaintiffs Land element in Trespass to land action

A

includes area above and below the surface

Airspace - Immediate reaches of airspace where trespass interferes substantially with the use and enjoyment of P’s land.

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27
Q

ejectment elements

A

action to recover possession of real property and remove D from property.

  1. Proof of legal title
  2. proof of plaintiffs right to possession
  3. wrongful possession by defendant
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28
Q

Mesne Damages

A

Compensate for the loss of the use of the land measured by the rental value of the property or the benefit gained by the wrongful possessor, whichever is greater.

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29
Q

Successful plaintiff in Ejectment action is entitled to…

A

judgement for the recovery of the property and Mesne Damages

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30
Q

Defendant mistakenly trespasses or takes possession or property and makes improvements. Common law result

A

P is entitled to recover property
no compensation for improvements
good faith does not matter

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31
Q

trespass to chattels

A

intentional act
interfering or intermeddling
with P’s chattel
resulting in harm

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32
Q

Intent element of trespass to chattels

A

D intentionally performs physical act that interferes with P’s chattel.
D need not intend or recognize legal significance of the act
Mistake is not a Defense

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33
Q

Chattel defined

A

tangible personal property

intangible property with a physical representation - promissory note
documents which title to chattel are merged - warehouse receipts or bills of lading

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34
Q

interference element of trespass to chattels

A

Actionable interference includes dispossession and intermeddling
Dispossession - even if temporary or if D wrongfully refuses to return it
Intermeddling - interference that does not directly affect P’s possession - smearing mud on truck or kicking a dog

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35
Q

plaintiffs possession requirement in trespass to chattels

A

P must have actual possession or have the right to immediate possession of the chattel to maintain an action

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36
Q

Damages element of trespass to chattels

A

Actual harm/damages are required - unlike other intentional torts

Include value of loss of use during dispossession or
the cost to remedy an intermeddling

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37
Q

conversion

A

intentional act
exercises dominion and control
causing serious and substantial interference
with P’s chattel.

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38
Q

intent element of conversion

A

Mistake is not defense

D need not recognize or intend the legal significance of his act

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39
Q

destruction or serious substantial interference element of conversion

A

the exercise of dominion and control over the chattel.
More serious than trespass to chattels.

the longer period of interference or the greater use of the chattel by D the more likely it will be considered conversion.

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40
Q

6 factors determining seriousness of interference in Conversion

A
  1. extent and duration of D’s dominion or control
  2. D’s intent to assert a right inconsistent with the others right to control
  3. D’s good faith
  4. extent and duration of resulting interference with P’s right of control
  5. harm done to the chattel
  6. inconvenience and expense caused to P
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41
Q

recovery available to P in Conversion

A

recovery damages - FMV of the item at the time of conversion or
replevin/detinue claim and delivery compelling return of chattel with recovery of damages attributable to wrongful detention
D’s offer to return does not alleviate conversion but may mitigate damages if D innocently converted P’s chattel.

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42
Q

replevin

A

an action at law for the recovery of specific chattels wrongfully taken or detained permitting P to recover immediate possession at the beginning of the action. P must post a bond against possibility of a finding for D. D may post a bond to retain chattel until the action has concluded. No seizure may take place until a hearing has taken place to determine if P is entitled to the chattel.

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43
Q

damages available to P in a replevin action in addition to recovery of chattel

A
  1. the difference in MV of the chattel at the time of deprivation and the time the action commenced if chattel is held for sale or the value of lost use (rental income)
  2. if chattel is not returned, value is present value as determined at trial.
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44
Q

hidden chattels and replevin

A

if chattel has been hidden or removed from the jurisdiction and cannot be seized then an injunction for equitable replevin may issue

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45
Q

goods recoverable under replevin

A

tangible personal property only.

not for real property or intangible property.

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46
Q

UCC buyers right of replevin

A
  1. buyer has made reasonable effort and is unable to effect cover for goods and
  2. circumstances reasonably indicate such effort will be unavailing or the goods have been shipped under reservation and satisfaction of the security interest has been made or tendered.
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47
Q

replevin - ucc - goods bought for personal, family, or household use

A

right vests upon acquisition of a special property interest even if the seller has not repudiated or failed to deliver

48
Q

intentional torts defenses - POPCANS

A 
Privilege
Defense of Others
Defense of Property
Consent
Authority
Necessity
Self-Defense
49
Q

Privilege Defense

A
  1. Person affected by D’s conduct Consents;
  2. an important personal or public interest will be protected by D’s ordinarily prohibited conduct; and
  3. D must act freely in order to perform an essential function
50
Q

BOP for D in asserting defense of Privilege

A

D must prove the existence of a privilege and

Privilege was exercised reasonably under the circumstances

51
Q

Situations Rendering Consent ineffective as a defense

Mice In Capes Defending Freedom

A 
Mistake
Incapacity
Criminal Statute
Duress
Fraud
52
Q

Mistake and Consent

A

Consent will not be effective as a defense if

  1. consent is a product of mistake of fact or law as to nature or consequences of D’s act and
  2. D is aware of the mistake
53
Q

Fraud exception to Consent Defense

A

Consent induced by intentional deceit of D as to the essential consequences of his act will negate the defense.
If fraud relates to a collateral matter the consent may be effective

54
Q

duress exception to consent defense

A

consent is ineffective if induced under a threat of imminent harm or a false assertion of lawful authority

55
Q

incapacity exception to consent defense

A

young children, persons with impaired mental capacities, mental defect, or intoxicated cannot consent to tortious conduct.

without particular knowledge, defendant may interpret plaintiffs actions as manifesting consent.

56
Q

violation of a criminal statute as exception to consent defense

A

consent will be ineffective as a defense when defendants tortious conduct also constitutes a crime.
Minority View jurisdictions
consent will be effective for tort law purposes if conduct is in violation of the law but not a breach of the peace.
A person cannot consent to violation of a statute that was meant to protect him or her -

57
Q

exceeding actions consented to

A

D may still be liable when D’s conduct substantially exceeds in degree or nature the scope of P’s otherwise effective consent

58
Q

self defense

A

Honestly and reasonably belief
the use of reasonable force
to prevent an imminent and unprivileged attack

D reasonably believes and
uses proportional force
threat is imminent

59
Q

reasonable force and self defense

A

degree of force necessary to avoid the harm threatened

deadly force isn’t available where no threaten death or serious bodily harm

60
Q

imminence and self defense

A

self defense is not available when the threat is not about to happen, has been averted, or has ended.

61
Q

privileged conduct and self defense

A

where plaintiffs conduct is privileged in threatening an imminent attack, D may not invoke self defense and will be liable for any tortious acts committed against the plaintiff

62
Q

self defense when no actual harm threatened

A

self defense is available if
1. A reasonable person in the same circumstances would believe he was under attack.
D must honestly and in good faith believe that sufficient threat exists to justify defensive force and a reasonable person would believe so under the circumstances

63
Q

self defense and liability to 3rd persons

A

where D properly acts in self defense he is not liable for an intentional tort if he inadvertently inflicts injuries on innocent third parties UNLESS he deliberately injures them, and may be liable for negligence if he unreasonably inflicts such injuries in the course of defending himself

64
Q

defense of others

A

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

65
Q

reasonable mistake doctrine and defense of others

A

D is relieved of liability where the 3rd person would not be permitted to assert self defense against P if a reasonable person in D’s position would have believed defense of the 3rd person was justified and the actions was necessary to prevent harm to that person.
(many jurisdictions do not hold this view)

66
Q

defense of property

A

reasonable force to prevent commission of a tort against property.

Must first demand desist the conduct that threatens injury
unless it is futile or dangerous

force used is no greater than necessary to prevent harm.

Deadly force is never permissible

67
Q

recovery of property - defense of property

A
  1. only force reasonably necessary
  2. reasonable diligence - hot pursuit
  3. must demand return
  4. no force to recover property in possession under a claim of right - ie. bailee or person who defaulted on credit
  5. no defense if he mistaken about being tortiously dispossessed
  6. may enter the property of another if at a reasonable time and manner.
    D may be liable for damages to property as a result.
68
Q

Necessity Defense

A

permitted to injure property if reasonably necessary to avoid a substantially greater harm to the public, to himself, or to his property.

69
Q

standard for asserting necessity defense

A

if a reasonable person
same circumstances
believe it necessary to injure property
defendant will be successful

70
Q

mistake and necessity

A

reasonably mistaken belief actions are justified by necessity,
he is privileged to act,
even if there was no actual necessity

71
Q

necessity and protecting private, individual interests

A

justified if threatened harm is substantially greater

than harm resulting from the action taken

72
Q

necessity and protecting a public interest

A

defendant acting to protect a public interest is justified only if the threatened harm is severe - essentially a disaster

if defendant is justified in acting out of public necessity he incurs no liability whatsoever for damage to plaintiffs property

73
Q

authority defense areas

A
  1. Arrest
  2. Shopkeepers privilege
  3. Discipline
74
Q

Authority - Arrest - citizen vs police officer

A

citizen arrest - if mistaken about whether felony was committed, authority defense unavailable even if mistake was reasonable.

If a felony was committed but
citizen makes mistake of identity,
defense is available if mistake was reasonable

75
Q

authority - arrest - breach of peace in presence

A

police officer or private citizen
make arrest preventing breach of the peace
committed or about to be committed in his presence.

Even mistaken belief that breach was about to be committed
so long as the mistake was reasonable.

76
Q

shopkeepers privilege - authority defense

A 
reasonable suspicion that P has stolen goods, 
reasonable force to detain
detainment is for a reasonable period 
in a reasonable manner 
on premises or in the vicinity.
mistake must be reasonable
77
Q

authority - discipline - reasonable force factors

A 
nature of misconduct, 
age, 
sex, 
physical condition, 
motivation of D.
78
Q

Short Definition of Voluntary Act Required for Intentional Tort

A

Conscious or Willful Act

79
Q

Proximate Causation And Intentional Torts

A

Extended Consequences Rule

Will hold an intentional tortfeasor liable
for the full extent of the injuries
whether foreseeable or not.

80
Q

Vicarious Liability for Parents of Child Tortfeasor

A

Parents are generally not liable for intentional torts of children at common law.

Some states have statutory provisions that will hold parents vicariously liable for intentional torts of children.

81
Q

Battery Elements (3)

A

Intentional contact - Desired contact or knew contact was substantially certain to occur.

Harmful or offensive contact - any amount of physical contact sufficient, so long as a reasonable person would find it offensive.

With a Person or Something closely connected thereto.

82
Q

Transferred Intent and Battery

A

Where D intended harmful or offensive contact

And contact was with an unintended Victim

D’s intent to commit an offensive contact will be transferred to the ultimate victim.

83
Q

Incompetency and Intent to commit Battery

A

So long as the incompetent was capable of forming the intent to commit the harmful or offensive touching, this will be sufficient.

84
Q

Knowledge of particular susceptibility of Plaintiff to offensive contact

A

D with knowledge of P’s particular susceptibility will be held liable for a battery even if the contact would be less than a reasonable person would have found offensive

85
Q

Plaintiff’s awareness of contact and Battery

A

Plaintiff need not be aware of the offensive contact for a battery to occur.

Piss in the coffee
Sleeping Victim

86
Q

Intentional Torts against the person

A

Assault
Battery
Intentional Infliction of Emotional Distress
False Imprisonment

87
Q

Intentional Torts Against Property

A

Trespass to Land

Trespass to Chattels

88
Q

Transferred Intent and Assault

A

D had the intent to place P in imminent apprehension of a battery
and an offensive contact results
D’s intent to assault P will transfer to the Battery

He will be liable for both

89
Q

Reasonable Apprehension of Assault

A

The apprehension of a battery must be reasonable and imminent.

If D knows of P’s susceptibility to apprehension he can be found liable if apprehension would be less than reasonable

90
Q

Elements of False Imprisonment

A
  1. Intent to confine, or knowledge confinement would result
  2. Confinement to a bounded area - brief confinement to a large area sufficient.
  3. Against Will
  4. P knows of confinement or injury results
91
Q

Confinement generally occurs by:

A

Force or threat of force.
Threats of force against loved ones sufficient.
Threats of reputational harm will not be sufficient

92
Q

Confinement and Reasonable Means of Escape

A

If P is aware of a reasonable means of escape, there is no confinement.

Risk of embarrassment is not a reasonable means of escape - streaking down a hallway because D took clothes

93
Q

Harm or Damages in False Imprisonment

A

If P is aware of confinement, this satisfies harm element.

If P is unaware of confinement, Injury must result from confinement in order for element to be satisfied.

P is unaware of confinement and no injury results, there is no harm.

94
Q

Elements of Intentional Infliction of Emotional Distress

A

Intent OR recklessness
Extreme or outrageous Conduct
Causation
Severe Emotional Distress

95
Q

Mental State for IIED

A

Desire to inflict severe emotional distress

Was substantially certain severe emotional distress would result from actions

ACTED WITH CONSCIOUS DISREGARD OF A HIGH RISK CONUCT WOULD CAUSE SEVERE EMOTIONAL DISTRESS - reckless standard

96
Q

Transferred Intent Doctrine and IIED

A

There is no transferred intent doctrine with IIED
HOWEVER
Recklessness standard may allow 3rd parties to recover where D acted recklessly with respect to the 3rd party and his actions could cause severe emotional distress.

97
Q

Common Carrier, Thin Skin, Employer Exceptions to IIED and use of language to inflict

A

Inkeepers and common carriers conduct need only be reasonably offensive - not exceed bounds of human decency

If D is aware of P’s susceptibility to ED, take your V as you find them

Supervisors have been found liable for use of racial slurs against employees as IIED

98
Q

Severe Emotional Distress - What P needs to prove

A

No need for physical injury

Need to show emotional distress was not trivial or transitory but severe.

99
Q

Damages and Remedies available for Trespass to Land

A

Damages - D is liable for all damages resulting from trespass
Ejectment
Nominal Damages are also recoverable in order to vindicate rights to the property and stop claims of adverse possession

100
Q

Bona fide purchaser for Value

A

Where D sold converted property to a 3rd party, that 3rd party is also a converter and liable for return of property or compensation for full market value

101
Q

Remedies for conversion

A

Forced Sale - converter is liable to pay FMV of chattel at the time of the loss

Replevin - action to recover personal property

102
Q

checklist questions

A

Who is the plaintiff? tresspasser, product user…
Who is the defendant(s)? Who are the responsible parties
what is the plaintiffs injury?
What legal theory or theories can P assert?
When in doubt the theory is probably negligence

103
Q

imminence element of assault

A

There needs to be a threat of imminent harm for there to be assault.

Threat of battery in the future is not sufficient.

104
Q

confinement element of false imprisonment

A

there must be confinement in a defined area

Can be large area so long as defined.

Length of confinement is irrelevant

Generally one is confined by force or threat of force to person or others. Threats to reputational harm is not sufficient.

105
Q

False Imprisonment

Knowledge of Reasonable Means of Escape

A

There is no confinement if there is a REASONABLE means of escape and P KNOWS about it.

Subjecting P to reputational harm is not a reasonable means of escape.

106
Q

Confinement against will

False Imprisonment

A

Consent to confinement negates element

107
Q

Lack of Awareness of confinement

False Imprisonment

A

If P is unaware of confinement, there is no confinement

UNLESS

P is injured as a result.

108
Q

Types of actions likely to be considered conversion

A
  1. wrongful acquisition - theft or embezzlement
  2. wrongful transfer - selling, misdelivering
  3. wrongful detention
  4. loss destruction or severe damage
  5. material alteration
  6. misuse
109
Q

Intentional Tort Requiring Actual damages

A

Trespass to Chattels

Can be the loss in value during dispossession or intermeddling

110
Q

Extreme and outrageous conduct exceptions for IIED (3)

A

D is an innkeeper or common carrier. If conduct is reasonably offensive they can be held for intentional infliction of emotional distress.

D knows of particular susceptibility and acts to exploit it.

Person in a position of authority uses racial insults against a subordinate.

111
Q

Liability of Trespassers

A

Trespassers are liable for the full extent of her harm while trespassing.

112
Q

Remedies in Tort - List

A

Restitutionary remedies - prevent unjust inrichment

Equitable Remedies - injunctive relief

Damages

113
Q

Damages for trespass to land

A

Nominal damages are available - P can vindicate her rights to the property even if no actual damages.

Unusual in tort.

Ejectment is available as well

114
Q

Bona fide purchaser for value and Conversion

A

3rd party purchases stolen vase he does not know to be stolen.
3rd party is also a converter.
3rd party is liable to pay FMV or return object.

3rd party intended to exercise dominion and control

115
Q

Remedies for Conversion

A

Forced Sale - to receive FMV for dispossessed object

Replevin - Restitutionary remedy to recover possession of object.

116
Q

Consent

A

May be express or implied.

Person manifests intent to be exposed to harm

117
Q

Implied Consent

A

P by conduct manifests intent to be exposed to harm.

Playing football

torts (11 decks)

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