intentional torts Flashcards
elements of intentional torts (5)
- Voluntary Act
- Intent
- Causation
- Harm
- Lack of Privilege or Defense
transferred intent - 5 types of torts applicable to
- Assault
- Battery
- false imprisonment
- trespass to land
- trespass to chattels
intentional torts - list 7
- battery
- assault
- false imprisonment
- intentional infliction of emotional distress
- trespass to land
- trespass to chattels
- conversion
Intent defined for purpose of an intentional tort
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
Incompetency, Intent and Intentional Torts
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.
Defendants Liability and the Voluntary Act Requirement in Intentional Torts
A defendant will not be liable in tort for acts that are not voluntary.
Reflexive acts or unconscious acts are not voluntary.
transferred intent - defined
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
causation - torts - defined
defendants act or
force set in motion by his act
caused injury to the plaintiff
battery - tort definition
intentionally causes a harmful or offensive contact
with plaintiff or with something closely connected thereto
intent - battery
defendant must either:
- desire an immediate harmful or offensive contact; or
- know contact is substantially certain to occur
harmful or offensive contact element for battery
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
assault - tort definition
Intentionally causes a reasonable apprehension of immediate harmful or offensive contact
intent element of assault
purpose to create an apprehension
or
apprehension was substantially certain to result from his actions.
Transferred intent is available
reasonable apprehension for assault
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.
false imprisonment defined
intentionally causes confinement or restrained to a bounded area against the will
AND plaintiff knows of the confinement or
is injured thereby
intent element of false imprisonment
- desires to confinement
2. knows confinement is substantially certain to occur
plaintiffs awareness of confinement
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.
Intentional infliction of emotional distress
elements
intentional or reckless act
extreme or outrageous conduct
causes
severe mental distress
intent element of infliction of emotional distress
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
extreme outrageous conduct element of IIED
conduct beyond all bounds tolerated by a civilized society
not merely Offensive or insulting language
Plaintiffs burden re injury suffered as a result of IIED
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
IIED - conduct directed at 3rd party
If D intentionally or recklessly causes severe emotional distress
- to an immediate family member of the 3rd party where P is present and D is aware of P’s presence or
- to any other P, regardless of relationship, who is present at the time if such distress results in bodily harm.
trespass to land elements
intentional act causing entry (self or something else) of P's land (interfering with P's possessory interests)
Intent element of trespass to land
Need only intend to cause a physical invasion of P’s land.
Mistake is not a defense to a trespass action.
Possession requirement for trespass to land
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
entry element of trespass to land
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.
Plaintiffs Land element in Trespass to land action
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.
ejectment elements
action to recover possession of real property and remove D from property.
- Proof of legal title
- proof of plaintiffs right to possession
- wrongful possession by defendant
Mesne Damages
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.
Successful plaintiff in Ejectment action is entitled to…
judgement for the recovery of the property and Mesne Damages
Defendant mistakenly trespasses or takes possession or property and makes improvements. Common law result
P is entitled to recover property
no compensation for improvements
good faith does not matter
trespass to chattels
intentional act
interfering or intermeddling
with P’s chattel
resulting in harm
Intent element of trespass to chattels
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
Chattel defined
tangible personal property
intangible property with a physical representation - promissory note
documents which title to chattel are merged - warehouse receipts or bills of lading
interference element of trespass to chattels
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
plaintiffs possession requirement in trespass to chattels
P must have actual possession or have the right to immediate possession of the chattel to maintain an action
Damages element of trespass to chattels
Actual harm/damages are required - unlike other intentional torts
Include value of loss of use during dispossession or
the cost to remedy an intermeddling
conversion
intentional act
exercises dominion and control
causing serious and substantial interference
with P’s chattel.
intent element of conversion
Mistake is not defense
D need not recognize or intend the legal significance of his act
destruction or serious substantial interference element of conversion
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.
6 factors determining seriousness of interference in Conversion
- extent and duration of D’s dominion or control
- D’s intent to assert a right inconsistent with the others right to control
- D’s good faith
- extent and duration of resulting interference with P’s right of control
- harm done to the chattel
- inconvenience and expense caused to P
recovery available to P in Conversion
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.
replevin
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.
damages available to P in a replevin action in addition to recovery of chattel
- 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)
- if chattel is not returned, value is present value as determined at trial.
hidden chattels and replevin
if chattel has been hidden or removed from the jurisdiction and cannot be seized then an injunction for equitable replevin may issue
goods recoverable under replevin
tangible personal property only.
not for real property or intangible property.
UCC buyers right of replevin
- buyer has made reasonable effort and is unable to effect cover for goods and
- 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.
replevin - ucc - goods bought for personal, family, or household use
right vests upon acquisition of a special property interest even if the seller has not repudiated or failed to deliver
intentional torts defenses - POPCANS
Privilege Defense of Others Defense of Property Consent Authority Necessity Self-Defense
Privilege Defense
- Person affected by D’s conduct Consents;
- an important personal or public interest will be protected by D’s ordinarily prohibited conduct; and
- D must act freely in order to perform an essential function
BOP for D in asserting defense of Privilege
D must prove the existence of a privilege and
Privilege was exercised reasonably under the circumstances
Situations Rendering Consent ineffective as a defense
Mice In Capes Defending Freedom
Mistake Incapacity Criminal Statute Duress Fraud
Mistake and Consent
Consent will not be effective as a defense if
- consent is a product of mistake of fact or law as to nature or consequences of D’s act and
- D is aware of the mistake
Fraud exception to Consent Defense
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
duress exception to consent defense
consent is ineffective if induced under a threat of imminent harm or a false assertion of lawful authority
incapacity exception to consent defense
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.
violation of a criminal statute as exception to consent defense
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 -
exceeding actions consented to
D may still be liable when D’s conduct substantially exceeds in degree or nature the scope of P’s otherwise effective consent
self defense
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
reasonable force and self defense
degree of force necessary to avoid the harm threatened
deadly force isn’t available where no threaten death or serious bodily harm
imminence and self defense
self defense is not available when the threat is not about to happen, has been averted, or has ended.
privileged conduct and self defense
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
self defense when no actual harm threatened
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
self defense and liability to 3rd persons
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
defense of others
D is entitled to defend another person from an attack by P to the same extent that person would be entitled to defend himself
reasonable mistake doctrine and defense of others
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)
defense of property
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
recovery of property - defense of property
- only force reasonably necessary
- reasonable diligence - hot pursuit
- must demand return
- no force to recover property in possession under a claim of right - ie. bailee or person who defaulted on credit
- no defense if he mistaken about being tortiously dispossessed
- may enter the property of another if at a reasonable time and manner.
D may be liable for damages to property as a result.
Necessity Defense
permitted to injure property if reasonably necessary to avoid a substantially greater harm to the public, to himself, or to his property.
standard for asserting necessity defense
if a reasonable person
same circumstances
believe it necessary to injure property
defendant will be successful
mistake and necessity
reasonably mistaken belief actions are justified by necessity,
he is privileged to act,
even if there was no actual necessity
necessity and protecting private, individual interests
justified if threatened harm is substantially greater
than harm resulting from the action taken
necessity and protecting a public interest
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
authority defense areas
- Arrest
- Shopkeepers privilege
- Discipline
Authority - Arrest - citizen vs police officer
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
authority - arrest - breach of peace in presence
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.
shopkeepers privilege - authority defense
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
authority - discipline - reasonable force factors
nature of misconduct, age, sex, physical condition, motivation of D.
Short Definition of Voluntary Act Required for Intentional Tort
Conscious or Willful Act
Proximate Causation And Intentional Torts
Extended Consequences Rule
Will hold an intentional tortfeasor liable
for the full extent of the injuries
whether foreseeable or not.
Vicarious Liability for Parents of Child Tortfeasor
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.
Battery Elements (3)
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.
Transferred Intent and Battery
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.
Incompetency and Intent to commit Battery
So long as the incompetent was capable of forming the intent to commit the harmful or offensive touching, this will be sufficient.
Knowledge of particular susceptibility of Plaintiff to offensive contact
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
Plaintiff’s awareness of contact and Battery
Plaintiff need not be aware of the offensive contact for a battery to occur.
Piss in the coffee
Sleeping Victim
Intentional Torts against the person
Assault
Battery
Intentional Infliction of Emotional Distress
False Imprisonment
Intentional Torts Against Property
Trespass to Land
Trespass to Chattels
Transferred Intent and Assault
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
Reasonable Apprehension of Assault
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
Elements of False Imprisonment
- Intent to confine, or knowledge confinement would result
- Confinement to a bounded area - brief confinement to a large area sufficient.
- Against Will
- P knows of confinement or injury results
Confinement generally occurs by:
Force or threat of force.
Threats of force against loved ones sufficient.
Threats of reputational harm will not be sufficient
Confinement and Reasonable Means of Escape
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
Harm or Damages in False Imprisonment
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.
Elements of Intentional Infliction of Emotional Distress
Intent OR recklessness
Extreme or outrageous Conduct
Causation
Severe Emotional Distress
Mental State for IIED
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
Transferred Intent Doctrine and IIED
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.
Common Carrier, Thin Skin, Employer Exceptions to IIED and use of language to inflict
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
Severe Emotional Distress - What P needs to prove
No need for physical injury
Need to show emotional distress was not trivial or transitory but severe.
Damages and Remedies available for Trespass to Land
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
Bona fide purchaser for Value
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
Remedies for conversion
Forced Sale - converter is liable to pay FMV of chattel at the time of the loss
Replevin - action to recover personal property
checklist questions
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
imminence element of assault
There needs to be a threat of imminent harm for there to be assault.
Threat of battery in the future is not sufficient.
confinement element of false imprisonment
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.
False Imprisonment
Knowledge of Reasonable Means of Escape
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.
Confinement against will
False Imprisonment
Consent to confinement negates element
Lack of Awareness of confinement
False Imprisonment
If P is unaware of confinement, there is no confinement
UNLESS
P is injured as a result.
Types of actions likely to be considered conversion
- wrongful acquisition - theft or embezzlement
- wrongful transfer - selling, misdelivering
- wrongful detention
- loss destruction or severe damage
- material alteration
- misuse
Intentional Tort Requiring Actual damages
Trespass to Chattels
Can be the loss in value during dispossession or intermeddling
Extreme and outrageous conduct exceptions for IIED (3)
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.
Liability of Trespassers
Trespassers are liable for the full extent of her harm while trespassing.
Remedies in Tort - List
Restitutionary remedies - prevent unjust inrichment
Equitable Remedies - injunctive relief
Damages
Damages for trespass to land
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
Bona fide purchaser for value and Conversion
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
Remedies for Conversion
Forced Sale - to receive FMV for dispossessed object
Replevin - Restitutionary remedy to recover possession of object.
Consent
May be express or implied.
Person manifests intent to be exposed to harm
Implied Consent
P by conduct manifests intent to be exposed to harm.
Playing football
