Intentional Torts Flashcards
Privilege of necessity
Using another’s land / property to prevent injury from a perceived threat that is substantially more serious than the invasion itself is legally permissible.
The property owner is entitled to recover actual damages even though the defendant was not a trespasser but was acting under private necessity.
Intentional Misrepresentation
the plaintiff must establish a misrepresentation by the defendant, scienter, intent to induce the plaintiff’s reliance, justifiable reliance by the plaintiff, and damages. A misrepresentation made in connection with an agreement between parties may prevent the formation of a contract or make a contract voidable.
Conversion
A defendant is liable for conversion if he intentionally commits an act depriving the plaintiff of possession of her chattel or interfering with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff of the use of the chattel. The plaintiff’s damages are the chattel’s full value at the time of the conversion. Accidentally damaging the plaintiff’s chattel is not conversion if the defendant had permission to be using the property.
Michigan No Fault Law - First Party Damages
The Act does not allow the insured to recover from an insurer for noneconomic losses, including pain and suffering, disfigurement, humiliation, loss of consortium, or loss of enjoyment of life.
The Act is designed to require persons involved in minor accidents to seek recovery from their insurance providers, rather than bring third-party tort actions against the at-fault driver.
Michigan No Fault Law - Persons Covered
Injuries are caused by the insured-owner’s vehicle, automobile insurance coverage extends to:
i) The insured, her spouse, and a relative of either that is domiciled in the same household;
ii) The operator of the automobile owned by the insured;
iii) Passengers in the insured’s auto;
iv) Any pedestrians injured by the insured’s auto;
v) The operator and passengers of a motor vehicle being operated for the business of transporting passengers (e.g., buses, taxicabs, etc.); and
vi) Any employee, employee’s spouse, and a relative of either that is domiciled in the same household while occupying a motor vehicle owned or registered by an employer.
Michigan No Fault Law - First Party Economic Damages
The Act does allow parties to collect from insurers for a variety of economic losses, including the following reasonable:
i) Medical expenses, including hospital and doctor services, orthopedic devices, and medical equipment.
ii) Incidental benefits arising from the injured party’s medical treatment, including transportation costs, modification to a home, and food and housing expenses. Incidental benefits may only accrue during the first three years after the accident;
iii) Rehabilitation expenses, including costs of physical, mental, social, or vocational rehabilitation;
iv) Funeral expenses as set forth in the insurance policy;
v) Wage loss benefits for work that the injured party would have performed had she not been injured. Recovery is limited to 85% of the injured party’s total wages and is payable up to a maximum of three years. Wage loss benefits cease upon the claimant’s death;
vi) Replacement services for reasonably incurred expenses, up to $20 per day for a three-year period, for household tasks that the injured party had previously been able to perform, but cannot perform currently due to injuries arising from the accident at issue (e.g., household repairs, grocery shopping, lawn care, laundry, etc.); and
vii) Survivor’s loss, including the loss of financial support that dependents would have received from the deceased. Survivor’s loss benefits are only recoverable for a three-year period after the date of the accident.
Prima Facie - Intentional Tort
- Act by D - requires some volitional movement.
2. Intent - (a) Specific intent to cause harm or (b) General certainty that conduct will cause harm.
Assault
An intentional act by D creating P’s reasonable apprehension of immediate harmful or offensive contact to P’s person. Also considered an attempted battery.
Elements:
- Act by D that creates a reasonable apprehension in P.
- Apprehension = P aware of D’s act
- Words alone not enough, Need words + Conduct
- D must have ability to carry out threat
- Of immediate harmful or offensive contact to P’s person.
- Future threats are not enough
- Intent
- Causation
Battery
An intentional harmful or offensive contact to P’s person by D.
Elements:
- Harmful or offensive contact by D
- Reasonable person standard
- To P’s person
- Includes anything connected to P’s person
- Intent
- Causation
- indirect contact is sufficient, i.e. causing the force that gives rise to harmful or offensive contact.
False Imprisonment
An act or failure to act by D resulting in P’s restraint or confinement to a bounded area.
Elements:
- Act (or omission) resulting in P’s restraint or confinement.
- –Restraint or confinement does not have to be physical can be by threat of force
- –Duration is not relevant
- P is confined to a bounded area
- – P must be aware of, or harmed by confinement
- – P’s freedom of movement must be limited
- – P must have no reasonable means of escape
- Intent
- Causation
Shopkeepers Privilege: a store may detain a suspected shoplifter on store property for a reasonable period of time.
Intentional Inflection of emotional distress IIED
Extreme and outrageous conduct by D causing P’s severe emotional distress.
Elements:
- Extreme and outrageous conduct by D
- –Non-outrageous conduct may be actionable if:
(a) D targets P’s known sensitivity or weakness;
(b) D’s conduct is continuous or repetitive;
(c) D targets a P who is a member of a “fragile” class; or
(d) D is a common carrier or innkeeper.
- –Non-outrageous conduct may be actionable if:
- P must suffer severe emotional distress from D’s conduct.
- – Physical symptoms are not necessary
- – Note watch for facts where extreme conduct exists but P is unharmed.
- Intent or recklessness
- –D disregards the likely consequences of his acts
- Causation
Bystander claims for emotional Distress aka Negligent Infliction of Emotional Distress, (NIED)
A bystander closely related to a person physically injured or killed by D’s conduct may recover for emotional distress.
Elements:
1. D’s conduct seriously injured or killed a 3rd person.
»_space;D’s conduct can be negligent or intentional
»_space;injury can result from a product defect
»_space;Bystander recovery is not available for med-mal
- P is closely related to the injured person
- P was present and seen the injury occur
- D’ knew 2 and 3
- P suffers severe emotional distress
>Physical manifestation is not required
Trespass to Land
A physical invasion of P’s real property by D
Elements:
1. D enters P’s property or causes something to enter it.
>Must by physical invasion
>P not required to own land, just have actual or constructive possession.
- Intent
>D does not need to know land belongs to another
Note: Damages not required.
Trespass to Chattels and Conversion
The taking and carrying away of another’s property.
Two separate but similar torts, the difference is the level of interference.
- Trespass = minor interference or damage
- Conversion = Significant interference or damage to justify D paying for full value of property. Look for a longer and more damaging use of P’s property.
Consent - Defense to Intentional Tort
Consent (express or implied) is a defense to all intentional torts.
> Consent must be given freely and with capacity (i.e. sober, of age, not mentally impaired)
> Express Consent P gives verbal or written consent.
> Implied consent is based on custom or by p’s willing participation in activity or location where minor torts are common.
> Consent nullified by fraud duress, or mistake.
