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Torts > Intentional Torts > Flashcards

Intentional Torts Flashcards

1
Q

What are the general observations for the intentional torts? 3

A
  1. The plaintiff’s super-sensitivities are not to be taken into account unless the defendant knew of them
  2. Everybody can be liable for intentional torts.
  3. A person “intends” the consequence of her action if it was her purpose to bring about the consequence or if she knows to a degree of substantial certainty that the event will occur
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2
Q

What is transferred intent? 2

A
  1. Intent can “transfer” from the intended to actual victim; and
  2. Intent can “transfer” from the intended to actual tort
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3
Q

Carl leaps over Neighbor’s fence, intending to land on the lawn. Instead, Carl lands on Neighbor’s Fiancé. Can Fiancé prove intent in a battery action against Carl?

A

Yes - Intent transfers from intended to actual tort - Carl intended to commit a trespass but ended up committing a battery against neighbor (tort to tort), also intended to hurt neighbor by jumping the fence, but instead hurt neighbors fiance (victim to victim)

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4
Q

Battery: What are the elements of Battery? 2

A
  1. Harmful or offensive contact;

2. With the Plaintiffs person

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5
Q

Battery: What is harmful?

A

Touching that causes harm

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6
Q

Battery: What is offensive touching?

A

Un-permitted contact: Note - The plaintiff’s super-sensitivities are not to be taken into account … unless the defendant knew of them.

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7
Q

Battery: What is the Plaintiffs person?

A

The Plaintiff’s actual person or anything connected with the plaintiff will suffice.

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8
Q

Battery: Plaintiff’s Person - Defendant knocks a plate out of Plaintiff’s hand. Is there contact with Plaintiff’s person?

A

Yes, touched the plate which was physically connected to the plaintiffs hand and body

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9
Q

Battery: Plaintiff’s Person - Example #2: Defendant shakes Plaintiff’s car while Plaintiff is inside. Is there
contact with Plaintiff’s “person?”

A

Yes - by virtue of the fact that the plaintiff is in the car and is physically connected to the plaintiffs body

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10
Q

Assault: What are the elements for assault? 2

A
  1. Apprehension;

2. Of an immediate contact

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11
Q

Assault: How can apprehension occur?

A
  1. Apprehension must be reasonable
  2. Apprehension is not fear or intimidation (i.e. Bar examiners love to give us a def. weakling - For bar apprehension not be confused with fear and apprehension - they are not the same thing
  3. Apparent ability creates apprehension (i.e. Apparent ability = Reasonable apprehension
    Unloaded gun example
    If I get one of these on the exam Wrong answer - lack of the words “apparent ability”
    Right answer - Has the words “reasonable apprehension”)
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12
Q

Assault: What is the 2nd element immediacy?

A
  1. Words alone are not enough

2. Words coupled with conduct can be enough (this can also undo immediacy)

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13
Q

Assault and Battery: If both assault and battery show up on a question which should I use?

A

Battery

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14
Q

False Imprisonment: What are the elements of false imprisonment?

A
  1. Sufficient Act of Restraint;

2. To a bounded area

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15
Q

False Imprisonment: Sufficient Act of Restraint - What is required to rise to the level of a sufficient act of restraint

A
  1. Threats can be enough - You do not need the actual application of force, the threat to do so is enough
  2. Inaction is enough where there is an understanding that the defendant would act for the plaintiffs benefit
  3. The plaintiff generally must be aware of the confinement.
  4. *Note - The confinement’s length of time is irrelevant - May be relevant for damages
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16
Q

False Imprisonment: Sufficient Act of Restraint - Inaction - Example: Religious Colony Leader takes Plaintiff across the ocean but
refuses to give her the means to come ashore. Is Leader’s inaction a “sufficient act of restraint?”

A

Yes, refused to give her the tools to get ashore, he took her all the way across the ocean and then failed to give her the tools to get all the way there

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17
Q

False Imprisonment: Bounded Area: What must happen for the area to be a bounded area?

A
  1. A mere inconvenience is not enough.
  2. An area is not bounded if there is a reasonable means of escape of which
    the plaintiff is aware. - Think of the reasonable plaintiff for the bar exam
18
Q

Intentional Infliction of Emotional Distress: What are the elements that must be met for Intentional Infliction of Emotional Distress?

A
  1. Outrageous conduct;

2. Damage

19
Q

Intentional Infliction of Emotional Distress: Outrageous Conduct - How do you show outrageous conduct for Intentional Infliction of Emotional Distress?

A
  1. Continuous conduct
  2. Type of Plaintiff - (i.e. young children, elderly, pregnant women, remember not to take the plaintiffs super sensitivities into account unless the defendant knew of them)
  3. Type of Defendant - (Common Carriers, Inn-Keepers, and the plaintiff is a guest - Generally liable, make sure def. and plaintiff meet the description)
20
Q

Intentional Infliction of Emotional Distress: Damage: How do you show damage for Intentional Infliction of Emotional Distress?

A
  1. Proof of severe emotional distress;

2. Intent - Reckless intent can satisfy - Transferred intent is normally not available

21
Q

Intentional Infliction of Emotional Distress: Damage: Transferred Intent: Example Defendant beats Man while Best Friend watches from across the street. Does Defendant’s intent to batter Man transfer to Best Friend’s intentional infliction of emotional distress action?

A

No - Transferred intent not available for IIED, with close relative case if the def. is presnent and the plaintiff knows than it is actual intent not transfered

22
Q

What are the intentional torts to Property?

A
  1. Trespass to land

2. Trespass to Chattels and Conversion

23
Q

Trespass to land: What are the elements to Trespass to land?

A
  1. Act of physical invasion - Land owner does not need to know you are on his land
  2. To land
24
Q

Trespass to land: Act of Physical invasion: How is physical invasion with a trespass to land satisfied?

A
  1. No need to show knowledge of crossing a physical line - once you cross the property you have physically invaded
  2. Propelling a physical object onto property will suffice (Note the object must be physical, bar examiners love to use things like smell, odor, lights, etc. this is nuisance, not trespass
25
Q

Trespass to land: Land: What is considered land?

A

Land includes the airspace above and the subsurface below so long as the land owner may make reasonable use of the space

26
Q

Trespass to Chattels and Conversion: What are the elements for a trespass to chattels and conversion?

A
  1. Act of invasion

2. To personal property

27
Q

Trespass to Chattels and Conversion: On the MBE how can I distinguish between Trespass to Chattels and Conversion?

A

On multi state figure out which I am working on

  • Trespass to chattels A little damage, Scratch the briefcase
  • Conversion A lot of damage Take the briefcase for a long time, longer, and more extensive use of property

Hint #1: If there is some damage, choose trespass to chattels. If there is a lot of damage, choose conversion.
Hint #2: For conversion, “damage” can include serious interference with
possessory rights.

28
Q

What are defenses to the Intentional Torts?

A
  1. Consent
  2. Self Defense
  3. Defense of Others
    * Note - I have to establish there is a tort first, then look to the fact pattern to see if I can establish an affirmative defense
29
Q

Defenses to Intentional Torts - Consent: What are the elements to establish consent?

A
  1. Capacity: The plaintiff must have capacity to consent.
  2. Express Consent - “Go ahead and do it!”
  3. Implied consent: Arises through custom and usage or through a plaintiff’s own
    conduct.
  4. Defense of Property
  5. Necessity
  6. Discipline
30
Q

Defenses to Intentional Torts - Consent: Capacity: Who lacks capacity to consent?

A
  1. Children
  2. Plaintiff that suffers from a mental incapacity
  3. Plaintiffs that were coerced or forced to do something
  4. On the basis of Fraud or mistake
31
Q

Defenses to Intentional Torts - Consent: Express consent: What is express consent?

A

Permission - however look for facts relating to mistake, fraud or coercion

32
Q

Defenses to Intentional Torts - Consent: Implied consent: what is implied consent?

A

Arises through custom and usage or through a plaintiff’s own

conduct.

33
Q

Defenses to Intentional Torts - Self Defense: What are the elements to establish self defense?

A

A person is justified in using reasonable force to prevent what she reasonably believes to be an imminent threat of force against her.
1. Reasonable Belief: Self defense requires that a reasonable person in the
defendant’s position would have believed that he was in danger. - Subjectively and Objectively reasonable
2. Reasonable Force: A person may use only the degree of force reasonably
necessary to avoid the threatened harm.

34
Q

Defenses to Intentional Torts - Self Defense: Reasonable Belief - Example: Klein sprays mace at a man who reaches into his pocket on a street corner. Did Klein have a “reasonable belief” that he was in danger?

A

No - belief not reasonable
*test tip - when reasonableness is the standard - Most of the time the test takers will put that in the exam hard to put another way

35
Q

Defenses to Intentional Torts - Self Defense: Reasonable Force - What is reasonable force?

A

Deadly Force: The use of deadly force is “reasonable” only when the defender reasonably believes that the threat is deadly
On the bar this yes answer almost always involves firearms, if deadly force is not used against you can’t reciprocate with deadly force

36
Q

Defenses to Intentional Torts - Self Defense: Reasonable Force - Retreat - What is the general rule on retreat?

A

Retreat: Courts are divided on the question whether a retreat is required
before deadly force may be used. The modern trend requires retreating before using deadly force, unless you are in your own home

37
Q

Defenses to Intentional Torts -Defense of Others: What is required to invoke this defense?

A

A person may defend another person in the same manner and under
the same conditions as the person attacked would be entitled to defend himself.
- Mistaken Belief: A defender is not liable if he reasonably believed that another
person was endangered.

38
Q

Defenses to Intentional Torts -Defense of Property - What is required to invoke this defense?

A

A person may use reasonable force to defend his real or personal
property. However, deadly force may never be used to protect property alone - -Distinguish from Other Defenses: Do not confuse defense of property with self defense or defense of others!

39
Q

Defenses to Intentional Torts -Defense of Property - Hot Pursuit - What is the rule of hot pursuit?

A

Only time you can use force to recapture property is while in hot pursuit

40
Q

Defenses to Intentional Torts -Defense of Property - Shoplifter - What is the rule for a shoplifter?

A

A shopkeeper can can detain a shoplifter for reasonable time and use reasonable force, but not deadly force for property alone

Torts (1 decks)

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