Intentional torts Flashcards
Sensitivity of π
extreme sensitivity of a π is ignored
Incapacity defense
Does not apply.
little kids, drunks, mentally impaired can be sued
Intent
desire to produce the legally forbidden consequence OR knowledge that consequence is sure to result
Prima facie case for intentional torts
a. act by ∆ (volitional)
b. intent, specific or general
c. Causation – ∆’s action was a substantial factor in bringing about injury
d. Damages required only for
i. IIED
ii. trespass to chattels
iii. conversion
unlike negligence where you always have to show damages.
Transferring intent
i. intent can be transferred only for assault, battery, false imprisonment, trespass to land, or trespass to chattel
1. not intentional infliction of emotional distress or conversion.
- if you hurt someone other than who you watned to hurt, you are only liable to that person, not both who you wanted to hurt and who you actualy hurt. Unlike in crim law.
Battery– 2 main points
1) harmful or offensive contact 2) with the π’s person
a. Harmful or offensive conduct
i. harmful contact is too easy to test
ii. offensive contacts = unpermitted, offensive to REASOANBLE person
4. a grope is an offensive contact
b. contact must be WITH the πs person
i. includes anything π is holding/carrying
ii. grabbing a purse away from you is still battery
iii. slapping a horse to get it to ride that you’re on is battery
- doesn’t have to happen instantaneously
a. poisoning someone’s food is battery even if you eat it 2 hours after it was poisoned - damages not required (punitive damages)
Assault– 2 main points
reasonable apprehension of an immediate battery
a. ∆ places π in reasonable apprehension
ii. apprehension = knowledge
iii. π HAS TO SEE IT COMING but π doesn’t have to be scared, for ex. if πis very strong and ∆ is weak
vi. unloaded gun problem
1. ∆ gives idle threat of battery. for ex no bullets in the gun.
2. if π knows the gun isn’t loaded, then π knows he can’t be battered and so there isn’t assault
3. if π doesn’t know whether the gun is loaded, what matters is “reasonable” apprehension. is it reasonable to expect that battery may be imminent?
b. Of an immediate battery
i. words alone lack necessary immediacy, MUST have action
v. but words can negate apprehension
1. shaking fist at you while saying “if you weren’t my best friend”
c. damages not required (punitive damages)
False imprisonment- 2 main points
act of restraint + πconfined in bounded area
a. ∆ must commit an act of restraint
i. threats are sufficient to restrain someone, doesn’t have to be physical restraint or barriers. moral pressure and future threats are not enough to restrain
ii. threat must operate on mind of ordinary sensitivity. if you leave I’ll turn you into unicorn is not a threat for an ordinary person
iii. omission can be restraint IF there’s a preexisting duty. (for ex person on wheelchair in airplane)
iv. only counts if π is aware or harmed by the restraint – if not harmed, there’s no restraint
b. π must be confined in a bounded area . doesn’t have to have specified boundaries, can be approximate
ii. area is not bounded if there’s a reasonable means of escape that the π can reasonably discover
2. if the only way out is dangerous, disgusting, hidden, then it is not a reasonable means of escape/ reasonably discoverable
- Damages not required, can recover nominally or punitive damages.
Intentional infliction of emotional distress
∆ engages in outrageous conduct + π shows actual severe distress (no need to show physical evi)
Unlike other intentional torts, damages required!!
a. ∆ must engage in outrageous conduct
- recklessness is sufficent to show intent!!
i. not a tort to deliberately distress someone, only using the MEANS of outrageous conduct
ii. for ex breaking up w someone melodramatically bc you want them to feel hurt does not = liability
1. conduct is outrageous when it exceeds all bounds of decency tolerated in a civilized society
a. insults not accompanied by anything else are not outrageous
3. hallmarks of outrageousness – r
a. bad behavior that is repetitive
b. ∆ is common carrier or innkeeper
c. π is member of fragile class - kids, old people, visibly pregnant women
d. or the ∆ has prior knowledge of πs emotional sensitivity and ∆ targets it
b. π must suffer severe distress
i. no required way in which π has to prove distress, can prove it in any way – that you’re on meds, missed work, you cry all the time, or shrink said it.
ii. the more outrageous the conduct, the less you have to prove damages
1. unlike negligent infliction of emotional distress—don’t have to show physical harm
iii. subjective element
1. on the bar, they negate the element in a subtle way
a. the ∆ does outrageous conduct, but they’ll say π was “mildly annoyed”
b. if mildly annoyed ≠ severe distress
Trespass to land– 2 elements
act of physical invasion + that interfere’s w/ π exclusive possession of the land
a. ∆ must commit act of physical invasion, stepping foot or throwing something
inadvertent entry is still tresspass– a. the intent is the intent to be in that particular location
b. ∆’s act must interfere w π’s exclusive possession of the land
i. cause of action belongs to the person in possession of the land (tenant not landlord)
ii. ownership includes the air above and soil below, but only out to a reasonable distance up and down. airline not in tresspass, but a ball thrown your land that lands outside your property is a tresspass
Trespass to chattel and Conversion
intentional + interference (vandalism/theft) + of personal property
- if the degree of interference is relatively small→ trespass to chattels
- if the degree of interference is great→ conversion
a. no bright line b/w the two
Conversion– special remedy of recovering the FMV of the item
- A reasonable mistake over ownership of the item is NOT an excuse
a. only intent required is the intent to do the thing that interferes with π’s right to possess
Consent as a defense to intentional torts
a. only persons with capacity can give consent.
i. asymmetrical with the fact that you don’t need capacity to commit an intentional tort. but you DO need capacity to consent to have an intentional tort committed you against you.
ii. a drunk who punches you in a bar is liable for battery.
iii. a drunk who tells you to punch him cant give valid consent to be torted upon.
b. person w mental disability cannot consent to surgery or child under 12 cannot consent to sexual intercourse
i. but they can give consent commensurate to their ability
ii. two 11 y/o boys can agree to wrestle – age-appropriate and commensurate to ability
iii. someone w minor mental disability may consent to minor interferences
i. express consent—explicitly grant permission
2. exception to consent—
a. consent given as a result of fraud or duress or false pretenses is invalid.
b. mistake can undo express consent if ∆ knew and took advantage of it
ii. implied consent – two kinds
1. consent arising from custom or usage – go to a place or engage in an activity where various invasions are routine
a. crowded subway station where someone shoved, or team sports
2. consent based on ∆’s reasonable interpretation of πs objective conduct and surrounding circumstances. i.e. body language consent.
a. for ex after the 3rd date, leaning over to kiss someone is not battery
b. standard is always reasonableness, just bc it’s a 3rd date, doesn’t mean you can rape them
d. all consent has a scope, exceeding this scope makes you liable
i. inviting someone over to watch TV doesn’t give them permission to go chill in the attic without you asking –> still liable for tresspass
Self-defense, defense of others or defense of propery
response to a threat emanating from the π, and so ∆ committed tort to deal with that threat.
issues: timing, genuine threat, reasonable force, not available to initial aggressor unless other party escalates
tortfeasor may have defense of necessity
a. timing—must be in progress or imminent at the time the ∆ acts. two implications
i. cannot act too soon, cannot act preemptively. if someon says tomorrow im gonna hit you, you cant punch them in the face immediately
ii. cannot be too late—chasing them down after they leave, this is revenge not self-defense.
1. but no duty to retreat for majority rule. some jdxns have one if retreat can be done safely, but never a duty to retreat in own home.
i. CAN use force in hot pursuit in recapture of chattels bc the tort is still being commited.
b. ∆ must have reasonable belief that the threat is genuine—
i. reasonable mistake about the threat will not destroy the defense
ii. going after a bag that was another person picked up from baggage claim that was yours is a reasonable mistake→ that person can’t sue you
c. must limit yourself to reasonable force
i. proportionality – can only fight fire with fire.
1. if human life is in jeapordy you may respond with deadly force.
2. may not use deadly force to protect property.
a. cant do by machine what youre forbidden from doing in person.
b. spring gun case—cant set up shotgun trap to protect your property. or use killing pit bull
d. self defense is not available to the initial aggressor unless the other party responds to the initial aggressor’s nondeadly force by using deadly force
e. self defense may extend to escaping liability towards 3Ps who were accidentally harmed.
i. NOT if 3P was deliberately harmed to save self
ii. BUT defense of property cannot be used if the tortfeasor has the privilege of necessity, see below.
1. mistake is not allowed to whether the tortfeasor has the privilege of necessity.
Defense of necessity (only for property torts)
2 doctrines public and private necessity
i. public necessity – ∆ commits property tort in an emergency, to protect the community or a group of people. absolute defense, policy: so the hero doesn’t hesitate
ii. private necessity– ∆ who commits property tort in an emergency to protect own interest or of one other single person.
1. not an absolute defense – the ∆ will still be liable for any harm done to π property
a. compensatory damages
2. no nominal/ punitive damages
- as long as the emergency persists, the π must tolerate the ∆’s presence on his land. cannot throw the ∆ back onto land. π’s privilege to eject the trespasser is suspended during emergency. ∆ has a right to sanctuary.
a. but if you throw someone off our land during an emergency storm, you can be liable to the trespasser for any harm. bc their entry is privileged in time of emergency
Defense of privelege of arrest
- Privelege of Arrest—
a. can invade another’s land to do so
b. mistake
i. misdemeanor—can be mistaken only if for breach of peace and if action takes place in front ot ∆
ii. felony—a police officer can make a reasonable mistake. - citizens may make reasonable mistake re identity, NOT whether it occurred.
c. shoplifting detentions are allowed only if
i. reasonable belief there was a theft
ii. detention done in reasonable manner, nondeadly force
iii. for reasonable amount of time
- discipline—parents/ teacher can use reasonable force for kids.
