Intentional Torts Flashcards
Who lacks capacity for intentional torts?
Nobody. Children, incompetents, etc. are liable for intentional torts. There is no lack of capacity for intent.
When are plaintiff’s super-sensitivities taken into account?
Only when the defendant knew of them in advance.
When does a person intend a consequence?
When either:
(1) it is the person’s purpose was to bring about the consequence, or
(2) the person knows the consequence will happen to a degree of substantial certainty
What are the two ways intent can be transferred?
(1) Intent can transfer from intended to actual victim.
(2) intent can transfer from intended to actual tort.
What are the elements of a prima facie case of battery?
- intent
- harmful or offensive conduct…
- …with the plaintiff’s person
For battery, what is considered offensive conduct?
Any un-permitted conduct. But not plaintiff’s super-sensitivities unless defendant knows about them.
For battery, what is considered the plaintiff’s person?
Anything connected with the plaintiff will suffice. (Liberally construed: e.g., plate in one’s hand, car one is inside)
What are the elements of a prima facie case for assault?
- intent
- plaintiff’s reasonable apprehension…
- …of an immediate contact
For assault, what are the characteristics of apprehension?
- it must be reasonable
- plaintiff need not feel fear
- apparent ability to harm sufficient (e.g., unloaded gun)
For assault, what are the characteristics of immediacy?
- words alone are not enough
- words coupled with conduct can be enough
- words coupled with conduct can also undo the conduct and any reasonable apprehension
When battery and assault both apply to a fact pattern, which law should be applied?
Battery, because it is the ultimate consequence
What are the elements of false imprisonment?
- intent
- a sufficient act of restraint…
- …to a bounded area
Are threats enough to create a sufficient act of restraint for false imprisonment?
Yes
Is inaction enough to be a sufficient act of restraint for false imprisonment?
Only if there was an understanding that defendant would act for plaintiff’s benefit. (hypo: No boat to shore after completing promised trip across ocean.)
Must a false imprisonment plaintiff be aware of the confinement?
Yes, at the time the confinement takes place. (Exception: when confinement harmed plaintiff.)
When is the length of time relevant to false imprisonment?
Never
For false imprisonment, is mere inconvenience sufficient to create a bounded area?
No
For false imprisonment, when does a means of escape defeat the bounded area requirement?
When there is both:
• a reasonable means of escape…
• …of which the plaintiff is aware
When is intentional infliction of emotional distress most commonly applied?
As a fallback to another tort theory that isn’t working.
What are the prima facie elements for intentional infliction of emotional distress?
- intent
- outrageous conduct
- damage
For intentional infliction of emotional distress, what are the 3 factors that can transform an ordinary insult into outrageous conduct?
(1) Continuous conduct
(2) Type of plaintiff (young child, elderly, pregnant women)
(3) Type of defendant (common carriers, innkeepers)
For intentional infliction of emotional distress, are the super-sensitivities of a young child, elderly person, or pregnant woman taken into account?
Only if the defendant knew of them in advance.
For intentional infliction of emotional distress, who must a common carrier or an innkeeper insult for an ordinary insult to rise to outrageous conduct?
A passenger or a guest
What damage must be proven for intentional infliction of emotional distress?
Severe emotional distress (severe, substantial emotional harm)
What intent is required for intentional infliction of emotional distress?
Recklessness is sufficient, and transferred intent is normally unavailable
What are the prima facie elements for trespass to land?
- intent
- act of physical invasion…
- …to land
What constitutes the act of physical invasion for trespass to land?
- Entering the land, regardless of whether the defendant knows he is crossing a property line
- propelling a physical object onto the property (but not intangibles like lights and sounds, etc.)
For trespass to land, the land includes…
…the airspace above and the subsurface below, as long as it is a distance where the landowner can make reasonable use of the space.
What are the prima facie elements of trespass to chattels and conversion?
- intent
- act of invasion…
- to personal property
When is a defendant’s action trespass to chattels, and when is it conversion?
When there is some damage, it is trespass to chattels.
When there is a lot of damage, it is conversion.
For conversion, what is a damage to a chattel other than physical destruction?
Serious interference with possessory rights (e.g., an item stolen for an extended period)
Consent is a defense to what torts?
Battery, assault, false imprisonment, intentional infliction of emotional distress, trespass to land, trespass to chattels, conversion, defamation, and invasion of privacy.
What are the elements of the affirmative defense of consent?
- capacity
* express or implied consent
Who lacks capacity to consent to a tort?
(1) children
(2) mentally incapacitated
(3) coercion/force
(4) fraud/mistake
How can implied consent to a tort arise?
- custom and usage
* a plaintiff’s own conduct
Absent incapacity, when can an affirmative defense of consent fail?
When the defendant exceeds the bounds of his privilege. (hypo: Football players consent to tackles, but not to being kicked in the groin after a tackle)
What is the rule for the affirmative defense of self defense?
A person may use reasonable force to prevent what she reasonably believes to be an imminent threat of force against her.
What kind of a test applies to the reasonable belief requirement for self defense?
A subjective and objective test.
For self defense, how is reasonable force measured?
The amount of force reasonably necessary to avoid the threatened harm.
For self-defense, when is deadly force reasonable?
When the defender reasonably believes that she is facing a threat of deadly force herself.
For self defense, must a person retreat before deadly force may be used?
The modern trend requires a retreat before using deadly force, unless one is in his home.
For self defense, what is the rule for defense of others?
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.
For defense of others, what is the effect of a mistaken belief that the other person was in danger?
A defender is not liable if he reasonably believed that the other person was endangered.
For defense of property, what kind of force is allowed?
Reasonable force. Deadly force may never be used to protect property alone.
When is it permissible to use force to recapture property?
Only when the re-capturer both:
• uses reasonable force, and
• is in hot pursuit of it
To what kinds of torts does the defense of necessity apply?
Only intentional torts to property.
If a person is about to be attacked, and preemptively hits his attacker, does he have a defense of necessity?
No, necessity only applies to intentional torts to property. In this case, the defense is self defense.
Describe the defense of public necessity
An unlimited privilege to protect a lot of people (against an imminent public disaster).
Describe the defense of private necessity
A qualified privilege to protect a limited number of people. Defendant must still pay damages. (e.g. private airplane makes emergency landing in soybean field; pilot must pay farmer for lost crops)
Describe the affirmative defense of discipline.
A parent or teacher using reasonable force to discipline children. Factors are the child’s age and the nature of his activity.
