Intentional Torts/Affirmative Defenses Flashcards
Nature of Intent
Purpose: for the conscious objective of causing a particular result
Substantial Certainty: knew it was substantially certain that a particular outcome would result from the act (DAILEY)
jurisdictional split
Transferred Intent
Types =
1. same victim, different tort
2. victim to victim (TALMAGE)
3. across tort and victim
Battery
Elements =
1. intent
2. result
- indirect (FISHER)/direct/remote contact
3. harmful or offensive (OLSON)
Assault
Elements =
1. intent
2. imminent apprehension
- words + physical action
3. succeed in frightening
(WESTERN)
False Imprisonment
Elements =
1. intent to confine
2. succeed in confining
3. victim is aware and/or harmed by the confinement
Shopkeeper’s Privilege [affirmative defense]
Test =
1. reasonable belief?
2. reasonable manner?
3. reasonable time?
(STOP-N-GO)
Intentional Infliction of Emotional Distress - IIED
Elements =
1. intent
- intentional or reckless
2. extreme and outrageous conduct
3. severe emotional distress results
(NAGATA)
* requires a causal connection
jurisdictional split
Trespass to Land
Elements =
1. intent
- mistake is not an exception
2. interference with property rights
* continued trespass to land requires the same elements (ROGERS)
Trespass to Chattel
Elements =
1. intent
2. interference with property rights
- liable for damages
(INTEL)
Conversion of Chattel
Elements =
1. intent
2. interference with property rights
3. leads to conversion
- liable for full value
* consider determining factors - duration, intent, harm done, etc.
Umbrella Tort
Plaintiff can sue for damages based on a broad overarching theory of liability that encompasses various specific wrongful acts
Consent Overview [affirmative defense]
Tests =
1. Subjective Standard: Was the individual personally willing for the conduct or consequences to occur, regardless of whether they communicated it?
- Objective Standard: Would a reasonable person interpret the individual’s words or actions as indicating consent?
Expressed VS. Implied Consent [affirmative defense]
Test =
1. Did the individual clearly and explicitly communicate their consent through words or actions?
–> expressed . . . OR . . .
2. Can the individual’s consent be reasonably inferred from their behavior or surrounding circumstances?
–> implied (O’BRIEN)
Implied Consent in Sports [affirmative defense]
The limits are not well defined
- consent (AVILA)
- not consent (HACKBART)
jurisdictional split
Informed Consent in Medicine [affirmative defense]
Test =
1. plaintiff must be informed of material risks
2. if plaintiff was informed they would not have consented
- subjective standard
3. the unknown consequences did occur
4. plaintiffs suffered injury as a result
(RICE)
Implied Consent in Medicine [affirmative defense]
- consenting to one surgery and receiving another
- allowed if the new procedure was to be expected (CHRISTMAN)
Factors that Invalidate Consent
- incapacity (GRAGER)
- intoxication or other mental conditions
- fraud or duress (DE MAY)
- extreme power imbalance
- NOT mentioned by Wonnell!
Self Defense [affirmative defense]
Test = Would a reasonable person fear for their life under similar circumstances?
–> Non deadly force?
- privilege to use non deadly force in response
–> Deadly force? (HATTORI)
- privilege to use deadly force in response
Duty to Retreat
Test =
1. Non deadly force?
- retreat is NOT required
2. Deadly force?
- retreat is required if there is a means of safely escaping the altercation
a. At home?
- retreat is NOT required
b. Stand your ground law?
- retreat is NOT required
Defense of Others [affirmative defense]
Test = same as self-defense (PAGES)
Defense of Property [affirmative defense]
Test = Would a reasonable person find it necessary to defend their property under similar circumstances?
–> Non deadly force?
- privileged to use non deadly force to defend property
–> Deadly force?
- not privileged to use deadly force UNLESS the owner’s life is in direct danger (KATKO)
Recovery of Property
Test =
1. Was the property recovered in “hot pursuit”?
2. Was the thief correctly identified?
- reasonable belief is NOT good enough
Necessity [affirmative defense]
Test = Was the intentional tort committed to avoid a greater evil, damage, or harm?
–> Private necessity? (VINCENT)
- incomplete defense
–> Public necessity?
- complete defense
Legal Authority [affirmative defense]
Privileges exercised under the authority of law are exceptions to what would otherwise be tortious conduct
Discipline of Children [affirmative defense]
Individuals standing in loco parentis have the privilege of inflicting reasonable corporal punishment upon children when necessary (SINDLE)
