Intentional Torts and Defenses Flashcards
How is the intent requirement fulfilled for an intentional tort?
Intent may be either (i) specific (the purpose in acting is to bring about specific consequences) or (ii) general (the actor knws with “substantial certainty” that these consequences will result). The actor does not need to intend the injury that results from bringing about these consequences.
What is the rule of transferred intent?
The transferred intent doctrine applies when the defendant intends to commit a tort against one person but instead (i) commits a different tort against that person, (ii) commits the same tort as intended but against a different person, or (iii) commits a different tort against a different person. In such cases, the intent to commit a certain tort against one person is transferred to the tort actually commited or to the person actually injured for purposes of establishing a prima facie case.
Transferred intent may be invoked in the following torts:
a. Assault;
b. Battery;
c. False Imprisonment;
d. Tresspass to Land; OR
e. Trespass to Chattels.
What are the elements of battery?
- Harmful or offensive contact;
a. Contact is harmful if it causes actual injury, pain or disfigurement;
b. Contact is offensive if it would be considered offensive to a reasonable person.
c. Contact can be direct or indirect (e.g. setting a trap for plaintiff to fall into). - To plaintiff’s person;
a. Includes anything connected to the plaintiff (e.g. clothing or a purse, anything they are holding). - Intent AND
- Causation
NOTE: Actual damages are not required - nominal damages are sufficient. Plaintiff may recover punitive damages for malicious conduct.
What are the elements of assault?
- An act by defendant creating a reasonable apprehension in plaintiff.
a. Apprehension is merely knowledge - it is judged by a reasonable person test.
b. Apparent ability to commit a battery is sufficient.
c. Words alone are not sufficient; need conduct. - Of an immediate harmful or offensive contact to plaintiff’s person;
- Intent; and
- Causation.
NOTE:** **Actual damages are not necessary - nominal damages are sufficient.
What are the elements of false imprisonment?
- An act or omission on the part of the defendant that confines or restrains the plaintiff;
a. Sufficient acts of restraint include (i) physical barriers, (ii) physical force, (iii) threats of force, (iv) failure to release, and (v) invalid use of legal authority.
b. Insufficient acts of restraint include (i) moral pressure and (ii) future threats.
c. Period of confinement is irrelevant.
d. Plaintiff must know of the confinement or be harmed by it. - To a bounded area;
a. Freedom of movement must be limited in all directions.
b. An area is not bounded if there is a reasonable means of escape that plaintiff can discover. - Intent; and
- Causation
NOTE: Actual damages are not required - nominal damages are sufficient.
What are the elements of intentional infliction of emotional distress?
- An act by defendant amounting to extreme and outrageous conduct;
a. Extreme and outrageous conduct is conduct that transcends all bounds of decency tolerated in a civilized society. Conduct that is not normally outrageous may become so, if:
i. It is continous in nature;
ii. It is directed towards a certain type of plaintiff (i.e. little children, elderly, pregnant women, supersensitive adults if the sensitivities are known to the defendant); OR
iii. It is committed by a certain type of defendant (i.e. common carriers or innkeepers may be liable even mere “gross insults”) - Intent or recklessness (only intentional tort that has recklessness as a potential mens rea requirement);
- Causation;
a. If you are a bystander, you can show either the prima facie elements of IIED OR that (i) the bystander was present when the injury occurred, (ii) she is a close relative of the injured person, and (iii) the defendant knew facts (i) and (ii). - Damages - severe emotional distress.
a. There is no specific evidence required to prove severe emotional distress. Physical injury is not required. The more outrageous the conduct, the less proof of damages is required.
What are the elements of trespass to land?
-
Physical invasion of plaintiff’s real property;
a. Physical invasion may be by a person or an object. If an intangible matter (e.g. vibrations or odor) enters, this is not trespass (it might be nuisance).
b. Real property includes not only the surface, but also airspace and subterranean space for a reasonable distance. - Intent; and
- Causation.
NOTE: There is no requirement of damages.
What are the elements of trespass to chattels?
- An act by defendant that interferes with plaintiff’s right of possession in a chattel;
a. Types of interference include intermeddling (i.e. directly damaging the chattel) or a dispossession (i.e. depriving plaintiff of his lawful right of possession of the chattel). - Intent;
a. The defendant’s mistaken belief that he owns the chattel is no defense. - Causation; and
- Damages
a. Recovery of actual damages from harm to chattel or loss of use. If dispossession, damages are based on rental value.
What are the elements of conversion?
- An act by defendant that interferes with plaintiff’s right of possession in chattel;
a. Acts of conversion include theft, wrongful transfer, wrongful detention, and substantially changing, severely damaging, or misusing a chattel. - The interference is so serious that it warrant requiring defendant to pay the chattel’s full value;
a. The longer the withholding period and the more extensive the use, the more likely it is to be conversion. A less serious interference is trespass to chattels. - Intent; and
a. Mistake as to ownership is not a defense. - Causation.
NOTE: As a remedy, plaintiff may recover damages equivalent to the fair market value at the time of conversion or possession through replevin.
What is the defense of consent?
Consent is a defense to intentional torts, which raises two inquiries:
- Was there valid consent?
a. If consent was obtained through fraud or duress, it will invalidate any consent.
b. If there has been a mistake, that will only invalidate if the defendant knew of the plaintiff’s mistake and took advantage of it.
c. Children can validly consent to age-appropriate activities. Otherwise, individuals without capacity (e.g. incompetents, drunken persons, and very young children) are deemed incapable of consent. - Did the defendant stay within the boundaries of the consent?
There are two types of consent:
Express/Actual Consent - signing a waiver, orally.
Implied Consent - apparent consent is that which a reasonable person would infer from custom and usage (e.g. subway) or plaintiff’s conduct (e.g. normal contacts inherent in body-contact sports, ordinary incidential contact, etc.). Consent implied by law arises when action is necessary to save a person’s life or some other important interest in person or property.
What is the defense of self-defense, defense of others, and defense of property?
Always ask:
- Is the privilege available?
a. The privileges apply only for preventing the commission of a tort.
b. The threat should be imminent (there is no preemption or revenge).
c. Reasonable belief that it is a genuine threat. - Is a mistake permissible as to whether the tort being defended against is actually being committed?
- Was a proper amount of force used?
a. Force should always be proportional
b. With self-defense and use of deadly force, in New York there is a duty to retreat before using deadly force. However, this is not necessary if you are at home or if you are a police officer.
c. With defense of property, one can never use force causing death or serious bodily harm.
What is the defense of necessity?
A person may interfere with the real or personal property of another when it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it. There are two types of necessity:
(i) public - when the act is for the public good; AND
(ii) private - when the act is solely to benefit himself or a limited number of people.
Under private necessity, the actor must pay for any injury he causes (unless the act was to benefit the property owner), but not nominal or punitive damages.
Moreover, as long as the emergency is going on, the plaintiff does not have the right to kick him out. The defendant has the right to sanctuary.
