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Torts > Intentional Torts + other > Flashcards

Intentional Torts + other Flashcards

1
Q

What kind of defenses are unavailable in intentional torts?

A

There are no incapacity defenses in torts. Anyone who commits elements should be held liable, even if they have capacity defect

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2
Q

If a child commits an intentional tort can he be held liable?

A

Yes. There are no incapacity defenses in torts

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3
Q

What is transferred intent?

A

If the tortfeasor intended to produce an illegal consequence and a different consequence results and/or it happens to different person, intent transfers

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4
Q

When does a defendant act intentionally?

A

A defendant acts intentionally if he desires to produce a legally forbidden consequence.

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5
Q

What are the elements of a battery?

A
  1. D must intentionally commit a harmful or offensive contact AND
  2. with a plaintiff’s person.
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6
Q

What is required for contact to be considered offensive?

A

the contanct would be unpermitted by reasonable/normal person

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7
Q

What does a plaintiff’s person include?

A

Anything that the person is holding carrying or touching.

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8
Q

What are the elements of assault?

A
  1. Defendant intentionally
  2. places plaintiff in reasonable apprehension
  3. of an immediate battery
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9
Q

What must the plaintiff be aware of in order to be in reasonable apprehension

A

The threat.

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10
Q

If someone threatens you with a gun and you don’t know there are bullets in it or not will you be considered to have been put in reasonable apprehension? Why

A

Yes, you can reasonably believe you are threatened.

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11
Q

If someone threatens you with a gun and you know there are no bullets in the gun will you be considered to have been put in reasonable apprehension? Why?

A

No, you know there isn’t a threat

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12
Q

What are the elements of false imprisonment?

A
  1. D must intentionally
  2. commit an act of restraint which
  3. confines P to a bounded area.
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13
Q

What are considered to be a sufficient act of restraint?

A

Threats are a sufficient act of restraint.

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14
Q

What is the most common example of a threat that is considered an act of restraint?

A

“if you leave, we will call the cops”.

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15
Q

Under what circumstances can an omission be an act of restraint?

A

If D owes P a duty to assist in movement an omission to assist them can be an act of restraint.

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16
Q

Phil a gimp (no he can’t get an erection either) needs to fly to NYC for a power bottom’s convention, flight attendants get Phil to NYC but leave his power bottom self on the plane without helping him off. Can this be considered an act of restraint? Why it why not?

A

This omission would be considered an act of restraint.

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17
Q

For an act of restraint to have occurred what must P show?

A

P must must show they were aware of the confinement, or suffered harm from it.

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18
Q

When is an area not considered bounded?

A

Area is not bounded if there is a reasonable means of escape that the P can reasonably discover.

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19
Q

When would it be considered an unreasonable means of escape?

A

If the way out is dangerous or disgusting or humiliating or hidden it is NOT REASONABLE means of escape.

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20
Q

What are the elements of Intentional Infliction of Mental Distress?

A
  1. D intentionally or recklessly commits 2. Outrageous conduct which causes 3. P to suffer severe distress
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21
Q

What conduct is not considered outrageous?

A
  1. Insults, Cursing, making fun of you.
  2. Exercise of first amendment rights. May be outrageous conduct, but not actionable because it is protected by the constitution. (Think Westboro Baptist case)
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22
Q

What are the hallmark of outrageous conduct?

A
  1. The conduct is continuous or repetitive
  2. Defendant is a common carrier or an innkeeper. Law thinks these businesses owe a duty of courtesy, if they act in a negative way with intent to produce distress law quick to get them for intentional infliction of emotional distress
  3. Case where the P is a member of a fragile class.
  4. Always outrageous for a D to target a D’s emotional weakness. Going for emotional Achilles’ heel.
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23
Q

What are the fragile classes?

A

a. Children- Don’t pick on children, insults could be outrageous conduct. Outrageous to target a child.
b. Elderly person- outrageous to target an old person.
c. Pregnant women- D needs to know the women is preggers.

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24
Q

Does P need to suffer physical symptoms to recover in intentional infliction of metal distress?

A

No, but its good for evidence.

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25
Q

If you are mildly annoyed do you satisfy the element of P suffering severe distress?

A

No, you need to suffer severe distress.

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26
Q

What is Trespass to Land?

A

An 1) intentional 2) act of physical invasion by D which 3) interferes with P’s exclusive possession of land intent

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27
Q

What are the two ways of trespass to chattels and conversion?

A
  1. intentionally damaging property

2. intentionally taking possession of property

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28
Q

What is the difference between trespass to chattels and conversion?

A

Difference between the 2 torts is the amount of interference, if the trespass is slight use trespass to chattels, if it is significant use conversion.

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29
Q

What remedy is available in trespass to chattel?

A

Cost or repairs or cost for time lost (or they have to give back chattel)/

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30
Q

What is the remedy for conversion?

A

they recover the full market value of the property, not the cost of repair. Conversion operates as a forced sale.

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31
Q

Is mistake a defense to either trespass to chattel or conversion?

A

No.

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32
Q

What are the possible defenses to intentional torts?

A
  1. Consent
  2. Protective privileges (self-defense, defense of others, defense of property)
  3. Necessity defenses`
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33
Q

What must you have to give consent?

A

Must have legal capacity to give consent.

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34
Q

What is express consent?

A

literal words spoken by P to give D permission to act in a way that otherwise would be tortious.

35
Q

When would express consent be denied in a case?

A

Ignored if obtained though fraud or duress.

36
Q

What is Implied Consent from Custom?

A

: If a P goes to a place or engages in an activity where certain invasions are customary, then we assume that the P consents to those invasions.

37
Q

What is implied consent?

A

Consent based on D’s reasonable interpretation of P’s objective conduct/Body language

38
Q

What if you exceed the scope of a defense?

A

If you exceed the scope of consent they will be liable for the tort.

39
Q

When can you use self defense?

A

Threat in question must be in progress or imminent and if response to threat is excessive, you will not get defense

40
Q

When can you not use deadly force?

A

For defense of property.

41
Q

What kind of torts are necessity defenses applicable to?

A

Property torts

42
Q

What is public necessity?

A

D interferes with property in emergency to protect community as a whole or significant group of people.

43
Q

What is private necessity?

A

D invades property in an emergency to protect own personal interest.

44
Q

What special rules apply to private necessity?

A
  1. Actor in private necessity case remains liable for actual harm done to the property.
  2. Has no liability for nominal or punitive damages.
  3. During emergency the P, the property owner, cannot throw the D off land, but rather must allow him to remain in a position of safety.
45
Q

define: Defamation

A
  1. D publishes a 2. defamatory statement specifically identifying the P which 3. causes P damages.
46
Q

What makes a statement defamatory?

A

Defamatory if it tends to adversely affect the P’s reputation.

47
Q

(Defamation) How will the statement adversely affect P’s reputation?

A

Allegation or assertion of fact that will reflect negatively on a trait of character.

48
Q

Are mere insults defamatory?

A

No.

49
Q

What if D doesn’t identify P by name?

A

Can use other facts to identify the P if certain.

50
Q

What if the defamatory statement recognizes a small group of people?

A

then everyone is identified, and everyone has a claim.

51
Q

What if the defamatory statement recognizes a large group of people?

A

no one will have a claim.

52
Q

(Defamation) How many people need to hear the statement for it to be published?

A

One other person, other than the P.

53
Q

Can you defame a dead person?

A

No

54
Q

What is libel?

A

Defamatory statements are in a written or recorded way or otherwise in a permanent format.

55
Q

Damages in libel are ______

A

presumed

56
Q

What is slander?

A

Spoken or oral statement.

57
Q

What is slander per se?

A

Treated like libel, damages are presumed

58
Q

What are the 4 topics of slander per se?

A

i. Statement about P’s business or profession
ii. Statement that the P committed a crime of moral turpitude.
iii. Statement imputing un-chastity to a woman
iv. Statement that a P suffers from a loathsome disease.
1. Leprosy
2. Venereal disease

59
Q

When will you get damage in a non-slander per se action?

A

Damage means economic harm

60
Q

What are affirmative defenses to defamation?

A
  1. Consent
  2. Truth (d bears burden of proof)
  3. Privileges
61
Q

What are absolute privileges?

A
  1. Spouses communicating with each other.
  2. Officer of an official branch of government exercising their duties.
    a. In judicial branch it protects the lawyers and witnesses as well as judge.
  3. Fair reporting privilege
    a. Can report on public proceedings, conditional upon the report being accurate.
62
Q

What are qualified privileges?

A

i. Arises whenever there is a public interest in encouraging candor (case by case basis). Someone is making a recommendation or giving a reference.
1. Whatever you say, you have to have a good faith reasonable belief that it is true.
a. Lose the privilege if you use it to spread lies.
2. Use is confined to relevant matters.

63
Q

When is defamation a First Amendment concern?

A

When the speech is about a public matter. Defamation of a public figure is presumed to be a first amendement.

64
Q

What additional elements must be shown for defamation when there is a public matter or a public figure?

A
  1. Falsity: P must prove falsity AND

2. Fault: P must prove D was at fault.

65
Q

What level of fault must a public figure show?

A

Either intentional fault or Actual malice(reckless disregard).

66
Q

What level of fault must a private figure show in a defamation case regarding a public issue?

A

Negligence.

67
Q

Joe uses Kawhi Leonard’s picture to advertise his law firm without getting Leonard’s permission. What action, if any, can Leonard take against his biggest fan?

A

Appropriation by Defendant of P’s name or picture for D’s commercial advantage.

68
Q

When does appropriation for commercial advantage apply?

A

It is limited to the promotion of goods or services.

69
Q

What is the test for intrusion?

A

Invasion of plaintiff’s seclusion in a way that would be a highly offensive to the average person. Plaintiff must be in a place where there is a reasonable expectation of privacy.

70
Q

What are the requirements for false light?

A
  1. Publication of facts placing Plaintiff in a “false light” AND
  2. A showing of intentional or reckless disregard
71
Q

The Chicago Tribune has breaking news on its front page, with the headline “Johnson Guilty of Steroid Use” (in reference to Ben Johnson) and happened to have a picture of Magic Johnson below, with an article below. Can Magic sue for false light?

A

No, must show intentional or reckless disregard, not just mistake or stupidity.

72
Q

When can a P recover for publication about private, true facts about P?

A

Common sense analysis: would a reasonable person find the publication to be highly offensive?

73
Q

What is the prima facie case for Intentional Misrepresentation?

A
  1. Misrep. of fact (not opinion, unless expert)
  2. “Scienter”: knowledge statement was false OR reckless disregard for truth.
  3. Intent to induce Reliance
  4. Justifiable reliance (no duty to investigate)
  5. Causation
  6. Damages.
    * **NO DEFENSES!
74
Q

Phil posts on Craigslist “2003 Pontiac Grand Am on Sale, $1000, new brakes, new engine.” Joe responds to the message, and meets with Phil to test drive the car. Not knowing anything about cars, Joe relied on Phil’s description of the new brakes and engine (when in fact they are a decade old and prone to stalling). After buying the car, Joe drives it away, getting about 2 miles before the engine crapped out and Joe hit a tree. What suit can Joe bring against Phil? Does Phil have any defenses?

A

Intentional Misrepresentation. No defenses

75
Q

What is Negligent Misrepresentation?

A
  1. Misrep. of fact (not opinion, unless expert)
  2. Negligence
  3. Intent to induce Reliance
  4. Justifiable reliance (no duty to investigate)
  5. Causation
  6. Damages.
    ~Can only be used for commercial caes
76
Q

What is the Prima Facie case for Interference with business relations?

A
  1. Valid relationship b/w P and 3rd party (existing or prospective)
  2. D’s knowledge of the relationship
  3. Intentional interference (negligence insufficient!)
  4. Damages
77
Q

What are the defenses to interference with business relationship?

A

The existence of privilege is question in fact

  1. D’s persuasion” conduct-physical agression vs. mere oral suggestion
  2. Relationship b/w D and 3rd Party: Are they relatives? Is D a business advisor? If so, privileged
  3. Relationship between P & D? Business competitors? If so-> privileged over prospective customers
78
Q

Joe sells high quality duck calls, and is in preliminary negotiations with Dick’s to carry the calls. Phil contacts Dick’s directly and offers similar quality duck calls at half the price, absurd for the market. May Joe sue for interference with business relationship?

A

No, business competitors dealing with prospective customers are privileged from this tort.

79
Q

define: Appropriation

A

Defendant uses plaintiff’s name or image for a commercial advantage. It’s not a tort to use a newsworthy image

80
Q

Public Disclosure of Private Facts

A

Widespread dissemination of confidential information about the plaintiff that would be highly offensive to a reasonable person.

Media has a “newsworthiness exception” for stuff like “the health of the president” or whatever.

81
Q

Would telling everyone at Phil’s place of work that he is gay be a public disclosure of private facts?

A

No. Underlying information in this tort is TRUE, but intimate. Carrying one “public fact” into a “private sphere” of a persons life (outing somebody “at work” who is already “out” in the community) is not a tort.

82
Q

Malicious Prosecution. List the elements

A
  1. Improper purpose
  2. Institution of criminal proceedings against P
  3. Lack of probable cause against P
  4. Termination of proceedings in favor of P
83
Q

Abuse of Process. List the elements

A
  1. Use of process for an ulterior motive

2. Definite act or threat against P to accomplish ulterior motive

84
Q

Intentional Interference w/ Business Relations. list the elements

A
  1. Valid contractual relationship or business expectancy on part of P
  2. D’s knowledge thereof
  3. Intentional interference
  4. Results in termination or breach of that relationship

Torts (11 decks)

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