Kaplan Pgs 606-622 Intentional Torts

Question 1

If a defendant is mentally incompetent or a minor, does that preclude a finding that he possesses the intent to commit an intentional tort?

Answer 1

No, but it may affect whether intent actually existed

Question 2

What are the three different ways that confinement can happen for false imprisonment?

Answer 2

– use of physical barriers
– failing to release someone when D had a legal duty to do so
– invalid assertion of legal authority

Question 3

Modernly is it required for IIED that the person suffered a physical injury along with the severe emotional distress?

Answer 3

No

Question 4

What is required under IIED in order for a third-party to bring suit?

Answer 4

That the plaintiff must be an immediate family member or close relative of the person injured
– the plaintiff must have been present at the time of injury
– the defendant must have been aware of the plaintiffs presence

Question 5

Is it necessary that bodily harm be inflicted in order for someone to bring a suit for intentional infliction of emotional distress?

Answer 5

– not if you were personally emotionally distressed by the behavior
– not if an immediate family member or close relative was the victim and you were present at the time and the defendant was aware of your presence
– but if the actual victim was someone you were not related to and you were present at the time of the incident, then you have to have suffered bodily harm and the defendant had to be aware of your presence in order for you to bring suit

Question 6

If you enter someone’s land and make a mistake about the fact that it is somebody else’s land, have you still committed a trespass?

Answer 6

Yes, because mistake is not a defence to trespass

Question 7

Is it possible for an adverse possessor or a lessee to bring a trespass action?

Answer 7

Yes because in order to bring an action for trespass, the plaintiff must be in actual possession of the land or have the right to immediate possession of the land. That doesn’t mean that only the owner can bring a suit. In fact if the person who actually owns the land is not in possession of the land, he cannot bring a trespass action

Question 8

Anytime there are facts that involve something entering the plaintiff’s land and causing harm, what should you consider?

Answer 8

• nuisance
  – strict liability
  – trespass to land

Question 9

If someone climbs a tree in their yard and goes out onto a branch that overhangs the yard, what has happened?

Answer 9

They have committed trespass into the neighbour’s yard

Question 10

What is ejectment?

Answer 10

An action to recover possession of real property

Question 11

What are the elements of ejectment?

Answer 11

– proof of legal title
– proof of the plaintiff’s right to possession
– wrongful possession by the defendant

Question 12

A successful plaintiff that asks for ejectment can get what kind of recovery?

Answer 12

Both recovery of the property and mesne damages

Question 13

What are mesne damages?

Answer 13

They compensate someone who had their land possessed by someone else for the loss of the use of the land. They are measured by the rental value of the property or the benefit gained by the wrongful possessor, whichever is greater

Question 14

If someone mistakenly trespassers on another person’s land and makes an improvement, what are their rights to that improvement?

Answer 14

At common law, they have no rights. The actual owner of the land can recover the property and does not have to compensate the defendant for the improvements, even if the defendant acted in good faith and thought he was the rightful possessor of the property

Question 15

What is the exact definition of chattel?

Answer 15

Tangible personal property or intangible property that has a physical representation, such as a promissory note

Question 16

Do you have to prove actual damages for trespass to chattel?

Answer 16

Yes

Question 17

What are actual damages for trespass to chattel?

Answer 17

• value of the loss of use: like rental value during the dispossession
  – or the cost to remedy an intermeddling

Question 18

How do you figure out if some thing is a trespass to tattle or a conversion?

Answer 18

The longer the period of interference in the greater the use of the title by the defendant, the more likely it is conversion

Question 19

What are some types of acts that are likely to be classified as conversions?

Answer 19

• wrongful acquisition: theft, embezzlement, receiving stolen property
  – wrongful transfer: selling, misdelivering, pledging
  – wrongful detention
  – loss, destruction, or severe damage
  – material alteration
  – significant misuse

Question 20

What is the remedy that a plaintiff is usually allowed to get from conversion?

Answer 20

• fair market value at the time of the conversion + consequential losses
  – replevin: defendant must return the converted title + damages because of the wrongful detention

Question 21

What are the major differences between trespass to chattels and conversion?

Answer 21

– Trespass: intentionally dispossessing or intermeddling with title. D is liable for damages or the diminished value of the title.
- Conversion: intentionally exercising dominion or control over the chattel and seriously interfering with the rights of the owner. D is liable for the full value of the title at the time of conversion

Question 22

If someone is at a restaurant and as they leave they grab a coat that is not theirs mistakenly believing it is theirs. If they get to the sidewalk and put the coat on, and discover the mistake, and bring it back into the restaurant, is that a conversion?

Answer 22

No, but if they keep the coat for six months before they discover the mistake and then they return it, that is a conversion. Or if when they got outside they got sprayed with mud, that would also be a conversion.

Question 23

What is replevin?

Answer 23

This is an action that allows a plaintiff to recover immediate possession of his property that has been wrongfully taken or detained. This requires an action by the plaintiff where he hast to post a security bond just in case the judgement is for the defendant. There is a hearing to determine if plaintiff is entitled to the chattel.

Question 24

What is the measure of damages for replevin?

Answer 24

– the plaintiff can get the market value of the title at the time of the deprivation minus the market value at the time the action is commenced
– or the value of lost use of the title
– if the title is not returned, the plaintiff can get the present value of the title at trial

Question 25

Replevin can only be used for what?

Answer 25

To recover tangible personal property. It is not available to recover real property or intangible personal property

Question 26

What is the acronym to help remember defences and privileges to intentional torts?

Answer 26

POPCANS

Question 27

What are the different defences and privileges to intentional torts?

Answer 27

POPCANS
– privilege
– defence of others
– defence of property
– consent
– authority
– necessity
– self-defence

Question 28

Who has the burden to prove that a privilege existed?

Answer 28

The defendant, and he must prove that he exercised the privilege reasonably under the circumstances

Question 29

What are the situations where even though someone consented to an act, it is not a defense?

Answer 29

DIMSFIM
- duress
– incapacity
– mistake
– fraud
– violation of a criminal statue

Question 30

How can mistake negate consent?

Answer 30

Consent is not affected if it is a product of a mistake of fact or law about the nature or consequences of an act, and the defendant is aware of the mistake

Question 31

How can incapacity prevent someone from consenting to tortious conduct?

Answer 31

Young children and people whose mental capacities are impaired by mental disease, mental defect, or intoxication cannot consent to tortious conduct

Question 32

What are the two things that are required to find that self-defence was proper?

Answer 32

• subjective: honest, and good faith belief that a threat existed to justify force
  – objective: reasonable person would’ve also believed self-defence was necessary

Question 33

What is the majority and minority position on retreat when it comes to self-defense?

Answer 33

– Majority: no duty to retreat
– Minority: if it is outside your home, you must retreat before using deadly force if it is safe and possible. If it is inside your home or safe retreat is not possible, you can use defensive force

Question 34

What’s the deal with the reasonable mistake doctrine for self-defence under common law and modernly?

Answer 34

• common law: you cannot make a mistake if you are defending others. If you do, you are liable for an intentional tort
  – majority: you are not liable if a reasonable person in your position would have believed that defence of the other person was justified and necessary

Question 35

Before you can use force to prevent someone from committing a tort against your property, you must demand that the other person desist except in what situations?

Answer 35

Dash if it would be futile

– if it would be dangerous

Question 36

If Pam takes Darla’s gold bracelet knowing that it is Darla’s, is Darla permitted to go and grab the bracelet back from Pam?

Answer 36

Yes, but only if Darla first asked Pam to give it back

Question 37

What is the difference between public necessity and private necessity when it comes to the amount of harm being avoided?

Answer 37

• private: avoid a substantially greater harm

– public: harm must be severe, like a disaster

Question 38

When does the defence for authority that involves discipline apply?

Answer 38

Situations where the defendant must maintain discipline because he is a parent, teacher, or something he can use reasonable force to perform his duty