MBE Torts Flashcards
Battery
- Harmful/offensive contact
- To the person of another
- Causation
- Intent
Single v. Double Intent
Single Intent (Majority): Defendant liable if intended to contact, even if contact wasn’t intended to be harmful or offensive
Dual Intent (Minority): Defendant must intend contact be harmful or offensive
Assault
- Conduct or other circumstances (more than words)
- Plaintiff has reasonable apprehension and awareness of act or threat
- Imminent threat of harm
- Intent
Intentional Infliction of Emotional Distress
- Intent or Recklessness
- Extreme or Outrageous Conduct (beyond human decency)
- Causation
- Damages (reasonable unless defendant knows of sensitivity)
Transferred Intent:
NO if intending a different intentional tort
MAYBE if intending IIED on another person
Public Figures/Concerns require falsity and actual malice; public concern means no recovery
Third Party Victims must be immediate family (don’t need bodily injury) or bystanders (need bodily injury)
False Imprisonment
- Intent to confine/restrain (physical force, threats, invalid use of legal authority, failure to provide means of escape)
- Confinement
- Victim is conscious of it OR harmed by it
Shopkeeper’s Privilege
Retailers are allowed to reasonably detain suspected shoplifters
Intentional Tort Defenses
Consent Self Defense Defense of Others Defense of Property Parental Discipline Privilege of Arrest
Consent
Express (invalid if duress, fraud as to essential matter, mistakes caused by defendant)
Implied: custom/usage, emergency situations, consensual combat/sports
Incapacity may negate consent
Self Defense
Must use reasonable force proportionate to the anticipated harm (deadly force only ok if reasonable belief of serious bodily injury/death)
Reasonable mistake does not invalidate
No duty to retreat (majority)
Initial aggressors generally not allowed unless the other person escalated it or they walked away
Not liable for bystander injuries so long as they weren’t negligent and it was accidental
Defense of Others
Can use the same logic of self defense in defense of others - doesn’t have to be family anymore
Defense of Property
Deadly force is never allowed to defend property
Can usually use reasonable force to prevent trespass but not if its by necessity
Can use reasonable force to reclaim personal property wrongfully taken
Parental Discipline
Both parents and educators have the privilege of using reasonable force/confinement against a child
Parent can limit educator’s privilege
Privilege of Arrest
Private: can if felony was actually committed and it was reasonable to suspect the person committed it; misdemeanor only if breach of the peace and in presence
Police: can if reasonable to believe felony was committed/suspect (no tort liability for mistake as to commission); misdemeanors must be committed in the presence of the officer
Trespass to Chattels
- Intentional interference with plaintiff’s right to possession (dispossession or using/intermeddling)
- Only intent to do the act is necessary (transferred intent ok)
- Damages (actual and loss of use; no loss of use absent dispossession)
- Remedy (compensation for diminished value or cost of repair)
Mistake of law or fact about legality is not a defense
Conversion
- Intentional act (only to commit interference, not damage) (transferred intent NO)
- Interference with plaintiff’s right to possession (dominion or control)
- So serious that it deprives plaintiff of the use of the chattel (duration/extent; bad faith; extent of harm/inconvenience considered)
- Damages (full value of property or replevin)
Mistake not a defense
Trespass to Land
- Intent to enter land or cause physical invasion (don’t need to intend to trespass; transferred intent OK)
- Physical invasion
Proper plaintiff: anyone in actual/constructive possession
Private v. Public Necessity
Private: qualified privilege to go onto land to protect themselves/property from serious harm (not liable for trespass but must pay damages)
Public: absolute privilege to avert imminent disaster (not liable for damages if reasonably believed in necessity even if not actually necessary)
Nuisance
Private: substantial and unreasonable interference with another’s use or enjoyment their land (only to a reasonable person)
Public: unreasonable interference with a right common to the general public - must suffer a harm different in kind from the general public
Remedies can be damages or injunction based on a balance of the equities
Nuisance Defenses
Regulatory Compliance (incomplete) Coming to the Nuisance (may be considered but no actual legal weight)
Abatement for Nuisance
Private: reasonable force is ok but defendant must be given notice and refused to act
Public: absent unique injury, only can be abated by public authority
Negligence Elements
- Duty
- Breach
- Causation (actual and legal)
- Damages
Foreseeability of Harm
Cardozo: defendants only liable to plaintiffs within he zone of foreseeable harm (majority)
Andrews: if defendant can foresee harm to anyone from negligence, they owe a duty to everyone harmed (minority)
Special Foreseeable Plaintiffs
Rescuers
Fetuses
When there is an affirmative duty to act
Assumption of Duty Placing Another in Peril Contract Authority Relationship (e.g., employer; parent; common carrier) Statute