Page 1 Flashcards
Is there merger doctrine in intentional torts?
No, so you can have a battery and an assault because the plaintiff recovers for each intentional tort he can prove
What are intentional torts?
When the defendant intentionally commits a tort through a:
- volitional act
- with requisite intent
- that is the cause of the
- resulting harm suffered by the plaintiff
What is the prima facie case?
The elements a plaintiff has to prove to establish a claim by a preponderance of the evidence
What does “preponderance of the evidence” mean?
More than 50%. It must be proven that each element is more likely than not
What are the prima facie case elements of intentional torts?
- voluntary act
- intent
- causation
- harm/injury
What is a voluntary act for an intentional tort?
An act that is conscious or willed
Is a reflex voluntary?
No, because it is not conscious or willed
What is the intent for intentional torts?
Either to desire the results, or know to a substantial certainty that they will occur
What is the causation element for intentional torts?
There must be a causal connection between the defendant’s conduct and the plaintiff’s injury, including extenuating consequences
What is the harm or injury for an intentional tort?
Damages
What is summary judgment?
When there are no material facts in dispute, the judge will rule before the jury makes a decision, and this ends the case unless the party appeals
What kind of standard is the substantial certainty element of intent?
Subjective, because it looks into the mind of the defendant
How can you figure out what a defendant’s desire or actual intent was?
Circumstantial evidence
What is required for the substantial certainty element of intent for intentional torts?
Defendant is or should be substantially certain that his acts will cause the tort
What is recklessness?
D takes a substantial or unreasonable risk that the elements of a tort will occur
What is an example of recklessness?
Driving super fast and risking a collision
What are the intentional torts that transferred intent applies to?
BAFTT
- B: battery
- A: assault
- F: false imprisonment
- T: trespass to chattels
- T: trespass to land
What is transferred intent?
The intent to commit one tort satisfies the intent element of another tort and is transferred to the other victim
If you intend to hit someone, but accidentally hit someone else, what is your liability?
Battery, because of transferred intent
What is the mistake doctrine?
If a defendant intends to do acts that would be a tort, it is no defense if he mistakes something about the situation, even reasonably
What are some things that might qualify as mistakes for mistake doctrine?
- mistaking the identity of a victim or property
- thinking incorrectly there was a privilege
If you enter onto someone’s land thinking it is your own, what are you liable for?
Trespass, because of mistake doctrine
Are insanity or infancy defenses to intentional torts?
No, but sometimes if the person is very impaired or very young, they do not have the intent to commit the tort
What is the age that is often the cut off point where children under it aren’t considered able to form intent to harm others?
7
Are parents liable for their children’s torts?
Usually parents aren’t vicariously liable for their kids’ torts, but they have a duty to supervise their children if they have a reason to know their child is dangerous
If you buy your child a knife and they injure someone because they were throwing it around, can you be liable?
Yes, because of your improper supervision
What are the seven intentional torts?
CAB FITT
- Conversion
- Assault
- Battery
- False Imprisonment
- IIED
- Trespass to land
- Trespass to chattels
How many intentional torts are there?
7
What is the intentional tort of assault?
- volitional act
- with intent (to make P apprehend a battery)
- which causes the plaintiff to suffer
- reasonable apprehension of immediate
- harmful or offensive contact
What are the elements of assault?
- volitional act
- intent (to put P in apprehension of immediate battery)
- defendant caused harm
- P suffered reasonable apprehension
What are the ways to satisfy intent for assault?
Intent to cause:
- immediate harmful or offensive contact
- immediate apprehension of such contact
Can an accident be an assault?
No because of the intent element
Does transferred intent apply to assault?
Yes
In order for there to be an assault, the plaintiff’s apprehension must be what?
Reasonable. A reasonable person in the same position would’ve experienced the same apprehension
What does it mean for the plaintiff’s apprehension to be reasonable for an assault?
A reasonable person in the same position would’ve experienced the same apprehension
If the defendant lacks the ability to cause harm, does that preclude an assault?
No, as long as the plaintiff believes he is able
What is the apprehension element of assault?
P is aware that imminent harmful or offensive contact will occur unless he takes evasive action
What is an example of apprehension for assault?
If you shoot an arrow above someone’s head, and you know there’s a substantial certainty they will feel apprehension, you’re liable
Is the plaintiff under an obligation to avoid contact and conditional assaults?
No
What is a conditional assault?
The plaintiff’s compliance is conditioned on an unlawful demand
What does “imminent” mean for assault?
No significant delay
How can words negate intent for assault?
If you say, “if it weren’t a crime, I would beat you up right now”
What is needed to show that the actions of the defendant caused the harm for assault?
That the defendant had the actual or apparent ability to inflict the touching
If a defendant is holding a gun fifty feet away, can an assault happen even if the gun wasn’t loaded?
Yes, as long as the defendant had the actual or apparent ability to inflict the touching
If the plaintiff is not looking or is asleep and doesn’t form apprehension, can there still be an assault?
No
Must the plaintiff be afraid in order for there to be an assault?
No, just apprehensive
Are words alone enough for assault?
Usually not without an overt act
What are the rare situations that words alone can be enough for assault?
- threatening to spit on someone
- standing behind someone and telling them not to turn around or you will shoot
What is the intentional tort of battery?
Volitional act done with requisite intent (to touch) which causes the plaintiff to suffer a harmful or offensive contact
Who has the burden of proof for intentional torts?
The plaintiff must make out the prima facie case
What are the elements of battery?
- voluntary act
- intent to cause contact
- harmful or offensive
- contact
- causation and the lack of intent
What is required for the voluntary act for battery?
Volitional movement of some part
If you aren’t legally competent, are you still capable of the volitional act?
Yes, and you’re liable for your torts
What are the major categories of torts?
- Intentional torts
- Negligence
- Strict Liability
- Miscellaneous
What is a good example of substantial certainty?
Throwing a rock into a crowd without intending to actually hit someone, but you can be substantially certain it will happen
What intentional tort does transferred intent not apply to?
IIED
What is a good question to ask if you’re looking at the apprehension element of assault?
Whether a reasonable person in the same situation would experience the same apprehension?
Can future harm count as an assault?
No, the harm must be imminent
If you were verbally threatened over the phone, can that be an assault?
Maybe, this creates an issue of imminent
What is the purpose of the assault tort?
Protecting freedom from fear and apprehension
