T2 Int Torts Flashcards
INTENTIONAL TORTS TO THE PERSON
Battery
Assault
IIED
Battery: ELEMENTS
The key testable elements for battery are:
• Harmful or offensive CONTACT.
• Contact must be with the plaintiff’s PERSON.
• Intent (all intentional torts)
• Causation (all intentional torts)
Battery: Prima Facie Case
To establish a prima facie case for battery, the following elements must be proved:
1) An act by the defendant which brings about harmful or offensive contact to the plaintiff’s person;
2) INTENT to cause the harmful or offensive contact to the plaintiff’s person; and
3) Causation.
Battery: Harmful or Offensive Contact
Contact is HARMFUL if it causes actual injury, pain, or disfigurement.
Contact is OFFENSIVE if it would be considered offensive to a reasonable person of ordinary sensibilities.
Ask: Could you do this to a reasonable person on the street?
Contact is considered offensive only if it hasn’t been permitted or consented to.
Contact is deemed “offensive” if the plaintiff has not expressly or impliedly consented to it
However, consent will be implied for the ordinary contacts of everyday life (for example, minor bumping on a crowded bus).
Battery: Harmful or Offensive Contact: Direct or Indirect Contact
Contact can be direct (for example, striking the plaintiff) or indirect (for example, setting a trap for the plaintiff to fall into).
Battery: Plaintiff’s Person
Plaintiff’s person includes anything connected to the plaintiff’s person (for example, clothing or a purse).
Battery: INTENT
**(ii) intent to cause the harmful or offensive contact; **
If a person knows with substantial certainty the consequences of his action, he has the intent necessary for this type of tort.
if the D intended to cause a harmful contact (a battery), he is liable for all of the consequences of his actions, whether he intended them or not.
Battery: Damages req’d?
Damages Not Required.
The plaintiff can recover nominal damages even if actual damages aren’t proved.
The plaintiff may recover punitive damages for malicious conduct.
It is not necessary to sustain a prima facie case for battery that plaintiff prove actual damages.
Plaintiff can recover at least nominal damages even though he suffered no severe actual damage.
In a majority of jurisdictions, punitive damages may be recovered where defendant acted with malice.
Battery: Apprehension Not Necessary
Apprehension Not Necessary
A person may recover for battery even though he is not conscious of the harmful or offensive contact when it occurs
(e.g., unauthorized surgery performed on unconscious patient).
Battery: Transferred Intent
Transferred Intent
The doctrine of transferred intent applies in battery cases.
Hence, a defendant acting with the intent to commit an assault who causes harmful or offensive contact to the plaintiff has committed a battery.
ASSAULT: KEY
- Reasonably APPRHENSION in the P
- OF IMMEDIATE BATTERY (harmful or offesnvie contact to the P’s person)
— Words alone lack immediacy
— BUT words can destroy immediacy. - Intent & Causation (all intentional torts)
Assault: ELEMENTS
The key testable elements for assault are:
• Act by the defendant creating a reasonable apprehension in the plaintiff
• Of an immediate battery (harmful or offensive contact to the plaintiff’s person)
• Intent & Causation (all intentional torts)
Assault: Prima Facie Case
Prima Facie Case: To establish a prima facie case for assault, the following elements must be proved:
1) An act by the defendant creating a reasonable apprehension in plaintiff of immediate battery (harmful or offensive contact to plaintiff’s person);
2) Intent on the part of the defendant to bring about in the plaintiff apprehension of immediate harmful or offensive contact with the plaintiff’s person; and
3) Causation.
Assault: Apprehension Must Be ____
The apprehension of harmful or offensive contact must be reasonable.
Courts generally will not protect a plaintiff against exaggerated fears of contact.
a. Fear Not Required: Apprehension shouldn’t be confused with fear or intimidation (for example, a weakling can cause a bully to apprehend offensive contact for purposes of assault).
“Apprehension” here is used in the sense of expectation. Thus, one may reasonably apprehend an immediate contact although he believes he can defend himself or otherwise avoid it.
Assault: Knowledge of Act
For apprehension to be shown, the plaintiff must have been aware of the threat from the defendant’s act, although the plaintiff need not be aware of the defendant’s identity.
Obviously, for there to be an apprehension, the plaintiff must have been aware of the threat from the defendant’s act. Contrast this with battery (above), in which the plaintiff need not be aware of the contact at the time thereof.
Knowledge of Defendant’s Identity Not Required: In contrast, it is not necessary that the plaintiff know who the defendant is at the time of the act; i.e., one only need apprehend an immediate harmful or offensive contact, not the identity of the person who is directing this unpermitted force at him.
Assault: Apparent Ability Sufficient
If the defendant has the apparent ability to commit a battery, this will be enough to cause a reasonable apprehension.
Defendant’s Apparent Ability to Act Is Sufficient: A person may be placed in reasonable apprehension of immediate harmful or offensive contact even though the defendant is not actually capable of causing injury to the plaintiff’s person. For such apprehension to be reasonable, however, it is necessary that the defendant have the apparent ability to bring about such contact.
Ex: Pointing unloaded gun at P, P doesnt know if gun is loaded. P’s apprhension of immedaite harmful or offensive contact is reasonable.
Assault: Effect of Words
In the vast majority of cases, words alone are not enough.
For the defendant to be liable, the words must be coupled with conduct.
(1) Overt Act Required
Some overt act is generally necessary. Words alone, however violent, do not constitute an assault in a vast majority of cases because they cannot create a reasonable apprehension of immediate harmful or offensive contact.
A different result might occur when such words are accompanied by some overt act, e.g., a clenching of the fist.
However, words can negate reasonable apprehension (for example, the defendant shakes their fist but states that they are not going to strike the plaintiff).
Words may negate an assault by making unreasonable any apprehension of immediate contact, even though the defendant commits a hostile act.
Assault: Requirement of Immediacy
The plaintiff must be apprehensive that they are about to become the victim of an immediate battery.
The apprehension must be of immediate harmful or offensive contact.
Threats of future contact are insufficient.
Similarly, there is no assault if the defendant is too far away to do any harm or is merely preparing for a future harmful act.
Assault: CAUSATION
Plaintiff’s apprehension must have been legally caused by the defendant’s act or something set in motion thereby, either directly or indirectly.
Assault: Damages Not Required
The plaintiff can recover nominal damages even if actual damages are not proved.
Malicious conduct may permit recovery of punitive damages.
It is not necessary to prove actual damages to sustain a prima facie case for assault.
If the case is otherwise made out, plaintiff can recover nominal damages.
Most states allow punitive damages to be awarded where defendant’s actions have been malicious.
Assault: Transferred Intent
The doctrine of transferred intent applies to assault cases.
Hence, a defendant acting with the intent to commit a battery who causes the plaintiff to reasonably apprehend immediate harmful or offensive contact has committed an assault.
P and D are playing tennis. D runs towards P swinging her tennis racket intending to scare P. As she nears P, D slips and the racket injures P.
Does P have a valid battery claim against D?
She intented to commit an ASSAULT by scaring him.
This IS Battery.
This is transferred intent - she started out by wanting to scare him (assault) but her evil intent transferred over to new tort, battery.
False Imprisonment: KEY
- Act of RESTRAINT
- Plaintiff CONFINED in BOUNDED AREA
FI R C BA
False Imprisonment: ELEMENTS
The key testable elements for false imprisonment are:
• An act or omission on the part of the defendant that confines or restrains the plaintiff
• The plaintiff must be confined to a bounded area
False Imprisonment: Prima Facie Case
To establish a prima facie case for false imprisonment, the following elements must be proved:
1) An act or omission to act on the part of the defendant that confines or restrains the plaintiff to a bounded area;
2) Intent on the part of the defendant to confine or restrain the plaintiff to a bounded area; and
3) Causation.
False Imprisonment: Methods of Confinement or Restraint
Sufficient acts of restraint include:
Sufficient acts of restraint include:
• Physical barriers: Defendant may falsely imprison plaintiff by confining him through the use of physical barriers.
• Physical force directed against the plaintiff, immediate family, or personal property (for example, confiscating the plaintiff’s purse): False imprisonment will result where plaintiff is restrained by the use of physical force directed at him or a member of his immediate family. An action may also lie if the force is directed against plaintiff’s property.
• Direct threats of force: Direct threats of force by the defendant to the plaintiff’s person or property or against persons of the plaintiff’s immediate family can constitute false imprisonment.
—— Credible Threats can constitute restraint, BUT threats have to be plausible (ignore hypersensitivty of plaintiff).
• Indirect or implied threats of force: False imprisonment can also arise from indirect threats of force, i.e., acts or words that reasonably imply that the defendant will use force against plaintiff’s person or property or persons of plaintiff’s immediate family.
• Failure to release the plaintiff when under a legal duty to do so (for example, a taxi driver refusing to let a customer out):
Where plaintiff has lawfully come under defendant’s control and it would be impossible to leave without defendant’s assistance (and it was understood between the parties that such assistance would be forthcoming), the withholding of such assistance with the intent to detain plaintiff will make D liable. In short, the courts impose an affirmative duty on the defendant to take steps to release the plaintiff. If D intentionally breaches this duty, this is sufficient for false imprisonment. But, of course, it must first be established that defendant owes such a duty.
• Invalid use of legal authority (for example, false arrest):
False Imprisonment: Invalid Use of Legal Authority as a method of confinement or restraint.
False Arrests
The invalid use of legal authority amounts to false imprisonment if it results in a confinement of plaintiff.
a) False Arrests
An action for false imprisonment does not lie for an arrest or a detention made by virtue of legal process duly issued by a court or official having jurisdiction to issue it. However, where an arrest by a police officer or private citizen for a criminal offense without a warrant is unlawful (i.e., not privileged), it may constitute false imprisonment.
(1) When Arrests Are Privileged
(a) Felony Arrests Without Warrant: A felony arrest without a warrant by a police officer (or a private citizen acting at the officer’s direction) is valid if the officer has reasonable grounds to believe that a felony has been committed and that the person arrested has committed it. Such an arrest by a private person will be privileged only if a felony has in fact been committed and the private person has reasonable grounds for believing that the person arrested has committed it.
(b) Misdemeanor Arrests Without Warrant: Both police officers and private citizens are privileged for misdemeanor arrests without a warrant if the misdemeanor was a breach of the peace and was committed in the presence of the arresting party. (Note that in most states, police officers have a broader statutory privilege of arrest for any misdemeanor committed in their presence.)
(c) Arrests to Prevent a Crime Without a Warrant: Where a felony or breach of the peace is in the process of being, or reasonably appears about to be, committed, both police officers and private citizens are privileged to make an arrest.
(2) Amount of Force Allowable
(a) Felony Arrest: For felony arrests, both police officers and private citizens may use that degree of force reasonably necessary to make the arrest; however, deadly force is permissible only when the suspect poses a threat of serious harm to the arresting party or others.
(b) Misdemeanor Arrest: For misdemeanor arrests, both police officers and private citizens are privileged to use only that degree of force necessary to effect the arrest, but never deadly force.
False Imprisonment: Invalid Use of Legal Authority as a method of confinement or restraint:
Shoplifting detentions
b) “Shoplifting” Detentions Are Privileged:
What if a shopkeeper suspects someone of shoplifting and detains that individual to ascertain whether this is the case? He may be liable for false imprisonment.
But if he does nothing and permits the suspect to simply leave the premises, the merchandise and all possibilities of proving theft will be lost.
Hence, by statute in some states and case law in others, shopkeepers have been given a privilege to detain for investigation.
For the privilege to apply, the following conditions must be satisfied:
(1) There must be a reasonable belief as to the fact of theft;
(2) The detention must be conducted in a reasonable manner and only nondeadly force can be used; and
(3) The detention must be only for a reasonable period of time and only for the purpose of making an investigation.
Lulu remained in a building because her purse had been confiscated by Chauncey. She could have left the building but that would have necessitated leaving the purse behind. False imprisonment?
Lulu remained in a building because her purse had been confiscated by Chauncey. She could have left the building but that would have necessitated leaving the purse behind. False imprisonment could result if the purse was wrongfully withheld.
1) Jailer refused to release a prisoner at the end of his jail sentence. False imprisonment?
1) Jailer refused to release a prisoner at the end of his jail sentence. Jailer may be liable for false imprisonment.
2) Plaintiff is imprisoned for failing to produce corporate records. False imprisonment?
2) Plaintiff is imprisoned for failing to produce corporate records.
Defendant has the records but is under no legal duty to produce them and refuses to do so. There is no false imprisonment.
False Imprisonment: Methods of Confinement or Restraint
Insufficient acts of restraint include:
Insufficient acts of restraint include:
• Moral pressure
• Future threats
A cause of action will not be sustained for all forms of restraint or confinement.
1) Moral Pressure: A cause of action will not be sustained if a person remains in the area merely because he is responding to the exertion of moral pressure.
2) Future Threats: Similarly, a cause of action will not be sustained if a person remains in the area in response to future threats against person or property.
False Imprisonment: Ommission
An omission can be an act of restraint: A failure to act can constitute restraint if legal duty to do so.
Ex: P has a physical disability that requires the use of a wheelchair.
She is assisted in boarding an airplane by an airline employee.
After the flight lands, the other passengers exit the plane, but the crew does nothing to help P exit. This IS an act of restraint.
False Imprisonment: Time of Confinement
It is irrelevant how short the period of the confinement is.
It is immaterial, except as to the extent of damages, how short the time period of the confinement is.
False Imprisonment: Awareness of Confinement
The plaintiff must know of the confinement or be harmed by it.
Plaintiff must be AWARE of Confinement or be HARMED.
D locks P’s bedroom door while P is asleep, but unlocks the door before P wakes. P can’t recover.
Most American cases hold that awareness of confinement is a necessary element of the tort.
The Restatement provides an exception to this requirement where the person confined is actually injured by the confinement (e.g., an infant locked in a bank vault for several days).
False Imprisonment: No Need to Resist
No Need to Resist
Plaintiff is not under any obligation to resist physical force that is being applied to confine him.
Similarly, where there is a threat of force, he is not obligated to test the threat where the defendant has the apparent ability to carry it out.
False Imprisonment: What Is a Bounded Area? ***
For an area to be “bounded,” freedom of movement must be limited in all directions.
- The bounded area does not have to be defined specifically.
The area will not be characterized as “bounded” if there is a reasonable means of escape of which plaintiff is aware.
There must be no REASONABLE means of escape known to the plaintiff.
— You are NOT blocked in if there is a way out.
— WAYS OUT CANNOT BE: these are not reasonable or discoverable.
——- Dangerous
——- Disgusting
——- Humiliating
——- Hidden
False Imprisonment: Causation
Plaintiff’s confinement must have been legally caused by the defendant’s act or something set in motion thereby, either directly or indirectly.
False imprisonment: Transferred Intent
Transferred Intent
The doctrine of transferred intent applies to false imprisonment.
False Imprisonment: Damages Not Required
The plaintiff can recover nominal damages even if actual damages are not proved.
Punitive damages may be recovered if the defendant acted maliciously.
False Imprisonment and Malicious Prosecution Distinguished
False Imprisonment and Malicious Prosecution Distinguished
One who participates in, procures, or instigates an unlawful arrest without proper authority may be liable for false arrest. Note that merely giving information to the police about the commission of a crime, leaving to the police the decision whether to make an arrest, does not constitute false imprisonment, as long as one stops short of instigating the arrest. Whether the defendant instigated the arrest or merely furnished information to the police is a question for the trier of fact. Where information only is given, there may be liability for malicious prosecution, if not for false imprisonment.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED): Elements
The key testable elements for intentional infliction of emotional distress are:
1.• An act by the defendant amounting to extreme and outrageous conduct
••• “Exceeds all bounds of decency tolerated in a civilized society”.
2. • The plaintiff must suffer severe emotional distress
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: KEY
- Extreme and outrageous conduct
- Severe emotional distress.
- Intent (Recklessness) and causation (all intentional torts)
IIED: Prima Facie Case
To establish a prima facie case for intentional infliction of emotional distress, the following elements must be proved:
1) An act by defendant amounting to extreme and outrageous conduct;
••• “Exceeds all bounds of decency tolerated in a civilized society”.
2) Intent on the part of defendant to cause plaintiff to suffer severe emotional distress, or recklessness as to the effect of defendant’s conduct;
3) Causation; and
4) Damages—severe emotional distress.
IIED: Extreme and outrageous conduct
USE THIS VERBATIM: “Exceeds all bounds of decency tolerated in a civilized society.”
“Outrageous conduct” is conduct that transcends all bounds of decency tolerated by society.
This is conduct that exceeds all bounds of decency.
Conduct that is not normally outrageous may become so if:
• It is continuous in nature
• It is committed by a certain type of defendant (common carriers or innkeepers may be liable even for mere “gross insults”) OR
• It is directed toward a certain type of plaintiff (children, elderly persons, someone who is pregnant, supersensitive adults if the sensitivities are known to defendant)
In the absence of such conduct by the defendant, it is generally held that an average person of ordinary sensibilities would not suffer the kind of severe mental injury that is contemplated by the tort.
IIED: insults
MERE insults are NOT considered outrageous.
- Need to be paired with conduct.
IIED: Hallmarks of Outrageousness
- Conduct that is repetitive in nature (situation that we need to send to jury, did it exceed all bounds of decency?)
- If Defendant is common carrier or inkeeper, then almost all actions to distress customers will be IIED
- Plaintiff is member of FRAGILE class
— Young (insulting a 5 year old)
— Elderly (insulting an old lady)
— Pregnant women (have to know she is pregnant) - Targeting known sensitivity is outrageous (if u have advance knowledge of D’s sensitivity)
Examples of outrageous conduct
a) Extreme BusinessConduct: Certain extreme methods of business conduct may be construed as outrageous conduct, e.g., use of extreme methods of collection, if repeated, may be actionable.
b) Misuse of Authority: Misuse of authority in some circumstances may be actionable, e.g., school authorities threatening and bullying pupils.
c) Offensive or Insulting Language: Generally, offensive or insulting language will not be characterized as “outrageous conduct.” This result could change if there is a special relationship between plaintiff and defendant or a sensitivity on plaintiff’s part of which defendant is aware.
IIED: Special Relationship Situations
Common carriers and innkeepers owe special duties to their patrons that will be a basis for liability even when the act is something less than outrageous, e.g., bus driver making insulting remarks to passenger.
IIED: Known Sensitivity
If defendant knows that plaintiff is more sensitive and thus more susceptible to emotional distress than the average person, liability will follow if the D uses extreme and outrageous conduct intentionally to cause such distress and succeeds.
These rules may also apply where defendant’s conduct is directed at individuals in certain groups such as children, pregnant women, and elderly people.
IIED: Requisite Intent
Unlike for other intentional torts, recklessness as to the effect of the defendant’s conduct will satisfy the intent requirement.
Defendant will be liable not only for intentional conduct but also for reckless conduct, i.e., acting in reckless disregard of a high probability that emotional distress will result.
IIED: Actual Damages Required
Actual damages (severe emotional distress), not nominal damages, are required.
Proof of physical injury generally isn’t required.
The more outrageous the conduct, the less proof of damages is required.
Intentional infliction of emotional distress is the only intentional tort to the person that requires damages.
Actual damages are required (nominal damages will not suffice). But it is not necessary to prove physical injuries to recover.
It is, however, necessary to establish severe emotional distress (i.e., more than a reasonable person could be expected to endure).
Punitive damages are allowable where defendant’s conduct was improperly motivated.
IIED: Causation
The defendant’s conduct must have proximately caused the plaintiff’s emotional distress.
IIED: Causation in Bystander Cases: When the defendant’s conduct is directed at a third person…
When the defendant’s conduct is directed at a third person, and the plaintiff suffers severe emotional distress because of it, the plaintiff may recover by showing either
(a) the prima facie case elements of emotional distress OR
(b) that
(1) they were present when the injury occurred;
(2) the distress resulted in bodily harm or the plaintiff is a close relative of the third person; and
(3) the defendant knew these facts.
Note: The plaintiff does not need to establish these requirements if she shows that the defendant had a design or purpose to cause severe distress to P.
Intentional infliction of emotional distress is a fallback tort position
Intentional infliction of emotional distress is a fallback tort position. Thus, if another alternative in your exam question is a tort that will also allow the plaintiff to recover, it should be chosen over this alternative.
Targeting known sensitivity…
Is outrageous.
Severe emotional distress
Have to show evidence. But you do not have to prove you missed work, had physical symptoms, took meds, etc…
u can prove it how you wanna prove it.
Subjective judgement call for jury.
