Torts Flashcards
General thing points about intentional torts
1) ignore P’s hypersensitivity
2) assume P is a reasonable human
3) no incapacity defense - insane people, incompetent people; infants are all liable for ITs!
Intent for ITs
Intent to bring about the forbidden consequences that are the basis of the tort
Intentional tort act must be volitional movement by D
Transferred intent
doctrine applies when the D intends to commit a tort against one person but instead:
- commits a different tort against that person
- commits the same tort against a different person OR
- commits a different tort against a different person
Applies to: assault, battery, false imprisonment, trespass to land, trespass to chattels
Intentional Torts Causation
Result must have been legally caused by the D’s act or something set in motion by D.
Satisfied if D’s conduct was a SUBSTANTIAL FACTOR in P’s injury
[usually not an issue]
Battery
DEFINITION: A harmful or offensive contact with P’s person
- Harmful = causes actual injury
- Offensive = unconsented to/offensive to a reasonable person
Contact may be direct (actual touching) or indirect (setting a trap for P to fall into);
Contact does not have to be instantaneous (poisoned sandwich example).
*Damages not required.
Consent to ordinary contacts of ordinary life (such as bumping on a bus/train) = implied
P’s person = anything connected to P!
includes clothing or a handbag
Assault
DEFINITION: act by the D creating a reasonable apprehension of an immediate battery (harmful/offensive contact to P’s person)
- Immediacy = P must be apprehensive that battery will be immediate
- Apprehension = knowledge/awareness; must be reasonable
P must have been aware of the threat from D’s act; although the P need not be aware of D’s identity. Apparently ability to commit threat (unloaded gun) enough for reas. app.
WORDS ALONE ARE NOT ENOUGH (lack immediacy).
- Words coupled with conduct may be enough
- Note: words may also NEGATE reas app - conditional or future tense.
*Damages not required.
False Imprisonment
DEFINITION: An act/omission on D’s part that confines/restrains P to a bounded area
*P must know of confinement or be harmed by it
- Sufficient: physical barriers; physical force against P/family/personal property; direct threats of force; indirect or implied threats of force; failure to release P when under legal duty to do so (wheelchair passenger on plane); invalid use of legal authority
- Insufficient: moral pressure; future threats
Time of confinement irrelevant - anything more than 30 mins unreasonable
Bounded area - freedom of movement must be limited in all directions. Must be no reasonable means of escape known to P - not dangerous, disgusting, humiliating or hidden.
*Damages not required.
Intentional Infliction of Emotional Distress (fallback tort - look for another cause of action before IIED)
DEFINITION: An act by D amounting to extreme and outrageous conduct such that P suffers severe emotional distress.
Extreme/Outrageous Conduct: exceeds all bounds of human decency.
- Conduct that is continuous in nature (debt collection harassment), committed by a certain type of D (common carriers/innkeepers who may be liable for “mere insults”), OR directed toward a certain type of P (children, elderly, someone who is visibly pregnant, supersensitive adults if sensitivities are known to D)
Intent: recklessness will work.
Actual damages required (severe emotional distress)
Trespass to Land
DEFINITION: a physical invasion of P’s real property.
Intent: D need only intend to enter that particular land.
Invasion may be by a person OR object (must be tangible).
Real property includes surface/airspace/underground for a reasonable distance.
Trespass claim belongs to POSSESSOR, not necessarily owner.
*Damages not required.
Trespass to Chattels
DEFINITION: D’s intentional interference with P’s personal property (small harm)
Interference may be intermeddling (vandalism) OR a dispossession (theft)
D’s mistaken belief that they own the chattel is NOT a defense.
*Actual damages required from harm to chattel or loss of use.
Conversion
DEFINITION: Act by D that intentionally interferes with P’s right of possession in a chattel that is serious enough to warrant chattel’s full value.
The longer/more serious the interference, the more likely it is to be conversion vs. trespass to chattels.
Remedies: P may recover damages (fair market value at time of conversion) or repossession (replevin)
IT Defenses: Consent
P’s consent (express or implied) is a defense.
Consider:
1) was there valid consent? did P have capacity?
2) did D stay within the boundaries of consent?
Express consent exceptions:
1) mistake, if D knew of and took advantage of mistake
2) consent via fraud invalid if goes to essential matter (not collateral matter)
3) consent via duress invalid unless duress = future threats or future econ deprivation
Implied consent exceptions [TESTED]:
Apparent consent = a reasonable person would infer from custom/usage or the P’s conduct.
Consent implied by law = when action is necessary to save a person’s life or some other important interest in person/property.
Scope of consent: if exceeded, D may be liable.
Protective privileges (def of self, others, property)
1) is the priv avail? applies only for preventing tort, not already committed torts (no preemption; no revenge) -must be in heat of moment.
2) is mistake permissible as to whether tort being defended against is actually being committed? (requires reasonable belief threat is genuine)
3) proper amount of force used?
Examines D’s response to P’s potential tort = a tort or was privileged.
Self Defense
DEFINITION: When a person reasonably believes that they are/about to be attacked, they may use such force as is reasonably necessary to protect against injury.
Majority - no duty to retreat.
Modern trend - duty to retreat if done safely, unless actor is home.
Defense unavailable to initial aggressor unless the other party response to aggressor’s nondeadly force with deadly force.
Only reasonably necessary force is allowed.
Defense of Others
DEFINITION: one may use force to defend another when they reasonably believe that the other person could have used force to defend themselves.
Reasonable mistake is permitted.
Level of force = allowed to use as much force as they could have used in self-defense.
Defense of Property
DEFINITION: may use reasonable force to prevent the commission of a tort against their real or personal property. A request to desist or leave must first be made unless it clearly would be futile or dangerous.
ONLY REASONABLE FORCE MAY BE USED - DEADLY FORCE IS NEVER REASONABLE for defense of property alone.
Note: one may use force in hot pursuit of another who has tortiously dispossessed the owner of their chattels because the tort is viewed as still in progress if D is fleeing.
REMEMBER: defense is not avail to someone privileged to enter.
Shoplifting Detentions
Shopkeeper is privileged to detain a suspected shoplifter for investigation.
Conditions:
1) reasonable belief as to the fact of theft
2) reasonable manner of detention
3) reasonable time to investigate
Recapture of Chattels
Basic rule: when another’s possession began lawfully, one may use only peaceful means to recover the chattel.
Necessity
FOR PROPERTY TORTS ONLY
DEFINITION: A person may interfere with the real/personal property of another when it is reasonably and apparently necessary in an emergency to avoid injury from a natural/other force and when the threatened injury is substantially more serious than the invasion to avert it.
- Public necessity: D acted to avert an “imminent public disaster”
- Private necessity: action to prevent serious harm to a limited number of people. Actor must pay for any injury they cause.
Negligence: prima facie case
(1) D’s duty to conform to a specific standard of conduct for protection of the P against an unreasonable risk of injury
(2) D’s breach of that duty
(3) Breach is actual and proximate
(4) Damages
Duty owed to all foreseeable Ps w/in the zone of danger. Physical scope of zone of danger depends on the activity.
Consider:
1) to whom is a duty owed?
2) what is the applicable standard of care?
Rescuers
Danger invites rescue. Rescuer is a foreseeable P when D negligently puts themselves/TP in peril.
Firefighter’s Rule
Firefighters & police barred from recovery for injuries caused by the inherent risks of their jobs.
Prenatal injuries
A duty of care is owed to a viable fetus.
Failure to diagnose a congenital defect/properly perform a contraceptive procedure = parents may recover damages for ordinary medical expenses/pain and suffering.
Basic standard of care - reasonably prudent person
ALL PERSONS OWE A DUTY TO BEHAVE IN WITH THE SAME CARE AS A REASONABLY PRUDENT PERSON IN SAME OR SIMILAR CIRCUMSTANCES.
D’s mental deficiencies/inexperience are not taken into account.
Exception to basic standard of care: superior skill/knowledge
D who has superior skill/knowledge will be required to exercise that experience.
Exception to basic standard - physical characteristics
The hypothetical reasonably prudent person adopts D’s PHYSICAL characteristics IF those characteristics are relevant to the claim.
Special standards of care: children
Kids are held to the standard of a child with like age, education, intelligence and experience.
*Children engaged in adult/potentially dangerous activities required to conform to adult standard (think: operating motorized vehicles; shooting guns).
NB: under 5, without capacity for negligence.
special standards of care: professionals
A professional is required to possess the knowledge and skill of an AVERAGE MEMBER of the profession in good standing. (D must conform to colleagues).
Drs: most courts apply national standard of care; Dr has duty to disclose risks of treatment for informed consent.
Possessors of Land
Traditional rule: duty owed depends on P’s status on the land.
Unknown Trespasser
No duty owed.
Known Trespasser (when D is on notice of trespassing)
Possessor must warn of HACK: highly dangerous artificial concealed conditions known to possessor. [known man made death traps]
Licensees (on land for visitor’s benefit)
One who enters onto land with possessor’s permission for their own personal/biz purposes (social guest). Possessor has duty to warn of or make safe dangerous conditions:
concealed
known
Possessor has no duty to inspect/repair.
Invitees (on land for possessor’s benefit)
Invitees enter the land in response to an invitation by the possessor. An invitee will lose invitee status if they exceed the scope of the invitation. Landowner duties:
concealed
known or could’ve been found by reasonable inspection
Eliminate hazards by:
repair
replace
remove
Trespassing Kids (attractive nuisance)
Most courts impose duty on landowner to exercise ordinary care to avoid a reasonably foreseeable risk of harm to kids caused by dangerous man made conditions on their prop.
P must show:
dangerous condition owner should be aware of
owner knows/should know kids trespass
condition likely to harm
expense to remedy < magnitude of risk
child does not have to come to the land for the risk!
duty owed to users of recreational land
owner who permits gen public to use land for fun without charging a fee is not liable for injuries suffered unless owner willfully and maliciously failed to guard/warn against condition.
duty of possessor to those off premises
duty for unreasonably dangerous artificial conditions or structures abutting adjacent land
