Torts Flashcards
INTENT
A person acts with the intent to produce a consequence if:
1. The person acts with the purpose of producing that consequence; or
2. The person acts knowing that the consequence is substantially certain to result.
SUBSTANTIAL CERTAINTY
An actor knows with substantial certainty that an event will occur as a result of his action. If he is not substantially certain, but merely highly likely or is aware of a grave risk, the act is not an intentional tort, but may qualify for negligence.
TRANSFERRED INTENT
As long as D held the necessary intent with respect to one person, he will be held to have committed an intentional tort against any other person who happens to be injured.
a. Transferred intent can apply to: battery, assault, false imprisonment, trespass to land, and trespass to chattels
b. Not just the harm is transferred, but the tort is as well. If D intended to assault P, but inadvertently performed a battery, D will be liable for battery even though he only intended the assault.
WHO IS LIABLE FOR INTENTIONAL TORT?
- Children can generally be held liable for tort
- Parents are not generally held liable for their children’s actions unless P can show fault on the part of the parent
- Mentally ill can be held liable for intentional tort if they have the intent to do the offensive act
a. Caretaker of mentally ill can be held liable for action of patient if it can be shown they were the actual caretaker and their supervision was negligent
b. Some states have an exception that institutionalized mentally ill person cannot be held responsible for tortious act if he cannot appreciate the consequences of his conduct - Intoxicated persons are liable for their tortious acts; intoxication does not negate intent
BATTERY
An actor is subject to liability to another for battery if:
1. D acts intending to cause a harmful or offensive contact, and
2. A harmful or offensive contact results.
Single Intent
D has the purpose or desire or knows with substantial certainty that a contact will occur, and a harmful or offensive contact results
Dual Intent
D has the purpose or desire or knows with substantial certainty that a contact will occur, and D has the purpose or desire or knows with substantial certainty that P will be offended or harmed through the contact.
Does battery require damages?
No, P can recover nominal damages even though he suffered no actual damage. Majority jurisdictions also allow for recovery of punitive damages where D acted with malice.
ASSAULT
An actor is subject to liability to another for assault if:
1. D intends to cause apprehension of an imminent harmful or offensive contact and
2. D has the present apparent ability to carry it out.
3. P must actually have a well-founded apprehension of the harmful or offensive contact.
Assault-Well-Founded Requirement
Apprehension of harmful or offensive contact must be reasonable. No protection against exaggerated fears of contact. The courts will usually apply a reasonable person test to determine if apprehension is reasonable.
Assault-Apparent Ability to Act
The apprehension of contact must be reasonable to P. P must believe that D has the present apparent ability to make contact. Subjective.
Assault- apprehension
Threat has to be imminent
Assault- profane language
Words alone, however violent, generally do not constitute an assault because they cannot create a reasonable apprehension of immediate harmful or offensive contact. Some overt act is necessary.
Conditional Threat is Sufficient
If the words and act combine to form a conditional threat, an assault will result. (give me all the money and I won’t shoot you)
i. If D has proper legal authority, then conditional threats are OK (Cop says stop or I’ll shoot; property owner says get off my property or I’ll throw you off)
Assault- Damages
It is not necessary for P to prove actual damages. P can recover nominal damages even though he suffered no actual damage. Majority jurisdictions also allow for recovery of punitive damages where D acted with malice.
FALSE IMPRISONMENT
An actor is subject to liability to another for false imprisonment if
1. He acts intending to confine the other or third person within boundaries fixed by the actor; and
2. His act directly or indirectly results in a such a confinement of P; and
3. P is aware of the confinement at the time of the confinement or is harmed by it.
False imprisonment- Awareness of Ability to Escape
If another exit is available, but the victim is unaware of it, D is liable for false imprisonment.
False imprisonment-Reasonable Means of Escape
If escape route requires the victim to suffer embarrassment or lose his dignity, D is liable for false imprisonment.
False imprisonment- Damages
No physical harm required to get damages.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
D acts with extreme and outrageous conduct to intentionally or recklessly cause emotional harm to P and P suffers severe emotional harm through D’s conduct
I.I.E.D- intent element
- D must have the intent to cause several emotional distress
a. If P is not in the room and D did not intend for his actions to cause P severe emotional distress, then D can’t be liable
i. Wife hiding in room while husband is killed
I.I.E.D- Conduct element
Conduct must be extreme and outrageous
a. Viewed from a reasonable person standard
b. Conduct exceeds bounds of decency and behavior tolerated by society
i. Repetitive abuse can meet standard
ii. Mere name calling isn’t sufficient
iii. Imbalance of power / Misuse of power
iv. Knowledge of vulnerability / known sensitivity
v. Length of time
vi. Environment (is it normal conduct?)
I.I.E.D- how much emotional harm?
P must suffer severe emotional harm
a. Conduct so severe no reasonable person could be expected to endure it
b. Conduct is severe when a person of ordinary sensibilities in the same circumstances would suffer severe harm
I.I.E.D- transferred intent
does not apply to emotional distress (R2T)
1. R3T allows for transferred intent in very limited circumstances; must have close, special relationship
I.I.E.D- actual damages required?
Nominal damages will not suffice, but it is not necessary to prove physical injuries to recover. Punitive damages are allowable where D’s conduct was improperly motivated.
I.I.E.D- BYSTANDER’s PRESENCE
Recovery is allowed if D knows of bystander’s presence AND
1) the conduct was directed at a member of bystander’s immediate family; OR
2) bystander suffers bodily harm as a result of her distress.
TRESPASS TO LAND
- Intent to enter; and
- Actually enter
TRESPASS TO LAND- mistake as a defense ?
Mistake as to the lawfulness of the entry is not a defense as long as D intended the entry upon that particular piece of land. Intent to trespass is not required – just intent to enter onto the land. The fact that D’s conduct was socially useful or even beneficial does not affect liability.
TRESPASS TO LAND- do you have to enter the land?
It is not necessary that D personally come onto the land (i.e., trespass exists where D shoots across land, floods land, trees overhang land)
TRESPASS TO LAND- what constitutes land?
Trespass may occur on, above, or below the land. Courts generally construe P’s land to include air space and subsurface space to the height or depth P can make beneficial use of such space.
TRESPASS TO LAND- Lawful Right of Entry Expires
A trespass to land may also exist where D remains on P’s land after an otherwise lawful right of entry has lapsed
TRESPASS TO LAND- Transferred Intent
applies to trespass to land
TRESPASS TO LAND- Damages?
Any trespass to land authorizes P to get at least nominal damages regardless of whether there is actual harm done to the land.
TRESPASS TO CHATTEL
- Intent to intermeddle or disposses
- Actions result in intermeddling or dispossession
- Actual damage occurs