Torts Flashcards

1
Q

INTENT

A

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.

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2
Q

SUBSTANTIAL CERTAINTY

A

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.

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3
Q

TRANSFERRED INTENT

A

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.

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4
Q

WHO IS LIABLE FOR INTENTIONAL TORT?

A
  1. Children can generally be held liable for tort
  2. Parents are not generally held liable for their children’s actions unless P can show fault on the part of the parent
  3. 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
  4. Intoxicated persons are liable for their tortious acts; intoxication does not negate intent
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5
Q

BATTERY

A

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.

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6
Q

Single Intent

A

D has the purpose or desire or knows with substantial certainty that a contact will occur, and a harmful or offensive contact results

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7
Q

Dual Intent

A

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.

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8
Q

Does battery require damages?

A

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.

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9
Q

ASSAULT

A

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.

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10
Q

Assault-Well-Founded Requirement

A

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.

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11
Q

Assault-Apparent Ability to Act

A

The apprehension of contact must be reasonable to P. P must believe that D has the present apparent ability to make contact. Subjective.

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12
Q

Assault- apprehension

A

Threat has to be imminent

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13
Q

Assault- profane language

A

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.

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14
Q

Conditional Threat is Sufficient

A

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)

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15
Q

Assault- Damages

A

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.

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16
Q

FALSE IMPRISONMENT

A

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.

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17
Q

False imprisonment- Awareness of Ability to Escape

A

If another exit is available, but the victim is unaware of it, D is liable for false imprisonment.

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18
Q

False imprisonment-Reasonable Means of Escape

A

If escape route requires the victim to suffer embarrassment or lose his dignity, D is liable for false imprisonment.

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19
Q

False imprisonment- Damages

A

No physical harm required to get damages.

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20
Q

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

A

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

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21
Q

I.I.E.D- intent element

A
  1. 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

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22
Q

I.I.E.D- Conduct element

A

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?)

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23
Q

I.I.E.D- how much emotional harm?

A

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

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24
Q

I.I.E.D- transferred intent

A

does not apply to emotional distress (R2T)
1. R3T allows for transferred intent in very limited circumstances; must have close, special relationship

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25
Q

I.I.E.D- actual damages required?

A

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.

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26
Q

I.I.E.D- BYSTANDER’s PRESENCE

A

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.

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27
Q

TRESPASS TO LAND

A
  1. Intent to enter; and
  2. Actually enter
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28
Q

TRESPASS TO LAND- mistake as a defense ?

A

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.

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29
Q

TRESPASS TO LAND- do you have to enter the land?

A

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)

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30
Q

TRESPASS TO LAND- what constitutes land?

A

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.

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31
Q

TRESPASS TO LAND- Lawful Right of Entry Expires

A

A trespass to land may also exist where D remains on P’s land after an otherwise lawful right of entry has lapsed

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32
Q

TRESPASS TO LAND- Transferred Intent

A

applies to trespass to land

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33
Q

TRESPASS TO LAND- Damages?

A

Any trespass to land authorizes P to get at least nominal damages regardless of whether there is actual harm done to the land.

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34
Q

TRESPASS TO CHATTEL

A
  1. Intent to intermeddle or disposses
  2. Actions result in intermeddling or dispossession
  3. Actual damage occurs
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35
Q

Intermeddling

A

contact with chattel (not harm)

36
Q

TRESPASS TO CHATTEL- Mistake?

A

Mistake is Not a Defense – Defendants are liable for trespass to chattels even if acting in good faith.

37
Q

Trespass to Chattels and Conversion Differences?

A

Conversion grants relief for interferences with a chattel so serious in nature, or so serious in consequences, as to warrant requiring D to pay its full value in damages. For those interferences not so serious in nature of consequences, trespass to chattels is the appropriate action.

38
Q

TRESPASS TO CHATTEL- Transferred Intent

A

applies to trespass to chattels

39
Q

TRESPASS TO CHATTEL- Damages?

A

actual damage must be sustained for there to be a trespass to chattel. Damages can be in the following forms:
i. Impaired condition, value
ii. Dispossession for a substantial time
iii. Deprived owner for a substantial time
iv. Bodily harm to possessor or to something P has a legally protected interest in

40
Q

CONVERSION

A
  1. An intentional exercise of dominion or control over a chattel
  2. Which so seriously interferes with the right of another to control it that
  3. The actor may justly be required to pay the other the full value of the chattel.
41
Q

CONVERSION- intent?

A

Conversion requires that the defendant intend to interfere (but not necessarily harm) the victim’s possessory interest.

42
Q

CONVERSION- Mistake?

A

The fact that D acted in good faith and under a reasonable mistake does not prevent liability for conversion.

43
Q

CONVERSION- Protected

A

If purchaser receives title and possession he is not a converter (i.e., original converter received through fraud)

44
Q

CONVERSION- NOT PROTECTED

A

If purchaser takes possession, but does not receive title (i.e., original converter received through theft)

45
Q

CONVERSION- EXCEPTION

A

Purchase w/o title from a merchant who deals in property of the like kind (i.e., steals bike, sells to bike dealer, buys from bike dealer)

46
Q

Ways to Convert Chattel

A
  1. Acquiring possession of it – stealing it
  2. Damaging or altering it – killing an animal; destroying property
  3. Using it – violating terms of bailment
  4. Receiving it - purchase from thief
  5. Disposing of it - wrongful sale
  6. Misdelivering it – delivery to wrong person
  7. Refusing to surrender it – refuse to return to true owner
47
Q

CONVERSION- Damages?

A

D is usually required to pay the full value of property at the time of conversion.

48
Q

CONSENT

A

If P has consented to an intentional interference with person or property, no liability is found

49
Q

Expressed Consent

A

Consent is a valid defense when P has expressly submitted to the action

50
Q

Implied Consent

A

Consent is a valid defense when P’s actions led D to reasonably believe consent is conveyed. Objective theory – reasonable person would believe P’s silence is consent

51
Q

Customary Consent

A

Consent is a valid defense when P’s actions are customary and part of his behavior (professional sports) so long as they do not exceed that custom.
​​- Sports players impliedly consent to contacts that are an ordinary part of the game, even if those contacts violate the rules of the game. But a player will generally not be held to have impliedly consented to actions by fellow competitors that are “unrelated to the normal method of playing the game” and are done without any competitive purpose.

52
Q

Consent by Fraud

A
  • Consent is NOT a defense where D knew or induced a mistaken belief on the part of the victim as to the essential character of the act itself.
  • Consent IS a defense when it is obtained by fraud or a misrepresentation of a collateral matter.
53
Q

CONSENT TO ILLEGAL ACTIVITY

A

Majority View​- D cannot consent to an illegal action, and therefore consent is ineffective

​Minority View​- Consent is effective even when the act is illegal

​All jurisdictions- ​Consent is ineffective for a protected class of persons (i.e., statutory rape laws; minor cannot give consent)

54
Q

MEDICAL CONSENT

A

Outside of emergency situations, a doctor requires the consent of his patient to perform any surgery

55
Q

MEDICAL CONSENT- Emergency Doctrine

A

‘Doctors may perform surgery absent consent if:
1. PT is unable to give consent
2. There is a serious risk of bodily harm or death if surgery is delayed
3. A reasonable person would consent to surgery
4. Dr. has no reason to believe this patient would refuse treatment under the circumstances

56
Q

MEDICAL CONSENT- Extension Doctrine

A

Doctor may perform surgery for an unanticipated medical condition found during surgery if
1. Operation is in the area
2. What is found wasn’t anticipated; if anticipated, consent needed beforehand
3. Postponement of surgery would lead to risk of serious bodily injury or death
4. A reasonable person would consent to the surgery
5. Does not involve the destruction of an important bodily function

57
Q

MEDICAL CONSENT-Doctrine of Informed Consent

A

Doctor must disclose all risks to PT. If doctor fails to do so and injury occurs, doctor can be held liable. Failure to disclose risk is negligence. Exceeding boundary of consent is battery.

58
Q

SELF-DEFENSE

A
  1. Must have reasonable belief that
  2. There is a threat of imminent battery or confinement
  3. Can use reasonable force necessary to prevent the battery or confinement
59
Q

SELF-DEFENSE- Reasonable Belief

A

Justified self-defense requires that D reasonably believes (even incorrectly) that the action is necessary to protect himself from the battery or confinement (subjective)

60
Q

SELF-DEFENSE- Imminent Harm

A

Justified self-defense requires that the threat be imminent; a preemptive strike will result in liability

61
Q

SELF-DEFENSE- Reasonable Force

A

Responsive force must be proportionate to the harm threatened; D has a burden to prove that the force was reasonable. If D uses more force than is necessary, she may be liable for damages caused by the excess.
1. Must look at what is reasonable based on the circumstances and factors such as weight, size, strength of both parties
2. Deadly force is only justified if D reasonably believes he would suffer serious injury or death

62
Q

SELF-DEFENSE- Deadly Force

A

D may not use deadly force unless she herself is in danger of death or serious bodily injury. Even where D is threatened by such serious bodily injury or death, she may not use deadly force if a lesser degree of force would suffice to dispel the danger.

63
Q

SELF-DEFENSE- Provocation

A

Insults and verbal threats do not justify self-defense unless accompanied by a physical apprehension of harm

64
Q

SELF-DEFENSE- Retaliation

A

The privilege to self-defense ends when the threat ends. Any use of force past preventing the threat, is no longer self-defense.

65
Q

SELF-DEFENSE- mistake?

A

Reasonable mistake is a protection from liability

66
Q

RETREAT - THREAT OF DEADLY FORCE

A

Majority- ​No duty to retreat ever

​Minority- ​(Restatement) Duty to retreat unless it can’t be done safely, or in victim’s dwelling

67
Q

RETREAT – THREAT OF NON-DEADLY FORCE

A

​ALL JURISDICTIONS- ​No duty to retreat ever

68
Q

SELF-DEFENSE- DEFENSE OF OTHERS

A
  1. Reasonable force to protect 3rd party
  2. From threat of imminent unlawful physical harm

Reasonable Force​Responsive force must be proportionate to the harm threatened. The force used may not exceed the amount needed to prevent the harm. If D uses more force than is necessary, she may be liable for damages caused by the excess.

69
Q

SELF-DEFENSE- MISTAKE

A

Mistake is treated differently depending on the jurisdiction. Some courts say:

  1. ​Mistake IS NOT a defense under majority approach. Place D in the same shoes of the person being defended and then apply the same principles you would otherwise apply in self-defense. If the 3rd party is justified in using the force used by D, then D is justified in using that force.

2.​(Restatement) Benefit of reasonable mistake is allowed. D can use force to the extent such force reasonably appears to be justified in defense of 3rd party.

70
Q

DEFENSE OF PROPERTY

A

Property owner can use reasonable force to protect his/her real or personal property

71
Q

DEFENSE OF PROPERTY- Reasonable Force

A

The property owner may use only as much force as appears necessary to protect the property

72
Q

DEFENSE OF PROPERTY- Deadly Force

A

Deadly force can NEVER be used to protect property alone. However, property owner may be privileged to use deadly force to prevent certain felonies, namely those involving death, serious bodily injury, or the breaking and entering of a dwelling place. Apply self-defense rules.

73
Q

DEFENSE OF PROPERTY- Verbal Demand

A

REQUIRED to make a verbal demand to stop before using force, unless it reasonably appears that violence or other harm will occur immediately, or that the request to stop will be useless.

74
Q

DEFENSE OF PROPERTY- Mechanical Devices

A

Owner is privileged to use them only if he would be privileged to use a similar degree of force if he were present and acting himself.

75
Q

DEFENSE OF PROPERTY- Warning Signs

A

Most courts require use of warning signs if owner uses non-deadly mechanical devices to protect his property. However, the warning sign does not protect owner from liability if the mechanical devices causes serious bodily injury to the intruder.

76
Q

DEFENSE OF PROPERTY- Mistake?

A

A reasonable mistake of fact by the property owner will have different consequences, depending on whether the mistake relates to the existence of the danger, or, instead, to the intruder’s own lack of privilege.

Mistake as to Danger​If property owner mistakenly but reasonably believes that force is necessary to protect her property, her use of force will be privileged, provided there is a real non-privileged intrusion.

Mistake as to
Intruder’s Privilege​If property owner reasonably believes that the intruder has no right to be there, and it turns out that the intruder’s presence was in fact privileged, the property owner’s use of force will NOT be privileged.

77
Q

RECOVERY OF PROPERTY

A

A D is privileged to use
1. Reasonable force when
2. In fresh pursuit
3. After making a request if he is recapturing
4. Unmistakenley
5. And wrongfully stolen property

Wrongful Taking​The privilege exists only if the property is taken wrongfully from the owner. If the owner parts willingly with possession, but then has a right to repossess, she will not be able to use force to regain the chattel.

Reasonable Force​The force used must be reasonable in the circumstances, and deadly force CAN NEVER be used

Hot Pursuit​The privilege exists only if property owner pursues the thief without undue delay to recover the chattel. If a substantial amount of time passes, the privilege is lost and D must resort to legal authorities to recover property.

Demand Required​Force cannot be used unless the thief resists; therefore, demand for the return of the property must first be made before force can be used

Mistake​Mistake IS NOT a defense. D is liable.

78
Q

SHOPKEEPER’S PRIVILEGE

A
  1. Can use reasonable force to detain a person
  2. For a reasonable period for investigation purposes
  3. Based on a reasonable belief that goods have been stolen
79
Q

SHOPKEEPER’S PRIVILEGE- Mistake?

A

Reasonable mistakes do not prevent shopkeeper from asserting privilege

80
Q

SHOPKEEPER’S PRIVILEGE- Location

A

Some courts require the shopkeeper to stop the suspected thief on the store premises. Other courts extend the privilege to the immediate vicinity of the store.

81
Q

SHOPKEEPER’S PRIVILEGE- Reasonable
Investigation

A

The investigation should be conducted in a reasonable time and manner. Only use the amount of time necessary for a quick investigation.

82
Q

NECESSITY

A

This defense can only be used as a defense to trespass to land, trespass to chattels, and conversion.

83
Q

Public Necessity

A

D interferes with, damages, or destroys the victim’s property under a reasonable belief that it will prevent a public disaster. Applies to both public officials and private citizens. The harm to be caused must be less serious than harm to be avoided.

​There must be a real or apparent risk of danger to not be held liable.

​This is a complete defense. D is not liable for costs resulting from the damage caused to P’s property.

84
Q

Private Necessity

A

D interferes with, damages, or destroys the victim’s property under a reasonable belief that it will prevent a greater harm to P, P’s property, or a third party, or a third party’s property. The harm to be caused must be less serious than harm to be avoided.

​This is NOT a complete defense. P will be held liable to pay for any damages caused to D’s property.

​Privilege only lasts until the danger has passed. Any excess = trespass.

​The privilege of necessity means the landowner cannot take even what would otherwise be lawful action against intruder

85
Q

NECESSITY- Mistake?

A

Mistakes are OK as long as there is an apparent necessity. This is to encourage people to help.