Torts Flashcards
3 Elements in Most Torts
- D’s State of Mind (SOM) when performing the tortious act; AND
- One or More Physical or Non-Physical Elements; AND
- Causation.
Intent: MENTAL ELEMENT
Must always relate to one or more of the non-mental elements
Intent: Mental Element: INTENTIONAL TORTS
Intent is the mental element of the tort.
· D MUST act w/ intent to bring about a set of circumstances that meets one or more of the other physical elements of the tort
Intent: GENERAL
Encompasses varying degrees of culpability or blameworthiness
· Objective circumstances surrounding the D’s actions
· Subjective to D
–> T4: Objective E indicates what the D was thinking at the time b/c impossible to KNOW what’s going on in someone’s head
Three Ways D Can Act w/ Requisite mental State (For the Purposes of Intentional Torts)
- Conscious Object (SPECIFIC INTENT);
- Substantial Certainty; OR
- Recklessness
Specific Intent
Act with the purpose of bringing about one or more of the non-mental elements of the tort
Substantial Certainty
To do something with the knowledge or substantial certainty that a set of circumstances will occur that the law would deem to fulfill one or more non-mental elements of the tort.
Recklessness
D acts w/ UNREASONABLE disregard of a high probability (that the person SHOULD be aware of) that a particular element of the tort to which recklessness relates, will occur.
· If TOTALITY OF CIRCUMSTANCES indicates that there was no offsetting justification for taking the risk
Papier-Mache P Rule
D takes P as the D finds them w/ all Ps physical fragilities
· Meant to punch their shoulder and broke their nose = Intent
Transferred Intent
The intent that the D had to commit the act, which didn’t happen, transfers over to the act that did occur such that the intent from the second act is as if the first act occurred.
· Transfers to different actions; AND
· Transfers intent to different people.
Minor Child/Incompetents: Intent
EVERYONE IS CAPABLE OF INTENT
· T4: Not a good defense b/c can form requisite intent BUT incapacity may shield them from criminal prosecution.
Battery: GENERAL
Battery is:
(1) an act, done by the D which is
(2) intended to and does bring about
(3) physical contact w/ the P
(4) which is either HARMFUL OR OFFENSIVE.
Battery: HARMFUL
Any physical impairment of the condition of another’s body OR physical pain OR illness.
· NOT harmful if it only causes emotional harm BUT MAY be offensive.
Battery: OFFENSIVE
A reasonable, ordinary person in the P’s position would find it offensive under all the circumstances AND if it is done w/o P’s consent
· Must be contact which is unwarranted by the social usages prevalent at the time and place at which it is inflicted.
· An objective test
Battery: Offensive Contact: UNUSUALLY SENSITIVE PERSON
The person who is unusually sensitive to his own personal dignity will NOT likely benefit from a suit of battery UNLESS D KNOWS the P is one of these super-sensitive types and D deliberately takes advantage of that in order to inflict an offensive contact
Battery: CONSENT
A complete defense to battery.
· P’s valid consent can operate as an affirmative D in a battery case EVEN IF physical harm results from the contact
· Also a defense to most intentional torts
· If physical contact is NON-CONSENSUAL –> Most reasonable people would find it offensive.
Types of Consent
- Implied
- Express
Express Consent
Involves an explicit statement of consent to the D’s act.
Implied Consent
No express statement consenting BUT EITHER:
· The overall circumstances (especially the P’s conduct) give a reasonable person in the D’s position reason to infer the P’s consent; OR
· The law deems consent to have occurred EVEN IF IT HAS NOT.
Implied Consent: Consent IMPLIED BY FACTS
P’s conduct gives a reasonable person in the D’s position cause to believe the P consents
Implied Consent: Consent IMPLIED BY LAW
The law implies consent if:
· An emergency makes it apparently necessary for the D to contact the P physically before the P can consent in order to PREVENT HARM to the P; AND
· The D has no reason to believe the P would decline to consent if given the opportunity.
Valid Consent
To be valid, consent MUST BE:
· Informed; AND
· Voluntary
Consent: INFORMED
If the P knows everything a reasonable person would need OR want to know in order to make an informed decision about whether to give consent
· T4: Invalid when it is predicated upon a fundamental mistake by the P of which the D is aware, and which relates to a basic assumption on which the consent was given or which relates to the nature of the physical contact or the harm that can be expected to result from it.
Consent: VOLUNTARY
A product of P’s will, procured w/o duress, coercion, or undue influence BUT NOT NECESSARILY free from pressure or persuasion
· MUST be given by one with the legal capacity to consent