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
Consent: SCOPE
In order for consent to provide a defense to battery, the D’s activities MUST remain confined to the scope of consent given.
· Exceeds the scope? Battery.
Battery: PHYSCIAL CONTACT
D directly touches the P’s person.
· If D touches something intimately connected w/ the P’s person, w/o necessarily touching the P directly.
· P does NOT need to be aware of the contact.
Assault
(1) An overt physical act by the D
(2) of which the P is subjectively aware and which is intended to AND DOES create in the P a
(3) reasonable apprehension of an imminent battery
Assault: OVERT ACT
Some physical act.
· Mere words or threats ALONG are not enough
· BUT words and threats can add to the forcefulness OR intimidating effect of physical acts and thus add to the overall reasonableness of the P’s apprehension of an imminent battery
Assault: REASONABLE APPREHENSION
Must be the case that a reasonable person in the P’s position would have an expectation that a battery is about to happen
· Reasonable person would not think it’s an imminent battery? Not an assault
–> UNLESS D actually knows the P is afraid of everything
· Does not need to be a fear of battery, just apprehension
· Need only reasonably believe that the D is able and willing to commit the battery imminently
–> Only imminent if the P reasonably believes that the battery will take place w/o any significant delay
· T4: credible threats of harm at some indefinite future time do NOT make for an assault.
False Imprisonment: GENERAL
Intentional tort designed to protect the P from UNJUSTIFIED interference w/ his/her physical freedom of movement.
False Imprisonment: ELEMENTS
Requires:
(1) An act/omission by the D;
(2) Which is intended to; AND
(3) Which does cause the P to be confined;
(4) Non-consensually;
(5) W/in fixed borders of the D’s choosing;
(6) For any appreciable length of time
(7) W/o any LAWFUL authority to do so.
AND P MUST also;
(8) Be aware of the confinement; OR
(9) Be harmed by it.
False Imprisonment: CONFINEMENT
· D could impose some obstacle;
· D can confine the P through employing PHYSICAL FORCE against:
–> The P;
–> A member of O’s IMMEDIATE family; OR
–> The P’s property.
· Threat of harm at some INDEFINITE FUTURE TIME is NOT ENOUGH.
–> MUST be such that, in the mind of a REASONABLE PERSON in the P’s position, there will be NO SUBSTANTIAL DELAY b/w P’s exercise of his personal freedom AND the D carrying out the threatened force.
· MUST be limited in ALL DIRECTIONS.
False Imprisonment: LENGTH OF TIME
Can be confined for ANY APPRECIABLE LENGTH OF TIME.
· Can be BRIEF OR LENGTHY
· The actual amount of time will reflect the damages the P can recover BUT NOT whether the P has made a case for false imprisonment.
False Imprisonment: INDIRECT CONFINEMENT (General)
Where force is not employed against the P DIRECTLY, BUT the D essentially forces the P to choose b/w yielding his personal freedom of movement OR suffering some other outcome that a REASONABLE PERSON would NOT be willing to suffer in order to leave the defined area.
· Also, D’s act of confining the P is LAWFUL, BUT the lawfulness of the confinement EXPIRES and the D does NOT release the P immediately.
False Imprisonment: NO CONFINEMENT
P is NOT CONFINED:
· D merely applies MORAL PRESSURE to keep the P in the defined area;
· P ACTUALLY AND SUBJECTIVELY knows of a way out of the defined area which a REASONABLE PERSON would utilize under the circumstances; OR
· D merely blocks the P’s access to a defined area while the P otherwise HAS THE FREEDOM to go where he wants.
False Imprisonment: UNLAWFUL
Any confinement WITHOUT CLEAR, LAWFUL AUTHORITY is unlawful confinement.
· Consent can make confinement lawful.
Limitations on Transferred Intent Doctrine
Transferred intent may be invoked ONLY IF BOTH the tort intended AND the tort that results are one of the following:
· Assault;
· Battery;
· False imprisonment;
· Trespass to land; OR
· Trespass to chattels.
Battery/Assault/False Imprisonment: Damages Requirement
Damangese are NOT required. P can recover nominal damages EVEN IF actual damages are not proved. P MAY recover PUNITIVE damages for malicious conduct.
Intentional Infliction of Emotional Distress (IIED)
(1) An act by D amounting to EXTREME AND OUTRAGEOUS CONDUCT;
(2) w/ Intent or recklessness;
(3) Caused by D; AND
(4) there are damages.
IIED: Extreme and Outrageous Conduct
This is conduct that transcends all bounds of decency tolerated in civilized society.
· Conduct that is NOT normally outrageous may become so if:
→ It is continuous in nature;
→ It is directed TOWARD a fragile class (like the elderly or children); OR
→ It is committed by a certain type of D (an innkeeper may be liable for gross insults.)
IIED: Intent
Recklessness as to the effect on D’s conduct WILL SATISFY the intent requirement.
IIED: Damages
Actual damages are REQUIRED but proof of physical injury is NOT REQUIRED.
→ The more outrageous the conduct, the less proof of damages is required.
IIED: Bystander: Causation
When the D intentionally causes physical harm to a 3P AND the P suffers severe emotional distress as a result, the P MAY recover by showing EITHER the prima facie case elements of emotional distress; OR
→ that (1) P was present when the injury occurred;
(2) P is a close relative of the injured person; AND
(3) the D HAD KNOWLEDGE of (1) AND (2).
Trespass to Land
(1) Physical invasion of P’s real property;
(2) Intent; AND
(3) Causation
Trespass to Land: PHYSICAL INVASION
The invasion MAY be by a person OR an object.
· Intangible matter (odor)? Not a trespass b/c no physical invasion BUT MAY be a nuisance.
Trespass to Land: REAL PROPERTY
Includes crops that are still growing, airspace and subterranean space FOR A REASONABLE DISTANCE.
Trespass to Land: INTENT
D need intend ONLY to enter onto the particular piece of land.
· D need NOT know it belongs to another
· BUT MUST propel himself.
Trespass to Land: POTENTIAL Ps
Anyone in actual OR constructive possession of the land MAY maintain this action.
Trespass to Land: REQUIREMENTS FOR DAMAGES
P can recover WITHOUT showing ACTUAL injury to the land in the form of NOMINAL DAMAGES.
Trespass to Chattel
(1) An act by D that INTERFERES w/ P’s RIGHT OF POSSESSION in a chattel;
(2) Intent;
(3) Causation; and
(4) Damages
Trespass to Chattel: TYPES OF INTERFERENCE
- Intermeddling; OR
- Dispossession
Trespass to Chattel: Intermeddling
Directly damaging the chattle.
Trespass to Chattel: Dispossession
Depriving P of his lawful right of possession of the chattel.
Trespass to Chattel: Intent Requirement
Intent to trespass is NOT REQUIRED.
· Intent to do the ACT OF INTERFERENCE is all that is needed.
→ D’s mistaken belief that he owns the chattel is NOT A DEFENSE.
Trespass to Chattel: Damages
Actual damages are REQUIRED.
· Not necessarily to the chattel but AT LEAST to a possessory right.
Conversion: GENERAL
Elevated trespass to chattel that operates as a FORCED SALE.
→ You break it, you bought it.
Conversion: ELEMENTS
(1) An act by the D that interferes w/ P’s RIGHT OF POSSESSION in a chattel;
(2) Intent;
(3) Causation; AND
(4) Damanges b/c the interference is serious enough in nature OR consequences to warrant that D pay the chattel’s FULL VALUE.
Conversion: ACTS OF CONVERSION
Acts of conversion INCLUDE wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, severely damaing, OR misusing a chattel.
Converstion: INTENT
As w/ trespass to chattels, MISTAKE AS TO OWNERSHIP is NO DEFENSE.
· The only intent required is the intent to do the act that interferes w/ the P’s RIGHT OF POSSESSION.
Conversion: SERIOUSNESS OF INTERFERENCE
The longer the withholding period AND the more extensive the use = the more likely it is to be conversion.
· Less serious? Trespass to chattel.
Conversion: SUBJECT MATTER OF CONVERSION
Only TANGIBLE PERSONAL PROPERTY and intangibles that have been reduced to PHYSICAL FORM (i.e. promissory notes) are subject to conversion.
Conversion: POTENTIAL Ps
Anyone w/ possession or the immediate right to possession of the chattel MAY maintain an action for conversion.
Conversion: REMEDIES
P may recover damages (FMV at the TIME OF CONVERSION); OR
· Possession (replevin).
What are the Ds to intentional torts?
- Consent
- Self-D, D/others, D/prop (protective privilege)
- Privilege of Arrest
- Necessity
- Discipline
D/Intentional Torts: Consent: General
Majority view is one CANNOT consent to a CRIMINAL ACT.
D/Intentional Torts: Consent: INQUIRY
- Was there valid consent?
- Did the D stay within the boundaries of the consent?
D/Intentional Torts: Consent: EXPRESS
D is NOT liable if P EXPRESSLY consents to D’s conduct.
D/Intentional Torts: Consent: Express: EXCEPTIONS
- Mistake will undo express consent if D KNEW of and took advantage of the mistake;
- Consent induced by FRAUD will be invalidated IF it goes to an ESSENTIAL MATTER, but NOT a collateral matter; OR
- Consent obtained by duress will be invalidated UNLESS the duress is only threats of FUTURE ACTION OR FUTURE ECONOMIC DEPRESSION.
D/Intentional Torts: Consent: Implied: APPARENT
Apparent consent is that which a REASONABLE PERSON would infer from CUSTOM OR USAGE
D/Intentional Torts: Consent: Implied: TYPES
- Apparent Consent; or
- Consent implied by law.
D/Intentional Torts: Consent: Implied: CONSENT IMPLIED BY LAW
Arises when action is necessary to save a person’s life or some other important interest in person or property.
· Body language consent? Think a handshake.
D/Intentional Torts: Consent: CAPACITY REQUIREMENT
Indivuals w/o cpacity are deemed INCAPABLE OF CONSENT.
· Everyone has capacity for intent, but not everyone has the capacity to consent to a tort.
D/Intentional Torts: Consent: SCOPE
If D exceeds the scope of consent and does something SUBSTANTIALLY DIFFERENT, D MAY be liable.
D/Intentional Torts: PROTECTIVE PRIVILEGE
Privilege associated with self-D, D of others, and D of property.
D/Intentional Torts: Protective Privilege: INQUIRY
- Is the privilege available? (Only available to PREVENT a tort, does NOT apply to one already committed.)
- Is a mistake permissible as to whether the tort being defended against is actually being committed?
- Was a proper amount of force used?
D/Intentional Torts: Protective Privilege: SELF-D (General)
When a person REASONABLY BELIEVES that she is being OR is ABOUT to be attacked, they may use such force as is REASONABLY NECESSARY to protect against injury.
D/Intentional Torts: Protective Privilege: Self-D: AVAILABILITY
The majority rule is that there is NO DUTY TO RETREAT.
· The modern view imposes a DUTY TO RETREAT BEFORE using deadly force IF THIS CAN BE DONE SAFELY.
→ UNLESS the person is in their HOME.
D/Intentional Torts: Protective Privilege: Self-D: MISTAKE
A reasonable mistkae as to the EXISTENCE OF DANGER is ALLOWED.
D/Intentional Torts: Protective Privilege: Self-D: FORCE
One may use ONLY THAT FORCE that REAONABLY appears to be NECESSARY to PREVENT the harm.
· Includes deadly force
· If more force than is REASONABLY NECESSARY is used → D is lost.
D/Intentional Torts: Protective Privilege: D/Others: AVAILABILITY
One MAY use force to D another when the person REASONABLY BELIEVES that the other person could have used force to D themselves.
D/Intentional Torts: Protective Privilege: D/Others: MISTAKE
A REASONABLE MISTAKE as to whether the other person is BEING attacked or has a RIGHT TO DEFEND himself IS PERMITTED.
D/Intentional Torts: Protective Privilege: D/Others: FORCE
May use as much force as he could have used in self-D if he were the one threatened w/ the injury.
D/Intentional Torts: Protective Privilege: D/Property
One MAY use REAONABLE force to prevent the commission of a tort against their real or personal property.
· REQUEST TO DESIST OR LEAVE MUST first be made
→ UNLESS it clearly would be frutile or dangerous.
→ D stops once tort HAS BEEN COMMITTED.
D/Intentional Torts: Protective Privilege: D/Property: HOT PURSUIT
One MAY use force in HOT PURSUIT of another who has tortiously dispossessed the owner of their chattels b/c the tort is viewed as STILL BEING COMMITTED.
D/Intentional Torts: Protective Privilege: D/Property: PRIVILEGE
D is NOT AVAILABLE against a person whom has a privilege to enter onto the land of another b/c necessity, recapture of chattels, atc., that privilege will SUPERSEDE the privilege of the land possessor to D their property,
D/Intentional Torts: Protective Privilege: D/Property: MISTAKE
A REAONABLE mistake is ALLOWED as to:
· Whether an intrusion has occrred; OR
· Whether a request to desist is required.
→ NOT ALLOWED: whether the entrant has privilege that SUPERSEDES the D of perperty UNLESS the entrant conducts the tnry so as to lead the D to REASONABLE believe it is NOT privileged (like refusing to say what the privilege is).
D/Intentional Torts: Protective Privilege: D/Property: FORCE
REASONABLE FORCE.
· Strictly property and not serious threat of bodily harm/death? MAY NOT USE DEADLY FORCE.
D/Intentional Torts: Protective Privilege: REENTRY ONTO LAND
· CL: one COULD use force to reenter land ONLY when the other came into possession tortiously.
· ML: there are summary procedures for recovering possession of real property (like ejectment)
→ T4: resorting to SELF-HELP is NOT allowed.
D/Intentional Torts: Protective Privilege: Recapture of Chattel: GENERAL
Basic rule is the same as the for reentry of land at CL: When another’s possession began lawfully, one may use ONLY PEACEFUL means to recover the chattel.
· Force MAY be used to recapture a chattel ONLY when in HOT PURSUIT of one who has obtained possession WRONGFULLY.
D/Intentional Torts: Protective Privilege: Recapture of Chattel: AVAILABLE
- A timley demand to return the chattel is FIRST REQUIRED UNLESS CLEARLY futile/dangerous.
- May be ONLY from a tortfeasor or some 3P WHO KNOWS OR SHOULD HAVE KNOWN that the chattels were tortiously obtained.
→ T4: One may NOT use force to recapture chattels in the hands of an INNOCENT PARTY. - When applicable, entry onto land to REMOVE CHATTEL.
D/Intentional Torts: Protective Privilege: Recapture of Chattel: ENTRY ONTO LAND TO REMOVE CHATTEL: Wrongdoer’s Land
When chattels are located on the land of the wrongdoer, the owner IS PRIVILEGED to ENTER ONTO THE LAND and reclaim them at a REASONABLE TIME AND in a REASONABLE MANNER AFTER 1ST MAKING THE DEMAND FOR RETURN.
D/Intentional Torts: Protective Privilege: Recapture of Chattel: ENTRY ONTO LAND TO REMOVE CHATTEL: Land of Innocent Party
The owner MAY enter and reclaim her chattel at a REASONABLE TIME AND in a PEACEFUL MANNER when the landowner has been given NOTICE of the presence of the chattel and REFUSES TO RETURN IT.
→ Chattel owner WILL BE RESPONSIBLE for any ACTUAL damages caused by the entry.
D/Intentional Torts: Protective Privilege: Recapture of Chattel: ENTRY ONTO LAND TO REMOVE CHATTEL: Land Through Owner’s Fault
If the chattels are on the land of another through the OWNER’S FAULT (i.e. negligently letting cattle wonder), there is NO PRIVILEGE to enter the land.
→ May recover only through legal process.
D/Intentional Torts: Protective Privilege: Recapture of Chattel: MISTAKE
NO MISTAKE regarding D’s RIGHT TO RECAPTURE the chattels or enter onto the land is allowed.
→ EXCEPTION: Shopkeepers Privilege.
D/Intentional Torts: Protective Privilege: Recapture of Chattel: SHOPKEEPERS PRIVILEGE (General)
Shopkeepers MAY have a privilege to detain for a REASONABLE time individually whom they REASONABLY belive to be in possession of shoplifted goods.
D/Intentional Torts: Protective Privilege: PRIVILEGE OF ARREST
Depending on the facts, a person MAY have a privilege to make an ARREST of a 3P.
D/Intentional Torts: Protective Privilege: Privilege of Arrest: INVASION OF LAND
The privilege of arrest carries with it the privilege to enter another’s land for the purpose of effecting the arrest.
D/Intentional Torts: Protective Privilege: Privilege of Arrest: SUBSEQUENT MISCONDUCT
Although the arrest itself MAY be privileged, the person MAY STILL BE LIABLE for subsequent misconduct
D/Intentional Torts: Protective Privilege: Privilege of Arrest: Mistake: MISDEMEANOR
If the arrest is for a midsemeanor, it is PRIVILEGED ONLY if for a breach of peace AND if the aciton takes place in front of D.
· LE gets a broader privilege
D/Intentional Torts: Protective Privilege: Privilege of Arrest: Mistake: FELONY
Fora felony arrest, LE MAY make a REASONABLE MISTAKE.
· Citizens MAY make a reasonable mistkae regaridn the ID of the felon, BUT NOT regarding whether the felony occurred
D/Intentional Torts: Protective Privilege: SHOPKEEPERS PRIVILEGE INQUIRY
For a shopkeeper has a privilege to detain a suspected shoplifter for investigation, the following conditions MUST apply:
→ There MUST be a REASONABLE BELIEF as to the fact of theft;
→ The detention MUST be conducted ina REASONABLE MANNER and only NONDEADLY FORCE can be used; AND
→ The detention MUSt be only for a REASONABLE PERIOD OF TIME AND ONLY for the purpose of making an investigation.
D/Intentional Torts: NECESSITY: General
A person MAY interfere w/ the real or personal property of another when it is REASONABLE AND APPRENTLY NECESSARY to AVOID threatened INJURY from a NATURAL OR OTHER FORCE and when the threated injury is SUBSTANTIALLY MORE SERIOUS than the invation that is undertaken to avert it.
D/Intentional Torts: Necessity: TYPES
1) Public; OR
2) Private
D/Intentional Torts: Necessity: PUBLIC
When the act is for the PUBLIC GOOD.
D/Intentional Torts: Necessity: PRIVATE
When the act is SOLEY to benefit a LIMITED NUMBER OF PEOPLE.
· Person MUST pay for any injury he causes UNLESS the act was to benefit the property owner
→ T4: Not an absolute D b/c MAY be liable for damages BUT NOT liable for nominative/punitive damages.
D/Intentional Torts: Necessity: RIGHT OF SANCTUARY
A person in distress CANNOT be kicked back out into the situation they were escaping.
D/Intentional Torts: Discipline
A parent/teacher MAY USE reasonable force in disciplining children.
Negligence (General): ELEMENTS
- DUTY: on the part of D to conform to a SPECIFIC STANDARD OF CONUDCT for protection of P against an UNREASONABLE RISK OF INJURY;
- BREACH: of that duty by D;
- CAUSATION: the breach was the actual and prosimate cuase of Ps injury; AND
- DAMAGES.
