Torts Flashcards
Battery
Intentionally harming or injuring (or causing harm or injury) another person
Act
The conduct implemented by one person on another person
Intent
The desire, wanting and understanding that you want to cause harm or injury to another person
Desire to cause consequence
Subjective vs Objective
Subjective: What actor believed or knew
Objective: Reasonable person would believe of know
Assault
Protects one’s interest in being free from the apprehension of imminent harmful or offensive contact
Intent requirement
requires immediate/imminent apprehension/fear
Touching of the mind and not of the body
-mental distress and trauma
-nature to excite apprehension to a reasonable person
invasion of mental peace
Defenses
If the plaintiff can’t prove all the elements
-affirmative defense: even if all elements are there the defendant is not liable because of another fact
-consent to contact: if person consented to the act, but consent is allowed to be withdrawn, can be expressed or implied
-Defense of others: Interest and implication the actor is protecting; degree of harm apparently threatened= higher of both the greater privilege of the scope
Tests
Elements test- have to show all the elements
Factors test- show most of the factors
Totality test- look at the circumstances as a whole
False Imprisonment
Protects one’s interest in being free from intentional confinement
no liability for negligent of reckless imprisonment if the actor’s conduct risks only a harmless confinement; recklessness is not enough to prove false imprisonment
When legal duty exists to release plaintiff from confinement, an intentional refusal to release plaintiff constitutes false imprisonment
No means of safe and reasonable egress
Shopkeeper privilege- affirmative defense; must be reasonable; allows temporary detention on one’s premises of a person the actor reasonably believes has tortiously taken goods on the premises
scope of confinement (1- amount of time; 2- conditions cruel or humiliating)
Intentional Infliction of Emotional Distress
Elements:
1. Outrageous conduct by the defendant
2. the defendant’s intention of causing, or reckless disregard of the probability of causing emotional distress
3. the plaintiff’s suffering severe or extreme emotional distress
4. actual and proximate causation of the emotional distress by the defendant’s outrageous conduct
Mere words and insults are not enough
must be outrageous and cause sever distress element; actions can be outrageous if defendant knows that plaintiff if susceptible to emotional distress
Test for outrageousness is an objective test
The court will look at it in is totality; most of the time will require a diagnosis; must have intent to cause consequence
Transferred Intent
Two kinds:
Transfer of intent between torts- plaintiff who suffers a harmful or offensive contact to recover for a battery even if the defendant intended only an assault and allows a plaintiff who suffers apprehension of imminent harmful or offensive contact to recover for an assault even if the defendant intended only a battery
Transfer of intent among people- if the defendant intends to assault or batter one person but ends up assaulting or battering another, the defendant will be liable to the other as if the other had been the intended target (if you mean to hit an inanimate object and hit a person instead that is not transferred intent)
Negligence
Elements:
1. Duty
2. breach
3. causation (but for…)
4. harm
Reasonable care concept/reasonable person standard
Is it foreseeable; defendant must know or have reason to know
can be acts or omissions
Learned Hand equation: burden of prevention<probability of loss=magnitude of loss (pg. 115)
Emergency defense
A sudden and unexpected encounter with a danger which is either real or reasonably seems to be real.
If a person, without negligence on his or her part, encountered such an emergency and acted reasonably to avoid harm to self or other, the person may not be negligent.
Recklessness
- Knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another
- that such risk is substantially greater than that which necessary to make his conduct negligent
Transferred Intent for Infliction of Emotional Distress
where outrageous conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly cause severe emotional distress:
1. to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm
2. to any other person who is present at the time; if such distress results in bodily harm
Child’s standard of care
is the activity inherently dangerous like driving a car
