Torts Flashcards
Battery
(1) intentional;
(2) harmful or offensive contact (that offends a reasonable sense of personal dignity); and
(3) with the P’s person (including anything connected to P).
*Nominal damages alone are sufficient.
Assault
(1) intentional act;
(2) that causes P to be placed in reasonable apprehension; and
(3) of an imminent harmful or offensive contact with P’s person.
− Reasonable Apprehension = P must be aware of D’s act AND believe D is able to commit the act.
*Nominal damages alone are sufficient.
General Intent vs. Specific Intent
− Intentional =
(a) a desire to bring about the harm/contact; OR
(b) knowing the harm/contact is substantially certain to occur.
False Imprisonment
An act or failure to act by D resulting in P’s restraint or confinement to a bounded area.
Restraint or confinement does not need to be physical (threats of force, invalid use of legal authority, etc.).
P must be aware of or harmed by the confinement;
P’s freedom of movement must be limited;
P must not be aware of any reasonable means of escape.
Intentional Infliction of Emotional Distress
(1) intentional or reckless conduct;
(2) that was extreme and outrageous (transcends all bounds of decency);
(3) that causes extreme emotional distress (causation); AND
(4) P actually suffers severe emotional distress (damages).
− Reckless = a deliberate disregard of a high risk that emotional distress will follow.
IIED Non-outrageous conduct may be actionable if:
a) D targets P’s known sensitivity or weakness;
b) D’s conduct is continuous or repetitive;
c) D targets a P who is a member of a “fragile” class;
d) D is a common carrier or innkeeper.
If conduct is directed at a third-party, D is liable for intentional/reckless infliction of emotional distress caused to
a) A member of such person’s immediate family present at the time, whether or not such distress results in bodily harm; OR
b) Any other person present, if it results in bodily harm.
IIED Bystander Claims for Emotional Distress
A bystander closely related to a person physically injured or killed by D’s conduct may recover for emotional distress.
Elements:
1) D’s conduct seriously injured or killed a third person (D’s conduct must be intentional or reckless);
2) P is closely related to the injured person ( not required if P shows that D had a design or purpose to cause P’s severe distress);
3) P was present when the injury occurred (P must clearly witness the injury-causing event);
4) D knew elements 2) and 3);
5) P suffers severe emotional distress (physical manifestation is not required).
Trespass to Land
D is liable if:
(1) he intentionally;
(2) either:
(a) enters the land physically (or remains on the land); or
(b) propels physical objects or a third- person onto the land (or fails to remove an object he is under a duty to remove).
− Intent to trespass is NOT required – only the intent to be on the land is required.
− P must be the possessor of the land at the time of the trespass.
Damages – P may recover the:
a) decrease in value of the property; OR
b) cost to repair the property.
*Nominal damages alone are sufficient.
Trespass to Chattels
liable when:
1) D intentionally interferes with personal property of another (damage, preventing use by the owner); AND
2) The amount of damage is small.
Conversion
liable when:
1) D intentionally interferes with personal property of another (damage, preventing use); AND
2) The amount of damage is substantial.
*P can recover the full market value of the property.
Doctrine of Transferred Intent
The intent to harm one party can be transferred when:
1. D intends to commit a tort against one particular individual; AND
2. Either:
a) commits a different tort against that person; OR
b) another person is injured by the same or different tort.
*Applies to battery, assault, false imprisonment, trespass to land, and trespass to chattels.
Consent
may be express or implied through words or conduct.
− CANNOT exceed the bounds of the consent given.
− P must have capacity to consent.
− May be withdrawn at any time.
− P cannot consent to a crime (some courts).
Apparent Consent→words/conduct are reasonably understood to be consent (i.e. customary practice, failure to object).
Implied by Law Consent → occurs in special circumstances, such as medical emergencies.
Privilege
Is conduct that normally would subject the actor to liability, but is excused under the circumstances.
Necessity
D is NOT liable for harm to P’s property if D’s intrusion was (or reasonably appeared to be) necessary to prevent serious harm to a person or property.
− Applicable only to intentional torts against property.
− Public Necessity (compete defense)→when D acts for the public good.
− Private Necessity (incomplete defense) → when D is protecting his own (or a few others) property interests. D is liable for damages UNLESS the purpose was to help P.
Self-Defense / Defense of Others
D is not liable for harm to P if he:
1) reasonably believed P was going to harm him or another; AND
2) used reasonable force that was necessary to protect himself or another.
Defense of Property
May use reasonable force to defend property, but CANNOT use deadly force.
Recapture of Chattels
An owner of wrongfully taken chattels may take prompt action and use reasonable, non-deadly force to recover the chattels from the wrongdoer.
− Force is deemed unreasonable without first making a demand to return the item UNLESS the demand is dangerous or futile.
Shopkeeper’s Privilege
(1) temporarily detain;
(2) a person reasonably suspected of theft;
(3) in or near their store; AND
(4) for the purpose of investigation.
- When a request to remain has been made and refused, reasonable non-deadly force may be used to detain.
- Shopkeeper may be held liable for any harm caused by acts exceeding the privilege.
Negligence Prima Facie Case
Elements:
1) Duty;
2) Breach of duty;
3) Causation (actual and proximate cause); AND
4) Damages.
*A party must offer sufficient evidence to prove ALL of the above elements.
Affirmative Duty
There is NO general duty to act affirmatively EXCEPT IF:
a) A special pre-existing relationship exists between the parties (i.e. parent-child, landowner-entrant);
b) D put P in peril;
c) D has already undertaken to rescue P (but liable only if it increases the risk of harm or harm is suffered because of reliance on the person providing help); OR
d) A duty imposed by law.
Reasonable Person Standard
Every person owes a duty to act as a reasonable prudent person would act under the circumstances.
− Following community customs & statutory requirements are relevant, but not dispositive. It is merely evidence of reasonable care.
Physical Disability→must act as a reasonable person with the disability would act.
Mental Disability or Below Average Intelligence → must act as a reasonable person without the disability would act.
Children (Standard)
Must act as a hypothetical child of similar age, experience, and intelligence acting under similar circumstances.
− EXCEPTION→If engaging in an adult activity, the child has a duty to act as reasonable adult.
Professionals (Standard)
Must act with the knowledge and skill as an average member of that profession participating in a similar community.
− Professional→doctors, lawyers, accountants, engineers, architects, nurses.
Specialist – If holding oneself out as a specialist, then must act as an average member of that profession practicing that specialty.
Medical Doctor – Held to the degree of care and skill of an average qualified practitioner under a national standard.