Torts Flashcards
What are the elements of battery?
- Intentional infliction of 2. harmful or (offensive to RP) contact with plaintiff - includes transferred intent
Surgeon B performing surgery when Plaintiff only authorized Surgeon A? Offensive Contact battery
offensive in the sense of RP (exception if the D knew of P’s hypersensitivity)
Includes throwing water balloon that explodes spilling water on Plaintff–can be via thrown object not necessarily a fist eg..g
“it is not necessary to touch the plaintiff’s body or even his clothing; knocking or snatching anything from plaintiff’s hand or touching anything connected with his person, when done in an offensive manner, is sufficient” Fisher v. Carrousel Motor Hotel
Note on Offensive to Reasonable Person
What are the elements of assault?
- Intentional causing of
- reasonable apprehension of
- an immediate
- harmful or (offensive to RP) contact with plaintiff - includes transferred intent
What are the elements of false imprisonment?
- Act or Failure to Act
- with intent to confine P to bounded area
- causing
- confinement of P to bounded area - includes transferred intent
§ Note on “…Failure to Act”:
D failing to act for P, when there is understanding that defendant was going to act for P benefit
Ex. D Failing to give passenger on passenger ship access to small boat to complete trip to shore: Yes sufficient Whitaker v. Sandford
§ Note on “Confinement of Plaintiff…”
Immediate awareness by P of the restraint is needed, generally
Exception: when P was injured while unaware of restraint - immediacy not needed
Length of confinement is irrelevant to prima facie case, generally
Exception: when prima facie case has been proven and you are calculating damages - length of confinement is relevant
Note on “…Bounded Area”
“Bounded” does not require hermetic 4 walls
Ex. Threat to use force without physical? Yes sufficient
“Bounded” is not satisfied if there is
Reasonable path of escape
Ex. Crawling through sewage pipe is NOT reasonable path of escape
which
Plaintiff is aware of
Ex. Touching secret exit panel that plaintiff is unaware of is NOT reasonable path of escape
Note: Shopkeeper privilege is often tested
Reasonable conduct of shopkeeper
Just like Defense of Property – CANNOT use deadly force, only reasonable force
**Reasonable detention time **of person by shopkeeper before police show up? i.e. 10 minutes probably ok, 2 hours no
Note “harm” is not required for false imprisonment (according to Barbri MT 138)
What are the elements of IIED?
- Intentional infliction of
- Severe Mental Distress (damages)
- from Defendant Outrageous Conduct - excluding transferred intent
Note on “outrageous conduct” is HIGH BAR and often tested
Ex. telling someone falsely their family died IS outrageous
Ex. shooting someone’s dog IS outrageous
Ex. extortionists harassing a shopkeeper’s clients is outragous
Ex. mishandling corpses IS outrageous
Ex. Insulting, swearing someone out or insulting IS NOT outrageous (generally)
Exception: outrageous can stem from otherwise non-outrageous fact pattern…
Length of time: e.g. insulting someone for 100 days continuously IS outrageous
Who plaintiff is: e.g. insulting a very young child or elderly person or pregnant women IS outrageous
Who defendant combined with who plaintiff is
e.g. common carrier defendant: insult from bus driver to passenger IS outrageous
e.g. innkeeper defendant: insult from innkeeper to guest IS outrageous
Note on Severe Mental Distress aka Damages in IIED
No physical injury needed, but must be able to see SUBSTANTIAL EMOTIONAL HARM is needed
Note on inapplicability of transferred intent in IIED Ex. Best friend watching battery from across street -- generally CANNOT use transferred intent Exception: if defendant knows that close relative is near - can use transferred intent (but note that makes general intent applicable too)
What are the elements of Trespass to Land?
- intentional physical (intent attach to physical, not to entry)
- entry of other’s land (no intent needed)
- remaining on land
“intentional physical” can be SELF (walking) or OBJECT (propelling object other than self, like a drone)
“intentional physical” is NOT mere odors, smells, lights, noise? Not physical <–those are NUISANCE torts not Trespass to Land
“other’s land”
Within distance up or down to where landowner could make reasonable use of space? Yes other’s land
Beyond distance up or down to where landowner could make reasonable use of space i.e. 747 flight pattern? NOT other’s land
What are the elements of Trespass to Chattel?
- inteintional interference or dispossession
- with other person’s property
- with harm
What are the elements of Conversion?
- intentional, substantial interference or destruction
- with oerth persons’s perperty ‘3. with harm
What is the Consent Defense to Intentional Torts?
Consent Defense - good for all intentional torts: plaintiff consents impliedly or expressly to D’s conduct
Consent Defense for defendant requires that **…Plaintiff have capacity to consent** e.g. children cannot consent to intentional tort e.g. mentally impaired cannot consent to intentional tort …P not be coerced to consent e.g. coercion by defendant cannot create consent to intentional tort …D not utilize fraud and P not be mistaken when consenting e.g. fraud by defendant or mistake by plaintiff cannot create consent to intentional tort **Consent itself can be express or implied** Express Consent e.g. plaintiff says "sure, go ahead and do it" See express consent? Watch incapacity, coercion/fraud/mistake See express consent? watch action BEYOND the Scope of Privilege given by express consent Implied Consent - common with SPORTING EVENTS Note: evaluate Implied Consent from Defendant's perspective Implied Consent Via Custom/usage or Via Plaintiff's conduct e.g. plaintiff participation in football implies plaintiff consent to being tackled even if in reality plaintiff did not know rules e.g. plaintiff attendance of hockey game implies plaintiff consent to errant pucks from missed goals flying into stands See implied consent? watch action BEYOND the Scope of Privilege given by implied consent e.g. boxer biting ear off - NOT implied consent b/c biting ear is beyond scope of privilege e.g. plaintiff attendance of hockey game DOES NOT imply plaintiff consent to ngry hockey player throwing puck into stands
[“Assumption of Risk” is NOT a defense to intentional torts]
CSPONN
What is the self-defense defense to Intentional Torts?
Reasonable Force by Defendant
To prevent
Reasonably belief by Defendant (subjective AND objective)
To be imminent threat of force against defendant
Note on Reasonable Force by Defendant- proportional
Nondeadly
Defendant using nondeadly force without retreating: generally is reasonable, standing ground is ok
Deadly Defendant using deadly force (often firearms) is NOT reasonable, e.g. to defend defendant's property Exception: if Defendant is responding to what is objectively reasonably believed to be threat of deadly force to self or 3P E.g. cannot respond to mere punches by shooting gun Defendant using deadly force: duty to retreat, if possible, before using deadly force (majority view) Exception: when in own home, no duty to retreat Defendant using deadly force: no duty to retreat before using deadly force (minority view) Note on What Defendant Reasonably Believes Must be subjectively true AND objectively reasonable belief i.e. if tourist in NYC subjectively truly believes a solicitor handling out pamphlets is reaching for a gun, so tourist stabs solicitor Subjectively true BUT NOT objectively reasonable ∴ not "Reasonable belief"
What is the defense of others to Intentional Torts?
Reasonable Force by Defendant
To Defend 3P being protected Under same manner and same conditions as if Defendant 3P (Place Defendant in shoes of 3P being protected) Special Application: Mistaken Defense of 3P is only justified if Mistaken Belief was reasonable e.g. If defendant reasonably but mistakenly believes that 3P is being battered when in reality it is an undercover police officer
CSPONN
What is the defense of property defense to Intentional Torts?
(note fact pattern of defense of property may overlap with self-defense against burglar in home)
Reasonable Force by Defendant
intentional DEADLY force is never acceptable for property defense alone (deadly self-defense is different story)
e.g. spring-gun booby trap, even if entirely within property and even against trespassers, is NOT ok
e.g. vicious dog trained to maim, even if entirely within property and even against trespassers, is not ok
** To Defend**
** Real Property or Personal Property** Note "Doctrine of Hot Pursuit" if applicable, might limit window of time reasonable force can be utilized by defendant to recapture property e.g. ok to use RF on someone who just took your property a few seconds ago e.g. NOT ok to use RF at pawn shop where you see your property 2 weeks later
CSPONN
What is the private necessity defense to Intentional Torts?
Only for property intentional torts - not “to the person” intentional torts!
Private Necessity
Taking immediate action is necessary to avoid threatened injury from a natural or other force to SELF or FEW OTHERS
and
where the threatened injury is substantially more serious than the defendant invasion
e.g. Defendant pilot having massive weather issue, must immediately land plane on plaintiff’s house
Creates Qualified Privilege for Defendant:
i.e. still have some duty to reimburse for property damage
CSPONN
What is the public necessity defense to Intentional Torts?
only for for property intentional torts
Taking immediate action is necessary to avoid threatened injury from a natural or other force to PUBLIC GOOD and where the threatened injury is substantially more serious than the invasion Defendant protect a whole lot of people, disaster: e.g. Defendant mayor orders destruction of a few houses to protect from imminent forest fire Creates Unqualified Absolute Privilege: no duty to reimburse for ANY property damage
CSPONN
What are the Negligence Prima Facie elements?
Duty, Breach of Duty, Causation, Harm
What are the Intentional Torts Prima Facie elements?
- Intent in intentional torts
Intent Spectrum refresher Specific intent: **purpose (desire) of causing the actual technical injury** that occurred General intent: knowledge (not necessarily DESIRE) to "**substantially certainty" that technical injury would result** ex. baseball player flinging bat into stands? Intent, SC exists, even if not purpose Recklessness: defendant knew of risk but was indifferent to that risk <--applicable to IIED but not applicable A, B, FI § Note: Intentional Tort wrong answer choices may suggest SPECIFIC INTENT IS NEEDED when prima facie only requires GENERAL § Note: Intentional Torts usually use General or Specific, but best to look at LISTED intent § Note: Intentional Torts often combine Intent element with Voluntary Act element § Note: Malice or other bad motives are not required to find intent § Note: Transferred Intent Concept <--not applicable to IIED but is applicable to A, B, FI □ Transfer intent: injury to injury AND tort to tort ® Say A jumped over fence of neighbor B, accidentally landed on C sunbathing in B's backyard ◊ C can transfer intent that A had to INJURE B to serve as intent to INJURE to C ◊ C can transfer intent that A had to TRESPASS LAND to serve as intent for BATTERY ◊ Thus A's trespass to land of B becomes A's battery upon C 2. Volitional Act by Defendant § Volition (under defendant's CONTROL) + external manifestation of WILL w/o result □ Say V pushes B who stumbles into C ® Not volitional: B's stumbling into C ® Not volitional: similarly, a seizure, reflex Volitional: A's pushing of C 3. Causation 4. Technical Injury (not just generalized harm like negligence) § Note: each type of intentional tort will have technical injury req't) Note: there is NO "standard of care" or duty in intentional tort -- that is negligence stuff
What are the Negligence Defenses?
Proximate Cause was Independent aka Superseding Intervening <–defense
Hudson thinks: if there is organized system to prevent superseding cause which business owner failed, the superseding cause is not a good defense
Broke chain of causation - esp. unforeseeable criminal conduct of another
Pure Comparative (default), say $100k damages
P at 95% fault, D at 5% fault? P recovers $5k
Note: Even if defendant is found “negligent per se,” defendant can STILL assert defense of comparative negligence…i.e. negligence per se does NOT abrogate defendant’s right to the defense of comparative negligence (Hudson practice problem)
Last clear chance NOT available in most Comparative jurisdictions
Joint and Several Liability, say $100k damages
D1 at 70% fault, D2 at 30% fault? P can sue D1 for $100k, P can sue D2 for $100k
Last clear chance NOT available in most Comparative jurisdictions
Comparative Contrib aka Comparative Fault, say $100k damages
D1 at 70% fault, D2 at 30% fault? P can sue D1 for $100k, then D1 can sue D2 for $30k…like a contrib WITHIN comparative - only one on slide where D1 sues D2?
Partial Comparative: cliff at 50+% drops to 0/100
Last clear chance NOT available in most Comparative jurisdictions
Contributory Neglignece, say $!00 k damages
P at 1% fault means NO recovery for P
Exceptions where negligent P can still recover in contrib
including: P remaining in danger (e.g. riding with drunk driver)
including: violation of statue by P
exception: P was was contrib negligent P is rescuer
exception: P was contrib negligent but D violated statute designed to protect P, even if P is at fault (i.e. Dv vioaltes speed limit school zone and child P is neglgient)
exception: P was contrib negligent but defendant had last clear chance (chance at time of accident) to avoid accident even if P negligent
exception: P was contrib negligent but defendant was wanton or eckless
Assumption of Risk
Superseding Event - broke chain of causation - esp. unforeseeable criminal conduct of another
P failed duty to mitigate (not a full defense for D)
Additur: uncommon
Remmiter - court reduces - common
What are the elements of Defamation?
[Interesting PDFs Don’t Fly] (like paper airplane)
Identification
P must show audience could reasonably identify the plaintiff
Publication
P must show statements were disseminated to a 3P
Shopkeeper yelling “thief” w/ other people in store IS publication
Shopkeeper yelling “thief” w/ no people in store IS NOT publication
Defamatory Meaning - context is cretical
P must show statements were capable of defamatory meaning
“lawyer cum fixer” is defamatory in context of accusing judge
Simple epithet is not defamator
Tricky when double meanings
Falsity
P has burden of proving falsity
Some states have action of libel per se or defamtion per se (many state variations)
per se: false Assertion that plaintiff did Criminal behavior
per se: false Assertion that plaintiff did Professional misconduct
per se: false Assertion that plaintiff did Communicable disease
per se: false Assertion that plaintiff did Sexual misconduct
Statement of Fact (not in the sense of truth, but in the type of assertion i.e. assertion of fact, not assertion of opinion)
NOT just pure opinion (in many states)
D says P is “conspiring with the devil” to figure out “how to lead people’s minds astray” and to live a nice “sheltered role of pure moral superiority at the expense of inferiors” like himself and his readers. <–THAT is opinion
D says P’s fashion “medieval” and her hair style was like a bag of “hot wires ready to electrocute anyone who dares come too close. <–THAT is opinion
Caveat:
Milkovich v. Lorain: stmt of opinion CAN be stmt of fact if it IMPLIES an assertion of objective facts (i.e. you can’t just slap “I think” in front of assertion of objective fact to make it non-stmt-of-fact
Damages
Stmt Must cause actual injury or special damages (i.e. easily ascertained) to plaintiff
Fault
P is private person?
Show NEGLIGENCE by defendant
P is public official?
Show ACTUAL MALICE by defendant by clear and convincing of
(above and beyond normal malice and ill will)
Prove D Knowing Falsity
OR
Prove D Reckless Disregard <—e.g. source told reporter a different important fact that reporter ignored: obvious source of info reporter did not pursue and it would have led to different story
[Interesting PDFs Don’t Fly] (like paper airplane)
