Torts Flashcards
elements to prove an intentional tort
P must prove:
1)act, tortious conduct
2) intent, requisite mental state, and
3) causation
intent for intentional torts
1) actor acts with the purpose of causing the consequence, or
2) actor knows that the consequence is going to come about to a substantial likelihood
children/mentally incompetent person can be held liable
Battery
D causes: must result in contact
1) harmful or offensive contact
i)harmful: causes injury, pain, or illness
ii)Offensive: person of ordinary sensibilities would find it offensive
person doesnt need to be aware of it
iii) contact: need not be direct
2) with the person of another, and
includes anything connected to Ps person
3)acts with the intent to cause that contact or the apprehension of that contact
what has to be intended is the contact, not the offense
transferred intent for intentional torts
when the intent to commit one tort satisfies the required intent for a different tort
1) different tort against same person
2) same tort against different person
3) different tort against different person
Damages for battery
no proof of actual harm is required: can recover nominal damages
eggshell P rule: liable for all harm that flow, even if worse than expected
many states allow punitive if D acted:
outrageously or,
with malice
consent defense to battery
no batter if there is express or implied consent
Assault
1)causes reasonable apprehension
P must be aware of Ds action
2) of imminent harmful or offensive conduct
must be without significant delay- future harm is not sufficient
3)D intends to cause apprehension of such contact or to cause such contact itself
***mere words without more do not constitute an assault
damages for assault
no proof of actual damages required- nominal
punitive may be available
Intentional Infliction of Emotional Distress
D intentionally or recklessly engages in extreme and outrageous conduct that cause P severe emotional distress
extreme and outrageous conduct: exceeds the possible limits of human decency so as to be entirely intolerable in a civilized society
more likely if
1)position of authority/influence
2) p is a member of a group that has heightened sensitivity
causation: Ds actions must be a cause in fact of Ps harm
IIED and Public figures
public figures must show that the words contain a false statement of facts that was made with actual malice: knowledge that the statement was false or with reckless disregard of its potential falsity
The Supreme Court has suggested that even private plaintiffs cannot recover if the conduct is speech in the context of a matter of public concern
IIED and Conduct toward 3rd parties
If the defendant directs extreme and outrageous conduct toward one party and a different party experiences severe emotional distress because of that conduct, the doctrine of transferred intent may apply, but only in certain circumstances:
1)Related bystanders: An immediate family member of the victim who is present at the time of the conduct and contemporaneously perceives the conduct may recover for IIED regardless of whether that family member suffers bodily injury as a result of the distress
2) Ds Purpose: If the defendant’s purpose in harming an individual is to cause severe emotional distress to a third party, the third party can recover for IIED without showing that he was a close family member of the harmed individual or that he contemporaneously perceived the conduct.
Damages for IIED
P must prove severe emotional distress beyond what a reasonable person should endure
hypersensitivity: only applies if D knew about it
Physical injury not required
False imprisonment
1)D intends to confine or restrain another within fixed boundaries
2) The actions directly or indirectly result from the confinement, and
3) P is conscious of the confinement or harmed by it
time of confinement: immaterial
Intent
D must act:
1)with the purpose of confining the P, or
2) knowing that Ps confinement is substantially certain to result
not liable for confinement due to Ds negligence
methods of confinement for false imprisonment and the exception
use of physical barriers, physical force, threats, invalid invocation of legal authority, duress, or refusing to provide a safe means of escape
*may be false imprisonment when D refused to perform a duty to help someone escape
Merchant’s privilege: a merchant can, for a reasonable time and in a reasonable manner detain a suspected shoplifter
False imprisonment damages
P can recover nominal damages
actual damages are also compensable
defenses to intentional torts
actual consent
presumed consent
self-defense
defense of others
defense of property
parental discipline
privilege of arrest
actual consent defense to intentional
P by words or actions manifests the willingness to submit to Ds conduct
conduct may not exceed the scope of consent
consent by mistake: valid unless D cause mistake or knew of it and took advantage
consent by fraud: invalid if it goes to an essential matter
capacity matters
presumed consent as defense to intentional
P is silent but in context their silence and continued participation can reasonably be construed as consent
1)emergencies: fair to assume that someone in need of rescuing would allow rescuer to touch
2)injuries arising from athletic contests- within the scope
3) mutual consent to combat
capacity matters
self defense for intentional
force that is proportionate to defend against an offensive contact
duty to retreat not a thing anymore
initial aggressor: not permitted to claim unless the other party has responded to nondeadly force with deadly force
injuries to bystanders: not liable for these injuries as long as the injury was accidental and the actor was not negligent toward bystander
defense of others for intentional
may use reasonable force in defense of others if that person would be entitled to use self-defense
Defense of property
reasonable force may be used if the person reasonably believe it is necessary
deadly force cannot be used for property
recapture of chattels:
1) reasonable force may be used to reclaim personal property that has been wrongfully taken, but only if you request its return, unless that would be futile
2)if original taking was lawful: only peaceful means may be used
cannot use force to regain possession of land, only legal process
parental discipline
parents may use reasonable force as necessary to discipline children
Privilege of arrest
Private citizens
Permitted to use reasonable force to make an arrest for felonies if:
1)the felony has actually been committed, and
2)the arresting party has reasonable grounds to suspect that the person being arrested has committed the felony
**not a defense if there is a mistake as to whether this was the person or if a felony actually occurred
Police
must reasonably believe that a felony has been committed and that the person arrested committed it
allowed to make a mistake as to whether a felony has been committed
misdemeanor
1)arrest by officer may only be made if the misdemeanor was committed in the officer’s presence
2) arrest by private person may only be made if there is a breach of peace
trespass to chattels
an intentional interference with Ps right to possess personal property by:
1) dispossessing the P of the chattel
2)using or intermeddling with Ps chattel, or
3) damaging the chattel
intent: only the intent to do the interfering act is necessary, do not need to intend to interfere
*mistake of law is not a defense