torts Flashcards
who can commit intentional torts?
anyone can commit intentional torts - i don’t care if you’re drunk, insane, or a 4 year old.
so long as you have the intent to injure someone, so long as you think you are attacking something.
extension contact for battery
the contact necessary for a battery claim doesn’t have to be directly on someone’s person or body, it can be an object they are holding or something “intimately connected to them”
implied consent to contact will negate battery
A man was playing basketball on a high school team and one second after the buzzer rang for the game to be over, someone knocked him to the ground intentionally. This is battery.
If it would have happened during the game, he might have given his implied consent by participating in the game, so long as the contact was within the scope of a normal basketball game.
not every unpermitted contact is offensive
If you are a weirdo who sues someone for accidentally jostling you in an elevator, this will not be considered offensive to an average person.
Certain contacts are allowed as part of everyday life.
No, non-neurotypical weirdass plaintiffs, you can only sue for battery if the contact would be offensive to an average Joe.
egg-shell plaintiff
If you push an old lady because she stole your werther’s originals and she accidentally dies, you are paying for all of those damages.
You take the plaintiff AS YOU FIND THEM.
* If they have some rare blood condition or are unusually weak or old as a dinosaur, it doesn’t matter.
* If you commit a tort against them, you are paying the full extent of the damages.
the seizure driver
intent must be volitional and can’t be voluntary.
If you have a seizure for the first time ever and crash your car and kill someone, you can’t be liable in tort because you didn’t know you had the propensity to have seizures.
If this is your second or third seizure in a car, or you know you are prone to RANDOM seizures, you will be held liable because the intent to get into that car will suffice as the tortious intent needed to batter someone else down the line (or kill them).
you cannot consent to criminal acts done to you as a matter of….
public policy
You cannot consent to being shot in a game of russian roulette… and you cannot consent to getting your ass beat in a street fight.
These situations are illegal and it would be against public policy to allow people to consent to this.
the telephone twitter assault
The MBE likes to test a scenario where someone will call someone else up and be like “I’m going to kick the living shit out of you in 14 hours.”
This is not assault
An assault must be immediate and not threatened in the future.
We need words + physical conduct + the ability to carry it out immediately.
The other person does not need to be in fear, they just need to be able to perceive that you have the ability to make physical contact immediately.
you can’t assault someone who is sleeping
There is no apprehension
Apprehension = perception
No apprehension of imminent contact = no assault
transferred intent requires an “original” tortious intent
Example -
Rainbow Brown is hunting a LEGAL hunting ground and sees a deer. He shoots at the deer and hits a hunter by accident. Does the hunter have an actionable claim for battery?
NO
If you do not have tortious intent to begin with, it can’t transfer. Shooting the deer originally was legal, and not tortious.
Transferred intent is a legal fiction which is all about wanting to punish bad people who intend to do bad things, but then “miss”
If you never intended to do a bad thing, we won’t allow you to transfer that intent.
battery can’t be based on a small statistical likelihood of potential contact
Battery requires an intent to cause harmful or offensive contact or knowledge to a substantial certainty that your actions will cause the offensive contact.
Knowledge of a small likelihood that your stupid ass tires could break is not enough to show that you were substantially certain contact could occur.
We need INTENT or SUBSTANTIAL CERTAINTY
Essentially, you need way more certainty that your tires will actually hurt someone to rise to the level of “substantial certainty.”
they will have someone accidentally lock someone else in a library or some shit
this is NOT false imprisonment.
You need actual intent to confine someone to be liable for false imprisonment.
You ALSO have to KNOW you are confined (and actually want to escape), or be harmed by it to bring an action for false imprisonment.
Can a baby be confined? No, a baby has no fucking idea they’re confined since they’re a BABY.
Can crazy person who thinks they are on an island be falsely confined? No, because they are not aware of it.
Even if someone is not aware of it, if they are physically harmed by it the other person can still be liable, so stay woke to that.
intentional infliction of emotional distress
IIED is intentional conduct and the answer choice will usually say something about “all bounds of decency” or “extreme and outrageous.”
Remember, first thing we need is:
Emotional distress
Stress must be severe
Sometimes the problem will say it is not severe, so then it will not be IIED.
No physical injury is required for IIED.
Repeatedly harassing someone with a megaphone about bill collection would be IIED. The bill collector kept saying he knew where the woman lived and was going to withdraw the money from her account and she suffered wild stress and shit.
bystander IIED
Bystander IIED happens in two circumstances when the defendant intentionally causes emotional distress to a third party and a second person can recover IF
1. Bystander was present and defendant knew they were present and family member
2. Bystander was present and defendant knew they were present and physical injury
The bar exam tested a scenario where some lady’s daughter was inappropriately touched by a doctor in an operating room. The mother was not in the operating room. She suffered severe emotional distress which caused her to become physically ill.
This is not actionable as we need presence for a third party to sue for IIED. Here, we did not have it.
negligent infliction of emotional damage
PHYSICAL ZONE
We need someone to act negligently and place someone in the zone of danger (due to a near miss physical impact scenario) and they need to suffer emotional distress and physical symptoms.
Like a rave.
If there is negligent mishandling of a corpse or falsely reporting a close relative’s death, you don’t need a zone of danger or physical harm.
punitive damages
They want you to know you can get punitive damages if someone acts with malicious intent.
If someone commits a tort against you and they are downright diabolical about it, you can get compensatory damages for your harms AND punitive damages to punish their malicious conduct.
these little fuckers want you to know a trespass can occur underground or in the sky
You can only sue for trespass in airspace you could reasonably use, like the shit right above your house, not 10,000 feet above.
There was a problem where a construction worker put some underground rods underneath this guys house, that is a trespass.
what does trespass to chatell require?
ACTUAL harm or DEPRIVATION of the use of the chattel for a SUBSTANTIAL amount of time
They had a problem where some little girl pulled on a dogs ear and the weirdass due tried to sue her for trespass to chattels.
No.
You need to actually damage the property or deprive them of their use of it.
Remember, conversion just means you damaged it so substantially that it amounts to a total loss of value
what are the damages for conversion?
fair market value AT THE TIME you fucked the shit up
the damages you get for conversion is the fair market value of the time of the damn conversion - not any other time.
who is liable when a landowner tells a tree cutter to cut down trees and shit … but they find out the trees are on someone else’s land?
the landowner and the tree cutter are both liable for conversion.
the landowner for directing him wrongfully, and the tree cutter for doing it without verifying it properly.
the undiscovered trespasser
undercover or hostile tresspassers are owed NO duty of care.
If some psycho comes onto your land and you have no idea who he is or had no idea that there was even a possibility of trespassers on your land, or if someone comes to hurt you, yeah this person can get fucked.
semi-discovered or the known trespasser
The semi-discovered trespasser is someone the landowner knows or SHOULD have known would cross their land.
Basically, the weirdos that they know take shortcuts across their land all the time.
The landowner must protect these people from: KNOWN, CONCEALED, MANDANE DEATH TRAPS, MOTES AND SHIT, AREAS WHERE THERE ARE SPIKES.
It must be CONCEALED
Barbed wire is not concealed. There is nothing hidden about it.
You are allowed to protect your property with barbed wire to defend against trespassers.
having sex can be a tort
If you consent to having sex but the person doesn’t tell you they have an STD, this is a battery.
Two people had consensual unprotected sex and the man gave the woman herpes. This was an actionable battery.
Your express consent is VOID if it is procured by FRAUD.
I like to think of consent as consenting to the actual CONSEQUENCE of what happened, not what the other person represented to you.
Obviously, this person did not consent to getting infected with herpes, so it was a battery.
self-defense
You essentially have to use REASONABLE AND PROPORTIONATE force necessary to protect you from death or serious bodily harm.
It is not what you personally “believe” is necessary.It is about what a REASONABLE person would believe is necessary.
If someone is going to kill me, maim me, or rape me, I can use deadly force.
Retaliation = will make you the first aggressor and liable in tort.
If someone attacks me and then walks away, I can’t punch them in the back or I will become liable as well … there is no revenge exception in the law.
No deadly force in the defense of property
You can NEVER use deadly force to protect property or land.
Unless your neighbor shows up and pulls a gun out.
This is not protecting your land, it is protecting yourself and you can shoot if it is reasonable.
shopkeepers privilege
Essentially a defense to false imprisonment.
If the owner of a store REASONABLY suspect someone stole some shit, they can use REASONABLE force to detain the thief for a REASONABLE amount of time (maximum time 30 minutes).
REASONABLE BELIEF
REASONABLE FORCE
REASONABLE TIME
Privilege to detain schizos
Basically if someone is way too drunk or about to hurt themselves or a third person, you can lock them in a room until the police arrive.
So even if you are not a shopowner, you can lock a crazy person in a room if there is risk of immediate harm to themselves or a third party.
Only for a reasonable amount of time until the cops arrive though.
summary judgment (civ pro) intentional torts combo question
When you get a problem in civ pro or torts, you need to think “is this either a
1) no fact scenario; or
2) a bullshit fact scenario?”
If the other side has absolutely NO facts, it shouldn’t go to the jury.
But, be careful of these “bullshit” fact scenarios.
If you have three reliable witnesses who saw a car accident, and I have one crackhead who looked away but “heard a loud bang and thinks I didn’t cause the crash” or something, that will not be able to survive summary judgment. I technically have a fact, but my fact absolutely sucks, so the jury will have nothing to talk about.
If it’s not a bullshit fact or no fact scenario, IT SURVIVES THE DAMN MOTION.
If the jury could look at it and go either way … IT SURVIVES THE DAMN MOTION.
necessity
Necessity is a defense to property based torts like trespass, conversion, and trespass to chattels.
Save yourself or your property = pay damages and can’t be kicked out
Save the whole city from disaster = no damages and you are the hero of the city
If there is a crazy ass flash flood and you park your car on someone’s property briefly, or there is a crazy ass storm on the highs seas and you dock your boat to someone’s dock, you cannot be forcibly kicked off their land.
You can stay on the land until the storm is over, but will have to pay for any shit you break, because private necessity is only “partial privilege”
However, if you are about to save the whole damn town or a large group of people … you can destroy property and be fully immunized and NOT pay ANY damages. It is a COMPLETE defense.
the defensive switcheroo
They will say in the problem SOMEONE RAISED A NEGLIGENCE ONLY DEFENSE … FOR AN INTENTIONAL TORT
They will say that someone pushed someone ON PURPOSE and then they raised the defense of contributory negligence because the other person was acting up or some shit.
There was a problem where a customer at a store was yelling at a cashier and getting in his face then the security guard roundhouse kicked him and did a 12 to 6 elbow smash on his head.
Then, when he got to sue they said he tried to raise the defense of CONTRIBUTORY negligence against the injured plaintiff.
The NCBE will put “traditional rules of contributory negligence apply”
NO THEY FUCKING DONT - WE ARE DEALING WITH AN INTENTIONAL TORT.
They do the same exact shit with negligence and they will list “consent” as a defense to negligence.Consent is not a defense to negligence.
If contributory negligence was a defense to battery I’d be able to beat the shit out of a lot of my haters, because they have truly been acting up lately.
trespass
Trespass can happen through accidentally being on someone’s property or throwing some physical object onto their property like a rock.
You don’t even need to know you are on this person’s property.
So long as you don’t have a seizure and fall onto their land, it’s a trespass. AS LONG AS YOU INTENDED TO BE STANDING IN THAT SPOT, it’s a trespass.
A non-physical invasion does NOT count (light, smell). This would be brought in nuisance action.
greys anatomy
Just be careful with these situations involving doctors.
If you place any condition on your consent before a procedure, and the doctor doesn’t follow it, it is a battery.
If the doctor operates on the wrong part of your body, it’s a battery.
If the doctor goes outside the scope of your consent at all, it’s a battery.
Even if there is no damage (doctor gives you wrong anesthesia during a procedure and you aren’t harmed, it’s a battery).
The doctor is also required to disclose risks and reasonable alternatives of the surgery or it could be a battery.
Basically, the doctor needs to actually do the damn surgery he is allowed to do unless it’s an emergency situation and you are unconscious, then he can batter you to save your life.
