Torts Flashcards
Prima Facie Case for Intentional Torts
(1) Act by D - some volitional movement
(2) Intent - specific or general
(3) Causation - substantial factor bringing about resulting harm
(4) Damages - compensatory (punitive available if malice)
Transferred Intent Doctrine
arises when D acts with the intent to commit a given tort (assault, battery, false imprisonment, trespass) but:
(1) different person same tort
(2) same person different tort
(3) different person different tort
D’s original intent transfers to the tort actually committed and/or person actually harmed resulting in D’s liability.
Assault
An intentional act by D creating P’s rxnable apprehension of immediate harmful or offensive contact to P’s person, or something closely attached to P’s person (e.g. hat/bag/cane)
Elements:
(1) Act by D that creates reasonable apprehension in P
(2) Of immediate harmful or offensive conduct to P’s person
(3) Intent
(4) Causation
Reasonable Apprehension (Assault)
P has an awareness of D’s act and has a reasonable expectation that it will result in immediate harmful or offensive conduct to P’s person
Beware fact patterns where D appears incapable of accomplishing the threatened harm - Apparent ability is sufficient as long as it could reasonably create P’s apprehension.
Immediate Harmful or Offensive Contact (Assault)
P must apprehend an immediate or imminent battery
Words or threats are usually insufficient, unless coupled with an overt act (e.g. picking up a weapon, clenching fist)
Threats of future battery are insufficient
Battery
An intentional harmful or offensive contact to P’s person by D.
Elements:
(1) Harmful or offensive contact (causes pain/injury/etc) - considered offensive by a reasonable person and P has not consented
(2) To P’s person (including attachments)
(3) Intent
(4) Causation (indirect contact is sufficient i.e. greasing a floor)
False Imprisonment
An intentional act by D resulting in P’s restraint or confinement to a bounded area
Elements:
(1) Act or commission resulting in P’s restraint or confinement
-does not have to be physical
-duration not important
(2) P is confined to a bounded area (P’s freedom of movement is limited)
- P must be aware of or harmed by confinement
- P must not be aware of any rxnable means of escape
- if rxnable person could escape then its NOT false imprisonment
(3) Intent
(4) Causation
Shopkeeper’s Privilege
a store may detain a suspected thief IF:
(1) Store has rxnable cause to believe a theft occurred;
(2) Store detains suspect in a rxnable manner (non-deadly force) for purposes of investigation; and
(3) Detention is rxnable in length and scope
IIED
Extreme and Outrageous conduct by D causing P’s severe emotional distress
Elements:
(1) Extreme and Outrageous conduct by D
- Exceeds the bonds of decency in society
- MUST BE outrageous to a rxn person UNLESS:
(a) D targets P’s known weakness
(b) D’s conduct is continuous/repetitive
(c) D targets a P who is a member of fragile class (i.e. young/old, pregnant)
(d) D is a common carrier/innkeeper
(2) Several Emotional Distress in P
- P must suffer
- Physical symptoms not required
(3) Intent OR RECKLESSNESS (i.e. disregard of likely consequences)
(4) Causation
IIED - Bystander
When a D’s conduct is directed at a third person and P (the bystander) suffers severe emotional distress, P must prove the same IIEd elements with the additional intent and causation requirements
Bystander req:
(1) P was present
(2) P was a close relative of TP, or distress resulted in bodily harm; and
(3) D knew these facts
Trespass to Land
A physical entry of P’s real property by D without consent
Elements:
(1) Physical entry of P’s real property by D
- Enters or propel’s object onto
- P lawful possession (not only ownership)
- PHYSICAL does not mean light/smell/sound
- Includes surface and reasonable air/ground
(2) Intent
- intent to enter even if by reasonable mistake
- Does not need to know it belongs to another
(3) Causation
Actual damages not required
Trespass to Chattel & Conversion
Two separate but similar torts; the difference is the level of interference with P’s property and the damages P can recover
Elements
(1) D intentionally interferes wit P’s right to possession in tangible personal property
- interference usually = dispossession or damaging chattel
- trespass = minor interference or damage
- conversion = significant interference or damage that justifies full value
(2) Intent
(3) Causation
(4) Damages
Trespass - cost of repair or rental value
Conversion - P can recover full market value at time of conversion or repossess (replevin)
Consent
A defense to all intentional torts. If P consents to D’s otherwise tortious conduct, D is not liable
P must be capable of consenting (drunks/mentally impaired/young children incapable)
D can be held liable for conduct that exceeds scope of P’s valid consent
Express Consent
P gives D verbal or written consent
Nullified by duress, fraud, or mistake
Implied Consent
D can reasonably infer P’s consent based on custom or P’s observable conduct
(1) often arises in P participates in an activity or goes to a place where torts are common (e.g. tackle football)
(2) Consent is usually implied for ordinary contacts of daily life (e.g. brushing against someone on crowded street)
(3) Facts must indicate that based on P’s objective conduct, D was reasonable in interpreting P’s consent.
Requirements for all Defenses
(1) Reasonable belief - D must reasonably believe a tort is being or about to be committed
(2) Proper timing - tort must be in progress or imminent
(3) Reasonable force - must be proportionate to threat of harm (i.e. Deadly force allowed if D reasonably believes a life is in danger but not to protect property)
Self Defense
No duty to retreat (except minority that impose if it can be done safely)
Only available to initial aggressor if initial threat has terminated or D responds to non-deadly force with deadly force
Defense of others
D must have a rxnable belief that the person he is aiding would have the right of self-defense
D may use as much as force as he could have used if the injury was threatened to him (i.e. self defense)
Defense of property
Available to prevent tort against property
Reasonable force may be used but force that is deadly or causes serious harm is not allowed
Unavailable if initial actor had privilege to enter land (e.g. recapturing chattel)
Reasonable mistake only allowed as to whether an intrusion occurred, not whether privilege existed.
Necessity
a defense to torts against property in which D damages P’s property in an effort to avoid greater danger
Requirements
(1) D’s interference with P’s property must be reasonably necessary to avoid an immediate threatened injury
(2) Threatened injury must be more serious than the interference undertake to avert it
Public Necessity
Absolute defense (P cannot recover damages)
D’s invasion of P’s property must be reasonably necessary to protect the community or a large group
Private Necessity
Limited defense (P can only recover damages for actual harm to P’s property, unless D trespassed for P’s benefit)
D invades P’s property to protect his own or self or small group
Property Owner Liability
if an owner repels or expels a trespasser who interfered with or invaded owner’s property out of a valid necessity (e.g. P seeks shelter from terrible store), owner will be liable for any damage caused
Recapture of Chattels
D has a legal privilege to use peaceful means to recover possession of chattel taken unlawfully, and to use reasonable non-deadly force if in fresh pursuit of the chattel taker (defense to assault and battery and FI)
Limitations/Requirements:
(1) D owner must make a timely demand for return of chattel (unless futile/dangerous)
(2) D owner may recapture from original wrongdoer or a third party who knows the chattel was wrongfully obtained
(3) Recapture not available if in the hands of an innocent party
NO DEADLY FORCE
Defamation
a false statement concerning P, made by D to at least one person other than P, that is harmful to P’s reputation
Elements:
(1) Falsity (not true)
(2) Defamatory statement (hurts P’s rep)
(3) Concerning P (reasonably understood to concern P)
(4) Publication (made intentionally or negligently to a third person)
(5) Harmful to P’s rep
Liability for reproduction of a defamatory statement
republisher is liable to the same extent as original
ISPs are not liable
Defamation Damages
P’s burden of proving damages relies on the type of plaintiff, if statement is a matter of public concern or if it is standard per see
Truth is a complete defense
No requirement at common law for P to prove fault
Constitutional Considerations for Defamation
When defamation concerns a public figure, public official and/or matter of public consent
Public Figure = pervasive fame or notoriety or who assumes voluntarily a central role in a public matter
Public Official = public officer holder
Additional Elements:
(1) P must prove D was at fault
- for Public Figure/Official = actual malice standard (knowledge or reckless disregard)
- private figure - negligence standard
(2) Falsity
- Public officials/figres must prove the falsity
- Private figures must prove falsity only if speech pertains to a matter of public concern
- otherwise D must prove truth
Defamation - Damages Considerations
Damages depend on the type of plaintiff, content, and whether the statement constitutes libel, slander or slander per se
Libel
A written defamatory statement
(1) Public figures and officials who prove actual malice may recover presumed damages for reputational harm without any proof
(2) Private figures who prove negligence may recover presumed damages only if the speech relates to a matter of private concern (otherwise only proved actual damages)
TV/radio considered libel
Slander
A spoken, defamatory statement
(1) P must prove “special damages” unless the state constitutes slander per se
Special damages = specific economic loss
Slander Per Se - defamatory statement that either:
(1) adversely reflects on P’s business/professional rep
(2) Claims P has loathsome disease
(3) Claims P committed a crime of moral turpitude, or
(4) Imputes P’s chastity
Defenses to Defamation
Consent, truth, and privilege may be valid
Consent - P consents to one or more required elements
Truth - allegedly defamatory statements are true
Privilege - certain types of statements are privileged
(1) Absolute - protects statements by govt. officials in their official capacity
(2) Qualified - D’s liability for defamatory statements is limited where: (1) D invites statement and/or recipient has an interest (i.e. letter of rec); (2) Statement is in the public interest
Appropriation
use of P’s name or likeness for commercial purposes (e.g. promotion or advertisement) without P’s consent
Newsworthiness exception allows for P’s name and likeness to be used for the purpose of reporting news
False Light
widespread publication of a falsehood or material misrepresentation about P that would be highly offensive to a reasonable person
Includes mischaracterization of P’s views/conduct
Actual malice for matters of public concern
No newsworthiness exception
Appropriation & False Light Defenses
Consent
Privilege (false light)
Truth is NOT a valid defense to invasion of privacy claims
Intrusion Upon Seclusion
intrusion upon P’s private affairs in a manner that would be highly offensive to a reasonable person
Requirements
(1) P must have a rxnable expectation of privacy
(2) Intrusion must be highly offensive (e.g. peeping, eavesdropping, hidden camera on P’s domain)
No newsworthiness exception
Consent/Privilege valid defenses
Disclosure
public disclosure of P’s private information
Requirements:
(1) Highly offensive to a rxnable person
(2) Publicized
No liability if private facts are newsworthy
Consent/Privilege valid defenses
Malicious Prosecution
D initiates a frivolous charge or claim against P with an improper purpose (e.g. filing false police report)
Elements:
(1) D commences a prior criminal or civil legal proceeding against P (prosecutors are immune)
(2) Prior proceeding terminated in P’s favor
(3) No probable cause for the original proceeding (i.e D knew P was not guilty or liable or had insufficient facts to reasonably believe in P’s guilt)
(4) D had an improper purpose for initiating the proceeding
(5) Damages
Intentional Misrepresentation (Fraud, Deceit)
Elements:
(1) D misreps a past or present material fact
(2) D knows or believes the misrep is false
(3) D intends to induce P to act or refrain in reliance on the misrep
(4) Actual reliance by P (causation)
(5) Justifiable reliance by P
(6) Damages
Abuse of Process
D uses the legal system as an ulterior purpose to threaten or act against P
Elements
(1) Wrongful use of process for ulterior purpose
(2) Definite act or threat against P to accomplish an ulterior purpose
Negligent Misrepresentation
Elements:
(1) D misrepresents a past or present material fact in a business or professional setting
(2) Breach of duty of care owed to a particular P (i.e., D knew P could rely on the misrepresentation)
(3) Actual or justifiable reliance by P
(4) Damages - monetary.
