Torts Flashcards
Intentional Torts: Prima Facie Case
- Act by D (some volitional movement)
- Intent (may be specific or general)
- Causation (D’s conduct must be a substantial factor in bringing about resulting harm)
Transferred intent doctrine
Arises when D acts with the intent to commit a given tort but:
a) commits orginal tort against a different person than intended,
b) commits a different tort than intended against original person, or
c) commits different tort against different person than intended.
Applies only to: assault, battery, false imprisonment, trespass (to land or chattels)
Assault
1) Act by D that creates a reasonable apprehension in P (“reasonable apprehension” = P has awareness of D’s act and has a reasonable expectation that it will result in immediate harmful or offensive contact to P’s person)
2) Of immediate harmful or offensive contact to P’s person (P must apprehend an immediate or imminent battery, words or threats are usually insufficient, unless coupled with some overt act)
3) Intent
4) Causation
Battery
1) Harmful or offensive contact by D
2) To P’s person
3) Intent
4) Causation (indirect contact is sufficient)
False Imprisonment
1) Act (or omission) resulting in P’s restraint or confinement (does not have to be physical [threats of force, invalid use of legal authority], duration is not important, brief confinement will suffice)
2) P is confined to a bounded area (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)
3) Intent
4) Causation
False Imprisonment: Shopkeeper’s Privilege
A store may detain a suspected thief if:
1) Store has reasonable cause to believe that theft occured;
2) Store detains suspect in a reasonable manner (only non-deadly force permitted) for purposes of investigation; and
3) Detention is reasonbale in length and scope
Shopkeeper may be held liable for any harm caused by acts exceeding the privilege.
Intentional Infliction of Emotional Distress (IIED)
1) Extreme and outrageous conduct by D
» Conduct that exceeds the bounds of decency in society (mere insults alone are insufficient)
» Conduct must be outrageous to a reasonable person unless:
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 (e.g., elderly, children, pregnany women), or
d) D is a common carrier or innkeeper
2) Severe emotional distress in P
» Physical symptoms are not necessary
3) Intent or recklessness
» Recklessness = D disregards the liekly consequences of his acts
4) Causation
IIED: Bystander Claims for Emotional Distress
(IIED Elements: 1) Extreme and outragous conduct by D, 2) Severe emotional distress in P, 3) Intent or recklessness, and 4) Causation)
Additional requirements:
5) P was present at the time,
6) P was a close relative of the third person, or distress resulted in bodily harm, and
7) D knew these facts
Trespass to Land
1) Physical entry of P’s real property by D
»D enters P’s property or propels an object onto it
»P need only have lawful possession of the property - ownership not required
»Must be physical invasion (invasions by light, sound, smell are not trespass)
»P’s real property includes surface space, immediate airspace, and subterranean space to a reasonable distance
2) Intent
»Intent to enter the land will suffice, even if by reasonable mistake (D does not need to know the land belongs to another)
3) Causation
Actual damages not required
Trespass to Chattel & Conversion
Trespass to Chattel:
1) D intentionally interferes with P’s right of possession in tangible personal property
»Interference usually occurs through dispossession
»Minor interference or damage
2) Intent
3) Causation
4) Damages - P must have some loss of use
» P can recover cost of repair or rental value of chattel
Conversion:
1) Significant interference or damage that justifies D paying the chattel’s full value
»A longer and/or more damaging use of P’s chattel gives rise to conversion
4) P can recover full market value at time of conversion or repossess the chattel
Defenses to Intentional Torts
1) Consent
2) Self-Defense, Defense of Others, Defense of Property
3) Necessity
4) Recapture of Chattels
Defenses to Intentional Torts: Consent
A defense to all intentional torts - if P consents to D’s otherwise tortious conduct, D is not liable for that act
»Capacity is required to consent
»Consent may be express or implied
»Scope of consent - D can be held liable for conduct that exceeds the scopt of P’s valid consent
Defenses to Intentional Torts: Self-Defense, Defense of Others, & Defense of Property
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 (Deadly force - allowed if D reasonably believes a life is in danger - never permitted to protect property alone)
Self-Defense:
»No duty to retreat (minority - duty to retreat before using deadly force if retreat can be done safely)
»Only available to intial aggressor if initial threat has terminated or D responds to non-deadly force with deadly force
Defense of others:
»D must have reasonable belief that the person he is aiding would have the right of self-defense
»D may use as much force as he could have used if the injury was threatened to him
Defense of Property:
»Reasonable force may be used, but force that is deadly or causes serious bodily harm is now allowed for defense of property alone
»Unavailable if initial actor had a privilege to enter land
»Reasonable mistake only allowed as to whether an intrusion occurred, not whehter privilege existed
Defenses to Intentional Torts: Necessity
Requirements:
1) D’s interference with P’s property must be reasonbly necessary to avoid an immediate threatened injury
2) Threatened injury must be more serious than the interference undertaken to avert it
Public necessity - absolute defense
»D’s invasion of P’s property msut be reasonably necessary to protect the community or a large group of people
»P cannot recover any damages
Private necessity - limited defense
»D invades P’s property to protect his own property or self or small group
»P can usually recover damages for actual harm to D’s property, unless D trespassed for P’s benefit
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 storm), owner will be liable for any damage cuased
Defenses to Intentional Torts: 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
»Also a defense to assault and battery and false imprisonment
Limitations & Requirements:
»D-owner must make a timely demand for return of chattel (Exception - not required if making demand would be futile or dangerous)
»D-owner may recapture from original wrongdoer or a third person who knows the chattel was wrongfully obtained (recapture is not available if chattel is in the hands of an innocent party)
Use of Force:
»Reasonable foce may be used to recapture chattel only if in fresh pursuit of one who has wronguflly obtained possession
»No deadly force or serious bodily harm permitted
Defamation
Common law elements:
1) A false (constitutional rules impact whether P has burden to prove falsity or D has burden to prove truth)
2) Defamatory statement (adversely affects P’s reputation - must be based on specific facts)
3) Concerning P (must be reasonably understood that the statement concerns a living P or a very small group of P’s)
4) Publication (statement must be intentionally or negligently made to a third person)
5) Harmful to P’s reputation
Liability for republication - the republisher of a defamatory statement is libale to the same extent as the original publisher
Damages - P’s burden of proving damages relies on the type of plaintiff, if the statement is a maetter of public concern, or if it is slander per se
»Truth is a complete defense
»No requirement at common law for P to prove fault
Defamation: Constitutional Considerations
1st Amendment considerations arise when defamation invovles a public figure, public official, and/or a matter of public concern.
Public figures/Public officials:
»public figure = one who has pervasive fame or notoriety, or who voluntarily assumes a central role in a public matter
»public official = public office holder
Additional Elements:
1) Fault - P must prove D was at Fault
»Standards differ for public vs. private figures:
»»Public official or figure - actual malice standard (knowledge of the statement’s falsity or reckless disregard to whether it was false)
»»Private figure - negligence standard
2) Falsity
»Public officials and public figures must prove falsity
»Private figures must prove falsity only if speech pertains to matter of public concern
»If private figure/private speech, states may require D to prove truth
Defamation: Damages Considerations
Damages depend on the type of plaintiff, content, and whether the defamatory statement constitutes libel, slander, or slander per se.
Libel - a written defamatory statement
»Public figures and public officials who prove “actual malice” may recover “presumed damages” for reputational harm without any proof
»Private figures who prove negligence may recover “presumed damages” only if the speech related to a matter of private concern
»If public concern, private figures may recover only proved actual damages
NOTE: TV and radio broadcasts are considered libel
Slander - a spoken defamatory statement
»P must prove “special damages” unless the statement constitutes slander per se
»special damages = a specific economic loss
»Slander per se - a defamatory statement that either:
»»a) Adversely reflects on P’s business or professional reputation,
»»b) CLaims that P has a loathsome disease,
»»c) CLaims that P committed a crime or moral turpitude, or
»»d) Imputes a woman’s chastity
Defenses to Defamation
Consent, truth, and privilege may be valid defenses to defamation.
Consent - P consents to one or more required elements (e.g., P may consent to an organization investigating her and sharnig its findings with potential employers)
Truth - allegedly defamatory statement is true
»Truth is a complete defense to a defamation claim
Privilege - certain types of statements are privileged
»Absolute privilege - protects statements by govt. officials in their official capacity
»Qualified privilege - D’s liability for defamatory statements is limited where:
»»D invites the statemetn and/or recipient has an interest (e.g., employment reference, credit report, letter of recommendation)
»»Statement is in the public interest (e.g., book reviews, statement to a parole board)