Torts Flashcards
Elements for intentional torts
- Voluntary Act
- Intent
- Causation
- Harm
What is a voluntary act?
Something conscious or willed, as opposed to purely reflective.
What intent is required for a voluntary tort?
Purpose, knowledge, or transferred intent
What is purpose intent?
D desires the act to cause the harmful result
What is knowledge intent?
D knows with substantial certainty that the result will occur
What is transferred intent?
if D acts with necessary intent to inflict certain intentional torts to against A, but causes harm against B, intent is transferred to B.
Which torts does transferred intent apply to?
Battery, assault, false imprisonment, trespass to land, trespass to chattels
What is tort battery?
D intentionally or knowingly causes harmful or offensive contact to the person or something physically closely connected to the person.
P doesn’t need to be aware, doesn’t have to prove actual injury
What is a harmful or offensive contact
Inflicts pain or impairs any function of the body; or offensive to a reasonable person
What is assault in torts?
D intentionally or knowingly causes P to be in reasonable apprehension of an imminent harmful or offensive contact.
Words alone are not enough.
What is reasonable apprehension?
Objective standard - a reasonable person in the same position would have experienced the same apprehension.
Factual impossibility is not a defense - doesn’t matter whether D could actually carry out the threat.
What is the tort of false imprisonment?
D intentionally or knowingly causes P to be confined to a bounded area against P’s will and P knows of the confinement or is injured by it.
What is confinement in a bounded area?
No duration requirement.
No knowledge of a reasonable means of escape - can’t risk harm to P or property or exposure to risk of embarrassment.
What is intentional infliction of emotional distress?
D engages in an intentional or reckless act amounting to extreme and outrageous conduct that causes P severe emotional distress.
What is recklessness?
D knows of a high degree of risk and acts in conscious disregard of it.
What is extreme and outrageous conduct?
Conduct that exceeds all bounds tolerated by civilized society
Is offensive or insulting language considered extreme and outrageous conduct for intentional infliction of emotional distress?
No.
Unless:
- D is a common carrier or innkeeper
- D knows of P’s particular sensitivity
- D is an authority figure using racial/ethnic slurs against a subordinate
What is severe emotional distress?
Greater than the reasonable person would be expected to endure. Objective test.
Does not need to prove physical injury.
Must be substantial/long lasting, not just trivial/transitory.
What is trespass to land?
Intentional or knowing physical invasion of P’s land that interferes with P’s possessory interest in the land.
Mistake is not a defense.
Anyone in possession of the land can bring a claim.
What is physical invasion of land?
Entry or causing someone or something to enter.
Refusal to leave when under a legal duty to do so.
What remedies are available for trespass to land?
Nominal damages, full extend of harm, restitutionary remedy of ejectment
What is trespass to chattels?
D interferes with (uses or borrows without authorization) P’s chattel (personal property) causing damages.
Mistake is not a defense.
Actual damages to chattel or value of loss of use or cost to remedy.
What are the remedies for trespass to chattels?
Cost of repair, fair market rental value, potentially punitive damages if willful, wanton, or malicious conduct.
Replevin - getting back personal property of which you’ve been wrongly dispossessed.
What is the tort of conversion?
Intentional act by D, where D exercises dominion or control that causes the destruction of, or serious and substantial interference with, P’s chattel.
Mistake is not a defense.
What are the remedies for conversion?
Forced sale: price will be the fair market value at the time converted.
Replevin: action brought by P to get personal property back.
D is liable for the full value of the chattel at time of conversion.
What are the defenses to intentional torts?
- Privilege
- Defense of others
- Defense of property
- Consent
- Authority
- Necessity
- Self-Defense
What is defense of others for torts?
Have the right the right to defend others if it reasonably appears they would have the right to defend themselves.
A reasonable and honest mistake is allowed.
When can you defend property?
Can use reasonable force.
Can never use deadly force.
What is recapture of chattels?
Can use reasonable, non deadly force to get back your own personal property if:
- you request it’s return first, or request would be futile. AND
- you’re in hot pursuit.
What is express consent for intentional torts?
Affirmatively communicates permission for D to act.
Limited by reasonability. Cannot exceed scope of consent.
What is implied consent for intentional torts?
A reasonable person would interpret P’s conduct as evidencing permission to act.
Ex: participating in a football game implies consent to battery.
When can mistake/deception negate consent for intentional torts?
when it goes to the consequences or nature of the act, not just a collateral matter.
Who can assert authority as a defense for an intentional tort?
A police officer.
A shopkeeper.
A parent or teacher.
What is the shopkeeper’s privilege?
A shopkeeper is not liable for false imprisonment if he had a reasonable suspicion that P stole.
Can hold P for a reasonable period and in a reasonable manner on the premises or immediate vicinity.
What is the necessity defense to intentional torts?
D is permitted to injure P’s property if it is reasonably necessary to avoid a substantially greater harm to the public, self, or D’s property.
When is private necessity a defense?
If a reasonable person would believe the act taken was necessary to avoid the harm, even if D made an honest mistake.
D is not liable for the tort, but will be liable for the harm caused.
What is self-defense for intentional torts?
When D honestly and reasonably believes D used reasonably force to prevent P from engaging in an imminent and unprivileged attack.
Must respond with proportional force - never use deadly force against a non-deadly threat.
One never has to retreat from their own home.
What are the elements of negligence?
- Duty (Standard of care)
- Breach
- Cause in fact (actual cause)
- Proximate cause
- Damages
What duty does the defendant owe in negligence cases?
D has a duty to act as an ordinary, prudent, reasonable person taking precaution against an unreasonable risk of injury to foreseeable Ps.
Who are foreseeable plaintiffs?
Persons inside the geographic zone of danger at the time of negligence.
Nonprofessional rescuers are always foreseeable Ps.
What is nonfeasance?
Failure to act when a legal duty is owed.
Who has a duty to rescue?
- D tortious act creates the need to rescue.
- A person must act reasonably if they undertake a rescue - can’t leave them worse off.
- a special relationship of dependence or mutual dependence.
When do you have a duty to control a 3rd party?
Not generally, but you do have a duty if you’re in a special relationship that gives the 3rd party a right of protection or imposes a duty to control conduct.
What duty do providers of alcohol have?
Traditionally - no responsibility for DUI injuries
Dram shop acts: impose liability when the establishment knows or should know that a patron is drunk and drives while intoxicated.
What is negligent entrustment?
When D gives something dangerous to someone D knows or should know is not competent to handle it.
When do you have a duty to protect?
When there’s a special relationship.
When does a governmental entity owe a duty?
Depends on function.
- proprietary function (acting in private area): treated like any other D.
- discretionary activity: no duty.
- ministerial function: duty once government has undertaken to act.
What is the public duty doctrine (professional rescuers)?
Professional rescuers have no duty when they fail to provide an adequate response unless:
- special relationship
- the agency has increased the danger beyond what would otherwise exist.
What is negligent infliction of emotional distress?
D engages in negligent conduct, and, as a result, P suffers emotional distress with physical manifestation.
P must be in zone of danger and have physical manifestation, unless:
- negligent mishandling of corpse
- negligent sharing of information about death of loved one.
What are bystander actions?
- P was located near the scene of the accident
- P suffered severe emotional distress
- as a result of an injury to a close relative.
What is wrongful conception?
Birth of a healthy child after the P took steps to avoid conception.
Often a negligently performed sterilization procedure.
What is wrongful birth?
Birth of a child with abnormalities, disease, or disability when the physician negligently failed to diagnose issues during the pregnancy.
P must claim she would have ended the pregnancy had she had the information.
What is wrongful life?
Child’s claim for having been born with abnormalities, disease, or disability because the physician failed to diagnose issues during the pregnancy.
What is an invitee?
P who enters land at D express or implied invitation for a purpose relating to D interest or activities.