Torts 2 Flashcards
what is the definition of an act?
volitional movement by defendant
What is intent?
person has intent if they desire to produce the legally forbidden consequence or they know the consequence is certain to result
o General: the actor knows with a substantial certainty the consequences will result.
o Specific: Purpose in acting is to bring about specific consequences.
What is causation?
Defendant’s conduct was a substantial factor in bringing about the injury.
What is transferred intent?
• Intent to commit a certain tort against one person is transferred to the tort actually committed or to the person actually injured for purposes of establishing a prima facie case.
Limitations on the use of Transferred Intent
o Assault o Battery o False Imprisonment o Trespass to land; or o Trespass to Chattels
Non-Defenses to Intentional Torts
- Mistake of Identity
- Insanity
- Minors
Battery
o Harmful or offensive contact Unpermitted by persons with normal sensitivity);
o To Plaintiff’s person
o With intent and
o Causation
Assault
o An act by defendant creating a reasonable apprehension in plaintiff;
o Of immediate harmful or offensive contact (battery) to plaintiff’s person;
o Intent; and
o Causation
False Imprisonment
o An act or omission on the part of defendant that confines or restrains plaintiff to a bounded area;
o Intent; and
o Causation
Intentional Infliction of Emotional Distress
o Intentional or Reckless Conduct
o That is extreme or outrageous
o That causes the plaintiff severe emotional distress
MD distinction for IIED
Special Relationship Situations
Misconduct stemming from counseling must arise out of an officially sanctioned treatment relationship in order to be classified as extreme and outrageous.
Extreme and Outrageous Conduct
Conduct that transcends all bounds of decency.
Conduct that is not normally outrageous may become so if:
It is continuous in nature;
It is directed toward a certain type of plaintiff (children, elderly persons, pregnant women, supersensitive adults if the sensitive adults if the sensitivities are known to the defendant); or
It is committed by a certain type of defendant (common carriers or innkeepers may be liable even for mere “gross insults.”
Causation in Bystander Cases
Defendant intentionally causes physical harm to a third person and Plaintiff suffers severe emotional distress because of it, the Plaintiff may recover by showing either the prima facie case elements above or that:
• (1) she was present when the injury occurred
• (2) she is a close relative of the injured person, and
• (3) the defendant knew facts (1) and (2).
Trespass to Land
(1) Physical Invasion of Plaintiff’s real property; (by person or object)
(2) with Intent; and
(3) Causation
Trespass to Chattels
Trespass to Chattels is the intentional interference with another’s possessory interest in a chattel, resulting in damage to that interest.
MD distinction to trespass to Chattels:
Property owners have a common law privilege to detain a person in order to prevent theft or to recapture property. Where an owner is mistaken, the fact that the owner had probable cause is not a defense.
Conversion
o (1) Intent (to do the act that interferes with the plaintiff’s right of possession.
o (2) An act by defendant that interferes with Plaintiff’s right of possession in a chattel;
o (3) The interference is so serious that it warrants requiring defendant to pay the chattel’s full value.
o (4) Causation
MD distinction for Conversion:
Generally, an intangible property interest is not subject to conversion unless the interest is merged into a tangible document (stock certificate) over which the defendant has exercised control. An intangible property interest can be converted where the interest constitutes specific segregated or identifiable funds. (a $100 dividend payment)
Remedy for Conversion
• P may recover damages (FMV @time of conversion) or replevin.
MD distinction for remedy for Conversion
Replevin action is limited to a prejudgment seizure of the property. Where the property cannot be seized before trial and the plaintiff desires return of the property rather than damages, he must bring a detinue action
What are the defenses to intentional torts?
- Consent
- Self-defense
- Defense of others
- Defense of Property
- Re-entry onto land
- Recapture of Chattels
- Privilege of Arrest
- Shopkeeper’s Privilege
- Necessity
10, Discipline
Consent
P’s consent to D’s conduct is a defense, but the majority view is that one CANNOT consent to a criminal act.
Consent may be:
- Express
- Implied/Apparent
- Consent implied by law
Express Consent:
express consent to defendant’s conduct
Exceptions to Express consent
o (1) Mistake will undo express consent if defendant knew of and took advantage of the mistake,
o (2) consent induced by fraud will be invalidated if it goes to an essential matter, but not a collateral matter; and
o (3) consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation.
Implied or apparent consent
reasonable person would infer from custom and usage or plaintiff’s conduct (normal contact, contact sports, etc.)
Consent implied by law
Arises when action is necessary to save a person’s life or some other important interest in person or property.
MD Distinction to consent:
MD requires a medical malpractice claim based on the lack of informed consent to be pled as negligence rather than an assault or battery.
A parent may not consent to tortious conduct that is harmful to the child.
Self-defense:
Defense may be used when a person REASONABLY believes that she is being or is about to be attacked, she may use such force as is reasonably necessary to protect against injury.
Majority Rule of retreat in self-defense:
No duty to retreat
• Self Defense is NOT available to initial aggressor UNLESS
the other party responds to the aggressor’s non-deadly force by using deadly force.
MD distinction Rule of retreat in self-defense:
Modern Rule: Duty to retreat before using deadly force, however, there is no duty to retreat in one’s own home.
Defense of Others:
GR: One may use force to defend another when the actor REASONABLY believes that the other person could have used force to defend himself.
Defense of Property
GR: One may use reasonable force to prevent the commission of a tort against her real or personal property.
• Request to desist or leave must first be made unless it clearly would be futile or dangerous
Re-entry onto land- Common law rule and modern law
o Common Law: one could use force to reenter land only when the other came into possession tortiously.
o Modern Law: summary procedures such as ejectment for recovering possession of real property. (self-help no longer allowed)
Recapture of Chattels: Lawful possession and unlawful possession
o Lawful possession: When another’s possession began lawfully, one may use only peaceful means to recover chattel.
o Unlawful possession: Force may be used to recapture a chattel ONLY hen in hot pursuit of one who has obtained possession wrongfully. (theft)
Entry onto land to remove Chattel on wrongdoer’s land:
Owner privileged to enter onto the land and reclaim them at a reasonable time and in a reasonable manner after first making a demand for their return.
Entry onto land to remove Chattel on land of an innocent party:
Owner may enter and reclaim them at a reasonable time and in a peaceful manner when the landowner has been given notice of the presence of the chattel and refuses to return it.
• Chattel owner will be liable for any actual damage caused by the entry.
Entry onto land to remove Chattel on land through Owner’s Fault:
If chattels are on land of another through the owner’s fault there is no privilege to enter onto the land.
• Must recover through legal process.
Privilege of Arrest
Invasion of Land: Privileged to enter another’s land for the purpose of effectuating the arrest.
Felony Officer Arrest without a warrant:
The officer must reasonably believe that a felony has been committed and that the person he arrests has committed it.
Force: Reasonably necessary to make the arrest/ deadly force when the suspect poses a threat of SERIOUS HARM!
Felony Citizen Arrest without a warrant:
Felony must have been committed and the citizen must reasonably believe that the person he arrests has committed it.
Force: reasonably necessary to make the arrest/ deadly force only when the suspect poses a threat of SERIOUS HARM!
Misdemeanor Arrest without a warrant:
Misdemeanor must be a breach of peace and committed in the arresting party’s presence.
Force: reasonably necessary to make the arrest/ NEVER DEADLY FORCE!
Shopkeeper’s Privilege
o GR: Shopkeeper has a privilege to detain a suspected shoplifter for investigation. For privilege to apply, the following conditions must be satisfied:
• (1) There must be a reasonable belief as to the fact of theft,
• (2) The detention must be conducted in a reasonable manner and only NON-DEADLY FORCE can be used;
• (3) the detention must be only for a reasonable period f time and only for the purpose of making an investigation.
Necessity Defense:
Privilege exists if it is necessary to invade the interests of the plaintiff in order to prevent greater harm. Can be exercised by ANYONE. If there is a mistake, then behavior must be reasonably necessary.
What are the two types of Necessity?
Public: when the act is for the public good
• Damages: Complete defense (not liable for anything)
Private: when act is solely to benefit a limited number of people.
• Damages: Actor must pay for any injury he causes (unless it was to benefit the property owner)
Discipline as a defense:
A parent or teacher may use reasonable force in disciplining children
