Torts Flashcards
What are the elements of the tort of battery?
i. Defendant commits harmful or offensive contact ii. With Plaintiff’s person
What type of contact is considered “offensive” within the tort of battery?
“Offensive” if normal person wouldn’t permit it.
Do sensitivities matter when considering whether the contact is “offensive” within the tort of battery?
Ignore sensitivities, unless the sensitive person makes the sensitivity known.
Can a D commit a battery without touching the P’s body?
Yes. Contact with the Plaintiff’s person includes the person and anything that the person is holding.
What are the elements of the tort of assault?
i. D places P in reasonable apprehension ii. Of an immediate battery
Does the “apprehension” necessary for the tort of assault require that P feel nervous or apprehensive?
No. assault doesn’t require that P experience any particular emotion. Rather, P must merely have knowledge of the immediate battery.
T or F: P wasn’t sure whether the gun that D pointed at him was loaded or not. Therefore, D cannot have committed an Assault.
F. P need not have definitive knowledge of an immediate battery. depends on what Plaintiff knows or reasonably believes that gun loaded (and it usually is);
D calmly told P that D is about to punch him. Did D commit an assault?
No. The battery isn’t considered immediate because D’s words were negated by his tone of voice. For the apprehension of the battery to be “immediate” the battery needs to be accompanied by a menacing gesture.
Smiling while handing P a bouquet of roses, D says, “I’m going to kill you!” Did D commit an assault?
No. D’s actions negated D’s words.
As D walks out the door, he turns to P and says, “When I get back from to the gun shop with bullets, I’m going to shoot you.” Did D commit an assault?
No. P’s apprehension isn’t of an immediate battery.
What are the elements of the tort of false imprisonment?
i. D commits act of restraint that ii. Confines P in a bounded area
Can threats be considered sufficient acts of restraint?
Yes. Threats are sufficient acts of restraint if the person reasonably believes that it’s a threat.
Flight attendants for get to take a woman in a wheelchair off of the airplane. Have they committed an “act of restraint” for the tort of false imprisonment?
Yes. An omission that can be an act of restraint provided there’s a preexisting duty between the persons.
Must the plaintiff be harmed by the act in order for the defendant to have committed the tort of false imprisonment?
No. Even if the plaintiff merely knows of the confinement but is not harmed by it, the act can be considered an act of restraint.
One man tells another man that if he leaves central park he will kill him. Did the man commit the tort of false imprisonment?
Yes. T confined P in a bounded area. An area is considered abounded even if it is not marked by fences or walls.
D confines P in a basement. The only way out is a sewer tunnel. Did D T commit the tort of false imprisonment?
Yes. While P is not considered bounded if there is a reasonable means of escape that P can reasonably discover, if the only way out is harmful, humiliating, dangerous, or disgusting, it’s not a reasonable means of escape.
D’s butler puts P in D’s study and locks the door. The only way out is by pulling on a book on the bookshelf to reveal a hidden exit. Did D’s butler commit the tort of false imprisonment?
Yes. P is not confined in a bounded area if P can reasonably discover a means of escape. If the escape is hidden, it’s not reasonably discoverable.
What are the elements of the tort of intentional infliction of emotional distress?
i. D engages in outrageous conduct ii. P suffers severe emotional distress
What type of conduct is considered “outrageous” within the tort of intentional infliction of emotional distress?
Conduct is outrageous if it exceeds all bounds of decency tolerated in a civilized society.
Even if not meeting this standard, it may become “outrageous” if
- Conduct is repetitive
- D is common carrier (transportation company) or innkeeper (hotel)
- P is member of a fragile class of persons
- Children
- Extremely elderly
- Pregnant woman
Can mere insults be considered outrageous “outrageous” within the tort of intentional infliction of emotional distress?
Mere insults aren’t outrageous. Insults together with other behavior can be outrageous.
P has a severe emotional reaction when placed near cats. P makes his sensitivity known to his coworkers. D brings in a selection of the kittens that were born to his cat recently; they are extremely cute. D places the litter on P’s desk. Did D commit an outrageous act within the tort of intentional infliction of emotional distress?
Yes. Deliberately targeting known emotional sensitivity is outrageous.
During trial for the tort of intentional infliction of emotional distress P doesn’t prove that he developed any physical symptoms, missed work, is on medication, etc. Can P prevail?
Yes. No specific evidentiary showing needs to be made. Don’t need to show that developed physical systems, missed work, saw doctor, or on medication.
What are the elements of trespass to land?
- D commits act of physical invasion
- which interferes with P’s exclusive possession of the land.
What are the two ways of committing an act of physical invasion within the tort of trespass to land?
i. Method 1—D enters on the property. ii. Method 2—Propelling something physical onto the land. Causing loud noises, bad smells, bright lights—none are trespasses
P sues D trespass to land and proves all of the elements. D raises as an affirmative defense that he entered P’s Land accidentally. Who prevails?
P. A mistaken entry is not a defense—D doesn’t need to know that he has entered the property. If get lost, still commit tort.
P sues D trespass to land and proves all of the elements. D raises as an affirmative defense that he entered P’s Land after being kidnapped. Who prevails?
D because he was brought there against his will.
P is the owner of Rental Property. D breaks into P’s property while X and Y are renting P’s Property. P sues D for trespass to land. Who prevails?
D because cause of action belongs to possessor, not owner.
Little Johnny is throwing a ball across P’s yard. The ball crosses the airspace of P’s yard but does not actually land in P’s yard. P sues little Johnny. Who prevails?
P does. Interest in land trespassed includes a reasonable distance into air above and soil below the land. Little Johnny’s status as a minor is not a defense. Also, there are no incapacity defenses in intentional torts. Therefore, any person that lacks legal capacity can commit a tort.
What is the definition of trespass to chattels?
Interference with personal property.
What is the difference in definition between trespass to chattels and conversion?
If it’s relatively minor interference, use chattels. E.g., “keying” someone’s car. Conversion E.g., smashing windows, pulling off fender of someone’s car.
What is the definition of conversion?
Interference with personal property.
Which would a P rather prove: conversion or trespass to chattels?
Conversion b/c Ps get full market value of item, rather than just repair or rental value that they would with trespass to chattels. It’s in essence a forced sale.
Can someone without legal capacity give consent?
No. Unlike the ability to commit a tort, which doesn’t require legal capacity, the ability to consent requires legal capacity.
Two 11 y/o boys are wrestling. In the normal course of playing, one boy breaks the other’s arm and is sued for battery. Who wins and why?
D wins because P consented.
Rule: Developmentally disabled and children can consent if understand and appreciate what consenting to. Child can agree to developmentally appropriate consents.
P signs consent form allowing Dr. X to perform surgery on P’s foot. P has never met Dr. X. Person Y, who is a resident and not a doctor, performs the surgery on P’s foot but during the surgery also notices serious abnormalities with P’s hip. Wishing to save P the trouble of having another surgery, Y operates on both P’s hip and foot. P sues Y for battery. Y raises consent as a defense. Who prevails and why?
P prevails. Y exceeds the scope of P’s consent both in terms of Y’s performing the surgery rather than Dr. X and because consent to operate on one part of body isn’t consent to operate on another unless the parts are adjacent.
What are two methods of implied consent?
a. Usage or custom—place is where certain invasions are normal. E.g., sitting in barber’s chair without saying, “Cut my hair.” E.g., playing sports. b. D’s reasonable interpretation of P’s objective conduct and surrounding circumstances (“body language consent”)
What are the three protected privileges?
Self-Defense, Defense of Others, Defense of Property
How long after being threatened can a person respond with one of the protected privileges?
may respond to a threat only when a threat is imminent or in progress. Cannot act after threat is done with. No revenge.
D is standing at an airplane baggage claim. D scrupulously labeled his bag with a ribbon. D sees that P has taken his bag and is walking out with it. D runs after P and grabs his bag from P. D sues P for battery. Can D assert any defense ?
D has the protected privilege of defense of property. D reasonably believes that the threat to his property is genuine. D’s reasonable mistake doesn’t prevent him from successfully asserting the defense. If
P approaches D angrily and begins to swing his fists. D pulls out a knife and stabbed P. In P’s suit for battery, D asserts Self-Defense. Who prevails?
P prevails. Response is no more than necessary. Proportional force. If approached with deadly force, can respond with deadly force.
Deadly force is acceptable for defense of property when the property is being threatened. True or false?
False.
D, who is not a firefighter, runs to the scene of a fire at P’s house that is threatening a row of houses on P’s block. D takes a stone and breaks the window near the door of P’s house to unlock the door. The stone also strikes P’s child, breaking his arm. D puts out the fire. P sues D for trespass to chattels for breaking the window and for negligence for breaking P’s child’s arm. Can the defense the D raises prevail on both counts?
D prevails with Public Necessity on trespass to chattels but that defense is not available for negligence. To improve public necessity as a defense, P must invade if D’s property in an emergency to protect the community as a whole or a significant group of people. The necessity defenses only apply to property torts.
Dave is hiking in MN in Jan. Blizzard. Sees farmhouse. Knocks on door. No one answers. Breaks window. Farmer sues D for trespass to chattels for three times the value of the window. Who prevails? If famer kicks D out of P’s house and D sues P when suffers frostbite, who would prevail?
D asserts the defense of Private Necessity. As D invades P’s property in an emergency to protect interest of his own, D prevails. And however, it’s a limited defense. D must pay actual damages to property (compensatory damages). Not liable for nominal or punitive damages. D must pay for window. If farmer kicks D out of P’s house and D sues P when suffers frostbite, hiker would prevail.
What are the elements of defamation?
- Publication
- of a defamatory statement
- about or concerning P that
- causes damage to P’s reputation
Truth is a defense; falsehood needn’t be alleged unless it’s a matter of public concern, in which case P must also allege
- falsity; and
- fault
Is mere name calling defamatory?
Mere name calling isn’t defamatory. Need an allegation of factual representation that affects negatively on trait of character (honesty, competency, loyalty, morality). “Defamatory” when adversely affects reputation.
