Torts Flashcards
Intentional Torts
- Battery
- Assault
- False Imprisonment
- Intentional Infliction of Emotional Distress
- Trespass to Lands
- Trespass to Chattels
- Conversion
Battery
- Harmful or Offensive Contact
- to Plaintiff’s person
- Intent; and
- Causation
Damages not Required
Assault
- D must place the P in a reasonable apprehension
- That apprehension must be of an immediate harmful or offensive contact
- Intent; and
- Causation
Damages not Required
False Imprisonment
- D must commit an act of restraint
- P is confined in a bounded area
- Intent; and
- Causation
Damages not Required
An act of restraint
- Restraint can be physical, but threats are sufficient - that would operate on the mind of an ordinary person
- An omission can be an act of restraint - Only true if there was a pre-existing duty owed by the P
- An act of restraint only counts if the P is aware of it or harmed by it
An area is not bounded if:
There is a reasonable means of escape the P can reasonably discover
- moral pressure and future threats are insufficient
- If the only way out is dangerous, disgusting or humiliating - it is not a reasonable means
- If it is hidden - it is not reasonably discoverable
Awareness of Confinement
P must know of the confinement or be harmed by it
Intentional Infliction of Emotional Distress (IIED)
- Extreme & Outrageous Conduct
- Intent or Recklessness
- Causation; and
- Damages - Severe Emotional Distress
This is a fall back tort, find another one before using this alternative
Factors that lead to Outrageousness
- Conduct is repetitive in nature
- Ex: abusive debt collection practices repeated daily
- D is a common carrier (airline) or innkeeper (hotel)
- These types of businesses are held to a hire standard of courtesy to their customer
- P is a member of a fragile class of persons
- If D had prior knowledge of a particular emotional sensitivity by the P, exploiting that is outrageous (it is outrageous to push somebody’s buttons)
Exception to when an insult would be enough to be outrageous:
P is a member of a fragile class of persons
- Insults are outrageous to these classes (pick on someone your own size)
Fragile Classes of Persons
- Young children
- Elderly
- Pregnant women
- You would have to know the woman is pregnant
Requisite Intent for IIED
Recklessness is sufficient
Proof of Severe Distress
- No specific evidence required
- P can prove however he wants
- Do not have to prove specific symptoms
Causation in Bystander Cases for IIED
When the D intentionally causes physical harm to a 3rd person and the P suffers sever emotional distress because of it, the P may recover by showing either the PFC for emotional distress or that:
- she was present when the injury occured
- she is a close relative of the injured person, and
- the D knew the facts of 1 and 2.
Damages for IIED
- IIED is the only intentional tort where damages is required
- Actual damages (severe emotional distress), not nominal, are required
- Proof of physical injury is not required
- the more the outrageous conduct, the less proof of damages is required
Privacy COAs
- Appropriation of Ps Picture or Name
- Intrusion on Ps Affairs or Seclusion
- Publication of Facts Placing P in False Light
- Public Disclosure of Private Facts About P
The Extent of the Right of Privacy
- right of privacy is a personal right and does not extend to members of a family
- does not survive after the death of the P
- not assignable
- not applicable to corporation
Privacy COA Defenses
- Consent
- Express
- Or implied
- Absolute and qualified privilege defeat:
- False light
- And disclosur
Intentional Misrepresentation COA
- Misrepresentation of a material past or present fact
- Scienter - she knew or believed it was false or that there was no basis for the statement
- Intent to induce P to act or refrain from acting in reliance upon misrepresentation
- Causation (actual reliance)
- Justifiable Reliance; and
- Damages (P must suffer actual pecuniary loss)
When there a General Duty to Disclose Material Fact under Intentional Misrepresentation?
- D stands in a fiduciary relationship to the P
- D is selling property to P and knows that the P is unaware of, or cannot reasonably discover, material info about the transaction; or
- D has spoken and her utternance decieves the P
Physical concealment of a material fact may also constitute a misrepresentation.
Negligent Misrepresentation PFC
- Misrepresentation by D in a business or professional capacity
- Breach of duty owed toward the P
- Causation
- Justifiable reliance; and
- Damages
This is usually made in the commercial setting
Negligent Infliction of Emotional Distress (NIED)
- Negligent D who does not inflict bodily trauma on P, but leaves P with emotional trauma
- Need two tiers of analysis:
- Establish you have a negligent D
- Articulate another standard of care
- Show a breach
- Establish you have a negligent D
Once analysis is proven, then can get to NIED claim: 3 alternative scenarios
3 NIED Scenarios
- A near miss case
- Bystander Claim
- The relationship cases
NIED: Near Miss
- D does not physically harm, but almost does (close call)
- 2 reqs to recover
- P has to show Ds negligent act placed the P in a zone of physical danger
- You also must suffer subsequent physical manifestations (not mental)
- Ex: Heart attack
NIED: Bystander Claim
- D will badly injure or kill a 3rd party - the P is emotionally distraught from witnessing
- P has to show
- You and the injured/killed 3rd party are family members with a close relationship
- Spouse/parent/child
- You must be a contemporaneous witness
- You have to see the injury to the 3rd party as it happens
- You and the injured/killed 3rd party are family members with a close relationship
NIED: Relationship Cases
- Arises with a business or commercial relationship
- There is a high probability that careless performance will produce emotional distress
- Ex: Medical patient/lab; customer/funeral parlor
Res Ipsa Loquitor
- happens when P lacks info about what the D did wrong
Have to Show
- Accident is one of a type normally associated with negligent conduct
- Appeal to statistics
- And an accident of this of type would normally be due to the negligence of someone in this Ds position
- Shown through D having control over the injury causing object
Strict Liability for Abnormally Dangerous Activities Test:
- Activity creates a serious risk of foreseeable harm even when reasonable care is being exercised; and
- Cannot be made safe with existing tech
- The activity is not common within the community for which it is done
- Ex: Crop dusting in SF
SAFETY PRECAUTIONS ARE IRRELEVANT
Activites that are Abnormally Dangerous for Strict Liability
- Blasting
- Dealing w highly toxic chemical or biological material
- Anything involving high quantities of radiation and nuclear energy (not X-ray machine)
Private Nuisance
subtantial (or unreasonable) interference with a person’s use or enjoyment of the land
What is substantial (and not) and unreasonable interference for private nuisance?
- substantial = offensive, inconvenient or annoying to an average person in the community
- not substantial if injury is merely a result of the P’s hypersensativity or specialized use of the property
- unreasonable is where the severity of the injury outweighs the utility of the D’s conduct
Public Nuisance
an act that unreasonably interferes with the health, safety or property right of the community
