Torts Flashcards
Battery
Volitional act with intent to cause harmful or offensive contact with a person and causes harmful or offensive contact with a person or a third party, directly or indirectly
Assault
Volitional act with intent to cause reasonable apprehensive of imminent harmful or offensive contact with a person, and causes reasonable apprehensive of imminent harmful or offensive contact with a person.
Must see it coming to be assault
Intentional Infliction of Emotional Distress
Volitional act with intent to cause or recklessly disregarding to a high probability or causing severe emotional distress through extreme and outrageous conduct and causes severe emotional distress to a person or a bystander.
False Imprisonment
Volitional unauthorized act with intent to cause confinement/restraint of a person within boundaries fixed by the defendant and directly or indirectly causes such confinement/restraint of person or third party and person is conscience of the confinement or harmed.
Trespass to Land
Volitional act with intent to enter another’s land and does enter the land.
Trespass to Chattel
Volitional act with intent to cause interference with a person’s ownership or possession of chattel and causes interference with a person’s ownership or possession of chattel.
Conversion
Volitional act with intent to cause substantial interference with a person’s ownership or possession chattel and does substantially interfere with a person’s ownership or possession of chattel.
Intent
Desire to cause;
Knowledge to substantial certainty harm will occur
Volition
Exercise of will
Apprehension
1) Know what’s happening
2) Anticipate is enough, do not need to fear
3) Apparent ability to carry out consequences
Imminent
More than mere preparation, believes that it will happen
Reasonable
Reasonable person in circumstances would be apprehensive.
1) Future threats not sufficient for assault
2) Conditional threats based on non-existant facts, based on an unlawful condition (enough for assault)
Act
Usually movement towards. Words alone not enough. Unless a reasonable person would be apprehensive.
Boundaries
Limited area, must be in a defined area
- Could possibly be limited to a city, state or country
Confinement
- Against your will
- Usually through force or threat of force (force to person or property)
Contact
Person or something internally connected to person.
Offensive
Offensive to ordinary person not unduly sensitive to personal dignity
Harmful
Physical, bodily damage or impairment (structurally or functionally)
- Does not matter if harm worse than intended or not aware of act at the time of contact.
Defenses against Confinement Claim
1) Not through moral persuasion (following directions, clearing your name)
2) Not through future or conditional threats unless it imposes an unlawful condition (“stay in the barn or I’ll burn down your house”)
3) Not it agreed to confinement, unless you changed your mind, then you must be released.
Reasonable means of Escape for Confinement
1) π know’s and it is apparent
2) no peril to life, limb, clothes or other
3) not required to do an unlawful conditions
IIED Bystander
∆ knew they were there and witnessed the conduct
- Need to show physical manifestation
Trespass to Chattel: Dispossession
Temporary taking for some time or a refusal to return the property
- measure of harm: loss of use
Trespass to Chattel: Intermeddling
Only physical contact, not taken. “You punch the horse, you didn’t take the horse”
- measure of harm: impaired conditions, effects the quality or value
Chattel
Tangible personal property or intangible personal property represented by something tangible i.e. deed or promissory note
Substantial
1) The greater the extent and longer the duration of dominion control
2) The greater the extent of harm
3) The greater the expense and inconvenience
4) Bad faith - not necessary
Consent
Express, implied from the facts form conduct in light of surrounding circumstances.
When consent is used as a defense you must determine whether it was:
1) The essence of the tort - Dunk tank
0r
2) A collateral matter - man gives prostitute counterfeit bills
- Consent implied in emergencies, no reason to believe π would not consent. (unconscious, ill, incompetent, intoxicated, minor (and no time to get parent’s consent)
Consent continued
-Athletes - Safety Rules
-Past conduct or a series of practical jokes can be consent
-Cannot be obtained through fraud (duress, mistake)
unless fraud is a collateral matter
-Cannot consent to a illegal activity/violation of a statute
Self-Defense
Under threat of imminent harmful or offensive contact or under reasonable apprehensive of such an attack and with no duty to retreat, ∆ may use reasonable force in the circumstances to prevent threat and bodily harm.
- Can only be used for Battery, Assault, and False Imprisonment. Everything else would be retaliation.
Self-Defense: Duty to Retreat
No duty to retreat: except minority, when faced with deadly force and can safely retreat
Can you threaten more than you can deliver?
Yes
Self-Defense: Mistakes
1) Mistake as to the threat - Keep your defense
2) Mistake as to who is aggressor - Lose Defense
3) Mistake as to level of force - Lose Defense
Must be reasonable force - Comparable
Self-Defense: If defending another but they are the aggressor, would you lose your defense?
Yes, if the third party is injured, unless third party intentionally in harm’s way, then not liable
Defense of Property
Person can use reasonable force in circumstances to prevent a tort against property.
Can you use deadly force or substantial bodily injury force?
No, unless people are threatening with deadly or SBI force.
Consent: When will consent be implied from the facts?
Silence, Culture (social mores), as a matter of law, and when consent cannot be obtained.
Reasonable Force
Can only use that force you reasonably believe is necessary to prevent PP/RP
