Torts Flashcards
7 Intentional Torts
(1) Battery
(2) False Imprisonment
(3) Assault
(4) Intentional Infliction of Emotional Distress
(5) Trespass to Land
(6) Trespass to Chattels
(7) Conversion
Battery
The plaintiff must show that
- the defendant committed a harmful or offensive contact
- contact must be with the plaintiff’s person
Harmful/Offensive
Harmful: actual physical trauma (injury/death)
Offensive: unpermitted to a person of ordinary sensitivity
Extended Personality Rule
Person includes anything you’re holding/touching/connected to
Assault
Defendant must place plaintiff in immediate apprehension of an immediate battery
Apprehension
Actually means knowledge. You have to see it coming.
You don’t have to be afraid.
Need only a reasonable belief. An apparent ability creates a reasonable apprehension. If it looks like he can do it, believe that he can do it.
Unloaded gun problem
If you know the gun is loaded= assault
If you know the gun is not loaded= not assault
If you don’t know= assault
Immediacy
Mere (naked) words ARE NOT sufficient to create immediacy– conduct required!
Talk is cheap, until you make a move, it’s not immediate.
Menacing gesture: picking up a weapon, drawing hand back.
Sometimes words can negate immediacy!
- Conditional words
- Future words
False Imprisonment
Defendant must commit an act of physical restraint
Plaintiff must be confined in a bounded area.
Act of physical restraint
Threats are sufficient (threat that would operate on the mind of a reasonable person)
Ex: if you leave, I’ll call the cops
Failure to act can be an act of restraint if there is some pre-existing duty between the people
-Plaintiff must be aware of it/harmed by it
Confined in a Bounded Area
An area is not bounded if there is a reasonable means of escape that the plaintiff can reasonably discover.
-You’re not locked in if you can get out
If the only way out is danger, disgusting, humiliating, the area is considered banded.
Intentional Infliction of Emotional Distress
Don’t need to show intent, can show defendant behaved recklessly (utter disregard for plaintiff’s emotional tranquility)
Of the 7 intentional torts, only one that does not require intent is IIED
Defendant must engage in outrageous conduct
Plaintiff must suffer severe emotional distress
Outrageous Conduct
Conduct that exceeds all bounds of decency tolerated in a civilized society
Negative rule: mere insults are never outrageous regardless of intent
Outrageous Conduct: 4 Plus Factors
(1) Where conduct is continuous or repetitive
(2) If Defendant is a common carrier or an inkeeper
(3) Where plaintiff is a member of a fragile class of persons (children, elderly people, pregnant women)
(4) If defendant has advance information that plaintiff has some kind of emotional weakness, then targeting that weakness is itself outrageous.
Severe Emotional Distress
No specific (type)(kind)(category) of evidence is required. Can establish severe distress however you want.
Look for negation of the element in the fact pattern! (i.e. mildly annoyed)
Trespass to Land
Defendant must commit an act of physical invasion
Invasion must be of plaintiff’s land
Physical invasion
GO on someone else’s land (on purpose)
Defendant does not have to know that s/he has crossed a boundary line
Your obligation is to know where the boundary is.
Can throw/project something onto the property– the thing you send on the land must be tangible, physical (intangibles– nuisance)
Trespass to Land: Must Relate to Land
land includes air above and soil below to a reasonable distance.
Airplane is beyond a reasonable distance
Trespass to Chattels
Intentional interference with plaintiff’s property
Deliberately damage
Taking it away from you (stealing/robbing)
A private civil remedy for damaging/stealing your stuff.
Magnitude: slight
Subjective.
Mistake of the item is no defense
Conversion
Intentional interference with plaintiff’s property
Deliberately damage
Taking it away from you (stealing/robbing)
A private civil remedy for damaging/stealing your stuff.
Magnitude: great
Subjective.
Mistake of the item is no defense
Conversion plaintiffs get special remedy– recovery of FULL market value of item (you break it, you buy it). If you seriously damage it, you bought it.
3 Affirmative Defenses to Intentional Torts
(1) Consent
(2) Protective Privileges
(3) Necessity
Consent
A defense to all 7 intentional torts.
Did the plaintiff have legal capacity? This is a sliding scale that turns on the nature of the conduct agreed to.
Can be express (stated, written) or implied
All consent has a SCOPE. If plaintiff exceeds the scope, defendant will be held liable.
Express Consent Void
If obtained through fraud or duress
Failure to disclose/withholding information can void express consent.
Consent Can be Implied…
(1) from custom and usage
(2) Based on the defendant’s reasonable interpretation of the plaintiff’s objective conduct (body language consent). In one on one interactions, you are allowed to read the situation. Always has to be reasonable.
3 Protective Privileges
(1) Self Defense
(2) Defense of others
(3) Defense of property
All involve defendants responding to threats coming from plaintiff.
Protective Privileges: Timing
Threat must be in progress or imminent
Can’t be preventative; no preemption
Can’t be too late either; no revenge
Protective Privileges: Requirement of Accuracy
Defendant must have reasonable belief that the threat is genuine.
Defendant not liable if defendant makes a reasonable mistake
Must limit your response to force necessary under the circumstances
Shopkeeper’s Privilege
Permits the reasonable detention of someone the shopkeeper reasonably believes has shoplifted goods
Deadly Force
Can be used to defend yourself, yourself in your home, or a third party
Cannot use to defend property. Can’t shoot trespassers
Necessity
Only applies to property claims– trespass to chattels, trespass to land, conversion
2 different defenses:
Public necessity
Private necessity
Public Necessity
Defendant commits a property tort in an emergency to protect community as a whole or a significant group of people.
Complete and absolute defense
Emergency usually a pretty big catastrophe threatening pretty serious harm
Private Necessity
Defendant commits a property tort in an emergency but to protect himself, his possessions
A partial defense with 3 legal consequences
(1) have to pay for any harm you do (compensatory damages)
(2) if you do no harm, your technical tort is excused and therefore no liability for nominal/punitive damages
(3) if you go on someone’s property during an emergency to take refuse, the property owner cannot kick you off their land (“right of sanctuary”
Negligence: 4 Elements
Duty
Breach
Causation
Damages
Duty
Plaintiff must show defendant owed a duty and specify the nature of the duty
Obligation to take risk reducing precautions as you engage in different activities to avoid injuring others.
Duty
Which others? Who do I need to think about
Foreseeable victims– no duty to unforeseeable victims
Unforeseeable victims always lose.
Foreseeable victims are near you; unforeseeable victims are far away
Zone of danger will vary depending on the activity
Breach
Plaintiff must show defendant failed to live up to duty of care and must show this in a very specific way
Causation
Actual or proximate
Damages
Have to show something bad happened to you
Duty: Rescuers
Danger invites rescuers. Rescuers are foreseeable, even if they began outside of the scope of danger.
Duty
How much precaution?
You must exercise the same degree of precaution as a hypothetical reasonably prudent person acting under similar circumstances.
Reasonably Prudent Person
No physical attributes, but a very specific set of behaviors.
Always locks the doors, always waters the plants. Most people to not live up to this standard most of the time.
OBJECTIVE standard of care. No allowances for defendants particular shortcomings.
–> This means we may be asking the defendant to do the impossible
Reasonably Prudent Person: Exceptions
(1) if defendant has superior skill or knowledge, the standard of care includes that superior skill or knowledge
(2) where relevant, look at physical characteristics of defendant. has to be relevant to the situation.
6 Special Duty Exceptions/Standards
(1) Negligence claims against children
(2) Negligence claims against professionals (malpractice)
(3) Unknown trespasser
(4) Known trespasser
(5) Licensees
(6) Invitees
Negligence claims against children
Children under 5- zero duty of care
Children over 5- supposed to behave as a child of similar age, experience, and intelligence acting under similar circumstances. A subjective standard that varies from child to child.
This is a pro-defendant standard of care.
Negligence claims against children
Duty Exception
If child is engaged in an adult activity, use ordinary reasonable person standard.
Operating a motorized vehicle, agricultural vehicles, watercraft, jet ski, snowmobiles, ATV
Negligence claims against professionals (malpractice)
Includes any of the commonly known professions
Standard of care: an average member of the same profession providing similar professional services in good standing.
Distinction between AVERAGE and REASONABLE. AVOID USING WORD “REASONABLE”
Average= real world standard of care. How others actually do it. Empirical standard, compare to peer group. Professional ought to e a conformist.
Plaintiff almost always needs an expert witness to come and tell us what is ordinarily done. Expert need not be from same community as defendant.
Negligence claims against professionals (malpractice)
Doctor’s Duties
Doctors owe a duty to disclose risks of treatment to patients before embarking on that treatment (“informed consent doctrine”)
No injury, no claim
Unknown Trespasser
Comes on land without possession and possessor does not know that he is there.
Owed ZERO duty of care– ALWAYS loses negligence claim in a premises liability context.
WHY: no sympathy for people who come on property without permission; unforeseeable
Known Trespasser
Also includes ANTICIPATED trespassers– those who you should expect.
Signal: a pattern of trespassing in the past.
Possessor must protect only against hazard on the land that meet a 4 part test
Known Trespasser: 4 Part Test
(1) ARTIFICIAL: condition in question must be artificial (constructed by human beings). No duty w/r/t naturally occurring conditions
(2) HIGHLY DANGEROUS: condition must be highly dangerous (capable of inflicting severe bodily injury or death). No duty w/r/t moderately dangerous conditions
(3) CONCEALED: condition must be concealed from the trespasser. No duty w/r/t an open and obvious condition
(4) KNOWN: possessor must have prior knowledge that the condition exists.
Essentially: is it a man-made death trap?
Licensees
Enter land with known or implied permission, but confer no economic benefit on possessor
Ex: a social guest, a solicitor at the door
Duty defined by 2 part test
Licensees: 2 Part Test
(1) Concealed hazards that
(2) are known in advance by the possessor
Eliminates artificiality requirement; eliminates serious/highly dangerous requirement.
Essentially: is it a known trap on your land?