Torts Flashcards
What are the elements of an intentional tort?
- Voluntary act
- Intent
- Causation
- Harm
- Lack of defense
Example: Dex hits Pop during an epileptic seizure. What is this an example of?
Involuntary act. A defendant is not liable in tort for acts that are not voluntary.
How do you establish intent for intentional torts?
Defendant either: (i) desires that his act will cause the harmful result described by the tort, or (ii) knows that it is substantially certain that such a result will occur.
When a D desires that his act will cause the harmful result … what does this establish?
Intent.
When a D knows that it is substantially certain that such a result will occur from his act … what does this establish?
Intent.
What is the rule regarding incompetency and intentional torts?
The fact that a D is mentally incompetent or a minor DOES NOT preclude a finding that he possessed the intent to commit an intentional tort, but incompetency may affect whether intent existed.
What is transferred intent?
If a Defendant acts with thenevessary intent to inflict certain intentional torts, but for some reason causes injury to a different victim than intended, intent is transferred to the actual victim.
Example: Dan swung a bat, intending to strike Astrid. However, Astrid ducked and Dan hit Paul. What is this an example of?
Transferred Intent
What are the elements of intentional torts?
A voluntary act, with intent, causation and harm, that lacks a privilege or defense.
V.I.C.H and no defense.
What intentional torts does transferred intent apply to?
Battery, Assault, False imprisonment and trespass to land or chattels.
Does transferred intent apply to battery and assault?
Yes.
Does transferred intent apply to false imprisonment or trespass to chattels?
Yes.
What is causation?
As to intentional torts, the Defendant’s act or a force set in motion by that act must cause the plaintiffs injury.
What is battery?
An intentional act that causes a harmful or offensive contact with the plaintiff or with something closely connected thereto.
An intentional act that causes a harmful or offensive touching with plaintiff - what does this define?
Battery.
What is required for intent to commit battery?
Defendant must either (i) desire to cause an immediate harmful or offensive contact, or (ii) know such contact is substantially certain to occur.
True or False: Knowledge that Defendant’s act is substantially certain to cause immediate harmful or offensive touching is sufficient intent for intentional tort?
True.
True or False: Knowledge that Defendant’s act is substantially certain to cause harmful or offensive touching at some point in future is sufficient intent for intentional tort.
False. Harmful or offensive touching must be IMMEDIATE.
Example: Dagwood intentionally swings his first into Paul’s face, intending to hit Paul. What has Dagwood done?
Committed battery.
What is required to satisfy the harmful or offense touching element of battery?
(i) Inflicts impairment of bodily function or pain
(ii) Reasonable person regards it as offensive.
An act is considered offensive by a reasonable person - does it meet the “harmful or offensive contact” element required to commit battery?
Yes
Does the plaintiff need to be aware of touching to commit battery?
No. Plaintiff need not be aware of contact for D to commit battery.
Is it sufficient for battery if the D causes a contact with something close the P, like D snatching hat from P’s hand?
Yes
Example: Ryan intentionally spits on Prudence while she is asleep. Several weeks later, P learns of Ryan’s act, is Ryan liable for battery?
Yes
What are the elements of Assault?
An assault is an intentional act that causes the P to experience a reasonable apprehension of an immediate harmful or offensive contact.
If P is in reasonable apprehension of an immediate harmful or offensive touching - what is the likely tort claim?
Assault.
Intentional act + causes P to experience reasonable apprehension of an immediate harmful or offensive contact.
What is the proper definition of intent for assault?
The D must act with the desire to cause an immediate harmful or offensive contact or the immediate apprehension of such contact, or know that such a result is substantially certain to occur.
If D acts with knowledge that an immediate harmful or offensive contact is substantially certain to occur - what tort?
Assault.
True or False: Liability for assault will not be found where reasonable person in the same position would have experienced the same apprehension?
False.
Assault lies on reasonable person in same position would have experienced the same apprehension.
True or False: If P’s apprehension reasonable, the fact that D lacked actual ability to cause harmful or offensive touching does defeat liability.
False.
Key is apprehension, even if D lacked ability to cause actual harmful or offensive touching.
Example: An assault is committed if D points an unloaded gun at Paulson and Paulson had reason to believe the gun was loaded?
Yes, this is assault.
True or False: Reasonable apprehension is satisfied if the contact threatened would (i) inflict pain or impairment of body or (ii) if reasonable person would regard as offensive?
True
Ex. D holds a knife to P’s throat and threatens to hurt her. What is he guilty of?
Assault and Battery
D robs a bank and points a gun at the hostages yelling “everyone lie down and keep quiet or I’ll shoot”. What is D guilty of?
Assault.
Intentional act that causes reasonable apprehension of an immediate harmful or offensive touching.
What is the definition of false imprisonment?
An intentional act that causes a plaintiff to be confined or restrained to a bounded area against the plaintiffs will, and the plaintiff knows of the confinement or is injured thereby.
If P is confined or restrained to bounded area against their will, what is D likely guilty of?
False imprisonment.
What are the elements of false imprisonment?
Intentional act that causes,
P to be confined to bounded area against P’s will, and
P knows of confinement.
What is required to prove intent to commit false imprisonment?
(i) D desires to confine ot restrain P to bounded area, or
(ii) knows that such confinement is virtually certain to occur.
True or False: P may be confined by use of physical barriers? And what tort is likely?
True - False Imprisonment
True or False: P may be confined by failing to release the P where the D has a legal duty to do so?
True - False Imprisonment
True or False: P may be confined by D’s invalid assertion of legal authority?
True - False Imprisonment
Is a minimum duration requirement to support a claim for false imprisonment?
No - no duration is required, a very brief confinement will suffice.
What are the elements of defamation?
P must establish that the D (i) published defamatory material (ii) concerned P (iii) that causes reputational damage.
One must check for:
- Defamatory message
- Certain pleading problems
- Publication of the message
- the type of defamation
- damages
- Common law defenses and
- Constitutional issues
What is the definition of “defamatory message”?
A message is defamatory if it lowers a plating in the esteem of the community or discourages a third person from associating with him.
What is key element that defamatory message is actionable?
Causes third persons to avoid contract with P. Or in the case of businesses - causes persons to stop doing business with the entity.
What action is the most to be defamatory?
Statements.
True or False: Expressions of opinions are never actionable for defamation?
False. However Expressions of opinion which imply that the speaker knows certain facts to be true, or imply such facts exist, MAY be actionable for defamation.
TEST: Would a reasonable person consider it as fact? Examine whether it is more specific or detailed.
Example: Is this a likely case to support defamation claim? “In our opinion, Paxton was involved in the planning of the Kennedy assassination.”
Yes. The paper may be subject to defamation claim because the opinion is specific.
Example: Is this a likely case to support defamation claim? “Paxton was once a very stylish dresser, but this year his clothes seem drab.”
No. A reasonable person would not likely disassociate with Paxton over this.
What are the four key points when analyzing whether a statement is defamatory?
- Lowers plaintiff in esteem of community
- Has required injurious effect on any substantial minority of reasonable people
- Understood by person who receives it, and
- A statement (though also examine opinions which imply the fact exists).
True or False: To bring an action for defamation, the party suffering the defamation must be living or existing organization?
True. A defamatory message published about a third person is actionable only to the extent it also defames the plaintiff.
Example: A sports writer published an article stating all 20 members of the university football team used illegal steroids - is there an actionable defamation claim?
Yes. Each member of team is permitted to bring an action against sports writer.
What is the analysis for defamation claims made against groups of people?
Typically a claim about a group does not create a right of action for all members of group. The circumstances should indicate to a reasonable person that a particular plaintiff is subject of the defamatory message.
Key - individuals must be able to make claims on their own. Small groups where all are implicated clearly could meet this test.
True or False: A defamatory statement is typically a spoken or written statement.
True.
Example: The Daily states that the longest serving torts professor at Acme School of Law does not know the difference between battery and assault. What is necessary to support a claim of defamation?
The professor must proof that he is the longest serving torts professor at Acme to proceed in his claim.
True or False: If a Plaintiff is not specifically named in a alleged defamatory statement, the claim automatically fail.
False. The plaintiff can alleged through proof (colloquium ) that some people will interpret the communication to be about him specifically.
Example: A defendant makes a defamatory to the plaintiff and no one else is in the vicinity to hear the statement - does the plaintiff have an actionable claim for defamation?
No. It is not actionable to utter a defamatory messaged to the plaintiff alone.
True or False: If it is reasonably foreseeable that a third person might overhear a message - there is sufficient publication (defamation).
True. A message is published if D negligently permitted it to be communicated to third persons.
True or False. A defendant who originates the defamatory message and it is only repeated by third parties is not liable for defamation.
False. If the D originates the statement, and others repeated it, D may still be liable to P.
All persons who participate in originating a defamatory message are liable as primary publishers.
Example: The author of a book defamatory to a plaintiff submitted it to an editor for editing and a publisher for distribution. Who is likely liable as defendants?
The author, the editor and the publisher are all liable as primary publishers.
Example: A bookseller sold a book by an author that contained a clear defamatory statement against P. Is the bookseller liable?
Only it the bookseller had KNOWLEDGE the material distributed contained the defamatory message.
What are the two types of defamation claims?
- Libel
2. Slander
What type of defamation claim is typically spoken?
Slander. Today, a defamatory message not preserved in permanent form is classified as slander.
What type of defamation claim is typically written?
Libel. Today, a defamatory messaged embodied in any relatively permanent form is a libel.
What is libel per quod?
Libel, where it is not apparent on the face of the communication that it is defamatory.
What is slander per se?
A type of slander historically regarded as so harmful that it was presumed that the plaintiff suffered damaged from the very fact of its utterance.
What are 4 examples of slander per se?
- slander that alleged crime involving moral turpitude or infamous punishment.
- Allegations that P has loathsome disease. Ex. incurable/gross - Leprosy.
- slander which imputes to the P behavior or characteristics that are INCOMPATIBLE with the proper conduct of business/profession/office.
- falsely impute unchastity to a woman.
True or False. Allegations of insanity or tuberculosis have been held as slander per se.
False.
Slander per se - mere utterance causes plaintiff damage. Typically allegations of loathsome disease are an example, but such disease must persist overtime.
What factors distinguish libel from slander?
- Permanence of form,
- Area of dissemination, and
the extent to which the message was planned vs. spontaneous.
What type of damages are recoverable to defamation?
- Pecuniary (quantifiable monetary losses suffered)
- General (non pecuniary aspects of injury, such as humiliation)
- Punitive (assessed against D as punishment).
What are the common law defenses to defamation?
- Truth
2. Absolute privilege
What are examples of absolute privilege?
Absolute privilege is a defense to defamation. Examples include:
- Legislator on the floor.
- Participant in judicial proceedings where statement is reasonably related.
- Officials in the course of their duties & relevant
- Defamatory message commented by one spouse to another.
What is a qualified privilege?
Regarding defamation, a defendant is not held liable for otherwise defamatory message he utters unless he loses the privilege.
What are the constitutional issues concerned defamation?
Free speech
Does the nature of a plaintiff potentially alter the analysis of a possible defamation claim?
Yes. Public officials – Plaintiff must establish malice before any recovery.
What is required to prove defamation against public officials.
Malice, defined as knowing falsity or recklessness as to the truth of falsity.
What is the definition of malice and what tort does it typically relate.
Malice –> knowing falsity or recklessness as to the truth.
It is required to proof defamation claim against public official.
What is the definition of a “public official” with respect to defamation claims?
Person who either:
- Achieved pervasive fame or notoriety (celebrity), or
- Voluntary injected himself into a particular public controversy.
What is the definition of public nuisance?
An unreasonable interference with a right common to the general public.
What is the definition of a private nuisance?
A thing or activity that substantially and unreasonable interferes with the plaintiffs use and enjoyment of her land.
Private nuisance - what is required to meeting interference element?
Interference must be substantial – This means that it must be offensive, inconvenient or annoying to an average person in the community.
True or False. A plaintiff can, by devoting his land to an unusually sensitive use, complain of a nuisance based on conduct that would otherwise be harmless.
False.
What is the definition of unreasonable interference with respect to nuisance claims?
- Gravity of harm outweighs the utility of D’s conduct, or
- If intentional, the harm caused by the D’s conduct is substantial and the financial burden of compensating for this and other harms does not render unfeasible the continuation of conduct.
True or False. Private nuisance claims required a physical intrusion?
False. Not required (sound and smell could potentially interference with P’s use and enjoyment of land).
True or False. A trespass is an invasion of plaintiff’s interest in the exclusive possession of land.
True.
Example. A is a writer. Everyday she writes in the morning. Her neighbor Callie, calls her every morning. Is this a private nuisance?
Likely no.
Example: A is a writer. Everyday she writes in the morning. Her neighbor Callie, calls her 15 times every morning, even after A said not to. Is this a private nuisance?
Likely yes.
Private nuisance requires property rights, what are typical examples of those who have property rights?
- Possessors of land,
- Owners of easements and profits in the land, and
- Owners of non-possessory estates in the land that are detrimentally affected by interferences with its use and enjoyment.
True or False: Owners of a non-possessory estate in the land that are detrimentally affected by interferences are eligible to bring a claim of private nuisance?
True.
There are two cases when a defendant is subject to liability for private nuisance - what are they?
Only if his conduct is a legal cause of invasion of another’s interest in the private use and enjoyment of land AND the invasion is either:
(a) intentional and unreasonable, or
(b) unintentional and otherwise actionable under the rules controlling liability for negligent and reckless conduct.
Exam Tip: What is the likely question when evaluating private nuisance?
Whether the D’s conduct was REASONBLE OR UNREASONABLE.
Exam Tip: What is the test for evaluating reasonableness with respect to D’s conduct and a private nuisance claim?
Weighing the gravity of harm done to P against the utility of D’s activity.
