Torts I Flashcards
Intent
A person acts with intent to produce a consequence if
- (a) the person acts with the purpose or desire of producing that consequence; or
- (b) the person acts knowing with substantial certainty that the consequence will result.
Transferred Intent
The transferred intent doctrine applies where the defendant intends to commit a tort against one person but instead:
- (a) commits a different tort against that person,
- (b) commits the same tort as intended but against a different person, or
- (c) commits a different tort against a different person.
Transferred intent is applicable to: (1) battery, (2) assault, (3) false imprisonment, (4) trespass to land, and (5) trespass to chattels.
Battery
An actor is subject to liability to another for battery if:
- (1) he acts intending to cause a harmful or offensive contact with the person of other and
- (2) a harmful contact with the person of other directly or indirectly results.
Contact is harmful if it causes actual injury, pain, or disfigurement.
Contact is offensive if it would offend a reasonable sense of personal dignity.
Single Intent (minority view) → The actor only needs the intent to make contact.
Dual Intent (majority view) → The actor needs the intent (1) make contact and (2) to harm or offend through the contact.
Assault
An assault is an unlawful incomplete attempt to commit a battery, or to touch another in a rude or angry manner. To fit the definition of an assault:
- (1) the assailant must have the intent to cause an apprehension of imminent harmful or offensive contact;
- (2) the circumstances must create an apprehension of imminent battery in the mind of the victim and that apprehension must be reasonable or well-founded; and
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(3) the assailant must have an apparent present ability to commit the battery.
- The assailant does not need to have an actual present ability to commit a battery, the situation only needs to be so that the victim can reasonably apprehend, or anticipate, the battery.
False Imprisonment
An actor is subject to liability to another for false imprisonment if, without a legal justification for doing so:
- (1) he acts intending to confine the other or a third person within boundaries fixed by the actor,
- (2) his act directly or indirectly results in such a confinement of the other, and
- (3) the other is conscious of the confinement or is harmed by it.
What Constitutes Confinement → (1) To make the actor liable for false imprisonment, the other’s confinement within the boundaries fixed by the actor must be complete. (2) The confinement is complete although there is a reasonable means of escape, unless the other knows of it. (3) The actor does not become liable for false imprisonment by intentionally preventing another from going in a particular direction in which he has a right or privilege to go.
Intentional Infliction of Emotional Distress
Four elements must be met to impose liability:
- (1) the conduct must be intentional or reckless;
- (2) the conduct must be extreme and outrageous;
- (3) there must be a causal connection between the wrongful conduct and the emotional distress; and
- (4) the emotional distress must be severe.
To be reckless, the defendant must act with high probability that emotional distress will result.
To be extreme and outrageous, conduct must be regarded as atrocious and utterly intolerable in a civilized society.
To be severe, the distress must be a severely disablingemotional response.
Trespass to Land
One is subject to liability to another for trespass if he, without the privilege to do so, intentionally:
- (a) enters land in possession of the other, or causes a thing or a third person to do so,
- (b) remains on the land after consent is terminated, or
- (c) fails to remove from the land a thing which he is under a duty to remove after consent has been terminated.
Damage Not Required → As with most other intentional torts, damage is presumed; i.e., actual injury to the land is not an essential element of the cause of action.
Intrusions Under Mistake → Mistake as to the lawfulness of the entry is no defense as long as defendant intended the entry upon that particular piece of land. Intent to trespass is not required—intent to enter onto the land is sufficient.
Trespass to Chattels
Ways to Commit a Trespass → A trespass to chattel may be committed by intentionally:
- (a) dispossessing another of the chattel, or
- (b) interfering with a chattel in the possession of another.
Liability → One who commits a trespass to chattel is subject to liability to the possessor of the chattel if, but only if:
- (a) he dispossesses the other of the chattel,
- (b) the chattel is impaired as to its condition, quality, or value,
- (c) the possessor is deprived of the use of the chattel for a substantial time, or
- (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.
Conversion
Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important:
- (1) the extent and duration of the actor’s exercise of dominion or control;
- (2) the actor’s intent to assert a right in fact inconsistent with the other’s right of control;
- (3) the actor’s good faith;
- (4) the extent and duration of the resulting interference with the other’s right of control;
- (5) the harm done to the chattel; and
- (6) the inconvenience and expense caused to the other.
Express Consent
Express (actual) consent exists where the plaintiff has expressly shown a willingness to submit to defendant’s conduct. Consent cannot be obtained through fraud, duress, or coercion.
Apparent Consent
Apparent consent is that which a reasonable person would infer from plaintiff’s conduct. Thus, for example, somebody who voluntarily engages in a body contact sport impliedly consents to the normal contacts inherent in playing it. Such consent may also be inferred as a matter of usage or custom. Thus, for example, a person is presumed to consent to the ordinary contacts of daily life, e.g., minor bumping in a crowd.
Consent Implied By Law
In some situations, consent may be implied by law where action is necessary to save a person’s life or some other important interest in person or property. Thus, for example, consent will be implied in an emergency situation. This can happen in two ways:
- (i) Extension doctrine → If, in the course of an operation which the patient consented, the physician should discover conditions not anticipated before the operation was commenced, and which, if not removed, would endanger the life or health of the patient, he would be justified in extending the operation to remove and overcome them.
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(ii) Emergency doctrine → Medical care providers may act in the absence of express consent if:
- (1) the patient is unable to give consent (unconscious, intoxicated, mentally ill);
- (2) there is a risk of serious bodily harm if treatment is delayed;
- (3) a reasonable person would consent to treatment under the circumstances; and
- (4) the physician has no reason to believe this patient would refuse treatment under the circumstances.
Self-Defense
When a person has reasonable grounds to believe that he is being or is about to be attacked, he may use such force as is reasonably necessary for protection against the potential injury.
- (1) Reasonable Belief → The actor need only have a reasonable belief as to the other party’s actions. A reasonable mistake as to the existence of the danger will not preclude a finding of self-defense.
- (2) Retaliation Not Allowed → Self-defense is limited to the right to use force to prevent the commission of a tort. Thus, one may never use force in retaliation (where there is no longer any threat of injury).
- (3) Retreat Not Necessary → A substantial majority of the courts hold that one need not attempt to escape, but may stand his ground (and even use deadly force when necessary to prevent death or serious bodily harm to himself). A growing modern trend would impose a duty to retreat before using deadly force where this can be done safely unless the actor is in his own home.
- (4) Defense Not Available to Aggressor → The initial aggressor is not privileged to defend himself against the other party’s reasonable use of force in self-defense. However, if the other uses deadly force against an aggressor who had only used non-deadly force, the aggressor may defend himself with deadly force.
Extent of Force → One may only use force that reasonably appears to be necessary to prevent the harm. One may not use force likely to cause death or serious bodily injury unless he reasonably believes that he is in danger of serious bodily injury. If more force than necessary is used, the actor loses the privilege of self-defense.
Defense of Others
The actor need only have a reasonable belief that the person being aided would have the right of self-defense. Thus, even if the person aided has no privilege or was the initial aggressor, his defender is not liable as long as he reasonably believed that the person aided could have used force to protect himself.
Extent of Force → The defender, assuming he is justified, may use as much force as he could have used in self-defense if the injury were threatened to him.
Defense of Property
Generally, one may use reasonable force to prevent the commission of a tort against her property.
- (1) Request to Desist Usually Required → A request to desist must precede the use of force, unless the circumstances make it clear that the request would be futile or dangerous.
- (2) Effect of Mistake → Reasonable mistake is allowed as to the property owner’s right to use force in defense of property. However, mistake is not allowed where the entrant has a privilege to enter the property that supersedes the defense of property right. In such a case the property owner is liable for mistakenly using force against a privileged entrant unless the entrant himself intentionally or negligently caused the mistake (e.g., by refusing to tell the property owner the reason for the intrusion).
- (3) Limited to Preventing Commission of Tort → Defense of property is limited to preventing the commission of a tort against the defendant’s property. Thus, once the defendant has been permanently dispossessed of the property and the commission of the tort is complete, she may not use force to recapture it. However, where one is in “fresh pursuit” of someone who wrongfully dispossessed her of her property, the defense still operates because the other is viewed as still in the process of committing the tort against the property.
- (4) Superseded by Other Privileges → Whenever an actor has a privilege to enter upon the land of another because of necessity, right of reentry, right to enter upon another’s land to recapture chattels, etc., that privilege supersedes the privilege of the land possessor to defend her property.
Extent of Force → One may use reasonable force to defend property. However, she may not use force that will cause death or serious bodily harm, unless the invasion of property also entails a threat of serious bodily harm to the owner. Further, one may not use indirect deadly force such as a trap, spring gun, or vicious dog when such force could not lawfully be directly used.
Recovery of Property
Force may be used to recapture a chattel only when in “fresh pursuit” of one who has obtained possession wrongfully. Fresh pursuit is limited to prompt discovery of dispossession, and prompt and persistent efforts to recover the chattel. Any undue lapse of time during which the pursuit had not been commenced, or has come to a halt, will mean that the owner is no longer privileged to fight himself back into possession, but must resort to the law. The following factors must be met:
- (1) There must first be a demand for the return of the property.
- (2) Force used must be reasonable under the circumstances. Deadly force may only be used if there is a threat of serious bodily injury.
- (3) The wrongdoer obtained the property by force or fraud.
Effect of Mistake → Actors taking means to recover property do not have the benefit of a reasonable mistake when possession is lost. The benefit of a reasonable mistake is only given when protecting property that is currently in the actor’s possession.
Necessity
A person may interfere with the real or personal property of another where the interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force and where the threatened injury is substantially more serious than the invasion that is undertaken to avert it. There are two forms:
- (1) Public Necessity → Where the act is to benefit the public good (e.g., shooting a rabid dog), the defense is absolute.
- (2) Private Necessity → Where the act is solely to benefit a limited number of people (e.g., the actor ties up his boat to another’s dock in a storm), the defense is incomplete; i.e., the actor must pay for any injury he causes. Exception: The defense is absolute if the act is to benefit the owner of the land.
Possessor May Not Resist → The possessor of the land is not entitled to resist entry. If the possessor uses force to resist the privileged entry, the actor may use reasonable force to resist ejection so long as the necessity continues to exist.
Justification
Justification is a defense to an allegation of wrongful conduct that the act or omission, though admittedly committed, was not wrongful in consideration of the circumstances.
Restraint → Generally, restraint or detention, reasonable under the circumstances and in time and manner, imposed for the purpose of preventing another from inflicting personal injuries or interfering with or damaging real or personal property in one’s lawful possession or custody is not unlawful.
Discipline → A parent, guardian, or teacher entrusted with the care or supervision of a child may use physical force reasonably necessary to maintain discipline or promote the welfare of the child.
Unforeseeable Plaintiff Problem
Generally, a duty of care is owed only to foreseeable plaintiffs.
The “unforeseeable” plaintiff problem arises when defendant breaches a duty to one plaintiff (P1) and also causes injury thereby to a second plaintiff (P2) to whom a foreseeable risk of injury might or might not have been created at the time of the original negligent act. Defendant’s liability to P2 will depend upon whether the Andrews or Cardozo view in Palsgraf is adopted.
- (a) Andrews View → The second plaintiff (P2) may establish the existence of a duty extending from the defendant to her by showing that the defendant has breached a duty he owed P1. In short, defendant owes a duty of care to anyone who suffers injuries as a proximate result of his breach of duty to someone else.
- (b) Cardozo View → The second plaintiff (P2) can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her in the circumstances, i.e., that she was located in a foreseeable “zone of danger.”
Duty to Rescuers → A rescuer is a foreseeable plaintiff as long as the rescue is not reckless; hence, defendant is liable if he negligently puts himself or a third person in peril and plaintiff is injured in attempting a rescue. Note, however, that the “firefighter’s rule” may bar firefighters and police officers, on public policy or assumption of risk grounds, from recovering for injuries caused by the risks of a rescue.
Basic Standard of Care
Defendant’s conduct is measured against the reasonably prudent person. Defendant is deemed to have knowledge of things known by the average member of the community. The individual shortcomings of the particular defendant are not considered. On the other hand, a defendant with knowledge superior to that of the average person is required to use that knowledge.
Professional Standard of Care
If an actor is a professional or has skills or knowledge that exceed those possessed by most others, the actor is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing in similar communities.
- The minority of jurisdictions following a modern trend have gone further and adopted a “national standard,” especially for medical specialists who are certified by a national board within their specialty areas.
Duty to Disclose Risks of Treatment (Informed Consent)
In a medical malpractice action, a patient suing under the theory of informed consent must allege and prove:
- (1) defendant physician failed to inform him adequately of a material risk before securing his consent to the proposed treatment;
- (2) if he had been informed of the risks he would not have consented to the treatment; and
- (3) the adverse consequences that were not made known did in fact occur and he was injured as a result of submitting to the treatment.
As a defense, a physician may plead and prove (a) plaintiff knew of the risks, (b) full disclosure would be detrimental to the patient’s best interests, or (c) that an emergency existed requiring prompt treatment and patient was in no condition to decide for himself (Emergency Doctrine).
The materiality of the risk is determined by the patient:
- The majority of jurisdictions follow the objective standard of a “reasonable patient.”
- The minority of jurisdictions follow the subjective standard of the patient in question.
Children Standard of Care
(a) A child’s conduct is negligent if it does not conform to that of a reasonably careful person of the same age, intelligence, and experience.
(b) A child less than five years of age is incapable of negligence.
(c) The special rule in subsection (a) does not apply when the child is engaging in a dangerous activity that is characteristically undertaken by adults.
