Torts - Intentional Torts

Question 1

Hypersensitivity and Intentional Torts

Answer 1

In deciding if P has made a claim, the extreme or hype sensitivity of the P should be ignored. Assume your dealing with an average or typical person.

Question 2

Are there any incapacity defenses in intentional torts?

Answer 2

No, There are no incapacity defenses in the world of intentional torts.

Question 3

What are the elements of battery?

Answer 3

(1) Defendant committed a harmful OR offensive contact

(2) Conduct must be with P’s person

Question 4

What is harmful or offensive?

Answer 4

(1) Harmful is contact that makes P bleed or break a bone etc. (an injury)
(2) Offensive = unpermitted. Unpermitted by a reasonable/average person. [Weird petting could be unpermitted]

Question 5

What is “conduct with P’s person?

Answer 5

Anything connected to P is the P’s person. [i.e. carrying a handbag/luggage – slapping a horse]

Question 6

What are the Elements of Assault?

Answer 6

(1) D places P in reasonable apprehension

(2) That apprehension is of an immediate battery

Question 7

What is a Reasonable Apprehension?

Answer 7

Apprehension looks at P’s reason to know. Ask whether P had a reason to know that a battery was immediate?

Reasonable apprehension means a reasonable apprehension to know or think

What about idle/empty threats? empty gun = reasonable apprehension.

Question 8

What is apprehension of an immediate battery?

Answer 8

Reasonable apprehension must relate to an IMMEDIATE battery.

Words alone lack immediacy. This applies even if the words sound immediate. You must have conduct.
***Words can negate immediacy

Conduct is a menacing gesture [i.e. shakes his fist, picks up a rock]

Question 9

What are the elements for False Imprisonment?

Answer 9

(1) D commits an act of restraint AND

(2) P is confined in a bounded area.

Question 10

What is “an act of restraint”?

Answer 10

(a) A threat is sufficient to be an act of restraint.
* **Hypersensitivty is not taken into account.

(b) An omission can be an act of restraint, but only when D has a preexisting duty.
(c) P must be aware of the restraint OR suffer a harm in order for the restraint to count.
* *If you are unaware, you are not harmed. No harm no foul.

Question 11

What is confined in a bounded area?

Answer 11

(a) An area is NOT bounded if there is a reasonable means of escape that P can reasonably discover.
(b) If the only way out is dangerous, disgusting, or humiliating then its NOT reasonable.

Question 12

What are the elements of Intentional Infliction of Emotional Distress?

Answer 12

(1) D must engage in outrageous conduct
(2) P must suffer severe distress

Note: Intent can be reckless

Question 13

What constitutes “outrageous conduct” for IIED?

Answer 13

(a) Conduct is outrageous if it exceeds all bounds of decency tolerated in a civilized society.
(b) Negative Rule – Mere insults are NOT outrageous. However, insults can be part of a package of conduct that is outrageous.

(c) What are hallmarks of outrageous conduct [plus factors]?
(i) Bad behavior of D is continuous or repetitive.

 (ii) D is a common carrier or inn keeper. [Airline, Bus, Train, Hotel] These businesses have a duty of courtesy. 
 (iii) P is part of a fragile class of persons. (Young Children, Elderly, Pregnant woman) (d) If D has prior knowledge that P has a sensitivity and D engage in the act that disturbs this sensitivity then that is outrageous

Question 14

What is “severe distress” for IIED?

Answer 14

(a) There are no specific proof requirements. P may proof in any ways that P pleases. [Don’t have to prove by going to a doctor.] However, jury must determine that you suffered severe distress.
(b) Test taking tip: They usually negate this element in the body of the question. [I.e. Paula was mildly upset - NOT SEVERE DISTRESS]

Question 15

What are the elements of trespass to land?

Answer 15

(a) D commits an act of physical invasion

(b) Land

Question 16

Who commits an act of physical invasion?

Answer 16

(a) Enter the property [entry is a physical invasion]
* *D does not need to know that he crossed a boundry line in order to commit a physical invasion.

(b) However, D must still deliberately intended to go where he is going. [I.e. not liable for trespass if unable to control horse and it goes onto land]

(c) Sending a tangible object onto someone else’s land is a physical invasion.
(i) Throw a rock – physical invasion

   (ii)  Sending light or noise – not a physical invasion.

Question 17

How far does P’s interest in the land extend?

Answer 17

P’s interest extend to a reasonable distance above and below the land.

Question 18

Difference between Trespass to Chattel vs. Conversion

Answer 18

Both deal with deliberate interference with personal property.

Trespass to Chattel
(i) Harm is relatively minor

(ii) Damages = Cost of repair

Conversion
(a) Significant harm

(b) Conversion P’s have a special remedy – you can recover the full value of the item in question. Not merely cost of repair.

Question 19

What is the Rule for Kids and Intentional Torts?

Answer 19

Children are liable for their intentional torts when they are capable of forming the requisite intent.

They do not need to be aware of the consequences of their actions.

Question 20

What are the Affirmative Defenses for Intentional Torts?

Answer 20

(1) Consent (Express and Implied)
(2) Protective Privileges

(i) Self-Defense
(ii) Defense of Others
(iii) Defense of Property

(3) Necessity Doctrine

(i) Public Necessity
(ii) Private Necessity

Question 21

When is express consent not valid?

Answer 21

(1) IF obtained by fraud or distress

(2) Grantor did not have legal capacity to give a valid consent. [Note: Kids can consent to age appropriate actions]

Question 22

How is implied consent obtained?

Answer 22

(1) By Custom - P goes to a place or engages in activity where certain invasions are routine.
(2) Body Language Consent - Based on D’s reasonable interpretation of P’s objective consent.

Question 23

What is the rule/limitation on the protective privileges?

Answer 23

Applies to Self-Defense, Defense of Others, Defense of Property

(1) D must be responding to a threat in real time (NO Revenge)
(2) Must reasosnably believe the threat is real
(3) Can only use proportional force.[Never deadly force to protect property]

Question 24

When does Public Necessity Applies?

Answer 24

Only applied when underlying tort is a property tort.

Applies when D invades P’s property in order to protect the community as a whole or a significant group of people

Question 25

What are you liable for when acting under the Private Necessity Doctrine?

Answer 25

Can invade when threatened injury is substantially more than the injury imposed by the invasion.

• Remain liable for compensatory damages caused by your invasion.

Not liable for nominal or punitive damages.

Question 26

What are the elements of Defamation?

Answer 26

(1) D must make a defamatory statement that identifies P.
* Defamatory if it adversely affect your reputation. Name calling it no defamatory.
* Do not have to specificially identify, providing sufficient information to identify is enough.
(2) D must “publish” the statement

“Public” = shared with one person other than P. More sharing, the more harm

(3) There must be Damage to P’s Reputation.

Question 27

When are damages presumed?

Answer 27

When defamatory statement is “libel” - written down or permanently recorded.

Slander [Oral Statements] in Four area (Slander Per Se)

(i) Statement deals with P’s business or occupation
(ii) Statement that P has committed a crime of moral turpitude (serious crime - ie fraud)
(iii) Statement about a woman’s chasity
(iv) Statement that P has a loathsome disease (leprosy or VD)

If its another type of slander then damages must be proved by evidence of economic harm.

Question 28

Three Affirmative Defenses to Defamation

Answer 28

(1) Consent (Express or Implied)
(2) Truth - D can come to court and demonstrate that its factually accurate. [D Bears burden]
(3) Privileges

(i) Absolute Privileges
(ii) Qualified Privilege
(iii) Statements relates to a Matter of Public Concern

Question 29

What are the absolute privileges for defamation?

Answer 29

Spousal Privilege - Absolute privilege in taking to each other about 3P.

Gov’t Employees in the conduct of their employment extends to lawyers and witnesses in court.

Question 30

What is a qualified privilege to avoid liability for defamation?

Answer 30

Covers subject to speech and occurs when there is a public interest in encouraging candor. [ie Recommendations]

Must meet two qualifiers:

(1) Must be speaking in good faith. (if its false and an honest mistake, its OK)
(2) Must confine yourself to relevant matters.

Qualified privilege - statement of interest of the publisher, statement in the interest of the recipient, statements of common interest, report of official proceedings.

Question 31

How does P overcome a “statement Relating to a Matter of Public Concern” for defamation privilege?

Answer 31

Example: Gov’t official taking bribes, Athletes using PEDs.

In order for P to overcome:

(1) P must prove that the statement is false AND
(2) P must prove fault.
(i) If P is a public official, D made the statement knowing it was false or reckless in verifying the statement.
(ii) If P is a private individual, D made the statement negligently.

Question 32

MA Distinction on Defamation.

Answer 32

P must prove at least negligent publication even if its not a matter of public concern.

An honest mistake will always protect you from liability [Not true on the MBE]

Question 33

What are the Four Privacy Cause of Actions?

Answer 33

(1) Appropriation
(2) Intrusion
(3) False Light
(4) Disclosure of Private Fact

Question 34

What is appropriation and its one limitation?

Answer 34

Appropriation occurs when D uses P’s name or image for a commercial purpose without P’s consent.

Limitation: Newsworthy exception - if you are part of a new story, a public can use your image as part of the story.

Question 35

What is intrusion and its exception?

Answer 35

D commits an intrusion by invading P’s physical seclusion in a way that would be highly offensive to a reasonable person. [i.e. wiretapping]

Exception: Must be in a place where you reasonably expect privacy.

Question 36

What is false light?

Answer 36

D widely disseminates a major falsehood about P that would be highly offensive to reasonable person.

NOT RECOGNIZED IN MA.

Question 37

What is disclosure of a private fact and its exception?

Answer 37

D widely disseminates confidential information that would be highly offensive to a reasonable person.

Exception: Newsworthy exception - if the confidential information is newsworthy, it may be a defense.

Question 38

What are the affirmative defense to the privacy cause of actions?

Answer 38

(1) Consents

(2) Defamation privileges for False Light and Disclosure of Private Fact.

Question 39

What are the elements for intentional misrepresentation?

Answer 39

(1) Misrepresentation of a material fact.
* Silence not generally enough, must be an affirmative misrepresentation.
(2) Scienter - D knew or believe it was false or that there was no basis for the statement.
(3) Intent to induce P to act or refrain from acting in reliance upon the misrepresentation;
(4) Causation (actual reliance);
(5) Justifiable reliance (generally, reliance is justifiable only as to a statement of fact, not opinion)
(6) Damages - (P must suffer actual pecuniary loss)

Question 40

What are the elements of Negligent Misrepresentation?

Answer 40

(1) Misrepresentation by D in a business or professional capacity;
(2) Breach of Duty toward a Particular Plaintiff
(3) Causation;
(4) Justifiable Reliance;
(5) Damages

Confined to misrepresentation made in a commercial setting, and liability will attach only if reliance by the particular P could be contemplated.

Question 41

What are the elements of interference with business relations?

Answer 41

(1) Existence of a valid contractual relationship between P and a 3P or a valid business expectancy of P;
(2) D’s knowledge of the relationship or expectancy;
(3) Intentional interference by D including a breach of termination of the relationship or expectancy;
(4) Damages

D’s conduct may be privilege if interfering only with P’s prospective customers, (ii) used commercially acceptable means of persuasion rather than illegal tactic; (iii) Is a competitor of P seeking same prospective clients; (iv) financial interest or responsibility for the 3P.

Question 42

What are the elements of malicious prosecution?

Answer 42

(I) Institution of criminal proceedings against P;

(II) Termination in P’s Favor;

(III) Absence of probable cause for prior proceedings

(iv) Improper purpose
(v) damages
- Has been extended in many jurisdiction to cover civil cases

Question 43

What are the elements of abuse of process?

Answer 43

(I) Wrongful use of process for an ulterior purpose;

(II) Definite act or Threat against P in order to accomplish an ulterior purpose.