Torts (Main Deck)* Flashcards
WHAT IS THE GENERAL APPROACH TO ANALYZING A TORTS QUESTION?
STEP 1: For each individual tort:
1A: PRIMA FACIE CASE: Determine if the Plaintiff can establish a prima facie case against the Defendant.
1B: DEFENSES: Determine what defenses are available to the Defendant.
STEP 2: 3RD-PARTY LIABILITY: Consider issues of third-party or multiple Defendant liability.
STEP 3: REMEDIES: Determine what remedies may be available to the Plaintiff.
PRELIMINARY ISSUE:
BY WHAT STANDARD MUST THE ELEMENTS OF A TORT ACTION BE PROVEN & WHO CARRIES THE BURDEN?
Tort actions and defenses generally must be proven by a preponderance of the evidence. In rare cases, an element or defense must be established with clear and convincing evidence (e.g., actual malice in a defamation action brought by a public official).
Note: A preponderance of the evidence means that it is more likely than not (i.e., more than 50 percent likely) that the facts are as the offering party purports them to be.
PRELIMINARY ISSUE:
WHAT IS EACH PARTY’S BURDEN OF PROOF IN A TORT ACTION?
Plaintiff: To establish a prima facie case against a Defendant, the Plaintiff carries the burden to prove each element by a preponderance of the evidence.
Defendant: Once the prima facie case has been established, the Defendant may raise applicable defenses, which also must be proven by a preponderance of the evidence.
PRELIMINARY ISSUE:
WHEN WILL A PLAINTIFF BE BARRED FROM BRINGING SUIT IN TORT, REGARDLESS OF THE ACCUSATION?
Rule: A Plaintiff will be barred from bringing suit if the Defendant can claim an absolute immunity.
Common Law: At common law, the following enjoy complete immunity from tort liability:
1) Charities,
2) Spouses (from suing each other),
3) Parents and underage children, AND
4) Government agencies.
Modern Approach:
1) Most jurisdictions have removed the charity and spousal immunity.
2) Tort actions are allowed between underage children and parents for intentional torts.
3) The Federal Tort Claims Act provides a limited waiver of immunity for acts carried out in the course of executing or implementing government policy.
STEP 1 -
PRIMA FACIE CASE & DEFENSES:
LIST THE 9 CATEGORIES INTO WHICH A TORT MAY FALL
1) Intentional Torts
2) Negligence Torts
3) Strict Liability Torts
4) Products Liability Torts
5) Nuisance Actions
6) First-Amendment Related Torts (Defamation & Invasion of Privacy)
7) Misrepresentation Torts
8) Interference with Business Relations Torts
9) Wrongful Institution of Legal Proceedings Torts
INTENTIONAL TORTS:
WHAT ELEMENTS MUST THE PLAINTIFF GENERALLY ESTABLISH TO PROVE A DEFENDANT’S LIABILITY FOR AN INTENTIONAL TORT?
Rule: To establish a Defendant’s liability for an intentional tort, the Plaintiff generally must prove:
1) The Defendant acted voluntarily,
2) The Defendant acted with the requisite intent, AND
3) The Defendant’s action was the cause of the tortious result.
Note: Most intentional torts do not require that actual damages be proven to establish a prima facie case (i.e., the Plaintiff can sue for nominal damages).
INTENTIONAL TORTS:
WHAT TYPE OF INTENT MUST THE DEFENDANT HAVE TO BE HELD LIABLE FOR AN INTENTIONAL TORT?
Rule: To establish the Defendant acted with intent sufficient to be held liable for an intentional tort, the Plaintiff must prove the Defendant:
1) Actually desired to bring about the consequences of his act, OR
2) Knew or believed such consequences were substantially certain to result from his act.
Note:
1) The Plaintiff need only prove that the Defendant intended to commit the act which amounts to a tort. Thus, the Defendant’s knowledge that the act amounts to a tort and/or mistaken belief regarding the circumstances surrounding his activities are irrelevant to proving intent.
2) The requirement of substantial certainty is met if the Defendant knew or believed there was a high probability that the result would occur.
3) Everyone has the capacity to form the intent to commit an intentional tort. Thus, neither infancy nor insanity is a defense to intentional torts.
INTENTIONAL TORTS:
DOCTRINE OF TRANSFERRED INTENT
(Define & State the Rule)
Definition: Under the Doctrine of Transferred Intent, a Defendant’s intent can be transferred from one tort to the tort actually committed and/or from one person to the person actually harmed.
Rule: The Doctrine of Transferred Intent applies to five torts:
1) Assault
2) Battery
3) False Imprisonment
4) Trespass to Land
5) Trespass to Chattel
Note: Assault, battery, and false imprisonment are intentional torts to the person. Trespass to land and trespass to chattel are intentional torts to property.
INTENTIONAL TORTS:
LIST 4 INTENTIONAL TORTS TO THE PERSON
1) Assault
2) Battery
3) False Imprisonment
4) Intentional Infliction of Emotional Distress
INTENTIONAL TORTS:
ASSAULT
(Define & State the Rule)
Definition: Assault occurs when a person intentionally places another in apprehension of immediate harmful or offensive physical contact.
Rule: To establish a Defendant’s liability for assault, the Plaintiff must prove:
1) The Defendant acted voluntarily,
2) The Defendant intended to place the victim in fear or apprehension of an imminent harmful or offensive physical contact, AND
3) The Defendant’s act caused the Plaintiff to feel reasonable apprehension.
Note:
1) Harsh or threatening words generally are not sufficient to establish a prima facie case of assault, unless they are accompanied by an act of the Defendant.
2) The threat must be of an immediate harm to the Plaintiff.
3) The Plaintiff’s apprehension is judged by a reasonable person standard.
4) Apprehension will be established if the Plaintiff expected or anticipated imminent harmful or offensive contact.
INTENTIONAL TORTS:
BATTERY
(Define & State the Rule)
Define: Battery occurs when a person intentionally causes a harmful or offensive contact with the person of another.
Rule: To establish a Defendant’s liability for battery, the Plaintiff must prove:
1) The Defendant acted voluntarily,
2) The Defendant intended to make contact with the victim’s person, AND
3) The Defendant’s act caused a harmful or offensive contact with the Plaintiffs person to occur.
Note:
1) The Plaintiff does not have to prove that the Defendant intended to harm or offend her, only that he intended to make the contact.
2) Whether an act is harmful or offensive is judged by a reasonable, non-hypersensitive person standard.
3) The contact may be direct or indirect, and may be with the person of the plaintiff or anything connected to the plaintiff.
4) The plaintiff does not have to be aware of the battery at the time it occurred.
INTENTIONAL TORTS:
FALSE IMPRISONMENT
(Define & State the Rule)
Definition: False imprisonment is the intentional confining of another.
Rule: To establish a Defendant’s liability for false imprisonment, the Plaintiff must prove:
1) The Defendant acted voluntarily,
2) The Defendant intended to confine the Plaintiff to a bounded area, AND
3) The Plaintiff was actually confined with no known reasonable means of escape.
Note:
1) A split of authority exists over whether the plaintiff must be aware of the confinement:
a) Common Law: The Plaintiff must be conscious of being confined.
b) Modern Trend: The Plaintiff must be conscious of being confined or harmed by the confinement.
2) Known reasonable means of escape are those that would not be physically or mentally harmful to the Plaintiff or his property or threaten the safety of another.
3) The Defendant may restrain the Plaintiff by a physical act, or by threats of harm to the Plaintiff, the Plaintiffs property, or third parties.
INTENTIONAL TORTS:
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
(Define & State the Rule)
Definition: Intentionally or recklessly causing another to feel extreme mental or emotional distress, torment, or discomfort.
Rule: To establish a Defendant’s liability for MED. the Plaintiff must prove:
1) The Defendant intentionally or recklessly engaged in extreme or outrageous conduct,
2) The Defendant’s conduct would cause a reasonable person extreme emotional or mental distress, AND
3) The Plaintiff actually suffered extreme mental or emotional distress (i.e., damages).
Note:
1) Extreme and outrageous conduct is conduct that goes beyond the bounds of decency and would not be tolerated in a civilized society.
2) Insulting words generally are not sufficient to establish IIED.
3) In the case of a hypersensitive Plaintiff, it is sufficient that the Defendant’s conduct would cause a hypersensitive person extreme emotional or mental distress if the Defendant was or should have been aware ofthe hypersensitivity.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:
COMMON CARRIERS AND INNKEEPERS
(State the Rule)
Rule: Common carriers or innkeepers are held to a higher standard than the average person and will be held liable for intentionally directing insults toward patrons or customers if the language used causes the patron or customer emotional distress.
**Note: **
1) The Plaintiff must be a patron or customer ofthe common carrier or innkeeper.
2) The Plaintiff does not have to show extreme emotional distress to recover. Slight emotional distress will suffice.
3) The common carrier or innkeeper will be held liable for an employee’s insulting activity.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:
DEFENDANT’S LIABILITY TO THIRD PARTIES
(State the Rule)
Rule: To establish a Defendant’s liability for MED. a third-party Plaintiff must prove:
1) The Defendant intentionally or recklessly engaged in extreme or outrageous conduct toward a third party in the Plaintiffs presence,
2) The third party is a close relative of the Plaintiff,
3) The Defendant knew ofthe Plaintiffs presence and the Plaintiffs relationship to the third party,
4) The Defendant’s conduct would cause a reasonable person in the Plaintiffs position extreme emotional or mental distress, AND
5) The Plaintiff actually suffered extreme mental or emotional distress.
INTENTIONAL TORTS:
LIST 3 INTENTIONAL TORTS TO PROPERTY
1) Trespass to Land
2) Trespass to Chattel
3) Conversion
Note: Trespass to land applies to real property. Trespass to chattel and conversion apply to personal property.
TRESPASS TO LAND
(Define & State the Rule)
Definition: Trespass to land is an intentional physical invasion on the property of another without permission or the right to enter.
Rule: To establish a Defendant’s liability for trespass to land, the Plaintiff must prove that the Defendant, without permission or right:
1) Intentionally entered or remained on the land of another, OR
2) Intentionally caused an object or person to enter or remain on the land of another.
Note:
1) The Plaintiff need only establish that the Defendant intended to enter, or cause another person or thing to enter, the Plaintiffs property.
2) Owners and possessors of land have standing to raise a trespass claim.
3) A trespass may occur above or below land.
4) At common law, only intrusion of tangible items or persons are recognized as actionable. Modernly, most jurisdictions recognize actions in trespass for intrusion of particles or gasses.
TRESPASS TO CHATTEL
(Define & State the Rule)
Definition: Trespass to chattel occurs when a person intentionally interferes with another’s right of use or possession of personal property.
Rule: To establish a Defendant’s liability for trespass to chattel, the Plaintiff must prove:
1) The Defendant acted intentionally to damage ortake possession of the chattel. AND
2) The Plaintiffs right of use or possession was actually interfered with (i.e., damages).
Note:
1) The Plaintiff need not demonstrate that the Defendant intended to interfere with the Plaintiff’s right of use or possession. Only the Defendant’s intent to commit the act (damaging or possessing the chattel) is required.
2) The length of time that the Plaintiff’s right of use or possession was interrupted is not relevant to establishing the Defendant’s liability (i.e., the Defendant’s possession of the Plaintiff’s chattel for a brief period will suffice), though the amount of time the Defendant interfered with the Plaintiff’s right is relevant to determining the amount of damages the Defendant will owe for the trespass.
CONVERSION
(Define & State the Rule)
Definition: Conversion occurs when a person intentionally and substantially interferes with another’s right of use or possession of personal property.
Rule: To establish a Defendant’s liability for conversion, the Plaintiff must prove:
1) The Defendant intentionally acted to substantially damage, alter, transfer, or withhold (for a substantial period of time) the Plaintiff’s chattel, AND
2) The Plaintiffs right of use or possession was actually and substantially interfered with (i.e., damages).
Note:
1) If found liable, the Defendant will be liable for the full value of the chattel, measured at the time of conversion.
2) The Defendant’s mistake as to who rightfully owns or possesses the chattel is not a defense.
LIST 7 DEFENSES AVAILABLE TO A DEFENDANT ACCUSED OF AN INTENTIONAL TORT
1) Arrest Privilege
2) Consent
3) Defense of Self (Self-Defense)
4) Defense of Others
5) Defense or Recapture of Chattel
6) Necessity
7) Shopkeeper’s Privilege
INTENTIONAL TORT DEFENSES:
ARREST PRIVILEGE
(State the Rule)
Rule: Depending upon the status of the person and the circumstances, an individual may be privileged to use a reasonable amount of force to carry out a warrantless arrest. Whether the privilege is available depends on:
1) Whether the individual carrying out the arrest is a police officer or private citizen,
2) Whether the suspected crime is a felony or a misdemeanor, AND
3) Whether the crime is in progress or has already been committed.
ARREST PRIVILEGE:
FELONY ARREST
(State the Rule)
Rule 1: Police officers and private citizens are privileged to carry out an arrest without a warrant for a felony if:
1) The arrestor reasonably believed the arrestee was committing or was about to commit a felony, AND
2) The felony is or is about to be committed in the arrestor’s presence.
Rule 2: Police officers, but not private citizens, are privileged to carry out a warrantless arrest for a felony that has been completed if the officer reasonably believes that:
1) A crime has been committed, AND
2) The arrestee committed the crime.
Note: The privilege applies even if the officer is mistaken in his belief that a crime has been committed or that he has the right person, so long as the belief is reasonable.
Rule 3: A private citizen is privileged to make an arrest for a felony that has already been completed only if:
1) The citizen reasonably believes that a crime has been committed, AND
2) A felony has actually been committed.
Note: The privilege applies if a citizen is mistaken in his belief that he has the correct person, but does not apply if he is mistaken in his belief that a crime was committed.
ARREST PRIVILEGE:
MISDEMEANOR ARREST
(State the Rule)
Rule: Police officers and private citizens are privileged to carry out a warrantless arrest for a misdemeanor if the misdemeanor is a breach of the peace and:
1) The crime occurred or is occurring in the arrestor’s presence. OR
2) If the crime was completed, the arrestor carried out the arrest in the immediate aftermath ofthe crime.
ARREST PRIVILEGE:
WHAT LEVEL OF FORCE MAY BE USED TO CARRY OUT AN ARREST?
Misdemeanor Arrest: A police officer or private citizen is privileged to use reasonable non-deadly force to carry out a misdemeanor arrest. Deadly force is not allowed.
Felony Arrest:
1) If the arrest is carried out to prevent or interrupt a dangerous or violent felony, deadly force may be used if no other option is available to the arrestee.
2) If the arrest is carried out after a felony has been committed:
a) Deadly force may be used by an officer if:
i) The arrestee poses a significant threat of death or serious bodily harm to the officer or others, AND
ii) The use of deadly force is reasonably necessary to prevent the arrestee from fleeing or harming others.
b) Deadly force may be used by a private citizen only if:
i) The person upon whom deadly force was used actually committed a violent or dangerous felony, AND
ii) Deadly force was reasonably necessary to prevent the arrestee from fleeing or harming others.