Torts (MBE/MEE) Flashcards
Intentional Torts: Elements
Three elements: Act, intent, causation
* Tortious Conduct: Voluntary act/failure to act
* Intent (Requisite Mental State): Purposeful (or reckless for IIED), or D knows consequence is substantially certain
* Causation: Resulting harm legally (i.e. factually and proximately) caused by D’s conduct
Transferred Intent
When intent to commit one tort satisfies required intent for a different tort; this applies when a person commits:
* Different intentional tort against same person that he intended to harm;
* Same intentional tort against a different person; or
* A different intentional tort against a different person
Transferred Intent: Battery, Assault, IIED, False Imprisonment
- Battery: Applies
- Assault: Applies
- False Imprisonment: Applies
- IIED: May apply if if instead of harming intended person D’s conduct harms another, but DOES NOT apply to IIED when D intended to commit a different intentional tort against a different victim
Battery: Elements
(1) D intends to cause contact with P’s person (or anything connected to P’s person);
(2) D’s conduct causes such contact; and
* Indirect contact counts
* D’s conduct must be voluntary and affirmative
(3) Contact causes bodily harm or is offensive to P
* Harmful: Injury, pain, illness
* Offensive: Reasonable-person standard (objective), or when D knows contact is highly offensive to P
Battery: Damages
- No proof of actual harm is required
- P can recover nominal damages
- Eggshell-plaintiff rule applies
- Many states allow punitivie damages if D acted **outrageously **or with malice
Eggshell-Plaintiff Rule
D is liable for all harm that flows from an accident/intentional tort, even if it is much worse than D expected it to be
Assault: Elements
(1) D intends to cause P to anticipate imminent, harmful, and offensive contact, and
* Anticipated contact: No actual contact required
* Imminence: Threats of future harm or threats made by D physically too far away do not count
* Mere words not enough
* Intend: Must intend either apprehension or contact itself
(2) D’s affirmative conduct causes P to anticipate such contact
* P’s apprehension must be reasonable and P must be aware of D’s acts
Assault: Damages
- No proof of actual damages required
- P can recover nominal damages
- Punitive damages may be available
Intentional Infliction of Emotional Distress (IIED): Elements
(1) Extreme and outrageous conduct by D, which
* Extreme and otrageous: Beyond human decency, outrageous
(2) Causes severe emotional distress to P, and
(3) Intentionally or recklessly caused by D
IIED: Public Figures
Public figures/officials must show words contain false statement of fact made with “actual malice,”
* Actual malice: Knowledge that statement was false or with reckless disregard to its potential falsity
IIED: Private Figures
Cannot recover if conduct in speech is in the context of a matter of public concern
IIED: Third Parties
- Related Bystanders: D can be liable if he distresses a member of victim’s immediate family who is (i) present at time of conduct and (ii) contemporaneously perceieves the conduct
- Defendant’s Purpose: If D’s purpose is to cause severe emotional distress to a third party, third party can recover if the distress results in bodily injury to the third-party, regardless of if the third party is a family member or contemporaneously perceived the event
IIED: Damages
- P must prove severe emotional distress beyond what a reasonable person should endure
- Hypersensitivity: D only liable if D knew of P’s hypersensitivity
- Physical injury is not required
False Imprisonment: Elements
(1) D intends to confine another within a limited area;
* Confinement: Limited area or when P is compelled to move in restricted way (e.g., physical barriers or force, threats, invalid use of legal authority, duress, failure to provide means of escape)
(2) D’s conduct causes P’s confinment or D fails to release P from confinement despite a duty to do so; and
* Length of confinement: Immaterial except as to amount of damages
(3) P is conscious of the confinement
Damages
* Majority: Actual damages unnecessary, P can recover nominal and punitive damages
* Minority: Actual damages necessary only if P was unaware of confinement
False Imprisonment: Damages
- P can recover nominal damages
- Actual damages are also compensable
Defenses to Intentional Torts
- Consent
- Self-defense
- Defense of third persons
- Defense of property
- Discipline or control of minor child
- Protect individuals from self-harm
- Privilege of arrest and other crime-related conduct
- Merchant’s privilege
Defense to Intentional Torts: Consent
- D not liable if P gave valid, voluntary consent
- Types of consent: Actual, apparent, or presumed
Consent: Actual, Apparent, Presumed
Actual (express): P is willing for conduct to occur; revoked by clear communication
* D’s conduct may not exceed scope of consent
Apparent: D reasonably believes that P actually consents
Presumed (implied): D is justified based on social norms or D has no reason to believe P would not actually consent if D had requested consent
* Emergencies: Fair to assume someone in need would allow rescuer to help absent explicit consent
* Injuries arising from athletic contests
* Mutual consent to combat
Defense to Intentional Torts: Self-defense
D must reasonably believe that force is (i) necessary and (ii) proportionate to the force P is intentionally inflicting
* Defensive purpose: D’s force must be defensive, but defense need not be D’s sole motive for force
* No duty to retreat: Including deadly force
* Withdrawal: D no longer has privilege to use force if P withdrawals
* Initial Aggressors: Generally not entitled to claim self-defense
Defense to Intentional Torts: Self-defense using Non-Deadly Force
D reasonably believes that (i) P’s force is intentional and unprivileged, (ii) D’s force is proportional, and (iii) D can prevent P’s force/threat only be immediate force
Defense to Intentional Torts: Self-defense using Deadly Force
D reasonably believes that (i) P’s force is intentional and unprivileged, (ii) D is at risk for death/serious bodily harm/rape, and (iii) D can prevail only by immediate use of deadly force
Defense to Intentional Torts: Self-defense and Bystanders
D may use nondeadly force against a bystander if (i) the force P is using against D is substantially greater than the force D uses against the bystander, and (ii) D’s use of force against the bystander is immediately necessary
Defense to Intentional Torts: Defense of Third Persons
(i) Reasonable belief that defended party is entitled to use force to defend themselves,
(ii) Immediately necessary
Defense to Intentional Torts: Defense of Property
D privileged to act to prevent P’s immediate intrusion if:
(i) P’s intrusion is not privileged;
(ii) D reasonably believes P is intruding/about to intrude and D can prevent it by means used;
(iii) D asks P to stop or such request would be useless/dangerous
(iv) Means used are reasonably proportionate to value of interest protecting; and
* Must use legal action to reclaim real or personal property wrongfully taken
(v) Means used are not intended to/likely to cause death/serious bodily injury
* No deadly force allowed (ex. deadly traps)