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)
Defense to Intentional Torts: Discipline or control of minor child
- Parents: May use reasonable force as necessary to discipline children
- Educators: May use reasonable force to maintain order or safety
Defense to Intentional Torts: Privilege of Arrest for Private Actors
Felony: Permitted to use reasonable force to make arrest if (i) felony has actually been committed; and (ii) arresting party has reasonable grounds to suspect that the person being arrested committed the felony
* No defense for mistakes as to identity of felon or whether felony was actually committed
Misdemeanor: Only if committed (i) in presence of arresting party and (ii) in breach of peace
Defense to Intentional Torts: Privilege of Arrest for Police
Felony: Must reasonably believe that (i) a felony has been committed and (ii) that the person arrested committed it.
* Not subject to tort liability if officer makes mistake as to whether felony was committed
Misdemeanor: Misdemeanor must have been committed in the officer’s presence
Defense to Intentional Torts: Merchant’s Privilege
- Seller privileged to use force for purpose of (i) investigating potential theft, (ii) recapturing personal property, and (iii) facilitating arrest
- Use of force must be (i) on or immediately near merchant’s premises, (ii) reasonable (no deadly force), and (iii) of reasonable duration
Trespass to chattels
Intentional interference with P’s right of possession by either:
(i) dispossessing or
(ii) using or intermeddling with P’s chattel
- Intent: Requires intent to perform the act that interferes; transferred intent applies
- Mistake of law or fact: Not a defense
- Damages: Actual, loss of use, nominal damages; no loss of use damages without dispossession
Conversion
Serious interference with plaintiff’s possession of her chattel that deprives P of the use of the chattel
* Intent: Must only intend to commit act that interferes; transferred intent does not apply (must intend to control particular chattel)
* Mistake of law or fact: Not a defense
* Damages: Full value of property or replevin
Trespass to land
Physical invasion of P’s property
* Intent: Enter land or cause physical invasion, not to trespass; transferred intent applies
* Defenses: Private or public necessity
Trespass to land: Private necessity defense
- Qualified privilege for person to enter or remain on land to protect own person/property from serious harm
- Not liable for trespass but responsible for actual damages
Trespass to land: Public necessity defense
- Absolute privilege to avert imminent public disaster
- Not liable for damage if actions reasonable or reasonable belief that necessity existed
Private Nuisance
A substantial (offensive to average reasonable person in community) and unreasonable (balance the interests of the plaintiff and defendant) interference with another’s use or enjoyment of his land
Private Nuisance: Defenses
- Regulatory Compliance: Incomplete defense; admissible but not determinative
- Coming to the Nuisance: Does not entitle D to judgment as a matter of law but jury may consider
Public Nuisance
Unreasonable interference with a right common to the general public
* Proper plaintiff: Private citizen suffering harm different in kind from general public
* Defenses: Same as private nuisance
Abatement of Nuisances
- Private: Reasonable force permitted to abate; must give D notice of nuisance and D refuses to act
- Public: Absent unique injury, public nuisance may be abated only by public authority
Negligence
A prima facie case of negligence requires proof of:
* Duty: Obligation to protect another against unreasonable risk of injury
* Breach: Failure to meet that obligatin
* Causation: Close causal connection between action and injury
* Damages: Harm suffered
Negligence: Punitive Damages
- Punitive damages may be awarded for torts involving intentional or reckless conduct, but not negligence, which involves mere unreasonable conduct
Duty
Owed to all foreseeable persons who may be injured by D’s failure to meet reasonable standard of care
* Cardozo (majority): Ps within zone of foreseeable harm
* Andrews (minority): If D can foresee harm to anyone resulting from his negligence, D owed duty to anyone harmed
Duty to Affirmatively Act
Generally, there is no duty to act. However, there is an affirmative duty to act in the following circumstances:
* Assumption of duty (e.g., aid or rescue)
* Placing another in peril
* By contract
* By authority
* By relationship (e.g., employer-employee, parent-child, common carrier-passenger)
* By statute imposing an obligation to act
Duty to Rescuers
- D liable for negligently putting rescuer/rescued party in danger
- Firefighter’s Rule: Emergency professionals barred from recovery if injury results from risk of job
Duty: Standard of Care
Reasonably prudent person under the circumstances (objective standard)
* Physical (not mental) characteristics are considered
* D who possesses special skills/knowledge must exercise superior competence with reasonable attention and care
Standard of Care: Intoxication
Voluntary intoxicated person held to same standard as sober person, but not if intoxication was involuntary
Standard of Care: Children
- Reasonable child of similar age, intelligence and expereince, unless child engaged in high-risk adult activity, then held to adult standard
- Children under 5 generally found incapable of negligent conduct
Standard of Care: Common Carriers
Highest duty of care consistent with practical operation of the business
Standard of Care: Inkeepers
- Majority: Ordinary negligence
- Common Law: “Slight negligence”
Standard of Care: Automobile Drivers
- Majority: Ordinary care to guests as well as passengers
- “Guest Statute” (Minority): Refrain from wanton & willful misconduct
Standard of Care: Bailor
- Gratuitous: Duty to warn bailee of known dangerous defects
- Compensated: Duty to warn bailee of defects that are known or should have been known by bailor had he used reasonable diligence
Standard of Care: Bailee
- Gratuitous: Liable only for gross negligence
- Compensated: Must exercise extraordinary care
- Mutual benefit: Must take reasonable care
Standard of Care: Sellers of real property
- Duty to disclose known, concealed, unreasonably dangerous conditions
- Liability to third parties continues until buyer has a reasonable opportunity to discover and remedy defect
Standard of Care (Restatement): Trespassers, Invitees, and Licensees
- Reasonable care under all circumstances
- Trespass considered by jury in determining reasonable care
- Flagrant trespasser: Duty not to act in intentional, willful or wanton manner causing physical harm
Standard of Care (Traditional): Trespassers
- Refrain from willful, wanton, reckless or intentional misconduct toward trespassers
- No “spring-guns”
Standard of Care (Traditional): Discovered Trespassers
Warn or protect against concealed, dangerous, artificial conditions
Standard of Care (Traditional): Undiscovered Trespassers
Generally no duty unless owner should reasonably know that trespassers are entering land, then same duty owed a licensee
Standard of Care: Attractive Nuisance
Involves injuries to trespassing children, liable if:
* Artificial condition exists in a place where owner knows or should know children are likely to trespass;
* Condition imposes and unreasonable risk of serious bodily injury;
* Children cannot appreciate danger due to their youth;
* Burden of eliminating danger is slight compared with risk of harm; and
* Land possessor failed to exercise reasonable care to protect children
Invitee
Invited to enter for purposes for which the land is held open or for business purposes
Standard of Care (Traditional): Invitee
- Reasonable care to inspect, discover dangerous conditions, and protect invitee from them
- Non-delegable duty
- Duty does not extend beyond scope of invitation
- Recreational Land Use: Only liable if (i) charges a fee or (ii) acts willfully, maliciously, or with gross negligence
Licensee
Enters land of another with permission or privilege (e.g., social guest; emergency personnel)
Standard of Care (Traditional): Licensee
- Warn of concealed dangers that are known or should be obvious
- Use reasonable care in conducting activities on the land
- No duty to inspect
Standard of Care: Landlords/Tenants
- Landlord: Injuries occuring in common areas resulting from hidden dangers about which landlord fails to warn, on premises leased for public use, as a result of a hazard caused by negligent repair, or involving a hazard landlord agreed to repair
- Tenant: Liable for injuries to third parties due to conditions within tenant’s control
Standard of Care: Off-premises victims
- No duty for harm by natural condition
- Duty to prevent unreasonable risk of harm caused by artificial condition